[2023] KEHC 24136 (KLR)

Njuguna v Mwabindo (Civil Appeal 41 of 2021) [2023] KEHC 24136 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24136 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 41 of 2021

DKN Magare, J

October 24, 2023

Between

Peacock Ndungu Njuguna

Appellant

and

Suleiman Bakari Mwabindo

Respondent

Judgment

1. The matter arises from the Judgment and decree of the Honourable Patrick Mwangi, Principal Magistrate, Kwale given on 17/3/2021. The appeal was filed on 29/4/2021 in Kwale PMCC No. 360 of 2016. The Appellant filed 4 grounds of appeal being:-i.The Magistrate erred in awarding the Appellant general damages that were inordinately and manifestly high taking into account injuries sustained by the Respondent (sic).ii.The Magistrate erred in disregarding medical Evidence submitted by the appellant thereby arising at an erroneous decision.iii.The Magistrate erred in disregarding the Appellants written submissions.iv.The Magistrate erred in failing to adequately evaluate the evidence and exhibits.

2. These 4 grounds are essentially raising 1 issue. Ground 3 I shall dismiss it in limine. The issue of submission is an irrelevant consideration given that the Court is acting as a retrial court.

3. The only issue arising, in spite of serious typographical errors in ground one, is whether the respondent was awarded damages that were inordinately excessive as to amount to an erroneous estimate of damages.

4. The appellant does not need to regurgitate and raise prolixious grounds.

Order 42 5. The Appellant should file concise Memorandum of Appeal. Under Order 42 Rule, 1 provides are doth: -“1. Form of appeal –(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

6. The Court of Appeal had this to say in regard to rule 86 (which is pari mateira with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

Duty of the first Appellate court 7. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

Pleadings 8. Given that the appeal is on quantum, I shall deal only with injuries and medical evidence.

9. By a plaint dated 25/7/2016, filed in Court the same day, the Appellant pleaded the following injuries;-Fracture distal radio-ulnaDislocation of the right wrist jointFracture acetabulumDisplaced right hip jointFracture right tibia distal thirdFracture left big toeDislocation left big toeTender swollen right wristTender right hipTender left leg

10. The main suit fracet is the fracture of distal radio ulna, tibia distal thrise, fracture of the acetabulum.

11. Special damages of Kshs. 2,000/= were pleaded. The suit was defended through a decree filed on 23/11/2016.

12. The injuries pleaded were supported by the treatment notes and the case summary form Coast Province General Hospital Mombasa dated 28/12/2018. The Respondent was admitted on 18/10/2018 and discharged 2 months and 10 days later. He was discharged through orthopedic clinic Dr. Nondi, wrote a report dated 24/6/2026. He found that was a comminuted fracture of the distal radius with significant displacement.

13. There was dislocation of the right hip with fracture of the acetabular margins and fracture of the greater tonchanter of the femur. A displaced fragment was noted. post internal fixation.

14. The internal fixation of fracture show a fresh dislocation of the right hip joint. There is an adequate callus.

15. There were 1st, 2nd and 3rd MTPJ which were misaligned. There is a P3 dated 13/3/2025. It shows tender and swollen right wrist joint, fracture of distal aspect with dislocated wrist. The right hip showed fracture of acetabulum. Fracture distal 1/3 tibia dislocated left big toe with fracture. DR. G.M. Otieno had a report dated 22/6/2016. It also gives a detailed report on the injuries for the accident on 18/10/16.

16. The correct date was. There was a consent on liability recorded on 20/11/2019.

17. The Dr. Ndegwa testified on his report dated 24/1/2017.

18. There was a second report dated 18/7/2017 and a time one dated 18/4/19.

19. The degree of disability was placed at 55%. The good doctor changed 2,000 for the 1st and 2nd report and 3000 for the 3rd report. The respondent produced the same as exhibit 1 and receipts for 19000 as exhibit 2.

20. On cross examination it was indicated that younger persons heal faster. He defended 55% disability. The Respondent adopted his statement. He indicated the several places he was injured with several k- nails in situ. They were removed. There was a hip joint surgery in 2008.

