[2022] KEHC 342 (KLR)

Nguku v Kiria-ini Farm (Civil Appeal 267 of 2020) [2022] KEHC 342 (KLR) (Civ) (5 May 2022) (Judgment)

Neutral citation: [2022] KEHC 342 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 267 of 2020

CW Meoli, J

May 5, 2022

Between

Dinah Tabitha Nguku

Appellant

and

Kiria-Ini Farm

Respondent

(Being an appeal from the judgment of Ekhubi B.M, PM Delivered on 23rd January, 2020 in Thika CMCC No. 192 of 2013. )

Judgment

1. This appeal emanates from the judgment delivered on 23rd January, 2020 in Thika CMCC No. 192 of 2013. The suit was commenced by a plaint filed on 20th March, 2013 (and amended on 25th March, 2019) by Dinah Tabitha Nguku, the plaintiff in the lower court (hereafter the Appellant) against Kiria-ini Farm, the defendant in the lower court (hereafter the Respondent). The claim was for damages in respect of injuries allegedly sustained by the Appellant on 7th November, 2010. It was averred that the Respondent was at the time lawfully walking as a pedestrian along Kenyatta Highway next to Thika Police Station when the Respondent’s driver, servant and or agent so carelessly and or negligently controlled and or managed the Respondent’s motor vehicle registration number KAS 852Y that he caused the motor vehicle to knock down the Appellant, as a consequence of which the Appellant sustained severe bodily injuries and suffered loss.

2. The Respondent filed a statement of defence denying the key averments in the plaint and liability. Alternatively, the Respondent pleaded contributory negligence against the Appellant. On 17th October 2019 when the matter came up for hearing, the parties recorded a consent apportioning liability in the ratio of 75:25 in favour of the Appellant against the Respondent. Thereafter, parties agreed that quantum of damages be canvassed by way of written submissions. In its judgment, the trial court awarded damages in the total sum of Kshs. 411,000/- less contribution of 25% plus costs and interest. The award was made up as follows:a.General damages: Kshs. 300,000/-.b.Special Damages: Kshs. 111,000/-.Total Kshs. 411,000/-.Less 25% contributionNet : Kshs. 308,250/-

3. Aggrieved with the outcome, the Appellant preferred this appeal specifically challenging the finding on quantum of damages, based on the following grounds: -1. The Learned Trial Magistrate erred in law and fact in awarding an inordinately low award of the sum of Kshs. 300,000 in general damages against very serious and grievous injuries suffered by the Appellant being fracture of the 5th, 6th and 7th ribs, fracture of the pelvis right pubic sysitysis (sic) and acetabulum, multiple bruises of the arms with attendant effects on other diverse aspects of the Plaintiff’s life.2. The Learned Trial Magistrate erred in law and fact in failing to bring his award within the ambit of awards for such injuries and failing to be bound by High Court and Court of Appeal authorities on quantum for such injuries.3. The Learned Trial Magistrate erred in law and fact in failing to analyze and consider the evidence tendered on the injuries suffered by the Appellant thereby arriving at an erroneous award on account of general damages.4. The Learned Trial Magistrate erred in law and fact in failing to make an award on loss of future income and/or reduced earning capacity resultant from the Plaintiff’s injuries and its effects.5. The Learned Trial Magistrate erred in law and fact in disregarding and failing to put into consideration and or have regard to the pleadings and submissions of the parties duly filed and on court record in arriving at his erroneous award.”

4. The appeal was canvassed by way of written submissions. Counsel for the Appellant anchored his submissions on the decision inSelle v Associated Motor Boat Co. [1968] EA 123 concerning the duty of an appellate court on a first appeal. And further on the decision in Ocean Freight Shipping Co. Ltd v Oakdale Commodities Ltd[1997] eKLR concerning guiding principles as to circumstances when an appellate court was entitled to interfere with the discretion of the trial court. Regarding the award on general damages, counsel for the Appellant while calling to aid the decisions in Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A M Lubia and Olive Lubia[1982-88] 1 KAR 727 and Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR contended that the award by the lower court was inordinately low considering the grievous injuries sustained by the Appellant. He cited the serious nature of injuries and consequent periods of hospitalization and morbidity as documented in the medical report by Dr. Karanja to distinguish the case from the authority used by the trial court in assessing damages and asserted that the trial court arrived at an erroneous assessment of damages.

