[2022] KEHC 14996 (KLR)

Njihia & another v Aluchio (Civil Appeal E089 of 2021) [2022] KEHC 14996 (KLR) (Civ) (8 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14996 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E089 of 2021

JN Mulwa, J

November 8, 2022

Between

Samueal Nene Njihia

1st Appellant

Stephen Muiruri Kamau

2nd Appellant

and

Godfrey Alela Aluchio

Respondent

Judgment

1. This appeal challenges the trial court’s award on general damages awarded to the respondent for injuries he sustained in a road traffic accident on the May 22, 2017. Liability was settled by consent of the parties at 90:10 against the appellants.

2. The injuries sustained by the respondent are tabulated in the P3 form and medical report prepared by Doctor W M Wokabi on the November 13, 2017 being a compound fracture of the right tibia and fibula. The trial court upon hearing the claim awarded damages as follows:a.General Damages for pain and suffering 1,200,000/-b.Loss of earning capacity 175,000/-c.Special damages 22,550/-Subject to 10% contributory negligence

3. In his submissions, the appellant states that the awards were excessive and that a sum of Kshs 400,000/- would be reasonable in the circumstances and the injuries sustained by the respondent.Reliance was placed in the case Kenya Power and Lighting Company Limited and another v Zakayo Saitoti Naingola & another (2008) eKLR on principles to be applied in assessment of damages. Also, the case Cornilliacv St Louis (1965) 7 WIR 491 was cited.

4. To support the proposition of Kshs 400,000/- as reasonable, the following cases are cited;i.Daniel Otieno Owino & Another v Elizabeth Atieno Owour (2020) eKLR wherein Kshs 600,000/- was awarded for comparable injuriesii.Third Engineering Bureau China Construction Group Limited v Edwin Kinanga Atuya (2021) eKLR wherein a sum of Kshs 800,000/- was awarded.

5. For the respondent, the court is urged to disallow the appeal as the awards on general damages are not too high as to invite interference by this appellate court. Of importance to note is that the appellant failed to file submissions before the trial court and therefore the trial court, under its discretion, assessed the damages without the benefit of submissions by the appellant.

6. Notwithstanding the failure, this court is under an obligation to re-analyse and re-evaluate the totality of evidence adduced before the trial court and come up with its own findings and conclusion – Selle and another v Associated Motor Boat Company Limited & another (1968) EA 123 for the legal principle that an appellate court 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 trial judge is shown demonstrably to have acted on a wrong principle in reaching the findings that he did.

7. There is no issue on the injuries sustained by the respondent. Assessment of damages is essentially at the court’s discretion and upon consideration of comparable awards.For the compound fractures, the respondent had metal fixtures inserted to the fracture sites, walked with crutches for four months when the fixtures were removed, followed with fixations of plaster case. At date of examination by Dr Wokabi, the respondent could not walk without support with an 80% incapacitation noted.

8. I have considered the trial court’s judgment. The authorities cited by the respondent before the trial court are not annexed to the record of appeal, save that the trial court states to have considered the proposals, but not to have considered the authorities as well, where awards of Kshs 1,800,000/- and Kshs 800,000/- were awarded.

9. This would have been an important aspect for consideration as the injuries that attracted the above awards are not tabulated for this court to make a comparison with the respondent’s injuries.

10. On the matter of general damages, guided by recent decisions of the court, and particularly for the period under review, I find that the said award of Kshs 1,200,000/- to have been excessive and high in the circumstances.

11. The above is informed by a well-trodden path of principles that damages should not be inordinately too high or too low; that they are meant to compensate a party for the loss suffered, but not to enrich the party, and therefore should be consummate with injuries suffered – see Jeniffer Mathenge (supra) and HB (Minor suing through mother and next friend DKM v Jasper Nchonga Magari& Another (2021) eKLR.

12. While assessing damages, the court takes into account the nature of the injuries sustained, the gravity resulting to physical disability, the pain and suffering as well as loss of amenities suffered. The claimants’ pecuniary prospects have also to be considered and the consequences thereof.

13. In the circumstance, having considered the above stated parameters, I am persuaded to come to a finding that the award of general damages of Kshs 1,200,000/- was excessive, and must be reduced to a reasonable award of to Kshs 800,000/-

Loss of earnings 14. Though a sum of Kshs 175,500/- was pleaded, it was subject to proof. The trial magistrate in her judgment did not state what she considered while awarding the sum of Kshs 175,500 save to state that, it was sufficiently proved.I have looked at the proceedings before the learned trial magistrate.On the February 25, 2020, a consent order was recorded by the parties’ advocates on liability and on admission of filed plaintiff’s documents and the medical report.

15. In essence, the plaintiff now the respondent did not testify. The court therefore assessed damages on the written submissions by the respondent as the appellant failed to file their submissions.

16. The record of appeal does not contain the parties’ written submissions before the trial court upon which the trial court made its findings and conclusion, specifically on the matter of loss of earnings. Other than stating that the said loss was pleaded and sufficiently proved. This court is unable to interrogate the same. The plaintiff’s list of documents dated May 17, 2018 was admitted without calling the makers.

17. There is a form dosh 1 (number 6), but the content of the form is not shown. I do not know what it says or shows. The trial court did not refer to the said form in its judgment. I am therefore lost as to how the trial court arrived at an award of Kshs 175,550/- loss of earnings without any proof.

18. It is trite that a special damage must not only be strictly pleaded but also proved to the standard of proof, at a balance of probabilities in civil suits.In the absence of the dosh form and proof of the loss of earnings, I find and hold that the claim for loss of earnings cannot be allowed to stand. I dismiss the award of Kshs 175,550/- as baseless.

19. Consequently, the appeal succeeds partially. The award on general damages for pain and suffering is reduced form Kshs 1,200,000/- to Kshs 800,000/-. The award of Kshs 175,550/- for loss of earnings is dismissed for want of proof. Special damages shall remain unchanged at Kshs 2,550/-.

20. The above awards shall be reduced by a 10% contributory negligence as agreed by the parties.

21. Each party shall bear own costs of this appeal.

Orders accordingly.

DATED, DELIVERED AND SIGNED IN NAIROBI THIS 8THDAY OF NOVEMBER, 2022. J N MULWAJUDGE