[2023] KEHC 23652 (KLR)

Nanyuki Express Cabs Savings and Credit Cooperative Society v Ikungu (Civil Appeal 67 of 2020) [2023] KEHC 23652 (KLR) (17 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23652 (KLR)

Republic of Kenya

In the High Court at Meru

Civil Appeal 67 of 2020

LW Gitari, J

October 17, 2023

Between

Nanyuki Express Cabs Savings And Credit Cooperative Society

Appellant

and

Salesio Mugambi Ikungu

Respondent

(Being an Appeal from the original Judgment delivered by the Honourable Chief Magistrate Hon. D.W. Nyambu (CM) on 8th July, 2020 in Meru CMCC No.249 of 2019)

Judgment

1. This appeal arises from the judgment delivered on 28th July, 2020 in Meru CMCC No. 249 of 2019 where the Respondent’s claim against the Appellant was for general and special damages arising from a road traffic accident that allegedly occurred on 27th June, 2018 and was allowed by assessment of liability at 90% in favour of the Respondent and an award of Kshs. 300,000/= general damages, Kshs. 34,480/= as special damages, together with costs of the suit and interest thereof.

2. Aggrieved by the said judgment, the Appellant instituted this appeal vide the Memorandum of Appeal dated 14th August, 2020 raising the following seven (7) grounds of appeal: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. 300,000/= which amount is excessive for minor soft tissue injuries.b.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 Appellant.c.That the learned trial magistrate proceeded on wrong principles when assessing the damages to be awarded to the Respondent (to apply precedents and tenets of law applicable).d.That the learned trial magistrate failed to apply herself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision unsustainable in law.e.That the learned magistrate erred in law and fact in arriving at her said decision.f.That the learned trial magistrate’s decision was unjust, against the weight of evidence and based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.g.That the learned trial magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.

3. The Respondent opposed the appeal and urged the court to find the decision in Meru CMCC 249 /2019 was fair and dismiss the Appeal. The appeal has canvassed by way of written submission.

The Appellant’s Submissions 4. It is the Appellant’s submission that the medical report prepared by one Dr. Koome listed injuries that were different from the treatments notes he relied on to prepare the said report. That as such, the trial court ought to have disregarded the injuries in the medical report of the aforementioned Dr. Koome and use the treatments notes from St. Theresa Mission Hospital and Timau Sub-county hospital. It was further the Appellant’s submission that the Respondent sustained soft tissue injuries and as such an award of Kshs. 100,000/= would be adequate compensation. The Appellant thus prayed for this appeal to be allowed as prayed and that the Appellant be awarded costs of the appeal.

5. The Appellant urged this Court to rely on the following cases:a.In Maimuna Kilungya v Motrex Transporters Ltd [2019]eKLR where the court substituted the lower court judgment and awarded Kshs. 125,000/= for blunt neck injury, blunt injury left shoulder and bruises on the left ear.b.In Daniel Gatana Ndungu & Another v Harrison Angore Katana [2020] eKLR where the court substituted the lower court judgment of Kshs. 350,000/= and awarded Kshs. 140,000/= for cut on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee.c.In PF (Suing as next friend and father of SK (Minor) v Victor O Kamadi & Another [2018] eKLR where the court substituted the lower court judgment of Kshs. 50,000/= for cut wound to forehead, multiple small abrasions to the face, blunt injury to the head leading to loss of consciousness for some time, abrasion to the back, abrasion wounds to the dorsum of the right hand and cut wound to the right leg Kshs. 100,000/=.

The Respondent’s Submissions 6. On his part, it was the Respondent’s submission that the award of Kshs. 300,000/= as general damages was not excessive considering that the Respondent suffered laceration on the right anteromedical of the shin and small multiple lacerations of the scalp as per the testimony of Dr. Nicholas Koome. It was further the submission of the Respondent that owing to the economical constraints and change of the value of the currency, it would have been a great injustice if the court awarded damages of Kshs. 50,000/= as prayed by the Appellant herein. That in any event, this Court should increase the amount of Kshs. 1,000,000/=. Finally, it was the Respondent submission that the Appellant has failed to prove their case on a balance of probabilities and as such, the decision of the trial court was fair and this appeal ought to be dismissed with costs.

Issue for Determination 7. I have carefully considered the judgment of the trial court, the grounds of appeal and the record of appeal as well as the submissions by the parties. The main issue that arises for determination is whether the trial court erred in awarding the Respondent Kshs. 300,000/= as general damages for injuries suffered by the Respondent.

Analysis 8. This is a first appeal. It is therefore this Court’s duty to evaluate the entire evidence on record bearing in mind that it had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle v Associated Motor Boat Co. Ltd. [1965] EA 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own independent conclusions in the matter.

9. Guided by the said authority, I now turn to the evidence that was presented before the trial court.

10. The Appellant testified as PW1. He adopted his witness statement as his evidence in chief and produced as exhibits copies of the documents listed in his list of documents. On cross examination, it was his testimony that the accident occurred on 26th June, 2018. That he was aboard a matatu registration number KBX 579B from Makutano to Timau when the said motor vehicle got into an accident with probox registration KBM 746A which was ahead of them while the matatu was overtaking. He stated that as a result of the accident he was injured on the right leg and left eye and had a wound which took two months to heal. That he was also hit on the knee. He further stated that he was treated at St. Teresa Mission Hospital Kiirua then at Timau Level Hospital (sic). On re-examination, he rectified and stated that the accident occurred on 27th June, 2018 and that the driver of the matatu was speeding while on phone. According to him, the matatu was to blame for the accident.

