[2022] KEHC 13960 (KLR)

Nganga v Ausi & another (Civil Appeal 79 of 2020) [2022] KEHC 13960 (KLR) (Civ) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13960 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 79 of 2020

JK Sergon, J

October 19, 2022

Between

Paul Mwangi Nganga

Appellant

and

Eunice Auma Ausi

1st Respondent

Leah Waruchu Waweru

2nd Respondent

(Being an appeal against the judgment and decree delivered by G.A. Mmasi (Mrs.) (Senior Principal Magistrate) on 3rd February, 2020 in Milimani CMCC no. 3441 OF 2018)

Judgment

1. Eunice Auma Ausi, the 1st respondent herein, filed a suit against the appellant and the 2nd respondent vide the plaint dated February 7, 2018 and sought for both general and special damages plus costs of the suit and interest thereon arising out of a road traffic accident.

2. The appellant and the 2nd respondent were sued in their capacity as the registered owner and driver of motor vehicle registration number KAG xxxN (“the subject motor vehicle”) at all material times.

3. The 1st respondent pleaded in the plaint that sometime on or about the 9th day of November, 2017 while she was lawfully crossing Outering road near Kware stage, the subject motor vehicle being carelessly driven lost control and knocked her down, causing her to suffer serious bodily injuries particularized under paragraph 6 of the plaint.

4. The 1st respondent attributed the accident to negligence on the part of the appellant and the 2nd respondent by setting out the particulars thereof in the plaint.

5. Upon service of summons, the appellant entered appearance and filed his statement of defence on May 18, 2018 to deny the averments made in the plaint.

6. Going by the record, it is apparent that the 2nd respondent did not participate at the suit.

7. At the formal hearing of the suit, the relevant parties recorded a consent on liability in the ratio of 80%: 20% in favour of the 1st respondent and on production of the 1st respondent’s bundle of documents without calling their respective makers. The parties further consented to the filing of written submissions on quantum.

8. Eventually, the trial court delivered judgment as follows:a.General damages Kshs.280,000/=Less 20% contribution Kshs. 56,000/=Net total Kshs.224,000/=b.Special damages Kshs. 21,070/=Grand total Kshs.245,070/=

9. Being dissatisfied with the award of damages, the appellant have sought to challenge the same on appeal and have put forward the following grounds of appeal vide his memorandum of appeal dated February 13, 2020:i.That the learned trial magistrate erred in law and in fact in awarding the 1st respondent a sum of Kshs.280,000/= on general damages which award is inordinately excessive considering the injuries sustained by the 1st respondent and existing court awards in similar cases.ii.That the learned trial magistrate misdirected herself by failing to consider the appellant’s submissions, both parties doctors medical on the injuries sustained by the 1st respondent thereby arriving at the wrong decision on quantum.iii.That the learned trial magistrate grossly misdirected herself in ignoring the principles applicable and relevant authorities on quantum cited in the written submissions presented and filed by the appellant.iv.That the learned trial magistrate proceeded on wrong principles when assessing damages to be awarded to the 1st respondent if any and failed to apply precedents and tenets of the law applicable thereby arriving at a figure which is manifestly excessive.v.That the learned trial magistrate erred in law and in fact thus disregarding the appellant’s submissions and cited authorities on record thereby arriving at a wrong decision on quantum which has occasioned miscarriage of justice.vi.That the learned trial magistrate erred in awarding a sum in respect of damages which was inordinately high in the circumstances occasioning miscarriage of justice by deviating from existing and established judicial principles on accident claims.vii.That the learned trial magistrate failed to adequately evaluate the evidence and exhibits and thereby arrived at a decision unsustainable in law.

10. This court directed the parties to file written submissions on the appeal.

11. The appellant by way of his submissions dated April 13, 2022 contends that the trial court erred in awarding the sum of Kshs.280,000/= on general damages which the appellant considers to be excessive in comparison to the extent of injuries sustained by the 1st respondent.

12. According to the appellant, an award in the sum of Kshs.120,000/= would suffice, thereby citing the case of Ndungu Dennis v Ann Wangari Ndirangu & another [2018] eKLR and the case of Philip Musyoka Mutua v Mercy Ngina Syovo [2018] eKLR in which the courts in both instances awarded the respective sums of Kshs.120,000/= for soft tissue injuries.

