[2022] KEHC 16970 (KLR)

Njoroge & another v Chege (Civil Appeal 30 of 2019) [2022] KEHC 16970 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16970 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 30 of 2019

GWN Macharia, J

December 15, 2022

Between

Fredrick Njoroge

1st Appellant

James Gateri

2nd Appellant

and

Ann Mugure Chege Alias Hannah Mugure Chege

Respondent

(Being an appeal from the judgment and decree in the Chief Magistrate’s Court at Naivasha CMCC No.577 of 2015 delivered by Hon. K. Bidali, CM on the 26th day of June, 2019)

Judgment

The appeal 1. The appellants, being dissatisfied with the decision of the trial court lodged the present appeal vide a memorandum of appeal filed on the July 15, 2019. The appeal is premised on the findings of the trial court on quantum and it sets out the following six grounds:1. That the learned trial magistrate erred in making a finding and arriving at an award of damages which is inordinately too high as to represent an erroneous estimate of the damages payable.2. That the learned trial magistrate erred in applying wrong principles and failing to take into account material facts arriving at an erroneous award.3. That the learned trial magistrate erred in law and in fact in disregarding the appellants’ submissions and on all points of fact and law in so far as the award of damages is concerned.4. That the learned trial magistrate erred in law and in fact in awarding Kshs 1,500,000. 00 as general damages which is excessive and unrealistic in the circumstances against the injuries allegedly sustained.5. That the learned trial magistrate erred in law and in fact in awarding Kshs 1,000,000. 00 as loss of earning yet the same was not proved.6. That the learned trial magistrate erred in law and in fact by not discounting 20% liability from the decretal amount.

2. The appeal was canvassed by way of written submissions.

Background 3. The respondent’s claim in the trial court was initiated by way of a plaint dated the September 4, 2015. The respondent sought against the appellants special damages in the tune of Kshs 34,350. 00, general damages for pain, suffering and loss of amenities and reduced earning capacity as well as costs and interests of the suit.

4. The respondent’s claim arose from an accident which occurred on or about the December 12, 2014 at about 2000 hours when she was travelling as a lawful passenger aboard motor vehicle registration KAY 881T along Gilgil-Nakuru Road when at Kikopey climbing lane the 2nd appellant’s motor vehicle KBP 180B being driven by the 1st appellant was carelessly managed that it lost control, veered off its lane and collided with the motor vehicle KAY 881T. As a result, the respondent sustained compound fracture of the right tibia, fractures of the right ulna, soft tissue injuries and permanent incapacity of about 40%.

5. The appellants filed a joint statement of defence dated the October 9, 2015 in which they denied negligence on their part and urged the court to dismiss the claim.

6. The respondent subsequently filed an amended plaint dated the November 18, 2016 and in which the special damages were indicated to be Kshs 52,030. 00. The appellants too, filed an amended statement of defence in response to the amended plaint, denying any liability.

Evidence 7. This being the first appeal I am required to reconsider the evidence adduced, reevaluate it and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified. See Selle & another v Associated Motor Boat Company Ltd & others [1968] EA 123. I thus summarize the evidence on record as follows.

8. The respondent was PW1. She stated that she was a farmer. She adopted her statement on record and produced a copy of her identity card, treatment records, bundle of receipts, a medical report, police abstract and a demand letter. She testified that she broke her right hand and leg and was admitted at St Mary’s Hospital on the December 12, 2014 to the January 14, 2015 and later from June 3, 2015 to June 11, 2015. Her hand was put in a cast for 2 months and the leg was fitted with metal plates for 3 months, then a plaster for three months then metal plates which were still present as at the time of her testimony. She further testified that she used crutches for 3 years up to the year 2017. In her farming business, she used to earn Kshs 60,000. 00 from maize and Kshs 40,000. 00 for beans in a season. Additionally, she would earn Kshs 30,000. 00 and from potatoes, Kshs 11,000. 00 to 12,000. 00 from cows. She indicated she had sustained a 10% permanent disability on her right upper limb and the metal plates on her right lower limb were not to be removed.

