[2019] KEHC 1844 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

(APPELLATE SIDE)

(Coram: Odunga, J)

CIVIL APPEAL NO. 133 OF 2014

1. MUTUA MWANGANGI

2. MWANGANGI MUTUA.........................APPELLANTS

-VERSUS-

FELISTER MUENI KAUMBULU.............RESPONDENT

(Being appeal from the judgment of the Honourable M K Mwangi Ag. Senior Principal Magistrate court delivered on 12th June 2014 in Chief Magistrate’s Court, Kangundo in CMMC No. 445 of 2012)

=IN=

FELISTER MUENI KAUMBULU...................PLAINTIFF

=VERSUS=

1. MUTUA MWANGANGI

2. MWANGANGI MUTUA...........................APPELLANTS

JUDGEMENT

1. The subject of this appeal is Machakos CMCC No. 445 of 2012, a suit instituted by the Respondent herein against the Appellants for damages arising from a road traffic accident which occurred on 3rd February, 2012.

2. According to the Respondent, after the accident she lost consciousness and found herself at Machakos General Hospital at about midnight where she was admitted. According to her, her right hand was broken and she had injuries on the chest, right eye, nose bridge and cut wounds on her left leg and she was discharged after one week after which she was taken to Nairobi West Hospital. She was later examined by Dr Rono. It was her evidence that she needed metal implant. She was also seen by Dr Loiposha who prepared a report for her. According to her, she was informed that a plastic surgery would be necessary and a second implant was put. She was however unaware of the costs of removal of the implant though she knew it would cost money.

3. Dr Samuel Loiposha, PW1 testified that the Respondent suffered multiple facial deep cut wounds, brain contusion, right eye injury, fracture of the right clavicle and left lower limb blunt injuries. At the time of the examination she was complaining of blurred vision on the right eye, pain on the right shoulder, inability to use the right hand, occasional memory loss and cosmetic defect. According to him the Respondent was on orthopaedic follow up and management having sustained permanent cosmetic defects on the face that would require plastic surgery and ophthalmological follow up through specialised clinics. According to him, the Respondent had incurred huge expenses upon admission at Nairobi Hospital and would still incur future management including physiotherapy at an estimated cost of Kshs 1,900,000. 00.

4. Dr Rono’s report which was also exhibited however estimated that the cost of future medical report would be Kshs 355,000/-. This was however with respect to lower eyelid operation and reconstruction.

5. On the part of the Appellant, they called Dr Leah Wainaina who testified on behalf of Dr. Opiyo who prepared the report. According to Dr Opiyo’s report of the Respondent, the Respondent sustained a deep cut on the face and the nose and mild head injury. She also had cuts on the right side of the face extending to the eye but with no bone involvement. The chest x-ray showed fracture of the right clavicle while the CT scan revealed that the head was normal. It was her opinion that the plastic surgery would not be necessary as the scars were well healed but that the Respondent would require removal of the implant at an estimated cost of Kshs 30,000. 00 at a government or mission hospital. According to the said report, the initial treatment notes from Machakos Level V Hospital did not mention that the Respondent had brain contusion which would have been noted in the TC Scan. Though the Respondent complained of pain in the right eye, no blurred vision was reported and the injury did not extend to the eyeball as the cut was only on the eyelids. In the doctor’s opinion, the Respondent sustained a fracture of the right clavicle and soft tissue injuries on the face with no permanent disability.

6. In her judgement the learned trial magistrate Kshs 1,000,000. 00 as general damages, Kshs 100,416. 00 as special damages and Kshs 761,700/- as the cost of future medical care as well as the costs of the suit.

7. In this appeal, the Appellant concedes that the Respondent sustained multiple deep cut wounds on the face, right eye injury and fracture of the right clavicle. Based on Anne Ayuma Harrison vs. Simon Githure Murungo [2014] eKLR, Jaldessa Diba T/A Dikus Transporters & Anor vs. Joseph Mbithi Isika [2013] eKLR and George Kinyanjui T/A Climax Coaches & Anor vs. Hassan Musa Agoi [2016] eKLR, the Appellant submitted that the learned trial magistrate erred in awarding the sum of Kshs 1,000,000/- as general damages and Kshs 761,700/- as cost of future medical treatment.

