[2018] KEHC 8799 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KIAMBU

CIVIL APPEAL NO. 54 OF 2016

NDUNGU DENNIS .................................... APPELLANT

VERSUS

ANN WANGARI NDIRANGU ................ 1STRESPONDENT

EDDAH MWIHAKI ................................. 2ND RESPONDENT

(Being an appeal from the judgment and decree of the Chief Magistrate’s

Court at Kiambu (Hon. S.K. Arome) Delivered on 10/12/2015

in Kiambu CM Civil Case No. 48 of 2015)

JUDGMENT

1. This Appeal arises from a judgment and decree entered in Kiambu CMCC No. 48 of 2015. In that suit, the Respondent sued the Appellants for both general and special damages respecting a road traffic accident in which the Respondent sustained some personal injuries.

2. The 1st Appellant was the driver and registered co-owner of the Motor Vehicle Registration No. KBJ 941A which allegedly hit the Respondent while the 2nd Appellant was the registered co-owner of the Motor Vehicle.

3. The claim was fully contested in the lower Court and the Learned Trial Magistrate rendered a judgment on 10/12/2015 in which he found the Appellants 100% liable for the accident and awarded general damages of Kshs. 300,000/= and special damages of Kshs. 7,040/=.

4. The Appellants are aggrieved with the judgment of the Learned Trial Magistrate on quantum for general damages only and have filed four grounds of appeal against it. Naturally, the appeal is opposed.

5. I directed the parties to file Written Submissions and appear for oral highlighting if necessary. The parties filed Written Submissions but did not find it necessary to orally highlight.

6. Both parties agreed that all the grounds of appeal can be grouped into a single ground against the award of quantum in general damages.

7. I have read and considered the respective arguments in the parties’ written submissions.

8. As a first appellate court, this Court’s duty is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make my own conclusions about it, bearing in mind that I did not have the opportunity of seeing and hearing the witnesses first hand. The duty of the court in a first appeal such as this one was stated in Selle & another –vs- Associated Motor Boat Co. Ltd. & others (1968) EA 123in the following terms:

I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept thefindings of fact by the court below. An 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 allowance in this respect. In particular this 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(Abdul Hammed Saif –vs- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).

9. This same position had been taken by the Court of Appeal for East Africa in Peters –vs- Sunday Post Limited [1958] EA 424 where Sir Kenneth O’Connor stated as follows:-

It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. I take as a guide to the exercise of this jurisdiction the following extracts from the opinion of their Lordships in the House of Lords in Watt –vs- Thomas (1), [1947] A.C. 484.

“My Lords, before entering upon an examination of the testimony at the trial, I desire to make some observations as to the circumstances in which an appellate court may be justified in taking a different view on facts from that of a trial judge. For convenience, I use English terms, but the same principles apply to appeals in Scotland. Apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law) the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies is entitled to great weight. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge offirst instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given.”

10. The appropriate standard of review established in these cases can be stated in three complementary principles:

i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;

ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and

iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

11. These three principles are well settled and are derived from various binding and persuasive authorities including

Mary Wanjiku Gachigi v Ruth Muthoni Kamau (Civil Appeal No. 172 of 2000: Tunoi, Bosire and Owuor JJA);

Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another(Civil Appeal No. 345 of 2000: O’Kubasu, Githinji and Waki JJA); Virani T/A Kisumu Beach Resourt v Phoenix of East

Africa Assurance Co. Ltd(Kisumu High Court CC No. 88 of 2002).

12. With the above principles in mind, I will now proceed to deal with the Appeal.

13. In his judgment, the Learned Trial Magistrate did not come to any findings on the actual injuries suffered by the Respondent but instead assumed that those had been agreed. On appeal, this appears to have been an error as the Appellants now argue that the Learned Trial Magistrate did not begin from the correct findings of the injuries the Respondent suffered and therefore did not reach the correct assessment of general damages.

14. In any event, the Learned Trial Magistrate considered two cases submitted as comparable by the Appellants and one submitted by the Respondent and reached the conclusion that the amount of general damages that should be awarded is Kshs. 300,000/=. The cases the Appellants submitted as comparable are:

15. Samuel Mburu Ngari & Others v Wangiki Wangare & Another [2014] eKLR. In this case, the 4th Plaintiff suffered minor injuries, abrasions and bleeding and was awarded Kshs. 50,000/=.

16. Mokaya Mochama v Julius Momanyi Nyokwoyo (Kisii HCCA 101 OF 2010), the Appellant suffered short-term cerebral concussion,, deep cut wound on the back of his head and bruises on the right foreleg and the Court awarded general damages of Kshs. 70,000/=.

17. The Appellants submitted to the Learned Trial Magistrate that he should award Kshs. 60,000/-

18. On the other hand, the Respondent cited one comparable case: Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi [2005] eKLR. In this case, the 3rd Plaintiff had suffered “multiple soft tissue injuries, injury on the left elbow joint, and injuries on both ankles.” She was awarded Kshs. 350,000/= as general damages. The Responded urged the Learned Trial Magistrate to award Kshs. 380,000/= to account for passage of time and inflation.

19. On appeal, the Appellants complain that the amount awarded was so excessive as to invite the conclusion that it was founded on wrong principles. The Appellants argue that the Learned Trial Magistrate erred by relying on wrong principles to arrive at the high award given that what the Respondent suffered were soft tissue injuries.

