[2023] KEHC 24970 (KLR)

Mwangi & another v Nyaaga (Civil Appeal E35 of 2022) [2023] KEHC 24970 (KLR) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24970 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E35 of 2022

HI Ong'udi, J

November 3, 2023

Between

Joseph Maina Mwangi

1st Appellant

Day By Day Holding Limited

2nd Appellant

and

Sharon Nyamoita Nyaaga

Respondent

(Being an Appeal from the Judgment delivered by the Honourable Y. M. Barasa, Principal Magistrate on the 24th March, 2022 in Naivasha CMCC No. 344 of 2019)

Judgment

1. This appeal arises from a judgment and decree entered in Naivasha Chief Magistrate’s Civil Suit No. 344 of 2019. In the said suit, the Respondent sued the Appellants for both general and special damages arising from a road traffic accident in which she sustained personal injuries.

2. The 1st Appellant was the driver of the motor vehicle registration No. KCF 804 L Toyota Van which allegedly hit the Respondent while the 2nd Appellant was the registered owner of the said vehicle. The claim was fully defended and the trial Magistrate delivered a judgment on 24th March,2022 in which he found the Appellants 100% liable for the accident. He awarded general damages of Ksh. 1,200,000/= and special damages of Ksh 8,650/= plus costs and interest.

3. The Appellants are aggrieved with the judgment on both liability and the award on general damages. They lodged this appeal on 21st April,2022 setting out the following grounds of appeal:i.That the Learned Magistrate erred in fact and in Law in awarding the Respondent Ksh. 1,200,000/= general damages and Ksh. 8,650/= special damages which amount was exorbitantly high in the circumstances and injuries suffered by the Respondent.ii.The Learned Magistrate erred in fact and in law in holding that the Respondent had proved his case on a balance of probabilities which finding was against the weight of evidence on record.iii.That the learned Magistrate erred in law and in fact in awarding the Respondent Ksh. 1,208,650/= as quantum which finding is against the weight of the evidence on record.iv.That the learned Magistrate erred in law and in fact when he failed to consider the Appellants’ evidence on points of law and facts with regard to quantum based on the injuries sustained and age of the respondent.v.The learned Magistrate’s decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.vi.The learned trial magistrate erred in law and in fact in failing to pay regards to submissions and decision filed alongside the defendants’ submissions that were guiding in the amount of quantum that is appropriate and applicable on similar injuries as the case he was deciding.vii.The learned magistrate erred in fact and in law in finding that the Respondent was entitled to Ksh.1, 208,650/= quantum as against the Appellants.

4. The Appeal was canvassed through written submissions.

The Appellant’s Submissions 5. The appellants submissions were filed by Kimondo Gachoka advocates and are dated 14th April, 2023. Counsel submitted that the respondent sustained blunt injury to the head leading to mild injury and deep cut wound on the forehead amounting to soft tissue injuries. However, the P3 form and medical report by Dr. Omuyoma in addition to the above injuries stated that the respondent sustained loss of eyesight.

6. Counsel argued that the trial court erred in holding that the injury to the eye was a gradual process and secondary to the injuries sustained as a result of the accident since the said injury was not captured in the original treatment notes. He additionally submitted that the original treatment notes should form the basis of the injuries sustained by the respondent in an accident. In support of this position, reliance was placed on the case of Timsales Ltd v Wilson Libuywa [2008] eKLR.