13. In retort, the 1st respondent in her submissions argues that the abovementioned authorities cited by the appellant constitute injuries of a less severe nature in comparison to those she sustained and cannot therefore constitute comparable awards.

14. The 1st respondent urges that the award made by the trial court is reasonable and hence ought not to be disturbed, citing the case of Hellen Waruguru Waweru (suing as the legal representative ofPeter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR where the court rendered itself thus:“As a general principle, assessment of damages lies in the discretion of the trial court and 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 was either inordinately high or low. The Court must be satisfied that either 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 damages.”

15. It is therefore the submission by the 1st respondent that the appeal fails and that it ought to be dismissed with costs as a consequence.

16. I have considered the contending submissions on appeal and the authorities relied upon. Moreover, I have re-evaluated the evidence which the trial court had the opportunity to look at.

17. It is clear that the appeal lies against quantum, specifically the damages under the head of general damages for pain, suffering and loss of amenities. I will therefore address the grounds of appeal raised contemporaneously under that head.

18. The legal position on this is that the award of a trial court ought only to be interfered with on appeal under the following circumstances as articulated in the renowned case of Kemfro Africa Ltd t/a Meru Express Services 1976 & Another [1976] v Lubia & Another (No. 2) [1985] eKLR referenced in the case of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR cited in the submissions by the 1st respondent thus:a.Where an irrelevant factor was taken into account.b.Where a relevant factor was disregarded.c.Where the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

19. In her submissions before the trial court, the 1st respondent proposed the sum of Kshs.350,000/= as constituting a suitable award under that head and cited inter alia, the case of Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichubi [2005] eKLR where the court made an award in the sum of Kshs.350,000/= and the case of Joseph Wambura v Joseph Mwangi Obai [2018] eKLR where an award in the sum of Kshs.300,000/= was made.

20. In contrast, the appellant suggested the sum of Kshs.120,000/= as forming an adequate award and relied on the authorities echoed above in his submissions.

21. The learned trial magistrate; upon weighing into consideration the rival positions; settled on an award in the sum of Kshs.280,000/= under that head.

22. The medical reports and related evidence tendered indicate that the injuries suffered by the 1st respondent are in the nature of blunt injuries to the head, chest, neck, and abdomen; and cut wounds to the left ear and above the right eye.

23. Upon my consideration of the authorities cited by the parties in that respect, I concur with the reasoning adopted by the learned trial magistrate that those cited by the 1st respondent constituted injuries of a more severe nature in comparison to those suffered in the present instance. I find the authorities cited by the appellant to be slightly more comparable in terms of the injuries suffered, though they were decided a few years ago.

24. I similarly took into account the case ofFrancis Omari Ogaro v JAO (minor suing through next friend and fatherGod [2021] eKLR where the court upon considering injuries in the nature of cut wounds, bruises and blunt injuries, awarded the sum of Kshs.180,000/= on appeal.

25. In view of the foregoing circumstances, I reason that the award made by the learned trial magistrate is on the higher side, thereby necessitating interference.

26. Taking into account the abovementioned authority, the injuries sustained, the absence of any indication of permanent disability and inflation factors, I find an award of Kshs.200,000/= to be more suitable in the circumstances.

27. On the subject of consideration of the submissions and authorities cited by the appellant; however; upon my perusal of the impugned judgment, I have not come across anything to indicate that the learned trial magistrate overlooked the same.

28. The upshot therefore is that the appeal succeeds in respect to the award made on general damages for pain and suffering. The trial court’s award in the sum of Kshs.280,000/= made under that head is hereby set aside and is substituted with an award in the sum of Kshs.200,000/=.

29. Accordingly, the judgment on appeal shall now read as follows:a.General damages Kshs.200,000/=b.Special damages Kshs. 21,070/=Net total Kshs.221,070/=Less 20% contribution Kshs. 44,214/=Grand total Kshs.176,856/=c.Costs of both the suit and the appeal are awarded to the 1st respondent and are to be borne by the appellant and the 2nd respondent jointly and severally. The 1st respondent shall also have interest on special damages at court rates from the date of filing the suit and interest on general damages at court rates from the date of judgment until payment in full.d.In the circumstances, a fair order on costs is to order each party to bear their own costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 19TH DAY OF OCTOBER, 2022. ……………………….J. K. SERGONJUDGEIn the presence of:……………………………. for the Appellant……………………………for the 1st Respondent……………………………for the 2nd Respondent