[2022] KEHC 16996 (KLR)

Njoroge & another v RMM (A Minor Suing through Next Friend SMK) (Civil Appeal 29 of 2019) [2022] KEHC 16996 (KLR) (15 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16996 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 29 of 2019

GWN Macharia, J

December 15, 2022

Between

Fredrick Njoroge

1st Appellant

James Gateri

2nd Appellant

and

RMM (A Minor Suing through Next Friend SMK)

Respondent

(Being an appeal from the Judgment and Decree of the Chief Magistrate's Court at Naivasha in CMCC No. 679 of 2015 delivered by the Hon. K. Bidali (CM) on 19th June, 2019)

Judgment

1. This is an appeal on quantum of damages. It arises from Naivasha CMCC No 679 of 2015 in which the respondent sued the appellants for general and special damages arising from injuries that the minor sustained in a road traffic accident on December 12, 2014 at Kikopey along Gilgil–Nakuru road. According to the plaint, the accident involved motor vehicle registration number KAY 881T in which the minor was travelling as a passenger in motor vehicle registration number KBP 180B, property of the 2nd appellant, being driven by the 1st appellant.

2. The appellants denied the claim in their joint amended statement of defence and blamed the accident on the negligence of the driver of motor vehicle registration number KAY 881T.

3. The parties entered a consent on liability whereby the same was apportioned in the ratio of 80:20 in favour of the respondent as against the appellants. As such, the trial court was only tasked with assessment of damages which were awarded as follows:Kshs 1,500,000/- for pain, suffering and loss of amenities; Kshs 2,000,000/- for reduced earning capacity; Kshs 150,000/- for removal of implants and Kshs 427,048/- for special damages (less 20% liability). The respondent was also awarded costs of the suit.

4. Being dissatisfied with the assessment of general damages, the appellants filed the present appeal vide a memorandum of appeal dated July 9, 2019. They raised the following five grounds of appeal:1. That the learned trial magistrate erred in arriving at an award of damages which is inordinately high as to represent an erroneous estimate.

2. That the learned trial magistrate erred in applying wrong principles and failing to take into account material facts.

3. That the learned trial magistrate erred in law and fact in disregarding the appellants’ submissions on the award of damages.

4. That the learned trial magistrate erred in law and fact in awarding Kshs 1,500,000/- as pain, suffering and loss of amenities, Kshs 150,000/- as cost of removal of implants as the awards are excessive and unrealistic in light of the injuries allegedly sustained.

5. That the learned trial magistrate erred in law and fact in awarding Kshs 2,000,000/- as reduced earning capacity yet the same was not proved.

Summary of Evidence 5. Only the respondent’s witness testified during trial. PW1, Simon Macharia Kamau, was the respondent’s father. He adopted his witness statement dated December 1, 2015 as his evidence in chief and produced the plaintiff’s bundle of documents as exhibits in support of the respondent’s case.

6. According to the witness statement of PW1, on December 12, 2014 at about 7. 00pm, he was travelling with his son RM as a lawful fare paying passengers in motor vehicle registration number KAY 881T. When they reached Kikopey climbing lane, motor vehicle registration number KBP 180B which was being driven in the opposite direction tried to overtake. The driver of motor vehicle registration number KAY 881T in which they were travelling in stopped but motor vehicle registration number KBP 180B lost control and violently collided head on with motor vehicle registration number KAY 881T. PW1 and his son sustained injuries as a result of the accident and were rushed to St Mary Mission Hospital by police officers from Gilgil police station. His son was later transferred to Kijabe hospital for further treatment having suffered injuries as pleaded in the plaint. They later reported the accident at Gilgil police station where they recorded a statement and were issued with a police abstract and a P3 Form.

7. PW1 further testified that the cost of removing the metal implant in situ is Kshs 150,000/-. It was also his testimony that his son had not fully recovered as at the time of hearing as he was still complaining of headache.

