[2023] KEHC 25366 (KLR)

Ogolla v Easy Coach Limited (Civil Appeal E161 of 2022) [2023] KEHC 25366 (KLR) (Civ) (15 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25366 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E161 of 2022

JN Njagi, J

November 15, 2023

Between

Wayne Omondi Ogolla

Appellant

and

Easy Coach Limited

Respondent

(Being an Appeal from the judgment and decree of Hon V M Mochache, Adjudicator, in Milimani Small Claims Court Claim No SCCC/E883/2021 delivered on 4/3/2022 in Milimani Small Claims Court Claim No. SCCC/E883/2021)

Judgment

1. This appeal challenges the trial adjudicator’s judgment on the issue of damages. The appellant was the plaintiff in the suit wherein he claimed general and special damages in regard to personal injuries sustained in a road traffic accident that occurred on the 7th of December 2019 as a result of a collision between Motor vehicle Registration No. KCL xxx E and Motor Vehicle Registration No KCS xxx L. The claimant was a fare-paying passenger in Motor Vehicle KCL xxx E and sustained injuries as a result of the accident.

2. According to the medical report that was prepared by Dr Wokabi, the respondent had sustained the following injuries:Blunt and laceration injuries on the foreheadBlunt and friction burn injuries on the left shoulderAbrasions on both forearms.

3. The trial adjudicator proceeded to award Ksh 300,000/= in general damages for the said injuries. The appellant was dissatisfied with the award and preferred the present appeal. The grounds of appeal are that:(1)That the learned adjudicator erred in law and in fact, by proceeding to award minimal general damages which were not commensurate to the injuries sustained by the appellant.(2)The learned adjudicator erred in law and in fact by completely disregarding the appellant’s submissions and the authorities that had been relied on.

4. The appellant urges this court to set aside the judgment of the learned Adjudicator and to proceed to enhance the award.

5. The appeal was canvassed by way of Written Submissions.

Appellant’s Submissions 6. The appellant submitted that the award of Ksh 300,000/= was on the lower side since the injuries sustained by the appellant were very serious head injuries that necessitated him to go undergo surgery.

7. It was the appellant’s argument that the learned adjudicator awarded minimal amount as general damages because the appellant had recovered. He further contended that the trial adjudicator made her own assumption as to why the degloving injury was not pleaded and proceeded to arrive at a wrong award.

8. The appellant faulted the learned trial adjudicator’s finding that the appellant did not undergo skin grafting. The appellant asserts that he actually underwent plastic surgery, a more intricate and nuanced medical procedure compared to grafting. The appellant further contends that the adjudicator had relied on the term grafting in downplaying the injuries he sustained.

9. The appellant faulted the learned adjudicator for relying on the case of Francis Ndungu Wambui & 2 others v Purity Wangui Gichobo [2019] eKLR where the plaintiff suffered laceration to the left foot as well as a degloving injury to the base of the thumb, which healed well leaving scars. The appellant contends that the cited case is different from the case herein since the appellant herein sustained lacerations/abrasions on both hands and left shoulder and a degloving injury to the left forehead. It is his submission that degloving head injury is more severe than a degloving thumb injury.

10. The appellant cited the precedent in the case ofEasy Coach Limited vs Emily Nyangasi [2017], in which the plaintiff sustained facial injuries, chest injuries, back injuries, an injury to the right hand with a cut wound, and an injury to the right leg with cut wounds and was awarded Ksh.700,000/=. He argued that the respondent in that case underwent skin grafting just like the appellant in this case. That the injuries in the present case are comparable to that case and therefore, the compensation amount should be increased to Ksh 700,000/=. That in the case of Francis Ndungu Wambui that was cited by the respondent there was no evidence of skin grafting.

Respondent`s Submissions 11. The respondent submitted that the learned adjudicator did not err in her assessment of damages as the same was supported by precedents. It was submitted that the injuries suffered by the respondent were supported by the medical report of Dr. Wokabi whose report however did not mention any degloving injury or the corrective treatment performed to the injury. That the trial court considered this factor in its assessment of damages. That in any case the P3 form did not make a mention of the degloving injury despite having been prepared after the respondent had completed treatment. That there was no record of corrective treatment.