11. PW1 testified as the sole witness and subsequently the parties recorded a consent on liability at 90:10 in favour of the Respondent. The parties also agreed have the Plaintiff’s documents produced and then submitted on damages.

12. In the case of Mbogo &anotherv Shah [1968] EA 93, it was held that an award of damages entails exercise of judicial discretion which should be exercised judicially and that means that it must be exercised upon reason and principle and not upon caprice or personal opinion. The jurisprudence that has emerged in cases of violation of fundamental rights has cleared the doubts about the nature and scope of this public law remedy evolved by the Court.

13. The injuries as particularized in paragraph 6 of the plaint dated 26th August, 2019 as well as the medical report dated 5th November, 2018 of Dr. Nicholas Koome and that was produced before the trial court are as follows:a.Lacerations and muscle contusion on the left forearm and dorsum of the hand.b.Deep laceration on the right anteromedial aspect of the shin.c.Small multiple lacerations on the scalp.

14. The said medical report of Dr. Koome was produced in evidence by consent of the parties without any objection by the Appellant. As such, the trial court was correct to rely on the same and it is surprising that the Appellant has turned back now in the present appeal and claimed that the injuries contained in the said medical report did not match those in the initial treatment notes. These were not pleaded. There is no prayer to vacate the consent on the production of the medical report by Doctor Koome. The submission that the court disregards the medical report is with respect an abuse of court process which cannot be entertained. There are requirements for setting aside consent orders and have not been followed.

15. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike (See: Stanley Maore v Geoffrey Mwenda [2004] eKLR).

16. On quantum of general damages, the Respondent proposed and award of Kshs. 1,000,000/= citing the case if Ali Issa Ali v. East African Portland Cement Company [2016] eKLR where an award of Kshs. 600,000/= was made the Appellant sustained a subdural haematoma and was admitted in hospital for ten (10) days.

17. The Appellant proposed and award of Kshs. 50,000/= as general damages plus special damages. The Appellant relied on the following cases:a.Nyambati Nyaswabu Erick v Toyota Kenya Limited & 2 others [2019] eKLR where the Appellant suffered a deep cut on the scalp extending to the maxilliary area, blunt injury to the left side of the chest, and contusion on the back and contusion on both legs. It was the finding of the court that the Appellant had sustained some severe soft tissue injuries and went ahead to award him Kshs. 90,000/= as general damages subject to the agreed contribution of 75:25. b.Mokaya Mochama v Julius Momanyi Nyokwoyo [2013] eKLR where the Appellant sustained cerebral concussion (that is lost consciousness for a short duration), deep cut wound on the back of his head, and bruises on the right foreleg. The court classified the injuries as sever soft tissues and awarded the Appellant Kshs. 70,000/= as general damages.c.Pamela Ombiyo Okinda v Kenya Bus Services Ltd Nairobi HCCC No. 1309 of 2002 where the Plaintiff sustained blunt head injury with loss of consciousness, deep cut on the forehead and both legs, soft tissue injury to the neck, and blunt trauma to the hip and right eye. The court concluded that the plaintiff sustained soft tissue injuries and awarded her the sum of Kshs. 50,000/= as general damages.d.Boniface Waiti & Another v Michael Kariuki Kamau [2007] where the plaintiff suffered bruises and contusions to the neck, shoulders, back and upper arm. The court in this case awarded him Kshs. 85,000/= plus special damages.e.Odongo v Mokaya [2004] eKLR where the Appellant sustained a cut wound on the lower lip, loosening of two teeth, and injuries on the chest and lower limbs. The judge awarded him Kshs. 50,000/= terming the injuries as moderately severe.

18. The learned trial magistrate considered the proposals by the parties and the authorities relied on and correctly found that the authority submitted by the Respondent related to injuries far much worse than those sustained by the Respondent in this case. Noting that the Respondent had not fully recovered and relied on painkillers to reduce the pain, the learned trial magistrate held that an award of Kshs. 300,000/= would adequately compensate the Respondent for the injuries that he suffered.

19. I have considered the medical report by Dr. Nicholas Koome. As stated above Respondent suffered lacerations and muscle contusion on the left forearm and dorsum of the hand; deep laceration on the right anteromedial aspect of the shin; and small multiple lacerations on the scalp. He concluded that the respondent sustained serious injuries following the accident and he recovered without any permanent incapacitation. The degree of injury is harm. The P3 defines harm as “any bodily hurt, disease or disorder whether permanent or temporary.” In this case the injuries were not permanent. There was no indication that he would require medication for pain. The injuries sustained were soft tissue injuries.

20. It is trite that no injuries suffered by one plaintiff will be the same as those suffered by another plaintiff. They are bound to be different. Therefore, past judicial decisions only act as a guide but not as a fixed measure of sort. In the circumstances and guided by the case of Daniel Gatana Ndungu & Another (supra) cited by the Appellant, it is my view that the injuries therein are comparable to the injuries suffered by the Respondent herein. I find that I have reason to interfere with the decision of the Learned Trial Magistrate in awarding Kshs. 300,000/= in general damages. I am satisfied that an award of Kshs. 150,000/= would be sufficient compensation.

Conclusion 21. The upshot of the foregoing, is that the appeal is merited.I order as follows:-1)The appeal is allowed.2)The Judgment of the learned trial magistrate on quantum of damages is set aside.3)It is substituted with an award of Kshs.150,000/- as general damages for pain and suffering.4)The award of Kshs.150,000/- shall be less 10% leaving Kshs.135,000/-5)The appellant to get half the costs of the appeal.

DATED, SIGNED AND DELIVERED AT CHUKA THIS 17TH DAY OF OCTOBER 2023. L.W. GITARIJUDGE