[2023] KEHC 25557 (KLR)

Mwitari v RK alias RK (Suing through his next friend NK (Minor) (Civil Appeal E051 of 2022) [2023] KEHC 25557 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25557 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E051 of 2022

A Mshila, J

November 17, 2023

Between

Joseph Thangicu Mwitari

Appellant

and

RK alias RK (Suing through his next friend NK (minor)

Respondent

(Being an appeal from the original judgment delivered by Honourable L.M.Wachira (CM) on 14th October, 2021 in Gatundu CMCC NO. 213 of 2018)

Judgment

Background 1. By a Plaint filed on 22/06/2018, the Respondent herein being the next friend to RK alias RK (Minor) sued the Appellant claiming compensation for injuries sustained by the minor on 28/03/2018 when the minor was lawfully travelling as a passenger in motor vehicle registration number KCE xxxE Nissan Van along Thika-Nairobi road at [Pariticulars Witheld] when the same was so negligently driven by the Appellant and/or his authorized driver that it lost control and hit motor vehicle registration number KCE xxxU causing an accident whereby the minor sustained serious injuries thereby suffered pain and loss.

2. The Appellant filed his Defence denying any liability for the accident. In particular, the Appellant denied being the driver of motor vehicle KCE xxxE Nissan Van and that the minor was travelling in the accident motor vehicle. The accident was attributed to the negligence of the minor.

3. The matter proceeded to a full hearing. By consent of parties the liability in Gatundu CC No. 47 of 2018 being the test suit was adopted in this instant suit being liability at 100% in favour of the Plaintiff against the Defendant.

4. On quantum, the Honourable Trial Magistrate entered judgment as follows:a.General damages…..........................................Kshs. 650,000/=b.Special damages……………………………....Kshs. 11,530/=Total Kshs. 661,530/=

5. The Appellant is dissatisfied with the lower Court’s judgment and has preferred the present Appeal. In his Memorandum of Appeal, he has listed eight grounds of appeal as follows:-a.That the Learned Trial Magistrate erred in fact and law and misdirected herself in finding that the Respondent is entitled to general damages of Kshs. 650,000/= and special damages of Kshs. 11,530/= with costs and interests.b.That the trial magistrate erred in law and in fact and misdirected herself when she failed to consider the Appellants submissions on both points of law and facts.c.That the Learned Trial Magistrate misdirected herself in ignoring the principles applicable in awarding quantum of damages and relevant authorities on quantum cited in the written submissions presented and filed by the Appellants.d.That the Learned Trial Magistrate proceeded on wrong principles when assessing the damages to be awarded to the Respondent.e.That the Learned Trial Magistrate failed to apply herself judicially and to adequately evaluate the evidence and exhibits tendered on quantum thereby arriving at a decision unsustainable in law.f.That the Learned Magistrate erred in law and fact in arriving at the said decision.g.That the Learned Trial 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.h.That the Learned Trial Magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.

6. The court directed the parties to canvass the appeal by way of written submissions.

Appellant’s Submissions 7. The Appellant submits that according to the Plaint, P3 and medical report from Prime Medical Services Ltd, the Respondent sustained fracture maxillary, facial oedema, soft tissue injury of the pen orbital region right eye and missing 2 teeth and was awarded Kshs. 650,000/= which was said to be excessive. An award of Kshs. 500,000/= was said to be reasonable being that the Respondent suffered fracture and soft tissue injuries. Reliance was placed in the case of Power Lighting Company Limited & another vs Zakayo Saitoti Naingola & another (2008) eKLR cited in the case of Jennifer Mathenge vs Patrick Muriuki Maina (2020) eKLR. The court was urged to consider the case of Telcom Orange Kenya Limited vs I S O minor suing through his next friend and mother J N (2018) eKLR among other cases where the Respondent sustained head injury occasioning a depressed skull, fracture of the skull, loss of consciousness, scars of the left tempo-parietal area and bruises on the left leg, chronic headaches and blurred vision. The trial court awarded Kshs. 500,000/=. Lastly, that costs follow the event.