5. It was further argued that the trial court did not take into consideration the submissions and authorities relied on by the Appellant and that the award ought to have been commensurate with the injuries sustained. Citing Milicent Atieno Ochuonyo v Kalota Richard [2015] eKLR and Board of Trustees Anglican Church of Kenya Diocese of Marsabit v Naomi Galma Galgalo [2019] eKLR counsel urged the court to review upwards the award in general damages to Kshs. 2,500,000/-. Counsel further pointed out that the trial court erred by failing to consider the amended plaint which included claims for loss of income in the sum of Kshs. 240,000/- and domestic servant expenses in the sum of Kshs. 140,000/- arising from the Appellant’s incapacitation. The Court was urged to award these sums in allowing the appeal.

6. The Respondent defended the trial court’s finding on quantum. Counsel relied on the decision of the Court of Appeal in Akamba Public Road Services Ltd v Omambia [2013] concerning the principles to be observed by an appellate court in deciding whether it is justified to interfere with an award of damages. Referring to several decisions including George Kinyanjui t/a Climax Coaches & Another v Hassan Musa Agoi [2016] eKLR and Mwavita Jonathan v Silvia Onunga Civil Appeal No. 17 of 2017 counsel urged this court to uphold the lower court’s decision on damages.

7. The court has considered original record, record of appeal and the submissions made by the respective parties on this appeal. The duty of this court as a first appellate court is to re-evaluate the evidence and draw its own conclusions, but always bearing in mind that it did not have the opportunity to see or hear the witnesses testify. See Peters v Sunday Post Limited(1958) EA 424; Selle and Another v Associated Motor Boat Co. Limited and Others (1968) EA 123 and Williams Diamonds Limited v Brown (1970) EA 1. The Court of Appeal in Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982) – 88) 1 KAR 278 stated that:“A court of appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did”.

8. The main contention in this appeal relates to the quantum of damages awarded by the lower court, viewed as inordinately low, and adequate by the Appellant and the Respondent, respectively. In considering the appeal, the court will be guided by the principles enunciated by the Court of Appeal in the case of Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30. It was held in that case that:“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it 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.”

9. The same court stated in Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] I KAR 5 that:“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”.See also Lukenya Ranching and Farming Co-operative Society Limited v Kavoloto (1979) EA 414; Catholic Diocese of Kisumu v Sophia Achieng Tete KisumuCivil Appeal No. 284 of 2001; (2004) e KLR.

10. In the latter case, the Court of Appeal reiterated the discretionary nature of general damage awards and exhorted that:“An appellate court is not justified in substituting a figure of its own for that awarded by the court below, simply because it would have awarded a different figure if it had tried the case in the first instance”.

11. In Tayib v Kinany (1983) KLR 14, the Court exhorted inter alia that:“By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said and done, it still must be that amounts which are awarded are to a reasonable extent conventional.” (Emphasis added)

12. The Appellant particularized her injuries in the amended plaint dated 25th March 2019 as comprising fractures of the right ribs 5th, 6th, and 7th ribs, fracture to the right pubic symphysis and acetabulum and soft tissue injures on the arms. The injuries were documented in the Appellant’s medical report by Dr. G.K Karanja dated 16th April 2019 produced by consent on 7th November 2019. Dr. Karanja in his report summed up that:“She sustained grievous injury. The trauma was quite significant causing her multiple fractures causing her to be hospitalized for more that week. Due to the injury, she was not able to perform her duties for more than three months. Now she has fully recovered”

13. In his judgment, the trial magistrate correctly captured the Appellant’s injuries and stated that:“Both parties failed to file their written submissions. Considering the age of this suit and to avoid any further delay while cognizant of the fact that the mistake of the advocate should not be meted to the client; I have considered a host of authorities of comparable and similar to those of the plaintiff in the instant case and doing the best I can, it is my considered and well guided view that an award of Kshs. 300,000 will be considerable in compensating the plaintiff for the pain and suffering that she sustained…In arriving at my decision I am of the view that the injuries sustained by the plaintiff in this case is fairly comparable with those sustained by the plaintiff in the case of Samuel Kariuki Nyagoti versus Johann Disterberger [2017] eKLR…where the appellant had sustained a fracture of the left patella and blunt trauma on the chest, both shoulders and left knee.…I have also factored in the inflationary trends and passage of time together with time value of money principle.The plaintiff specifically pleaded for Kshs. 110,000 in special damages. … I will therefore award the plaintiff Kshs. 110,000 in special damages as evidenced form the medical bill from Nairobi Women Hospital and receipts produced hereto…I hereby enter judgment for the plaintiff against the defendant for a sum of Kshs. 411,000/- less contribution of 25% plus costs and interest as per law”. (sic).

