[2022] KEHC 15465 (KLR)

Ogaro & another v Olang' (Civil Appeal 122 of 2019) [2022] KEHC 15465 (KLR) (16 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15465 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal 122 of 2019

RE Aburili, J

November 16, 2022

Between

Sarah Mogati Ogaro

1st Appellant

Magaigwa Mwita Nyanega

2nd Appellant

and

Maxwell Odhiambo Olang'

Respondent

(An appeal arising from the judgement and decree of the Honourable R.K. Ondieki in the Chief Magistrate’s Court at Kisumu delivered on the 5th August 2019 in Kisumu CMCC No. 260 of 2019)

Judgment

Introduction 1. The Respondent herein Maxwell Odhiambo Olang’was the plaintiff whereas the appellants herein Sarah Mogati Ogaro and Magaigwa Mwita Nyanega were the defendants. The respondent herein brought suit against the appellants jointly and severally claiming that on or about the 3rd July, 2017, the respondent was lawfully travelling along the Kisumu-Nairobi road as a pillion passenger when the 2nd appellant, an agent of the 1st appellant, so negligently, recklessly and/or carelessly drove motor vehicle registration No. KBX 576S Toyota Matatu, as a result of which it veered off its path onto the respondent’s path knocking him as a result of which he sustained serious injuries for which he sought for damages.

2. The appellants filed their joint statement of defence dated 30th August, 2018, denying the occurrence of an accident as alleged by the respondent and further contended that if at all there was an accident, it was as a result of the respondent’s own negligence as well as that of the rider.

3. The issue of liability was settled vide a consent recorded between the parties and adopted by the court on the 6th May 2019 in the ratio of 85:15 in favour of the respondent. The trial court on the 5th August 2019 delivered judgment on quantum and awarded the respondent Kshs. 500,000 as general damages, costs of the suit and interest at Court rates from the date of Judgment.

4. The appellants were aggrieved by the decision of the Trial Court on quantum of damages as awarded hence they filed a Memorandum of Appeal dated 26th October 2019 raising the following grounds of appeal:(i)That the learned trial Magistrate erred in law and fact in the assessment of quantum thereby giving an award on quantum on general damages of Kshs. 500,000 that was overly in excess of the circumstances of the case.(ii)That the learned trial Magistrate erred in law and fact in failing to pay regard to decisions filed alongside the defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar injuries as the case was deciding.(iii)That the learned trial Magistrate erred in law and fact in finding that the plaintiff had sustained a fracture hence awarding a quantum that was inordinately high which injury the plaintiff did not sustain.(iv)That the learned trial Magistrate’s exercise of discretion in assessment of quantum was injudicious.

5. The appellants prayed that this Court sets aside the trial magistrate’s judgment and substitute it with its own assessment of damages.

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

The Appellants’ Submissions 7. The appellants’ counsel submitted that the award of damages made in respect of the injuries sustained by the respondent was inordinately high, erroneous, overly excessive and did not match the injuries sustained by the respondent. To this end, the appellants submitted that the respondent failed to prove the injuries stated in his plaint to the required standard as he failed to produce any documents to prove that he was actually admitted in hospital.

8. It was further submitted that the respondent never suffered a fracture of the femur as pleaded but merely suffered soft tissue injuries.

9. The appellants relied on the case of Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR and submitted that comparable injuries should as far as possible be compensated by comparable awards.

10. It was submitted that the injuries sustained by the respondent were soft tissue in nature with no permanent incapacity assessed and thus an award of Kshs. 500,000 was inordinately high and unjustified and that an award of Kshs. 100,000 would be sufficient in general damages.