8. There was no cross examination and the defence closed their case without calling any witnesses or tendering any exhibits in evidence.

Analysis and Determination 9. The appeal was canvassed by way of written submissions which this court has duly considered against the grounds and record of appeal. The only issue for determination is whether the trial court’s award of damages was so excessive as to amount to an erroneous estimate.

10. As a general principal, the assessment of damages is a matter of the exercise of court discretion and as such, an appellate court will normally be slow to interfere with such discretion unless the trial court misdirected itself in arriving at the award in question. The Court of Appeal in Bashir Ahmed Butt v Uwais Ahmed Khan (1982-88) KAR stated as follows in this regard:“An appellate court will not disturb an award for general 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...”

11. In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another(No 2) [1985] eKLR, Kneller JA stated:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be 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 damage.”

12. This court will therefore consider the different awards complained of in light of the principles set out in the above authorities.

a. Pain, suffering and loss of amenities 13. The appellants submitted that the trial court’s award of Kshs 1,500,000/- under this head was not in tandem with the injuries sustained by the respondent which were: compound fracture of the right femur, fracture of the left femur and deep cut wound on the left forehead. The appellants submitted that in the case of Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] eKLR, the plaintiff sustained compound fractures of the tibia/fibula bones on the right leg, deep cut wound and tissue damage on the right leg, head injury with cut wound on the nose, blunt chest injury and soft tissue injury on the left lower limb involving the high and ankle region and award of Kshs400,000/- was made. They also submitted that in TAM (a minor suing through her father next friend JOM) v Richard Kirimi Kinoti & Another[2015] eKLR, the plaintiff sustained a fracture of the left femur, lacerations on the left temple and blunt chest injuries. A metal plate was inserted in the fractured leg and he was awarded Kshs 250,000/- in 2015.

14It was the appellants’ further submission that in the case of Bhachu Industries Limited v Peter Kariuki Mutura [2015] eKLR, the plaintiff suffered soft tissue injuries on the chest and thigh and a fractured femur which was fixed by insertion of a k-nail resulting in him walking with a limping gait and was awarded Kshs300,000/- in 2015. Lastly, they argued that in the case of Anne Muriithi, Lilian Kathoki,Naomi Nzisa,Mary Nzomo,Anne Njeru & Jane Syombua Sammy v The Headmistress Mks Girls, The chairman,Board of governors & Wambua Makau [2003] eKLR, one of the plaintiffs fractured her right tibia and fibula which was plated and the court made an award of Kshs 320,000/-. Another plaintiff sustained uncomplete fracture of the left tibia and left hip and a blunt injury to the left hip and an award of Kshs 250,000/= was made. The appellants therefore proposed that an award of not more than Kshs 600,000/- should suffice as reasonable compensation under this head.

15As for the respondent, it was submitted that the award made by the trial court for pain, suffering, and loss of amenities was not so excessive as to be considered erroneous. The respondent stated that it pleaded the following injuries: Compound fractures to the right femur, fracture of the left femur, deep cut wound on the left forehead and permanent incapacity cumulatively of about 85%.

16He faulted the appellants for conveniently cherry picking the documents to rely on in their submissions before this court. The respondent stated that the appellant seems to have only relied on the initial treatment notes to prove injuries suffered which should not be the case. Relying on various decisions inter alia: Mwanzani Mwakitu v Chandaria Industries Co Ltd [2015] eKLR; Timsales Limited v Patrick King'ori Mwangi [2015] eKRL; Timsales Limited v Stanley Njihia Macharia [2016] eKLR; and Ben Ocharo & Others v Kenya Farmers Co-Operative Society, Kisii HCCA No 91 of 2006 (Unreported), he submitted that treatment notes provide consistency and corroboration but are not the only proof of injuries sustained.