9. In cross examination, PW1 stated that she was attended to by Dr Okare in 2015 whilst she was in crutches. The medical report was authored while she was still undergoing treatment. On the May 5, 2017, she saw Dr. Mike and she was not then in crutches. She indicated she cannot work well and was yet to fully recover.

10. The respondent’s case was closed upon PW1 testifying and the parties proceeded to allow the 2nd medical report by Dr Malik to be produced as DE-1 by consent.

11. The parties agreed to apportion liability in the ratio of 80:20% in favour of the respondent/plaintiff. The terms of the consent were adopted as an order of the court on the March 21, 2018.

Submissions 12. The appellants filed their written submissions on the January 11, 2022. They urged the court to find that an award of Kshs 1,500,000. 00 in the circumstances was inordinately high and ought to be interfered with. They proposed an award of Kshs 300,000. 00 with reliance placed on the case of SDV Transami K Ltd v Scholastic Nyambura [2012] eKLR where the court awarded Kshs 250,000. 00 for pain and suffering for a plaintiff who had sustained a compound fracture of the right tibia fibula and soft tissue injuries.

13. On loss of earnings, the appellants urged that since the incomes from farming had not been proved, the learned trial magistrate ought not to have awarded the same. Further, the appellants faulted the learned trial magistrate for failing to discount the 20% liability on the decretal sum despite the same having been recorded by the parties and adopted by the trial court.

14. The respondent on the other hand filed her submissions on the February 24, 2022. She urged the court to uphold the findings of the learned trial magistrate with respect to the award on pain and suffering as well as diminished earning capacity.

15. The respondent submitted that she sustained compound, fractures of the right tibia, fractures of the right ulna, soft tissue injuries and permanent incapacity cumulatively of about 40% which was able to establish by her testimony as well as the documents she adduced. In urging the court not to disturb the award made by the trial for injuries, she made reference to the case of Mwaura Muiruri v Suera Flowers Limited & another [2014] eKLR where the plaintiff had sustained multiple lacerations on the face, soft tissue injuries on the chest cage (mainly left subaxilliary), communicated fracture of the right humerus, and compound double fractures of the right upper leg and lower 1/3 tibia fibula. The court assessed general damages for pain, suffering and loss of amenities at Kshs 1,450,000.

16. On the award for diminished earning capacity, the respondent submitted that the permanent incapacitation was assessed by Dr Okere and bearing in mind his findings, the learned trial magistrate was sufficiently guided to make an award of Kshs 1,000,000. 00 under this header. She submitted that the injuries sustained in the said accident had directly impacted on her incapacitation to earn as she used to, prior to the accident. In so submitting, reliance was placed on the Court of Appeal case in Mariga v Musila [1984] eKLR where it was stated:“As regards the award of Kshs 500,000 for “lost years” I agree with what my learned brother Hancox JA has said in his judgment. A victim whose earning capacity has been diminished by the defendant’s negligence is entitled to compensation for the “lost years”. This is a matter of not only sound logic but justice. The accident has diminished the respondent’s capacity of earning. It is an economic loss for which the appellant must compensate the respondent. The learned judge quite correctly followed Pickett v British Rail Engineering Ltd [1979] 1 ALL ER 774 as to “lost years”. The principles in that case represent substantial justice and sound logic.It is a common sense approach to the issue. If a man through the negligence of another is deprived of the capacity of earning for a period, he is entitled to fair compensation for the lost period occasioned by the wrongdoer.”

17. The respondent further invited the court to the Court of Appeal decision in Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR where the it was held:“The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”

18. In light of the foregoing, the respondent urged the court to uphold the awards of the learned trial magistrate and dismiss the appellants’ appeal with costs.

Analysis and determination 19. The issue for determination is whether the awards made under pain, suffering and loss of amenities of Kshs 1,500,000. 00 and Kshs 1,000,000. 00 for diminished earning capacity were commensurate in the circumstances. I bear in mind as was enunciated by the Court of Appeal in the case of Kemfro Africa Limited t/a Meru Express Services (1976) & another v Lubia &anor(No 2) [1985] eKLR that comparable injuries ought to attract comparable awards.