11. The appellant relied on the following cases:i.George Mugo & Another v AKM (minor suing through next friend and mother of A.N.K) [2018] eKLR where Kemei J awarded Kshs. 90,000 for soft tissue injuries.ii.George Kinyanjui T/A Climax Coaches & Another v Hussein Mahad Kuyal [2016] eKLR where the respondent sustained injuries on his chest, neck, knees and lost two teeth and the High Court on appeal reduced an award of Kshs. 650,000 to Kshs. 109,890 after finding that the loss of teeth was unrelated to the accident in question as the respondent had sustained soft tissue injuries.iii.Ndungu Dennis v Ann Wangari Ndirangu & Another [2018] eKLR where Ngugi Joel J (as he then was) reduced general damages for soft tissue injuries from Kshs. 300,000 to Kshs. 100,000iv.PF (Suing as next friend and father of SK (Minor) v Victor O Kamadi & Another [2018] eKLR where the High Court substituted an award of Kshs. 50,000 with one of Kshs. 100,000 where the plaintiff suffered cut wound to the forehead, multiple small abrasions to the face, blunt injury to the head leading to loss of consciousness for some time, abrasions to the back and abrasion wounds to the dorsum of the right hand.v.Godwin Ireri v Franklin Gitonga [2018] eKLR where the claimant sustained a cut on the scalp and forehead, selling on the dorsum of the left foot and a bruise on the right knee and award of Kshs. 300,000 was reduced to Kshs. 90,000 on appeal.vi.Lamu Bus Services & Anor v Caren Adhiambo Okello [2018] eKLR where the claimant sustained a dislocation of the left shoulder joint, a deep cut wound on the left chin, a deep cut wound on the left thigh and a blunt injury to the left thigh and an award of Kshs. 200,000 was reduced to Kshs. 130,000.

The Respondent’s Submissions. 12. The respondent’s counsel submitted that the assessment of general damages was in the discretion of the trial court and therefore an appellate court is not justified in substituting the award for its own on account that it would have awarded a different figure if it tried the case in the first instance.

13. The respondent further submitted that an award of Kshs. 500,000 was not inordinately high to warrant interference by this court as there was no evidence that the trial court acted on wrong principles of law, misapprehended facts or made a wholly erroneous estimate of the damage suffered by the respondent as was held in the case of Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR

14. It was submitted that the trial court’s award on general damages was reasonable and a fair estimate of the damage pursuant to the injuries suffered by the respondent

Analysis and Determination 15. This being a first appeal, this Court has the duty as stipulated in section 78 of the Civil Procedure Act to analyze and re-examine the evidence adduced in the lower Court and reach its own conclusion but bear in mind that it neither saw nor heard the witnesses testify and make due allowance for the said fact.

16. In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, it was held that:“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”

17. The issue for determination in this appeal, from the grounds of appeal and rival submissions is whether the trial court erred in fact and law in its assessment of the general damages of Kshs. 500,000 to the respondent.

18. It is now well settled principle of law that an appellate Court can only interfere with the damages awarded where an appellant demonstrates that the award is too high or so low as to amount to an outright error in assessment of damages, or that in coming to that assessment the Court took into account an irrelevant matter or that it failed to take into account a relevant matter. The Court of Appeal in Ken Odondi & two others vs James Okoth Omburah t/a Okoth Omburah & Company Advocates [2013] eKLR stated that:“We agree that this court will not ordinarily interfere with the findings of a trial judge on an award of damages merely because this court may take the view that had it tried the case it would have awarded higher or lower damages different from the award of the trial judge. To so interfere this court must be persuaded that the trial judge acted on wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled… This principle was adopted with approval by this Court in Butt v Khan[1981] KLR 349 where it was held per Law, JA:“... 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...”

19. The award of the amount of Kshs. 500,000/= in general damages is being challenged for being inordinately high and excessive in light of the injuries sustained by the respondent. It was contended that the Trial Court did not take into account the authorities submitted by the appellants and in addition, that the Trial Court in its award considered that the respondent sustained a broken femur which injury was never proved by the respondent hence the award of damages based on that injury was erroneous

20. In his plaint, the respondent pleaded that he sustained the following injuries:Head injuriesInjuries of the chestInjuries of the left and right elbowsInjuries on the backFracture of the right femurBruises and lacerations on both lower and upper limbs

21. The respondent testified that as a result of the accident that occurred on 30/7/18, he sustained a cut on the back of the head, scratches on the back, hands and elbow and that he was admitted in hospital though he admitted that there were no documents produced to prove that he was admitted in a hospital.

22. In support of his case, the respondent produced a radiograph report as PEx2, a medical report by one Dr. Okongo as PEx 5a as well as receipts and other treatment notes.

23. From the radiograph report dated 14/11/2018 I note that there is no reference to fracture of the femur as pleaded by the respondent or any history of a fracture of the femur. In fact, Dr. Kouko who seems to have done the report noted that under the X-ray of the right femur, “the hip joint and femoral shaft are normal.”