20. The Appellants argue that the award is so excessive that it justifies this Court, as a first appellate Court to interfere with the award. They relied on a number of cases where a first appellate Court had reduced an award of general damages which was manifestly high for soft tissue injuries. In particular, the Appellants cited:

21. Channan Agricultural Contractors Ltd v Fred Barasa Mutayo [2013] eKLRwhere the High Court reviewed downwards an award of Kshs. 250,000 to Kshs. 150,000 for “moderate soft tissue injuries that were expected to heal in eight months’ time.”

22. George Kinyanjui T/A Climax Coaches & Anor. V Hussein Mahad Kuyale [2016] eKLRwhere the High Court reviewed downwards an award of Kshs. 650,000/= to Kshs. 109,890/= for soft tissue injuries.

23. Dickson Ndungu Kirembe v Theresia Atieno & 4 Others [2014] eKLRwhere the High Court reviewed downwards an award of Kshs. 255,000/- to Kshs. 127,500/- for soft tissue injuries which produced no complications.

24. Purity Wambui Muriithi v Highlands Mineral Water Company Ltd [2015] eKLRwhere the Court of Appeal revised downwards an award by the High Court of Kshs. 700,000/- to Kshs. 150,000/- for injuries to the left elbow, pelvic region, lower back and left knee.

25. On the her part, the Respondent reminded the Court that an award of general damages is an exercise in judicial discretion based on the evidence placed before a Court and that it is not to be interfered with unless it is shown that it was exercised on the wrong principles. However, all the cases cited by the Respondent had nothing to do with the principles that a first appellate Court utilizes to determine whether to interfere with an award of general damages by the trial Court. Instead, all of the cited cases deal with the principles that a three-judge Court of Appeal bench uses to determine whether to interfere with the discretion exercised by a single judge of the Court under Rule 4 of the Court of Appeal Rules. Needless to say, while those principles have some analogous relevance to the issue at hand, they are inapplicable to the case at hand.

26. I will begin by ascertaining the injuries suffered by the Respondent. The injuries described in the treatment card, discharge card and P3 form are fairly consistent. The injuries included minor bruises on the back; no fractures on the tibia or fibula area of the right leg which was hit; tenderness on the right leg. All these three conclude that the injuries are “soft tissue injuries.” However, the medical report tendered by Dr. G.K. Mwaura, who testified for the Respondent adds the following injuries to these: blunt injury; head concussion (brief loss of consciousness); blunt injuries to the chest and both hands. That report also says that the Respondent still experiences back pains and chest pains on exertion.

27. It might be fair to say that the Learned Trial Magistrate based his finding on quantum on this Report by Dr. Mwaura. I, however, find the Report less reliable than the Treatment notes, the Discharge card and the P3 form which are all consistent. The Treatment notes were filled immediately after the accident by the treating medical practitioner without any interest in the case. It is fairly categorical that the Respondent was conscious when brought to the health facility and that she suffered soft tissue injuries. Soft tissue injuries do not lead to long-term pain upon exertion as the Medical Report by Dr. Mwaura suggests. Similarly, the Treatment notes do not speak of any blunt trauma to the chest or hands. I would therefore discount the Medical Report by Dr. Mwaura and rely on the other three documents which are consistent that the Respondent suffered soft tissue injuries to the lower right leg and soft tissue injuries to the back (trunk).

28. If these are established as the injuries suffered by the Respondent, what amount of damages would compensate for them?

29. It is important to begin with stating the principles that govern an appellate Court in considering a request to review an award of general damages. It is this:

An Appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which as either inordinately high or low.

These are, of course, the celebrated words of the appropriately named Law J.A. in the case of Butt v Khan (1977) KAR 1.

30. It is important to recall that I can only interfere with an award of damages if the aggrieved party satisfies one of two conditions:

i. That the trial Court took into account irrelevant factors or left out relevant factors when assessing damages; or

ii. The amount of damages is so inordinately high or low that the quantum awarded must be a wholly erroneous estimate of damages.

31. In this case, as I observed above, it would appear that either the Learned Trial Magistrate proceeded without a proper finding of the actual injuries suffered by the Respondent or he erroneously relied on the Medical Report by Dr. Mwaura which was inconsistent and less reliable than the other medical documents tendered. This is one ground to interfere with the assessment of quantum by the Learned Trial Magistrate.

32. Secondly, if one takes into consideration the actual injuries suffered by the Respondent – to wit soft tissue injuries to the lower right leg and to the back – it becomes readily obvious that an award of Kshs. 300,000/= is manifestly excessive.

33. Given the policy goal of Courts to try to compensate comparable injuries as far as possible by comparable awards, these two factors call for this Court to revise the quantum awarded to the Respondent. In my view an award of Kshs. 100,000/= would be adequate to compensate for the injuries suffered in this case.

34. The upshot, then, is that the appeal is allowed and the Court sets asides the assessment of damages by the Lower Court. In its place, the Court substitutes an assessment of quantum for general damages for Kshs. 100,000/=. The amount awarded in special damages was not challenged and it is not affected.

35. For equitable reasons, I will not award costs on this appeal. Each party will bear its own costs.

36. Orders accordingly.

Dated and delivered at Kiambu this 1stday of February, 2018.

........................

JOEL NGUGI

JUDGE