20. Further, in order for the appellate court to interfere with the award of the trial court, there has to be sufficient grounds and principles as was held in Butt v Khan [1981] KLR 470 and Kitavi v Coastal Bottlers Ltd [1985] KLR 470) that:“Although one would expect that in the normal course of things, the claimant to the accident might get well and restored to his or her original health status prior to the accident sometimes that is not the case in most instances. It is necessary to find the correct bearing which seldom alludes the Judges with expertise and knowledge on this areas of specialization. An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirety 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 a figure which was either inordinately high or low.”

21. Indeed, the foregoing positions were reiterated in the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, where the Court of Appeal held that –“…it is firmly established that this court will be disinclined to disturb the finding of a trial judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial judge on the question of the amount of damages it will generally be necessary that this court should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this court in Butt v Khan [1981] KLR 349 when it held as per Law, JA 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.”

22. The respondent’s injuries are not disputed. The documents on record confirm that the respondent sustained compound fractures of the right tibia, fractures of the right ulna and soft tissue injuries. The point of contention is whether the respondent has been permanently incapacitated and to what degree. The respondent’s medical report by Doctor Okere P Ext 8a ascertains permanent disability at 40%. Dr Okere’s report was prepared on the August 8, 2015. This was approximately 8 months after the accident.

23. On the other hand, Dr Malik examined the Respondent on the May 8, 2017. He confirmed that indeed the respondent had suffered the stated injuries and had undergone several procedures with a prolonged healing period. However, he arrived at the conclusion that the lower limb fracture had healed with normal functioning and the ankle joint could move normally without pain. The respondent had no shortening of the right leg but walked while slightly limping. The said slight limp was anticipated to go away. It was also concluded by Dr Malik that the functioning of both limbs that were affected had become normal and the muscular power had been restored. He made a conclusion that the respondent suffered no permanent disability.

24. This court is faced with conflicting findings of experts in their own field. As to the weight a court of law should attach to expert opinion was spelt out in Stephen Kinini Wang'ondu v The Ark Limited [2016] eKLR that:“Expert testimony, like all other evidence, must be given only appropriate weight. It must be as influential in the overall decision-making process as it deserves; no more, no less....This is because, while expert evidence is important evidence, it is nevertheless merely part of the evidence which a court has to take into account. Four consequences flow from this.Firstly, expert evidence does not “trump all other evidence”. It is axiomatic that judges are entitled to disagree with an expert witness. Expert evidence should be tested against known facts, as it is the primary factual evidence which is of the greatest importance. It is therefore necessary to ensure that expert evidence is not elevated into a fixed framework or formula, against which actions are then to be rigidly judged with a mathematical precision.Secondly, a judge must not consider expert evidence in a vacuum. It should not therefore be “artificially separated” from the rest of the evidence. To do so is a structural failing. A court’s findings will often derive from an interaction of its views on the factual and the expert evidence taken together. The more persuasive elements of the factual evidence will assist the court in forming its views on the expert testimony and vice versa. For example, expert evidence can provide a framework for the consideration of other evidence.Thirdly, where there is conflicting expert opinion, a judge should test it against the background of all the other evidence in the case which they accept in order to decide which expert evidence is to be preferred.Fourthly, a judge should consider all the evidence in the case, including that of the experts, before making any findings of fact, even provisional ones.”

25. In Kimatu Mbuvi T/A Kimatu Mbuvi & Bros v Augustine Munyao Kioko Civil Appeal No 203 of 2001 [2007] 1 EA 139 the Court of Appeal had this to say in regard to expert medical evidence:“Like other sciences, medicine is not an exact science and that is why expert medical opinion is no different from other expert opinions and such opinions are not binding on the court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”

26. It was the respondent’s testimony that she had stopped using the crutches and was continuing her farming activities. She indicated that she was doing her farming business which she used to prior to the accident. However, she testified that she was yet to fully recover and could not work well as she used to.