12. The respondent submitted that the injuries sustained in the case of Easy Coach Limited vs Emily Nyangasi (supra) that was relied on by the appellant were far more severe that those sustained by the respondent in this matter in that in that case there was grafting of the skin for almost the entire leg; there was also multiple scars of 18cm of the right thigh, 26 cm at right leg, 28 cm at right leg below the knee and 12 cm at the right foot with keloid formation.

13. The respondent relied on the following cases that they had cited to the learned Adjudicator:- Francis Ndungu Wambui & 2 others v Purity Wangui Gichobo (supra), where the court reduced an award of Ksh 450,000/= to Ksh 250,000/= where the injuries sustained were a deep laceration on the medial side of the left foot, degloving injury on the left thumb and soft tissue injuries which had left the claimant with scars.- Shengli Engineering Construction Limited v Kitheka Mutua (2019) eKLR where the court reduced an award of Ksh 300,000/= to Ksh.100,000/= for degloving injury on the right foot, soft tissue injuries and bruises on the right leg and soft tissue injuries on the left ankle.

14. The respondent in this appeal cited the case of Maseno University College v Elizabeth Kerubo Mokaya (2021) eKLR where the court reduced general damages of Ksh. 600,000/= to Ksh.200,000/= for being excessive where the injuries suffered were degloving injury on the left foot, distortion of the left ankle, chest contusion and bruises on the forearm and right leg. It was submitted that the injuries in the latter case were far more severe that those suffered by the Respondent herein. The respondent urged the court to dismiss the appeal.

Analysis and Determination 15. The Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

16. Similarly, in the celebrated case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini vs A.M. Lubia and Olive Lubia (1985) 1KAR 727, the Court Appeal held that: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 wither that 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.

17. The appellant contends that the injuries he sustained were captured in the medical report prepared by Dr. Wokabi dated October 12, 2021 which were: blunt and laceration injuries on the forehead, blunt and friction burn injuries on the left shoulder and abrasions on both forearms. The appellant further argued that the medical report by Dr. Wokabi was prepared from a discharge summary from Avenue Hospital which had the following injuries captured under diagnosis: lacerations/abrasions both hands/left shoulder and degloving injury left forehead.

18. The primary contention presented by the appellant appears to be that the trial adjudicator failed to consider that the appellant suffered very severe head injury which necessitated him to undergo plastic surgery. That this led to an incorrect determination of the award.

19. I have examined the trial adjudicator's judgment. In paragraph 24, the adjudicator acknowledged the absence of the degloving injury in the claimant's medical report, despite its mention in the initial discharge report of the appellant. The court also recognized that the Appellant received treatment on December 7, 2019 as per the discharge summary and was later examined by Dr. Wokabi on the October 12, 2021.

20. I have also noted that the trial court in paragraph 25 of the same judgment made a finding that the appellant suffered soft tissue injuries and degloving injury. The appellant’s argument that the trial court did not consider the degloving injury in awarding the damages cannot be factual. The trial court further made a finding in paragraph 25 of the judgment that there was no evidence of skin grafting. Counsel for the appellant submitted that the appellant was taken to theatre where plastic surgery procedure was carried out as evidenced in the discharge summary and the final invoice as captured in page 21 of the Record of Appeal.

21. I have perused the record of the trial court. The appellant`s documents in the matter were produced by consent of the parties pursuant to section 30 of the Small Claims Court Act and the parties thereupon forgo oral evidence of the witnesses. The witness statement of the appellant was adopted as his testimony in the case and his documents contained in the list of documents dated February 18, 2022 were produced as Exhs.1-9 in the case. Among the documents filed in the case were a discharge summary from Avenue Hospital and an invoice. What I can discern from the writing on the discharge summary is that the appellant was “referred to plastic …(not clear) for ….(not clear) L forehead.”