21. As at 2019, he had not gone back. He had issue with clothing and toiletry. He confirmed that a report was also done by the insurance. He disputed Kshs. 40,000/= as future medical expenses.

22. The report by Dr. seith Udayya dated 31/3/2017 was produced without calling the maker.

23. The Court entered judgment as follows: -a.General damages 1,400,000/=b.Special damages 2,000

24. In their submissions in the lower court, the Appellant relied on the decision of George Kiptoo Williams =vs= William Sane and another 20014 eKLR. I will not even bother with such a decision as it is over 20 years old.

25. They also relied on 2 other authorities. One being Eastern Produce (K) Ltd. =vs= Christopher Astiado Osiro on the burden of proof.

26. The Respondent on the other hand pleaded 2 decisions both of which were over almost 30 years old. I will equally not bother with the same.

27. Decision must be comparable and recent to show the current trend, comparable injuries and the prevailing rates. Even if I were to use the Appellants authority, for an award of Kshs. 500,000/= 20 years ago, an award of 2 million will suffice. It is not useful to use archaic decision on quantum.

28. The Court equally fell into error when it considered 1986 and 1995 decisions. It does not mean that in the final analysis the court was wrong.

29. In dealing with the issue of damages, the Court is guided by the case of Kenfro and in the case of Mbogo & Another =vs= Shah

Submissions on Appeal 30. I have direction on 29 /3/2023 for the parties to file submissions before 27/7/2023.

31. I have perused the CTS. There are no submissions filed. The parties were served. I had the option of dismissing for want of prosecution. However, it was serving no useful purpose.

32. In the case of Pestony Limited & another v Samuel Itonye Kagoko [2022] eKLR, Justice Meoli confirmed an award of Ksh. 800,000/= for injuries she confirmed were: -“suffered compound comminuted fracture of the right tibia Compound Comminuted fracture of the right fibula, fracture of the left proximal radius, fracture of left ulna, head injury, deep cut wound of the parietal region about 4cm, soft tissue injury and bruises of both hands multiple facial cuts and lacerations and pathological/ re-fracture of the right leg” per the trial court’s judgment. While in the latter authority the plaintiff ‘s injuries were described in the lower court judgment to comprise “multiple fractures involving the right femur, left femur, and left scaphoid bones; dislocation of left elbow joined associated with a fracture of the radial head; dislocation of the left lunate bone and bruises parietal scalp.”These injuries were less severe than the injuries suffered by the Respondent herein

33. These injuries are less serious than what the respondents suffered. In, 2020 Justice Odunga awarded Kshs. 1,000,000/= for injuries far less serious than the ones the Respondent suffered. In 2016, the court in John Kibicho Thirima v Emmanuel Parsmei Mkoitiko [2017] eKLR.

34. Awarded general damages of 1,800,000/ for a) Multiple fractures of ribs of the 2nd to 5th ribs of the chest.b)Fracture of the right ulna bone.c)Displaced and comminuted fracture of the right mandible.d)Fracture of right superior and inferior pubic ramus of the pelvis bone.e)Fracture of the left scapula.f)Fracture of left superior pubic ramus of the pubic bone.the plaintiff in that matter suffered 35% disability.

35. In Angela Katunge Musau ~And~China Wu Yi Limited and another (2020) eKLR, awarded 1,000,000/ = for a cut wound to the forehead, cut wound on the lip, cut wounds on the lip, cut wounds on the left small and ring fingers, fractured left radius bone- distal aspect, fractured right acetabulum (pelvic bone) and fractured femur.

36. It is my considered opinion that if there was any error commuted, the same was awarding lower sums than could otherwise have been awarded. The Respondent did not appeal. Therefore, I will not disturb the award on quantum. There was no error on special damages.

37. In the circumstances there is no merit in the appeal.

38. The appeal is accordingly dismissed with costs of Kshs. 90,000/= to the Respondent.

Determination 39. The appeal in quantum is bereft of merit.

40. It is accordingly dismissed with costs of Kshs. 40,000/=. The file is closed.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 24TH DAY OF OCTOBER, 2023. RULING DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Miss Nasanga for the AppellantMr. Njoroge for the Respondent