[2022] KEHC 11793 (KLR)

Ndwiga & another v Mukimba (Civil Appeal E006 of 2022) [2022] KEHC 11793 (KLR) (13 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11793 (KLR)

Republic of Kenya

In the High Court at Embu

Civil Appeal E006 of 2022

LM Njuguna, J

July 13, 2022

Between

Morrison Nyaga Ndwiga

1st Appellant

Jacob Muriithi Nyaga

2nd Appellant

and

Ezekiel Khatete Mukimba

Respondent

((Being an appeal from the judgment of the Honourable Gichimu W. J. SPM at Runyenjes in Civil Case No. 72 of 2020 and delivered on 21. 09. 2021).)

Judgment

1. The respondent herein was the plaintiff in CMCC No. 72 of 2020 in which he sued the appellant vide a plaint dated August 5, 2020, in which, he claimed general and special damages of Kshs 6,550/=, costs of the suit and interest.

2. His cause of action is based on a Road Traffic Accident which occurred on or about December 26, 2019 along Kithimu - Ena Road at Rukira junction. It is pleaded that on the said date, the respondent was riding a motorcycle when the 2nd appellant the authorized driver of motor vehicle No KBS 654U recklessly and/or negligently lost control and hit the respondent thereby occasioning him serious injuries.

3. The particulars of negligence, those of injuries and special damages are set out in paragraphs 4 and 5 of the plaint. He prayed for orders as set out in the plaint.

4. The appellants filed the defence dated August 27, 2020 in which, they denied the respondent’s claim. In the alternative, they pleaded that if the accident did occur, the same was solely caused and/or partially caused by negligence on the part of the respondent. In addition, they pleaded the doctrine ofvolenti non fit injuria. The particulars of negligence and those of injuries were also denied and so were those of injuries and special damages.

5. The respondent did file a reply to defence dated September 24, 2020 in which, he joined issues with the appellants on their defence. He denied any negligence on his part and the particulars of negligence attributed to him in the defence. He urged the court to strike out the defence and enter judgment in his favour as prayed in the plaint.

6. On March 16, 2021, parties entered a consent on liability in the ratio of 20:80% in favour of the respondent and agreed to put in written submissions on quantum adopting documents filed together with the pleadings. In his judgment delivered on the September 21, 2021, the learned magistrate entered judgment on quantum against the appellants in the sum of Kshs 1,200,000/= and Kshs 3,550/= as general and special damages respectively, less the contributory negligence at 20%, leaving a total of Kshs 962,840/=. The respondent was also awarded the costs of the suit and interests.

7. The appellants being dissatisfied with the award on damages have appealed to this court vide the memorandum of Appeal filed on January 18, 2022 in which, they have set out seven (7) grounds of appeal. Looking at the grounds of appeal, the appellants’ main contention is on quantum of damages.

8. The court directed the parties to file and exchange their submissions and wherein the appellant submitted on their main issue in regard to whether the award by the trial court for general damages for pain and suffering was inordinately high. That the trial court despite considering both parties submissions, failed to recognize the nature and extent of the injuries sustained by the respondent and thus arrived at a wrong conclusion. It was submitted that an award of Kshs. 500,000/= in general damages would be sufficient in light of the injuries suffered by the respondent. Reliance was placed inter alia on the cases of Kemfro Africa Limited v Lubia and AnotherNo 2 1987 KLR 30 andJitan Nagra v Abednego Nyandusi Oigo[2018] eKLR. The appellant thus prayed that the orders sought in the appeal herein be granted.

9. The respondent on the other hand came up with two main issues for determination to wit; whether the appeal is incompetent and fatally defective and whether the award on general damages is inordinately excessive and unjustified. It was submitted that the appellant never attached a certified copy of the decree in their record of appeal. Reliance was placed on the case ofBwana Mohamed Bwana v Silvano Buko Bonaya & 2 Others[2015] eKLR andAbdi Nassir Nuh v Abdureheman Hassan Halkano & 2 Others [2010] eKLR. The respondent submitted that the omission of the certified copy of the decree was fatal rendering the appeal incompetent. On whether the award on general damages was inordinately high, it was submitted that the trial court considered the evidence tendered by the parties and the award by the court was thus informed by the nature of the injuries sustained by the respondent. Reliance was placed inter alia, on the case of Savana Saw Mills Ltd v George Mwale Mudomo (2005) eKLR. That there was no evidence that the trial court acted on wrong principles of law, misapprehended the facts or made a wholly erroneous estimate of the damage suffered by the respondent. In the end, it was prayed that the appeal be dismissed with costs to the respondent.

10. I have read through and considered the memorandum of appeal and the submissions of counsel. I have also considered the authorities referred to by each counsel to support their legal propositions in the matter. Further, I have read and evaluated the record and evidence adduced by the appellant before the court and I note that the main issue for determination is whether the court awarded an amount that is inordinately high.

11. This being a first appeal, I am mindful that it is my duty to re-evaluate the evidence adduced before the lower court and, on the basis thereof, come to my own conclusion; bearing in mind, however, that I did not have the advantage of seeing or hearing the witnesses. InSelle & Another v 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..."

12. Before determining the appeal herein on its merit, the respondent has raised an issue that this appeal is incompetent and fatally defective in the manner filed given that the appellants have failed to annex the certified copy of the decree being appealed against contrary to the provision of Order 42 Rule 13 (4) of the Civil Procedure Rules. I will proceed and deal with the issue first.