22. The invoice produced in the case indicated that an AHC plastic surgeon- procedure was done on December 13, 2019 and there is a charge of Ksh 72,500/= against it in the amount column. The appellant in his witness statement that was adopted as his evidence in the case stated as follows:While at Avenue Hospital, skin grafting was done on December 13, 2019. I was admitted on the December 7, 2019 and discharged on the December 13, 2019. ”

23. Since the documents showing that plastic surgery was done on the appellant were produced by consent of the parties and the appellant stated in his witness statement that he underwent what he called “skin grafting”, I find that the appellant underwent AHC Plastic surgery procedure at Avenue Hospital for which he was charged Ksh 72,500/=. According to the medical report of Dr. Wokabi, he relied on the P3 form and the discharge summary to make his report. I have perused both documents and they did not make mention of the said procedure. The doctor therefore missed the procedure in his report because the same was not mentioned in the said documents. However, considering the other documents that were produced in the case, I find that the appellant underwent the said procedure.

24. The trial adjudicator did not consider that the appellant underwent plastic surgery when he made the award of Ksh.300,000/=. I however find that the adjudicator considered that the appellant had sustained a degloving injury on the head. The question is whether the award made by the adjudicator was low in face of the fact that the Appellant underwent plastic surgery on the injuries sustained.

25. It is trite law that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike. The Court of Appeal in Mbaka Nguru andanother v James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR held that:“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”

26. The learned adjudicator in arriving at an award of Kshs 300,000/= relied on the case of Francis Ndungu Wambui & 2 others v Purity Wangui Gichobo (supra) where the respondent suffered a deep laceration of the medial side of the left foot and a degloving injury on the left thumb and the court on appeal substituted an award of Ksh 450,000/= with an award of Ksh 250,000/=.

27. I have considered the injuries suffered in the case of Easy Coach Limited v Emily Nyangasi (supra) that was being relied on by the appellant in urging the court to enhance the award to Ksh.700,000//=. I am in agreement with the submission by counsel for the respondent that the injuries in that case were far more severe than those sustained by the appellant in this case. The authority cannot therefore be used to interfere with the award of the trial court in this case as the injuries in the two cases are not comparable.

28. I have further considered the award in the case of Maseno University College v Elizabeth Kerubo Mokaya (supra) that was cited by the respondent in this appeal. I have further on my own looked at other awards involving degloving injuries.

29. In Martin Mutuku & another v SN (Suing through his mother and next friend DC) [2021] eKLR where the injuries sustained by the respondent included abrasions on the scalp, blunt injuries to the chest, blunt injuries to the abdomen and degloving injuries on the left foot. The court on appeal awarded general damages in the sum of Ksh.300,000/=. I find the injuries therein to be comparable to those sustained by the Respondent in this appeal.

30. In H. Young Construction Company Ltd vs Richard Kyule Ndolo [2014] eKLR where Thuranira J reduced general damages for degloving injury to the calf with loss of skin over the calf muscles and blunt injury to the left ankle joint from Kshs 350,000/= to Kshs 250,000/= general damages.

31. In Spin Knit Limited vs Johnstone Otara [2006] eKLR where the court awarded general damages in the sum of Kshs 300,000/= where the Plaintiff had sustained a degloving injury to the right hand.

32. In Martin Mutuku & another v SN (Suing through his mother and next friend DC) [2021] eKLR where Sergon J. reduced an award of Ksh.600,000/= to Ksh.300,000/= for abrasions on the scalp, blunt injuries to the chest, blunt injuries to the abdomen, and degloving injuries on the left foot.

33. In Annet Noti Jefwa Kayaa v David Njau Kungu & another [2019] eKLR where Githua J. upheld an award of Ksh.250,000/= for degloving injury of right leg and lower ankle; cut wound of the scalp; and cut wound of the left elbow;

34. In view of the above authorities it is my considered view that the award of Ksh. 300,000/= made by the adjudicator in this case can be supported by comparable decisions and therefore the award is not inordinately low. It is to be noted that the appellant did not make a claim for the cost of the surgery. Though the adjudicator did not consider that the appellant had undergone surgery, I find his award to be reasonable for the injuries sustained.

35. The upshot is therefore that the appeal fails and is dismissed with costs to the respondent.

It is so ordered.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 15THDAY OF NOVEMBER, 2023J. N. NJAGIJUDGEIn the presence of:Miss Amboko for AppellantMr Kairu holding brief Mr Ng’ang’a for RespondentCourt Assistant – Amina30 days Right of Appeal