7. Relying on the case of Power Lighting Company Ltd & Another v Zakayo Saitoti Naigola & another [2008] eKLR cited in the case of Jennifer Mathenge v Patrick Muriuki Maina [2020] eKLR counsel urged this court to substitute the award of Ksh. 1,200,000/= with Ksh. 80,000/= based on the following authorities: -1. Ndung’u Dennis v Ann Wangari Ndirangu & Anor (2018) eKLR where the claimant sustained injuries on the right lower leg and bruises on the back. An award of Kshs. 300,000/= was reduced to Kshs. 100,000/= on appeal.2. Nyambati Nyaswabu Erick v Toyota Kenya Limited & 2 others [2019] eKLR where the plaintiff sustained a deep cut injury on the scalp extending to the maxilliary area, blunt injury to the left side of the chest, contusion on the back and contusion on both legs and was awarded Kshs 90,000/-3. Eva Karemi & 5 others v Koskei Kieng & another [2020] eKLR where the high court on appeal upheld the trial court general damages of Ksh. 70,000/= awarded to the 1st Appellant who had sustained injuries to her right thigh and general bruises on her lower and upper limbs; Ksh,, 40,000 awarded to the 2nd Appellant who had sustained injuries on the right shoulder pain and cut wound on her mouth; Ksh.45,000/= awarded to the 3rd Appellant for injuries on and pain on her back and right shoulder pain;Ksh.40,000/= awarded to the 4th Appellant for cuts on the chin and right shoulder tenderness;Ksh.60,000 for 5th Appellant for sustained 2cm cut on the forehead, cut wound on the right elbow and right limb (leg and ankle joint); & Ksh. 65,000/= awarded to the 6th Appellant for bruises on the forehead, hip and left ankle.

Respondent’s Submissions 8. These were filed by Shem Kebongo advocates and are dated 14th April, 2023. Counsel submitted that as per the amended plaint dated 11th September, 2020 the respondent pleaded that he sustained a blunt injury to the head leading to soft tissue injuries, deep cut wound on the forehead resulting in soft tissue injuries and loss of eye sight to the left eye. He contended that medical records were all produced during the trial.

9. In support of the awarded damages he cited the following cases:a.Kenya Power and Lighting Company Limited v Bernard Mutuku Kilonzo [2015] eKLR where Justice Onyancha sitting on appeal awarded the plaintiff Kshs. 1,500,000 for loss of eye sight on the left eye, burns on the scalp and forehead.b.Isaac Njuguna v Farmland Aviation Ltd, [2018] eKLR in which the court awarded Kshs. 4,000,000 as general damages to a plaintiff who had suffered several injuries including total blindness to the left eye.c.Bonaventure Andrew Omuse v Dan Kiage & another [2019] eK where the plaintiff underwent a cataract surgery on his left eye and thereafter developed complications to his left eye which further worsened his vision was awarded General damages of Kshs. 2,000,000/=

10. He thus urged the court to dismiss the appeal.

Analysis & Determination 11. This being a first appeal, parties are entitled to expect a rehearing of the case with the court giving its own determination. In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyse and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that.

12. In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal stated that;“[A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this 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 allowances in this respect”

13. Also see Peters v Sunday Post Ltd [1958] EA 424, and Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR

14. Having considered the record of appeal, the submissions and the authorities relied on by the respective parties, I opine that the issues for determination are:i.Whether the Appellants were wholly liable for the accident.ii.Whether the award on general damages was manifestly excessive

Issue No. (i) Whether the Appellants were wholly liable for the accident. 15. The respondent who was the plaintiff in the trial court testified as PW2. She was a passenger in motor vehicle registration number KCF 804L (matatu) driven by the 1st Appellant. It was her evidence that they were travelling from Nairobi to Nakuru. On the way the 1st Appellant while driving at a high speed tried to overtake but realized there was an oncoming vehicle. When he tried to get back to his lane he hit a stationery vehicle parked off the road. As a result of the accident she got injured.

16. The investigating officer (PW1) P. C Paul Komen No. 86335 from Gilgil police station stated that the accident involved motor vehicle reg. No. KCF 804L, (matatu) and motor vehicle reg. no. KBP 138H/ZD6422. He confirmed that one of the passengers in motor vehicle reg no. KCF 804L, which was blamed for the accident died.

17. The Appellants did not call any witness to give their version of how the accident occurred. The 1st Appellant who was the driver of the motor vehicle blamed for the accident should have testified to enlighten the court on how the accident occurred. Failure to testify left the court with the evidence of the Investigating officer and the respondents (PW1 & PW2) which remains unchallenged. I therefore find ground (ii) of the Appeal not proved. The Appellants were wholly to blame for the accident.

Issue No. (ii) Whether the award on general damages was manifestly excessive 18. It is imperative to note that an appellate court would not easily interfere with the trial court’s discretion on this issue unless it found that the trial court applied wrong principles in arriving at the finding. This was stated by the Court of Appeal in the case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini v A M. Lubia and olive Lubia 91985) 1 KAR 727:“.... the principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial court are well settled. The appeal court must be satisfied either that the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages....”

