[2022] KEHC 13868 (KLR)

Njenga v Rotich (Civil Appeal 1 of 2020) [2022] KEHC 13868 (KLR) (19 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13868 (KLR)

Republic of Kenya

In the High Court at Bomet

Civil Appeal 1 of 2020

RL Korir, J

October 19, 2022

Between

John Njenga

Appellant

and

Alfred Kipsang Rotich

Respondent

Judgment

1. The background of this case is that on December 21, 2019, the Respondent (Plaintiff) was riding his motorcycle registration number KMET 739V along KCC junction on Sotik-Chepilat road when the Appellant’s car registration number KCE 840F knocked him.

2. The Respondent brought a suit against the Appellant vide Sotik Civil Suit No 11 of 2020 on August 31, 2020. On June 18, 2021, the parties recorded consent for liability in the ratio of 80:20 in favour of the Plaintiff (Respondent). Judgment was then delivered by Hon E Muleka on September 22, 2020 as follows:-General Damages – Kshs 1,500,000/=Special Damages – Kshs 153,750/=Total = Kshs 1,653,730/=Less 20% liability = Kshs 1,323,000/=

3. The Appellant was aggrieved by his decision and filed his Memorandum of Appeal dated October 8, 2020 was filed on October 23, 2020. The prayers in the Appeal were as follows:-a.The award of Kshs 1,500,000/= general damages on a 100% basis be set aside.b.The general damages due to the Respondent be re-assessed and a fitting award be made.c.The award of Kshs 153,750/= as special damages on a 100% basis be set aside.d.The special damages due to the Respondent be re-assessed and a fitting award be made.e.The Respondent bears the costs of the appeal.

4. The Appellant raised the following grounds:-1. The learned Trial Magistrate erred in law and fact in awarding the Respondent the sum of Kshs 1,500,000/= as general damages, on 100% basis, which sum was inordinately and manifestly excessive in the circumstances of that suit as to amount to an erroneous estimate.2. The learned Trial Magistrate erred in law and fact in applying wrong principles and ignoring the proper principles in assessing damages, hence awarded the Respondent the sum of Ksh. 1,500,000/= as general damages on 100% basis, which amount was manifestly excessive.3. The learned Trial Magistrate erred in law and fact in awarding the Respondent the sum of Kshs 153,750/= as special damages on a 100% basis, which amount was never proven, at all, by the evidence which the Respondent led during the hearing of the Respondent’s case.

5. By Court order dated July 7, 2022, the appeal proceeded by way of written submissions.

Appellant’s Submissions 6. The Appellant submitted that the 2nd Medical Report conducted on May 27, 2020 by Dr JAS Kumenda produced as Defence Exhibit 1 indicated that the Plaintiff’s (Respondent’s) injuries were healing well without any permanent disability. That the first medical report assessed his disability at 20% while the second report assessed it at 10%. It was their submission that an award of Kshs 450,000/= as general damages was proportionate while Kshs 1,500,000 /=was excessive and disproportionate. They cited the case of Vitalis Kariuki Mwangi v Monica Wangare Kimani(2022) eKLR, Julius Edwin Muriuki & Another v George Kithinji Mwiandi (2014) eKLR, John Njenga Maina v Humphrey Kinyua Rukeria (2016) eKLR and Christopher Njoroge Ngugi & Stella Kathure v Cosmas Kithusi Nzioka (2018) eKLR in support of this position. They also submitted that the special damages were not supported by evidence.

Respondent’s Submissions 7. The Respondent submitted that an appellate court could only interfere with the trial court's decision on the award of quantum where it was satisfied that the trial court took into account an irrelevant factor or left out a relevant factor or where the award was too high or too low or was based on an erroneous estimate or not based on evidence.

8. He also submitted that the Appellant did not adduce evidence to challenge the assessment of his disability at 20%. On loss of amenities, the Respondent submitted that he could no longer enjoy his work which involved a lot of sitting and standing. He relied on the case of Mwaura Muiruri v Suera Flowers Limited & Another(2014) eKLR. Lastly, he submitted that they had produced receipts that proved the award of special damages in the sum of Kshs 153,750/=.