24. Further, the treatment sheets produced by the respondent as PEx 1a from Nightingale Medical Centre are specific that the respondent sustained soft tissue injuries due to a Road Traffic Accident. The treatment sheet further does not provide for a fracture of the right femur.

25. The same is the case with PEx 3, the P3 form produced by the respondent. There is no indication of a broken right femur and the medical practitioner who filled the P3 form noted that the respondent sustained tenderness to the head, neck, thorax and abdomen as well as swelling in the upper and lower limbs.

26. From the above documentary evidence, it is clear that the respondent sustained soft tissue injuries with no fracture of any part of his body, leave alone the femur.

27. The trial magistrate awarded Kshs 500,000 for general damages, which amount the appellants regard as inordinately high. The respondent agrees with the trial magistrate on the award and urges this court to uphold the said award.

28. The Court of Appeal in the case of Simon Taveta v Mercy Mutitu Njeru [2014] eKLR observed that:“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”

29. I have considered the evidence on record on the injuries sustained by the respondent as pleaded and as proved as well as the authorities relied on by both parties in this appeal as well as before the trial court.

30. The respondent’s injuries are no doubt soft tissue injuries which amounted to harm as per the P3 form and treatment notes produced as exhibits. The said injuries are similar to those of the respondent in the case of Ephraim Wagura Muthui & 2 others V Toyota Kenya Limited & 2 others [2019] eKLR (supra) where the court assessed damages at Kshs. 100,000/=. In the case of Maimuna Kilungwa v Motrex Transporters Ltd [2019] eKLR, the court awarded Kshs. 125,000/= for soft tissue injuries to the neck, left ear and left shoulder.

31. Similarly, in the matter referenced by Counsel for the Appellant, the Ndung’u Dennis case supra, where the Respondent suffered minor bruises on the back; no fractures on the tibia or fibula area of the right leg which was hit; tenderness on the right leg, blunt injury; head concussion (brief loss of consciousness); blunt injuries to the chest and both hands, the trial court awarded Kshs. 300,000/= which was reduced to Kshs. 100,000/= on appeal.

32. In John Wambua v Mathew Makau Mwololo & another [2020] eKLR, the Plaintiff sustained blunt injury to the right shoulder and a blunt injury to the right big toe. He was treated as an outpatient and was put on painkillers. The trial court assessed general damages for pain and suffering in the sum of Kshs. 120,000/- and this was affirmed by the High Court.

33. Taking a cue from the above decisions, and comparing the injuries sustained by the claimants and the respondent herein, I agree with Counsel for the Appellants that the award of damages made by the trial magistrate in favour of the respondent herein was manifestly excessive and did not take into consideration the fact that the Respondent sustained soft tissue injuries, which according to the medical evidence had healed without causing any form of disability and did not affect the Respondent’s ability to work.

34. In the premises, this court is inclined to interfere with the discretion of the learned trial magistrate and does so by setting aside the award of Kshs. 500,000/- as general damages and substituting it with one of Kshs. 150,000 less 15% contribution on the liability as consented to by the parties.

35. I also note that the trial court did not address itself to the special damages of Kshs. 6,200 pleaded by the respondent. Special damages must be both pleaded and proved, before they can be awarded by the Court. The Court of Appeal in Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716, at P. 717, and 721 held that:“Special damages must not only be specifically claimed (pleaded) but also strictly proved…for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”

36. In this case, the respondent pleaded special damages of Kshs. 6,200, the same is as proved by receipts annexed and it is thus granted.

37. In the end, this this appeal succeeds on reduction of general damages. I set aside the sum of kshs 500,000 general damages awarded to the respondent and substitute it with an award of kshs 150,000 less 15% contribution. The respondent shall have costs of the suit in the lower court on the reduced award plus interest at court rates from date of judgment in the lower court until payment in full. The respondent shall also have special damages in the sum of kshs 6200 plus interest at court rates from the date of filing suit in the lower court until payment in full. No contribution on special damages is apportioned.

38. Regarding costs of this appeal, costs are in the discretion of the court and in any event, to a party who is successful. However, in this case, I order that each party bear their own costs as the appeal was only on quantum and the fact that the Respondent’s damages and costs as awarded in the trial court are considerably reduced.

39. This file is closed. I so order.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 16TH DAY OF NOVEMBER, 2022R.E. ABURILIJUDGE