19. Further the Court of Appeal in Odinga Jackton Ouma v Moureen Achieng Odera [2016] eKLR stated:“comparable injuries should attract comparable awards”

20. The contest is with regard to the alleged loss of eye sight in the respondent’s left eye. The Appellants’ doctor testified that the Respondent did not suffer loss of eye sight. This issue is crucial and must therefore be determined first as assessment of damages is premised on the injuries sustained.

21. As per the Amended plaint dated 11th September,2020, the Respondent pleaded that she sustained the following injuries: -i.Blunt injury to the head leading to mild injury.ii.Deep cut wound on the forehead leading to Soft Tissue Injuries.iii.Loss of eye sight in the left eye.

22. The injuries pleaded match with those stated in the medical report by the Respondent’s doctor. The Respondent’s doctor also classified the degree of injury as grievous harm and assessed disability at 10%. He admitted that the loss of eye sight in the left eye was not captured in the treatment notes and asserted that he noted it when examining the Respondent. He explained that the eye injury was as a result of the head injury. According to the Appellants’ doctor, the Respondent sustained mild head injury and soft tissue injury. She stated that upon examining the Respondent it was revealed that there was loss of eye sight in the left eye. However, she strongly contested that the said injury was as a result of the material accident the for sole reason that it was not included in the initial treatment notes.

23. Both doctors who examined the Respondent noted that there were present complaints of headaches. The subject accident happened on 3rd October, 2018 and the P3 form produced in evidence was filed on 31st October, 2018. That is precisely 28 days after the accident. The report indicates that the Respondent sustained loss of eye sight in the left eye. The doctors who examined the Respondent on diverse dates confirmed that she had also sustained the injury in issue.

24. In as much as the injury to the eye was not included in the initial treatment notes, I find the explanation by the Respondent’s doctor that the same was as a result of the head injury plausible. It is highly improbable that the Respondent might have been involved in another accident that resulted in the injury in question. Considering that the standard of proof in civil cases is on the balance of probabilities, I am persuaded that the Respondent also sustained loss of eye sight in the left eye as a result of the accident in issue.

25. I will now proceed to determine the question on quantum of damages. In arriving at an award of Ksh1,200,000/=, the learned trial Magistrate was guided by the case of Charles Komoso Toton v Reuben Cherutich Chebon & another [2012] eKLR where the court awarded Kshs. 1,600,000/- as general damages. This was for severe head injury with fracture of the base skull resulting in loss of sight in the right eye, fracture of the right humerus head with dislocation of the right shoulder joint and fracture of the left humerus in the lower one third.

26. I have considered the authorities cited by both parties in support of their rival positions. The most comparable decision is that of Kenya Power & Lighting Company Limited v. Benard Mutuku Kilonzo (2015) eKLR cited by the Respondent. The victim therein only sustained severe burns on the scalp and forehead with a total loss of sight in one eye. The High Court awarded Kshs. 1,500,000/= on general damages in 2015.

27. I have also looked at the case of Gerald Nzoia Ndonga v Susan Mukoma & another [2019] eKLR where Kshs 1,500,000/= was awarded as general damages for major head injuries leading to swelling of the brain and right eye sight progressively deteriorated leading to blindness, fracture of the condyles of the right humerus and stiffness of the elbow contributing to 75% disability.

28. The appellants in the above two cases sustained more severe injuries compared to the Respondent herein. After taking into account all the foregoing decisions, and the rate of inflation, I am of the considered view that the awarded damages were a little bit on the higher side. I hereby set aside the award of Ksh 1,200,000/= and substitute it with an award of Ksh 1,000,000/=. The award of Ksh 8,650/= as special damages is upheld.

29. The upshot is that the appeal succeeds to a small extent and the following are the orders:i.Liability upheld at 100%ii.Award of Ksh 1,200,000/= set aside and substituted with an award of Ksh 1,000,000/= for general damages.iii.Award of Ksh 8,650/= for special damages is upheldiv.Costs to the Respondents.

DELIVERED VIRTUALLY, DATED & SIGNED THIS 3RD DAY OF NOVEMBER, 2023 IN OPEN COURT AT NAKURU.H. I. ONG’UDIJUDGE