9. I have perused the Memorandum of Appeal and the respective submissions. The main and only issue for determination is whether the award made by the trial magistrate was merited.

10. It cannot be gainsaid that the duty of a first appellate court is to re-examine the evidence afresh and arrive at its own conclusion. InSelle & Another v Associated Motor Boat Company Limited & Others (1968) EA 123 it was stated thus:-“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 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 had neither seen nor heard the witnesses and should make due allowances 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 demeanor of a witness is inconsistent with the evidence in the case generally.”

11. In the present appeal, there was no contention about the facts of the case. The parties had also recorded consent before the trial court to enter liability in the ratio of 80:20 in favour of the Plaintiff (Respondent). I will therefore limit my analysis to the evidence touching only on the assessment of quantum.

12. The principles which guide the courts in determining whether to disturb an award of quantum are well established. In the Court of Appeal case of Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 Others (1986) KLR 457, it was stated as follows:-“This court, I remind myself, is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure, the judge:a.Proceeded on a wrong principle; orb.Misapprehended the evidence in some material respect.And a member of an appellate court when naturally and reasonably says to himself, ‘What figure would I have made?’ and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other judges are entitled to their view or opinions so that their figures are not necessarily wrong if they are not the same as his own.”(See also Butt v Khan Civil Appeal No 40 of 1977 [1978] eKLR).

13. I have considered the decision of the trial court alongside the evidence and submissions placed before the court. I noted that the trial magistrate clearly pointed out that the Respondent prayed for general damages in the sum of Kshs 2,000,000/= while the Appellant submitted that an award of Kshs 450,000/= was reasonable and proportionate to the injuries. It was from this context that the trial magistrate awarded Kshs 1,500,000/=. Clearly, the trial court placed more reliance on the authorities submitted by the Plaintiff/Respondent. It would have however been prudent for the trial magistrate to provide reasons for which he chose to rely on the cases cited by the Respondent and not those of the Appellant.

14. In determining an appropriate award, the court must consider the nature and the extent of injuries alongside comparable awards and factor in inflation rates. In the Court of Appeal case of Jabane v Olenja [1986] KLR 661, the guiding principles for assessing general damages were outlined as follows;“The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his court to an award of damages by a trial judge:1. Each case depends on its own facts;2. Awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);3. Comparable injuries should attract comparable awards.4. Inflation should be taken into account; and5. Unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone.

15. Similarly, in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR, the court held thus: “comparable injuries should attract comparable awards.”

16. The Respondent testified that he sustained injuries as a result of the accident and produced Pexh5(a) and (b) in support of this. The injuries were as follows:-i.Compound fracture to the left tibiaii.Chest contusioniii.Deep cut wound on the left parietal regioniv.Blunt trauma to the right shoulderv.Blunt trauma to the left shoulder

17. From the above evidence and precedents, I make a comparison of similar injuries from previously determined cases as follows:-i.In the case of Ram Gopal Gupta v Nairobi Tea Packers Ltd & 2 Others[2017] eKLR, the Court awarded Kshs 800,000/= for compound fractures involving tibia and fibula, tear of medial and collateral ligaments of left knee.ii.In DPL Festive Limited v Rose Akinyi OcholaHCCA No 25 of 2018. The plaintiff who had suffered fracture of the distal femur and right tibia fibula and a cut wound on the right elbow was awarded Kshs 750,000/= as general damages on appeal.iii.InDedan Njoroge Mwangi & another v Jane Wanjiru [2020] eKLR, the Plaintiff suffered a degloving injury (open wound) on the right arm, fracture of the right radius and ulna, bruises on the right side of the head, the right thigh and right upper arm. The award of Kshs 2,000,000/= as general damages was placed aside and substituted for Kshs 600,000/=.

18. I am also persuaded by the decision of Mwongo J in Ndathi Mwangi & 2 others v Benson Lumumba Ndivo [2018] eKLR where the learned judge stated thus:-“11. It is beyond argumentation that no two accidents will ever result in exactly the same injuries or the same set of injuries. Accordingly, it is the duty of the court, on the basis of its best appreciation of the various authorities cited and using its closest approximation of the compensable value of the injuries in the case before it relative to those cited in authorities, and given the passage of time, to pronounce itself on the appropriate compensation.”