17Further, the respondent submitted that the appellants cannot claim that the trial court failed to consider their submissions merely because the court did not do a case by case analysis to show that she had considered the authorities cited. It was also the respondent’s submission that the injuries sustained in the decisions cited by the appellants are not comparable to the injuries sustained by the respondent. In the respondent’s view, the following decisions had comparable injuries:a.Jesca Kaari Mutwiri Mwangi v Farah Said Hassan & Another [2009] eKLR where the plaintiff suffered fracture of the right and left femur, deep cut wounds on the face, fracture of the mandible, left femoral neck and soft tissue injuries on the right foot heel and was awarded Kshs 1,500,000/= in 2009. b.Mary Pamela Oyioma v Yess Holdings Limited [2011] eKLR where the plaintiff sustained a comminuted fracture of the right femur, compound fracture of the right tibia, fracture of the left tibia; soft tissue injuries to the right shoulder and multiple cut wounds over the whole body, the court awarded Kshs 900,000/= as general damages for pain, suffering and loss of amenities.

18From the medical report of Dr Okere dated July 3, 2015 which was the only one produced in evidence before the trial court, the respondent sustained the following injuries: compound fracture of the right femur, fracture of the left femur and deep cut on the left forehead. The evidence shows that he was first treated at St Mary’s rift valley mission hospital where he was admitted on December 12, 2014 and discharged on January 22, 2015. He was later taken to AIC Kijabe hospital where he was admitted on March 16, 2015 and discharged on April 7, 2015 but continued to receive outpatient treatment. The respondent underwent a surgery for plating of the right femur. As at July 3, 2015 when he was examined by Dr Okere, he had pain on the right upper leg and a difficulty in walking. According to the report, the respondent suffered 45% permanent disability of the right leg and 40% on the left leg.

19This court is of the considered view that the injuries inJesca Kaari Mutwiri Mwangi v Farah Said Hassan & Another (supra) cited by the respondent are more comparable to this case although the claimant suffered additional injuries. Further, in Denshire Muteti Wambua v Kenya Power and Lighting Co Ltd [2013] eKLR, the claimant suffered multiple fractures involving the right femur, left femur and left scaphoid bones; dislocation of left elbow joint associated with a fracture of the radial head; dislocation of the left lunate bone and bruises parietal scalp. The case also involved additional injuries and the Court of Appeal awardedKshs1,500,000 general damages for pain and suffering in 2013.

20In the premises and taking into account the inflationary trends, this court finds that the award of Kshs 1,500,000/- made by the trial court was not inordinately excessive as to amount to an erroneous estimate.

b. Reduced earning capacity 21. The appellants contended that the award of Kshs 2,000,000/- for reduced earning capacity and costs of future operation should not have been made since it was not proved. They argued that at the time of the accident, the minor herein was of tender years and not earning any income. Further, it was their contention that being a minor, the respondent was likely to heal much faster than an elderly person. The appellants took issue with the trial court’s pronouncement that the minor was on a wheel chair at the time of testifying which was not the case. They argued that the medical report which was relied upon by the respondent during hearing indicates that at the time of examination, the minor had difficulty in walking but he report did not state that he was on a wheel chair or walking on crutches. They stated that the respondent was also reexamined by the appellant's doctor, Dr Malik, on July 18, 2017 and there was no indication that he was on a wheel chair. They submitted that the doctor noted that the right leg femur was straight and solidly united while on the left leg the doctor noted that there was full range of flexion and extension at the left knee joint with normal muscle power. The doctor thus confirmed that the fractures had united without any displacement. In their view therefore, the trial court ought not to have made any award under this head.

22. On the other hand, the respondent submitted that there was uncontroverted evidence to justify the award. The respondent submitted that it is a misapprehension of the evidence to state that the injuries sustained did not directly affect his earning capacity. It was argued that the evidence adduced proved that the respondent became incapacitated as a result of the injuries suffered in the subject accident which in turn diminished his earning capacity thus entitling him to compensation. The respondent relied on various cases, among them Mariga v Musila [1984] eKLR, Mumias Sugar Company Limited v Francis Wanalo [2007] eKLR and S J v Francesco Di Nello and Another [2015] eKLR.