14. The Appellant has complained that trial court did not take into consideration the submissions and authorities she relied on at the trial. The record of appeal filed herein contains respective submissions apparently filed in the lower court by both parties on 20. 11. 2019. (See Pp77 to 121 of the record of appeal). However, the original record does not contain such submissions and at the mention before the trial court on 28. 11. 2019, there was no confirmation that submissions by the parties were on record before the judgment date was reserved. That notwithstanding, counsel for the Respondent confirmed before this court during the mention of this appeal for directions on 29. 4.2021 that the record of appeal was in order. It appears likely that though filed and served, the parties’ respective submissions were inexplicably not placed on the court file.

15. The consequence of this anomaly is that the learned magistrate did not have the benefit of the submissions prior to rendering his decision. In arriving at its decision therefore, the lower court therefore did not have the benefit of the case law which has now been placed before this court on this appeal. In an ideal case, a party is excluded from presenting submissions and authorities on appeal that were not canvassed at the trial. (See. Silas Tiren & Another v. Simon Ombati Omiambo [2014] eKLR). The circumstances of this case would ordinarily justify the remission of the case back to the trial court for purposes of assessment of damages. However, this court is disinclined to take that route because of the age of the dispute. The lower court suit was filed in 2013 and was not determined until 2020. Any further delay in the matter would not be in the interest of justice, or further the overriding objective of facilitating the just, expeditious, proportionate, and affordable resolution of disputes.

16. This court in exercise of its appellate jurisdiction is entitled to consider the entire evidence and undisputed submissions at the trial, as well as the respective parties’ submissions on appeal and to render a decision pursuant to the provisions of Section 78 (1) (a) and 2 of the Civil Procedure Act, the latter which states:“Subject as aforesaid, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein”.

17. Equally, Order 42 Rule 32 of the Civil Procedure Rulesprovides that:“The court to which the appeal is preferred shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, and this power may be exercised by the court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents although such respondents may not have filed any appeal or cross-appeal.”

18. This court will therefore consider the submissions before it, the evidence in the lower court and look at the undisputed submissions in the record of appeal. On that score, this Court draws assurance from the fact that the latter submissions and authorities cited therein compare well with the submissions and authorities cited on this appeal. On the part of the Appellant, she relied on two authorities, also cited in the submissions in the record of appeal. Namely, Millicent Atieno Ochuonyo v Kalota Richard [2015] eKLR and Board of Trustees Anglican Church of Kenya Diocese of Marsabit v Naomi Galma Galgalo [2019] eKLR. In the former the plaintiff sustained complex pelvic fracture with a fracture of the right pubic bone and separation of the pubic symphysis whereas the latter claimant sustained complex pelvic fracture resulting to separation of the public symphysis with permanent incapacity assessed at 40%. The courts award Kshs. 2,000,000/- and Kshs. 1,400,000/- respectively as general damages. These injuries though more severe appear to approximate in nature to the injuries of the present Appellant, in my view.

19. In this case, the trial court relied on a single authority namely, Samuel Kariuki Nyagoti versus Johann Disterberger[2017] eKLR in its assessment. From the judgment of the lower court, the injuries sustained by the plaintiff in that case were fracture of the left patella (kneecap) and blunt trauma on the chest, both shoulders and left knee. These injuries are not comparable to those of the Appellant herein, in kind or severity. The Appellant’s most significant injuries were the fractures to the pubic symphysis (pelvic bone) and acetabulum (hip joint) which though not as severe as those of the Appellant’s authorities are hardly comparable to those of the plaintiff Samuel Kariuki Nyagoti’s case. In addition, the Appellant suffered fractures to the 5th, 6th and 7th ribs and soft tissue injuries. In Denshire Muteti’s case the Court of Appeal exhorted that ideally, comparable injuries ought to attract comparable awards in damages, and in my view, the Appellant’s complaints on this score are justified.

20. Although the Respondent’s counsel had in the lower Court submissions contained in the record of appeal urged an award of Kshs. 600,000/- as general damages, before this court, he has supported the award of general damages by the trial court. He relied on three authorities, also cited in the submissions in the record of appeal. Namely, George Kinyanjui t/a Climax Coaches & Another v Hassan Musa Agoi [2016] eKLR wherein the claimant suffered injuries including multiple fractures to the left clavicle; fractures of the 4th and 5th left ribs mid shaft; dislocation of the left shoulder joint, and multiple soft tissue injuries and was awarded Kshs. 452,100/-, Gabriel Kariuki Kigathi & Another v Monica Wangui Wangechi [2016] eKLR wherein the claimant sustained fracture of the neck, bilateral rib fractures, bilateral lung contusion, injuries to both hands, injuries to both legs, and on appeal the court awarded damages in the sum of Kshs. 400,000/-; and Mwavita Jonathan v Silvia OnungaCivil Appeal No. 17 of 2017 wherein the claimant suffered a single comminuted fracture to the left hip and dislocation of the knee with a sprain of parts of the spine consistent with a whiplash injury and on appeal the court awarded Kshs 400,000/-.