19. Based on the foregoing, it is my finding that an award of Kshs 1,500,000/= as general damages was manifestly excessive. I set it aside and substitute therefor the sum of Kshs 850,000/= taking into account inflation rates. 20. The Respondent also prayed for future medical expenses but did not specifically plead for them. The governing principle for awarding damages for future medical expenses was elucidated by the Court of Appeal in Kenya Bus Services Limited v Gituma (2004) EA 91 as follows:-“And as regards future medication (physiotherapy) the law is also well established that, although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damages and is a fact that must be pleaded, if evidence thereon is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from the infringement of a person’s legal rights should be pleaded.” (Emphasis mine).

21. From my perusal of the Plaint dated 14th February 2020, the Respondent merely asked the court to assess future medical expenses that would be applicable to him. During the proceedings, no evidence was tendered in support of how much he was likely to incur. As such, I am disinclined to grant this prayer and make this award.

22. Next, I will address myself to the issue of special damages. It is trite that special damages must be specifically pleaded and proven. In the case ofPeter Mark Gershom Ouma v Nairobi City Council [1976] eKLR, it was held thus:-“Thus for a plaintiff to succeed on a claim for special damages he must plead it with sufficient particularity and must also prove it by evidence. As to the particularity necessary for pleading and the evidence in proof of special damage, the court’s view is as laid down in the English leading case on pleading and proof of damage, Ratcliffe v Evans (1892) 2 QB 524 where Bowen L J said at pages 532, 533:‘The character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry.’In the instant case there was an allegation and a list of some stolen or broken property of the plaintiff. This was in the pleading, but certainty and particularity of proof were lacking. In the circumstances, the claim for specific damages must fail, and it is dismissed.”

23. The Respondent pleaded as follows for special damages in the amended Plaint dated August 31, 2020:-a.Medical Expenses – Kshs 195,200/=b.Medical Report – Kshs 6,500/=c.Transport Expenses – Kshs 10,000/=d.Copy of Records – Kshs 550/=Total = Kshs 212,250/=

24. In its judgment, the trial court stated as follows: -“From the exhibits produced to prove these special damages:-i.Pexh 1(a-d) proved Kshs 136,700/=ii.Pex3 Kshs 10,000/= provediii.Medical Report Pexh5 (a) and (b) Kshs 6500/= provediv.Copy of records Kshs 550/= proved.…So the total special damages pleaded and proved = Kshs 153,750 and the same is therefore awarded.”

25. I have carefully perused the trial Record. The Respondent produced before the trial court the following:1. PEX 1(a-d) which were medical receipts from Tenwek Hospital (receipts in the sum of Kshs 15,000/=; Kshs 113,200/=; Kshs 2,000/=; and Kshs 65,000/=);2. PEX3 which was a receipt for car hire services for Kshs 10,000/= dated 21st December 2019;3. PEX 5(a) receipt for medical report from Dr Morebu in the sum of Kshs 6,500/= ; and4. PEX6 which was a motor vehicle search receipt for the sum of Ksh 550/=.

26. Cumulatively, all these add up to Kshs 212,250/= as rightfully pleaded by the Respondent. It is my finding that the special damages were specifically pleaded and proven by the Respondent. The trial court therefore erred in assessing the special damages and awarding Kshs 153,750/= . I substitute this amount with Kshs 212,250/= which I find specifically pleaded and sufficiently proven.

27. In the end, the Appeal partially succeeds. The final award is as follows:-i.General Damages: Kshs 850,000/=ii.Special Damages: Kshs 212,250/=Total = Kshs 1,062,250/=Less 20% liability = 849,800/=_

28. The Respondent shall have costs and interest of the suit as awarded by the trial court and each party shall bear their own costs in this appeal.Orders accordingly.

JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 19TH DAY OF OCTOBER, 2022. ..........................R. LAGAT-KORIRJUDGEJudgment delivered electronically to the parties