8. On behalf of the Respondent, it was submitted that the sum of Kshs. 1,000,000/- awarded by the trial court is not excessive in the circumstances and this Honourable Court should not disturb the award as it is not inordinate high to represent an erroneous estimate but was fair and reasonable based on the injuries sustained by the Plaintiff/Respondent. In support of this position the Respondent relied on H.K.N (A child suing through her next friend L. N)vs.Kenafric Bakery LtdandEliphas MugambiH.C.C.CMeru Civil Case 100of2006andSylvano N. Nyaga & Another vs. Joseph Kogi Ngotho & 2 Others Nyeri H.C.C.C NO. 95 of 2002.

9. On the future medical expenses it was submitted that Doctor Opiyo’s report was biased and not based on any expertise was ambiguous for it never disclosed if the amount was inclusive of other expenses relevant to the surgery or it was the cost of the surgery hence the estimate was vague and not elaborate, as compared to the Reports by Doctors Kinyanjui’s, Doctor Rono and Doctor Loiposha who are either experts in the fields that the Respondent required surgery on or doctor’s in government institutions who are not biased. Doctor Loiposha opined that the total cost for the surgeries was Kshs. 1,900,000/-. The trial court who had the benefit of seeing the Respondent was able to hold that she did require future surgeries on the removal of the implants and for surgery for removal of the unsightly scars. The court awarded Kshs. 761,700/- after listening to all the witnesses and going through the documents produced by the Respondent. It was therefore submitted that the trial court was not misdirected in awarding the Kshs. 761,700/- as it was supported by the testimony and witnesses.

10. The Respondent therefore submitted that in view of the submissions it is clear that the Appellants have not established any case or evidence to disturb the awards awarded by the trial court. Further it is clear that the trial court was not misdirected in the awards under the general damages, future medical expenses and special damages as the same were not inordinately high and thus the Appeal fails on all grounds and we pray that the same be dismissed with costs to the Respondent.

Determination

11. This being a first appellate court, it was held in Selle vs. Associated Motor Boat Co. [1968] EA 123that:

“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

12. In this appeal, however, the appellant is only challenging the quantum of damages. The general law is that money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts, which are awarded, are to a considerable extent be conventional. See Tayab vs. Kinanu [1983] KLR 114; West (H) & Son Ltd vs. Shephard [1964] AC 326 at 345.

13. The Court of Appeal in Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:

“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

14. It was therefore held by the same Court in Sheikh Mustaq Hassan vs. Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457 that:

“The appellate court is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the Judge proceeded on a wrong principle or misapprehended the evidence in some material respect…A member of an appellate court when naturally and reasonably says to himself “what figure would I have made?” and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other Judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own…”

15. Similarly, in Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held that:

“In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”

16. It was therefore held by the same Court in Sheikh Mustaq Hassan vs. Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457 that:

“The appellate court is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the Judge proceeded on a wrong principle or misapprehended the evidence in some material respect… A member of an appellate court when naturally and reasonably says to himself “what figure would I have made?” and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other Judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own…The Judges of both courts should recall that inordinately high awards in such cases will lead to monstrously high premiums for insurance of all sorts and that is to be avoided for the sake of everyone in the country.”

17. The principles which ought to guide a court in awarding damages were set out by the Court of Appeal in Southern Engineering Company Ltd. vs. Musingi Mutia [1985] KLR 730 where it was held that:

“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated…The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion judgement and experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of the appellate tribunal to pose for himself the question as to award he, himself would have made. Having done so, and remembering that in this sphere there are invariably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment…It is inevitable in any system of law that there will be disparity in awards made by different courts for similar injuries since no two cases are precisely the same, either in the nature of the injury or in age, circumstances of, or other conditions relevant to the person injured. The most that can be done is to consider carefully all the circumstances of the case in question, and to consider other reasonably similar cases when assessing the award…it need hardly be emphasized that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before comparison between the awards in the respective cases can fairly or profitably been made. If however it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardized or that there should be any attempt to rigid classification. It is but to recognize that since in court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that Courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.”