21. The above plaintiffs suffered rib fractures like the Appellant herein and additional injuries that may not quite compare with the Appellant’s other significant injury, namely the fractures to the symphysis and acetabulum. That said, the authorities to my mind are representative of a minimum award and therefore useful guides to the assessment of damages in the instant matter.

22. According to the medical report by Dr. Karanja, prepared on the 16th April, 2019 the Appellant had fully recovered from her injuries at the date of examination, having suffered over 3 months of morbidity and incapacitation subsequent to her injuries. Although it is a truism that it is virtually impossible to find authorities whose exact injuries and sequela match this or any other case, reviewing all relevant evidence, and authorities before the Court the Appellant’s complaint that the award in damages was inordinately low is not an idle one.

23. In my considered view, the award by the trial court was based on an authority that did not compare well with the case at hand so far as injuries were concerned, and secondly without the benefit of the respective parties’ submissions. This court is persuaded that the award was so low as to be an erroneous estimate and ought to be disturbed. The Appellant had recovered fully from her relatively severe injuries by April 2019 even though the injuries had caused her extended periods of morbidity. An award of Kshs. 2,500, 000/- as proposed by her advocate would nevertheless be on the higher side. Doing my best in view of the material before me, I would award the sum of Kshs. 1,800,000/- (One Million Eight Hundred Thousand) as general damages for pain, suffering and loss of amenities.

24. Turning to the Appellant’s claim for domestic servant costs, loss of income during her incapacitation and for loss of future income and or diminished earning capacity, it is true that the trial magistrate did address these claims which were pleaded in the amended plaint dated 25th March 2019. The Court of Appeal in S J v Francesco Di Nello & another [2015] eKLR while making a distinction between loss of future earnings and loss of earning capacity stated that: -“Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real or actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in Fairley v John Thomson Ltd [1973] 2 Llyod’s Law Reports 40 at pg. 14 wherein Lord Denning M.R. said as follows:“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”

25. The court proceeded to state that: -“The correct position as in the Fairley case (supra) was restated by this court in the case of Cecilia Mwangi & Another v Ruth W. Mwangi CA No. 251 of 1996 as hereunder:“Loss of earnings is a special damage claim. It must be specifically pleaded and strictly proved. “In the authority of Butler v Butler [1984] KLR 225, the issue of awarding damages for loss of earning capacity was carefully considered and Chesoni Ag. JA (as he then was) said:“Whilst loss of earning capacity or earning power should be included as an item of general damages, it is not improper to award it under its own heading … Once it is in principle accepted that the victim of personal injuries who has lost his earning capacity is entitled to compensation in the form of damages it is of little materiality whether the award is under the composite head of general damages or as an item on its own, as a loss of earning capacity. At any rate, what is in a name if damages are payable.”

26. The Appellant pleaded that following her injuries, she was unable to work for one year and as result, lost income, at the rate of Kshs. 20,000/- per month, suffered diminished future earning capacity and hired domestic help incurring costs in the sum of Kshs. 140,000/-. The claims in respect of lost income and domestic help expenses are special damage claims requiring strict proof. Equally, the Appellant was obligated to prove the alleged diminished future earning capacity. The Respondents had denied all these claims in their amended defence statement.

27. No evidence was led by the Appellant in respect of these alleged losses and expenses. Confirmation of the Appellant’s incapacitation during the recovery period in Dr Karanja’s medical report was not enough. Moreover, the report confirmed complete recovery by April 2019 and made no reference to any disability as would result in diminished future earning capacity. The claims could not have been allowed in the circumstances, and the Appellant must therefore content herself with the award in general damages for pain, suffering and loss of amenities. The lower court’s award of Kshs. 111,000/- as special damages was not disputed.

28. The appeal has therefore substantially succeeded. The Court hereby sets aside the award of general damages in the lower court and substitutes therefor an award of Shs.1,800,000/- (One Million Eight Hundred Thousand) while maintaining the award on special damages.

29. Judgment will therefore be entered for the Appellant against the Respondent as follows: General damages for pain, suffering and loss of amenities: Kshs. 1,800,000/-.**Special damages Kshs. 111,000/-Total – Kshs. 1,911,000/-Less 25% contributionNet: Kshs. 1,433,250/-.(One Million Four Hundred and Thirty-three Thousand Two Hundred and Fifty)

The Appellant is also awarded the costs of the appeal and in the lower court as well as interest.

DELIVERED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 5TH DAY OF MAY 2022. C.MEOLIJUDGEIn the presence of:For the Appellant: Mr TumuFor the Respondent: Ms. AbokC/A: Carol