Respondent’s Submissions 8. The Respondent submit that the injuries suffered by the minor are not disputed and the same are fracture maxillary, facial oedema, soft tissue injury of the peri ordital region right eye and two missing teeth. The Respondent was said to have suffered a lot of pain from the injuries and was hospitalized for a week. The injuries were characterized as severe skeletal injuries and multiple severe soft tissue injuries which caused grievous harm. The award of Kshs. 650,000/= by the trial court was said to be justifiable. The trial magistrate was said to have taken into account the Appellant’s submissions and evidence. Reliance was placed in among other cases the case of Peter Gichuru Mwangi vs James Kabathi Mwangi (2001) eKLR where the court awarded Kshs. 600,000/= to a Plaintiff who sustained injuries to the head, ophthalmic injury to the right eye, severe face injuries, right zygomatic complex fractures, orbital fractures, naso ethmodial complex fracture, comminute palatal fractures with evidence of both loss on the left side compound comminuted resort fracture causing injuries. In the circumstances the appellate court was urged to uphold the award and dismiss the appeal with costs.

Trial Court’s Evidence 9. During the hearing at the trial court, NK (PW1) the minor’s mother wished to adopt her statement as her evidence as well as her filed documents. She stated that the minor had travelled together with her grandmother when she sustained a fracture on one side of the head, lower jaw, injury on the right eye and bruises on the mouth. She produced receipts of Kshs. 11,530/= for medical bills.

10. Dr. George Kimiri Karanja (PW2) examined the minor and identified the injuries as fracture of maxilarory bone, facial and eye injury and 2 missing teeth. He stated that the child was admitted in the hospital for 16 days. On examination, the child was found to have a deformed face with oedema and that she had lost teeth.

Issues For Determination 11. Having read and considered the submissions by the parties and the case law relied upon, the main issue for determination is whether the damages awarded were inordinately high.

Analysis 12. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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 allowance in this respect..."

Whether the damages awarded were inordinately high. 13. On quantum, the Appellant alleges that the Learned Trial Magistrate awarded damages that were excessive considering the injuries sustained by the respondent.

14. General damages awarded at the lower court can only be interfered with if it is “so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the (court) proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” (See Butt –vs- Khan, Nairobi Civil Appeal NO. 40 of 1977).

15. A similar view was expressed in by the Court of Appeal in Gitobu Imanyara & 2 Others V Attorney General (2016) eKLR thus:-“It is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.”

16. The trial court considered the injuries in question and the submissions by the parties and awarded Kshs. 650,000/=.

17. The Appellant’s case was that the award by the trial court was excessive. He opined that the award of Kshs. 650,000/= should be substituted with an award of Kshs. 500,000/=.

18. This court is alive to what Kneller J.A, stated in Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.M. Lubia and Olive Lubia (1985) that:-“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 judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

19. In Gicheru v Morton & another (2005) 2 KLR 333, the Court of Appeal again stated that“in order to justify reversing of the trial court’s amount of damages, it is necessary that the appellate court be convinced either that the trial court acted upon some wrong principle of law, or that the amount awarded is so extremely high or so very small as to make it, in the judgment of the court, an entirely erroneous estimate of the damage to which the appellant was entitled.”

20. The same Court similarly observed in Denshire Muteti Wambua V Kenya Power And Lighting Co. Ltd (2013) eKLR that:-“Monetary awards can never adequately compensate a litigant for what they have lost in terms of bodily function especially where this is permanent. But awards have to make sense and have to have regard to the context in which they are made. They cannot be too high or too low but they have to strike a chord of fairness.”

21. Having applied these principles to this appeal and also having considered the fact that the Respondent suffered skeletal injuries and multiple severe soft tissue injuries characterized as grievous harm. This court finds no reason to interfere with the trial court’s awards. Only in clear cases should an appellate court interfere with a trial court’s assessment of damages. The appellate court should not impose its own view on what it would have awarded had it been the one trying the matter at first instance.

22. Neither the Appellant nor the Respondent have shown that the awards were either extremely low or high to represent an entirely erroneous estimate of the awards the Respondent was entitled to.

23. In the instant case, this courts considered view is that the damages awarded by the trial are reasonable. This court finds no good reason to disturb the award given as it is found not to be inordinately low or excessively high and/or based on the wrong principles of law.

Findings And Determination 24. For the forgoing reasons this court finds the appeal to be devoid of merit and it is hereby dismissed with costs.

Orders Accordingly

DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 17TH DAY OF NOVEMBER, 2023. A.MSHILAJUDGEIn the presence of;Mourice – Court AssistantNjuguna – for AppellantGathoni – for Respondent