13. To answer the Respondent’s argument, I am guided by the finding of the Court of Appeal in the Case of Emmanuel Ngade Nyoka v Kitheka Mutisya NgataCivil Appeal No 63 of 2016 [2017] eKLR where it was held:“starting with the first issue, it is true that the record of appeal before the first appellant court at the time of filing did not contain the decree appealed from. This omission brought into focus the provisions of Order 42 Rule 2 of the Civil Procedure Rules……the Respondent did not take advantage of this provision to subsequently file a certified copy of the decree so that the appeal proceeded to hearing in the absence of the decree appealed from. Was this omission fatal to the appeal? The Appellant thinks so as according to him the requirement is couched in mandatory terms. The Judge did not agree with him reasoning that:“The word “decree” has been defined by the Civil Procedure Act Cap 21 to include judgment. Infact the Civil Procedure Act as provided at Section 2 that the judgment shall be appealable notwithstanding the fact that a formal decree in pursuance of a judgment may not have been drawn up or may not be capable of being drawn up”.This is the essence of the proviso to the definition of the term “decree”. According to the Judge, the record of appeal before him had a certified copy of the judgment of the trial court; consequently, he reasoned the record of appeal was competent notwithstanding the fact that a formal decree had not been included in the record.We entirely agree with the reasoning of the learned Judge on this aspect. In any event, this was a mere technicality that could not have sat well with the current constitutional dispensation that calls upon court to go for substantive justice as opposed to technicalities. Further, holding otherwise would have run counter to the overriding objective as captured in section 1A and 1B of the Civil Procedure Act. Finally, one would ask what prejudice the Appellant suffered with the omission of the certified copy of the decree in the record of appeal. We do not discern any.”[Also See Kenya Women Micro Finance Ltd v Martha Wangari Kamau[2020].

14. Whereas it is true that the appellant failed to annex a certified copy of the decree, he did attach a copy of the judgment which would suffice in the absence of a certified copy of the decree. Further, it has not been shown what prejudice the respondent suffered by the failure to annex the certified copy of the decree. I therefore find that the appellant’s failure to annex the certified copy of the decree cannot be a basis for striking out of the appeal.

15. Turning to the substantive issue herein, the urged the court to find that the award on general damages are inordinately high considering evidence tendered by the parties and the nature of the injuries sustained by the respondent.

16. In assessing the award for general damages, the usual approach is that an appellate court will not interfere with an award of damages by the trial court unless the appellant can prove that the trial court applied the wrong principles or misapprehended the evidence and so arrived at a figure that was so inordinately high or low as to represent an erroneous estimate. This approach was adopted in Butt v Khan (1981) KLR 349].

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 v 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 to prior decisions which are relevant to the case in question.”

18. From the above quoted cases, the principles that were formulated when awarding damages is that some degree of uniformity must be sought depending on the facts and the best guide would be to consider recent awards on comparable injuries.[ SeeCharles Oriwo Odeyo v Appollo Justus Andabwa & Another[2017] eKLR].

19. In the case herein, the respondent suffered the following injuries:i.Tenderness and swelling of the left leg.ii.Fracture of tibia and fibula left leg.

20. The court has picked up the following cases in reference to the principle formulated when awarding damages in that there must be some degree of uniformity as stated in the case of Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR, the court in making an award for general damages must always consider the prevailing inflation.

21. In the case ofDaniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR where the respondent had suffered a fracture of tibia and fibula bones of the right leg, deep cut wound and tissue damage of the right leg, head injury with cut wound on the nose, blunt chest injuries and soft tissue injury on the lower left leg and the High Court set aside the award of Kshs 600,000/= and replaced the same with Kshs 400,000/=. In the Francis Ndung’u case (supra) case, the plaintiff suffered injuries involving soft tissue injuries to the upper limbs, compound fracture of distal tibia fibula as well as loss of consciousness and the severity of the fracture was at risk of secondary stress fractures on the same site. Muchemi J awarded Kshs 1 million general damages in November 2019. In the case of Alponse Nzuki Muli (supra) case on appeal Kasango J sustained the damages awarded by the trial court in the sum of Kshs 800,000/= for injuries involving compound comminuted fracture of right tibia and fibula and involving injury medial aspect of right leg and foot. He underwent three operations and was hospitalized for 42 days. He had an implant removed in future operation. In Montrex Co Ltd case (supra) the respondent was awarded Kshs 800,000/= general damages for pain and suffering and loss of amenities for injuries involving injury to the right leg with wound which resulted in an open fracture involving tibia and fibula. There was surgery with external fixations which were removed as the fracture healed well. And injury to the right jaw resulting in non-displaced fracture of the right mandible which was treated conservatively. He was hospitalized for three weeks and plaster removed after three months. The fractures healed leaving scars on the left right leg.

22. From the above authorities, it is clear that the trial magistrate made an inordinately high award in view of the injuries sustained by the respondent. That being the case, I find an award of Kshs 1,200,000/= for general damages for pain, suffering and loss of amenities to have been inordinately high. I therefore interfere with the same and substitute the award with an award of Kshs 500,000/= for general damages, at 100% liability. This amount to be subjected to 20% contribution leaving Kshs 400,000/= plus specials of Kshs 6,550/= pleaded and proved making a total of Kshs 426,000/= plus costs of the suit and interest at court rates from date of judgment in the lower court on general damages and from date of filing suit on special damages.

23. To that extent therefore, the appeal succeeds partially on reduction of general damages.

24. On costs I order that each party bear their own costs of this appeal as both parties have succeeded halfway.

25. It is so ordered.

DELIVERED, DATED AND SIGNED AT EMBU THIS 13TH DAY OF JULY, 2022. L. NJUGUNAJUDGE…………………………………………….for the Appellant………………………………………….for the Respondent