23. Reduced earning capacity, once proved, is compensated by an award in general damages. In William J Butler v Maura Kathleen Butler [1984] eKLR, Chesoni, JA (as he then was) stated:Loss of earning capacity or earning power may and should be included as an item within general damages, Lord Denning MR in Fairley v John Thomson [1973] 2 Lloyd’s rep 40 at 42 (CA) but where it is not so included, it is not improper to award it under its own heading as the learned judge in this case did. Indeed, the judge should have said “general damages” for pain, suffering including loss of earning capacity, Kenya pounds 44,000, a figure, in view of the result of the injuries suffered in this case, I would not consider too excessive as to justify this court’s interference. What a victim whose earning capacity is diminished through an accident loses is an interest which, if not saleable on the labour market, has an assessable value. It is, therefore, an economic loss of the same class as the “lost years”, for which the wrongdoer should fairly compensate the victim. 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 heading of general damages or as an item on its own, as loss of earning capacity. At any rate, what is in a name if the damages are payable?

24. The Court of Appeal in the case of S J v Francessco Di Nello & Another (supra) held that:-“…Loss of earning capacity may be defined as diminution in earning capacity…loss of earning capacity is compensated by an award in general damages, once proved.”

25. In Mumias Sugar Company Limited v Francis Wanalo(supra), the Court of Appeal stated:“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.”

26. Further, in the case of Beatrice Anyango Okoth v Rift Valley Railways (Kenya) Limited & Another [2018] eKLR, High Court on diminished earning capacity held: -“…Damages under this heading are awarded where it 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 their chances of earning are literally erased…”

27. In this case, the respondent in his plaint filed in the trial court sought to be awarded general damages for diminished earning capacity as a result of the accident. The respondent pleaded that he sustained incapacitating injuries and that at the age of 10 years and thus his ability to lead a normal life and to work efficiently and effectively in the labour market in future had been severely curtailed. The medical report of Dr Okere which was the only one tendered in evidence showed that the respondent suffered 45% permanent disability of the right leg and 40% on the left leg. Further, it was stated that the respondent had a difficulty in walking. The trial magistrate who had the benefit of seeing the respondent noted that he was still on a wheel chair, four years after the accident had occurred.

28. In S J v Francessco Di Nello & Another (supra), the appellant was only 15 years old when the accident that rendered him 100% paraplegic happened. The Court of Appeal noted that he lost his competitive edge in the work place and assessed his general damages for loss of earning capacity at a sum ofKshs 1,500,000/- in 2015. In the premises, I find that the trial magistrate’s award of Kshs 2,000,000/- for reduced earning capacity was not excessive. I will not interfere with the award.

c. Removal of implants 29. On this, it was the appellants’ submission that upon examining the respondent, Dr Malik confirmed that Kshs50,000/- would be needed for removal of the metal plates. In the premises, the appellants urged that an award of Kshs 50,000/- should have been made as costs of future operation instead of Kshs150,000/- awarded by the trial court.

30. The respondent pleaded for cost of removal of implant in situ assessed atKshs 150,000/-. This was according to the medical report of DrOkere which was the only one tendered in evidence. Dr Okere doctor indicated that the implants in the respondent’s right femur would be removed in future at a cost of Kshs 150,000/-. This evidence was not rebutted either in cross examination or by producing an alternative medical report in evidence for the court’s evaluation. This court cannot therefore fault the trial court for awarding the said sum.

Conclusion 31. The upshot is that the appeal lacks merit and is hereby dismissed with costs to the 1st and 2nd respondents. It is so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 15TH DECEMBER, 2022. G.W. NGENYE-MACHARIAJUDGEIn the presence of:Ms. Oura h/b for Mr. Juma for the Appellants.Mr .Ndung’u for the Respondent.