18. In Eldoret HCCA No.29 of 2012 -George Kinyanjui T/A Climax Coaches and Equity Bank Limited vs. Hassan Musa Agoithe Plaintiff had two loose teeth, blunt trauma to the neck and chest, fracture of the left clavicle, fractures of the 4th and 5th left ribs, blunt trauma to the spinal column and right scapula area and dislocation of the left shoulder joint. The doctor who re-examined the Plaintiff confirmed the injuries but found no dental injury however. The court on appeal found an award of Kshs.800, 000/= was manifestly high and proceeded to award the Plaintiff Kshs.450, 000/=.

19. It is clear that the injuries in the said case were more serious than in the present case. However, taking into account inflationary tendencies I find that the award of Kshs 1,000,000. 00 was manifestly excessive.

20. Accordingly, I set aside the same and substitute therefor an award of Kshs 550,000. 00. As regards the cost of future medical expenses, I agree that both Dr Opiyo and Dr Loiposha’s Reports did not break down their estimates as opposed to Dr. Rono’s. In Parvin Singh Dhalay vs. Republic [1997] eKLR;[1995-1998] 1 EA 29,it was held that:

“It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo , Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-

"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."..."

21. Similarly, in Vaghella vs. Vaghella [1999] 2 EA 351 (CAT), it was held that:

“On professional and technical issues, courts should not make assumptions based on nothing but conjecture. Opinions of professional and technical people in the field is invaluable to enable the Court to make an informed finding…However opinion evidence is by no means conclusive. They are relevant but not binding; the weight to be attached on these opinions would depend on the nature of each case since many matters of common experience in respect of which persons with no special qualifications are permitted to state what is really a matter of opinion and such opinion is no less relevant than the opinion of a trained person.”

22. According to Dr Rono the Respondent required Kshs 355,000. 00 for facial reconstruction. In my view, the total sum awarded by the learned trial magistrate as future medical expenses cannot be said to have been unreasonable. While the cost of future medical expenses are special damages and whereas a claim for special damages should not only be pleaded but strictly proved what amounts to strict proof must depend on the circumstances that is to say, the character of the acts producing damage, and the circumstances under which those acts were done. See Nizar Virani T/A Kisumu Beach Resort vs. Phoenix of East Africa Assurance Company Limited Civil Appeal No. 88 of 2002 [2004] 2 KLR 269, Gulhamid Mohamedali Jivanji vs. Sanyo Electrical Company Limited Civil Appeal No. 225 of 2001 [2003] KLR 425; [2003] 1 EA 98, Coast Bus Service Ltd vs. Sisco E. Murunga Ndanyi & 2 Others Civil Appeal No. 192 of 1992.

23. Although the Appellant contended that the trial court ought to have applied the rates applicable in government and mission institutions, while I appreciate that an award ought to be compensatory and not penal, I do not agree that a person who has suffered injury as a result of the negligent acts of another ought to go to all the trouble in saving the wrongdoer the expenses. While on occasions depending on the injuries sustained by a party it may be unreasonable, for example, for the victim to use taxis as a means of going to hospitals, it would be unreasonable to expect the said victim to use motor cycle as a means of seeking such medical treatment with a view to saving the defendant the expenses. The old time legal adage that one who owes a duty of care to another must take his victim as he finds him clearly applies to this case. See Wambua vs. Patel & Another [1986] KLR 336.

24. In my view the award made by the learned trial magistrate under the head of future medical expenses was reasonable in the circumstances and ought not to be interfered with.

25. In the premises I set aside the award of Kshs 1,000,000. 00 given to the Respondent as general damages and substitute therefor an award of Kshs 550,000. 00. Save for that this appeal fails with costs to the Respondent as the Appellant did not comply with the directions of the court to furnish the court with soft copies of the submissions.

26. Orders accordingly.

Judgement read, signed and delivered in open Court at Machakos this 25th November, 2019

G V ODUNGA

JUDGE

Delivered the presence of:

Miss Kaloki for Miss Kavita for the Respondent.

CA Susan