27. Taking into account the respondent’s testimony, which was taken over a year after the findings of Dr Malik’s examination, it would suffice to say that she had not realised incapacitation that had permanently severely diminished her ability to earn a living through farming. Further, the report by Dr Okere was prepared 8 months after the accident; it is undisputed that as at that time, the injuries were still in the early stages of healing. Dr Malik however, had the opportunity to re-examine the respondent almost two years later and he noted that the injuries had healed. He did acknowledged that the injuries had temporarily incapacitated both limps during the course of their prolonged healing period. The respondent did not in the course of giving her evidence demonstrate how her productivity had been diminished as a result of the injuries sustained and the said diminution is one that is expected to be experienced permanently, thus affecting her earnings.

28. In Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR the Court of Appeal stated:“The award for loss of earning capacity can be made both when the plaintiff is employed at the time of the trial and even when he is not so employed. The justification for the award when plaintiff is employed is to compensate the plaintiff for the risk that the disability has exposed him of either losing his job in future or in case he loses the job, his diminution of chances of getting an alternative job in the labour market while the justification for the award where the plaintiff is not employed at the date of trial, is to compensate the plaintiff for the risk that he will not get employment or suitable employment in future. Loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as a separate head of damages. The award can be a token one, modest or substantial depending on the circumstances of each case. There is no formula for assessing loss of earning capacity. Nevertheless, the Judge has to apply the correct principles and take the relevant factors into account in order to ascertain the real or approximate financial loss that the plaintiff has suffered as a result of disability.”

29. In the case of Beatrice Anyango Okoth v Rift Valley Railways (Kenya) Limited & another [2018] eKLR, PJ Otieno, J on diminished earning capacity held: -“…Damages under this heading are awarded where is proved that owing to the injury suffered by the plaintiff, his chances of getting a job in the labour market comparable to the one he held before the injury are diminished or just lowered. It must be differentiated with loss of earning capacity which occurs where there chances of earning are literally erased…”

30. In view of the foregoing, I find that the learned trial magistrate failed to consider the testimony of the respondent herself in establishing whether she had experienced permanent incapacitation to the point her earnings would permanently be diminished.

31. The following cases provide a good guidance with respect to the award on general damages for pain, suffering and loss of amenities:i.In the case of Godfrey Mugnicholas Mwiti Mwirebua v Marcella Mpaka Kiambi [2022] eKLR the court affirmed an award of Kshs 900,000. 00 for general damages where the appellant suffered multiple communited fracture of right femur, right tibia-fibular fracture and blunt abdominal trauma injuries.ii.In Jane Njeri Machria v Godfrey Murimi Muya & another [2020] eKLR an award of Kshs 800,000. 00 was made for a plaintiff who particularized injuries as a cut wound on the right periorbital region; blunt injury on the upper lips and a compound fracture on the right tibia and fibula and a closed fracture on the left tibia and fibula. As result of the injuries, she was admitted in hospital for three months.

32. The authorities relied upon by the appellants relate to less severe injuries while the respondent has relied on authorities relating to more severe injuries. From the material placed before me, I find that an award of Kshs 1,500,000. 00 was inordinately high in the circumstances and an award of Kshs 1,100,000. 00 would have been commensurate to the injuries sustained by the Respondent.

Disposition 33. For the above reasons, I allow the appeal and set aside the learned trial magistrate’s judgment and substitute it with the following awards:i.General damages for pain, suffering and loss of amenities Kshs 1,100,000. 00ii.Special damages Kshs 52,030. 00iii.Sub-total Kshs 1,152,030. 00Less 20% contribution Kshs 230,406. 00Net total - Kshs 921,827. 00

34. The appellant will have costs of the appeal.

35. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DAY OF DECEMBER, 2022. GW NGENYE-MACHARIAJUDGEIn the presence of:1. Mr Kuto for the appellants.2. Mr Ndung’u for the respondent.