[2022] KEHC 11475 (KLR)

Otieno v General Motors East Africa Ltd & 2 others (Civil Appeal 55 of 2019) [2022] KEHC 11475 (KLR) (14 July 2022) (Judgment)

Neutral citation: [2022] KEHC 11475 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 55 of 2019

GWN Macharia, J

July 14, 2022

Between

Maxwell Oduor Otieno

Appellant

and

General Motors East Africa Ltd

1st Respondent

Guardian Angel Coach

2nd Respondent

Richard Nyakundi Mose

3rd Respondent

(Being an appeal from the judgment and decree in the Chief Magistrate’s Court at Naivasha CMCC No. 302 of 2017) delivered by Hon. Martin Mutua (Mr), RM on the 30th day of September, 2019)

Judgment

The Appeal 1. The instant appeal is with respect to the judgment by Hon M Mutua, RM delivered on September 30, 2019 in Naivasha CMCC 302 of 2017 where the trial court found in favour of the Appellant in the following terms:a.Liability: 95:5% in favour of the Plaintiffb.General damages: Kshs 250,000. 00c.Special damages: Kshs 21,070. 00d.Costs and interests thereon.

2. The Appellant being aggrieved by the said decision of the Learned Trial Magistrate filed his Memorandum of Appeal on October 30, 2019 seeking to have this Honourable Court interfere with the findings of the Trial Court on quantum.

3. The Appellants’ Memorandum of Appeal set out two (2) grounds of dissatisfaction with the decision of the Learned Trial Court, namely:a.That the learned trial magistrate erred and misdirected himself in fact and law by awarding general damages to the Appellant that were manifestly low in the circumstances and thus failed to appreciate the principles applicable in the award of damages.b.That the learned trial magistrate erred in failing to consider and critically analyze the injuries sustained, evidence adduced and submissions made on behalf of the Plaintiff/Appellant and thus arrived at an unjustifiable low award of the injuries sustained.

4. The Appeal was canvassed by way of written submissions.

5. This being the first appeal I am required to consider the evidence adduced, evaluate it and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified. See: Selle & Another vs Associated Motor Boat Company Ltd & Others [1968] EA 123.

6. Further in Abok James Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR (Civil Appeal No 161 of 1999) the court stated:-“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse 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.

Background 7. The Appellant initiated its claim against the Respondents vide a Plaint dated July 11, 2017. It was the Appellant’s case that he sustained injuries as a result of an accident which occurred on or about the 2nd day of April, 2017 while the Appellant was travelling as a passenger along Mai Mahiu-Nairobi Road. The Appellant averred that the said accident was a result of the negligence of the Respondents and/or their servants and/or employees who were in control of motor vehicle registration KBS 244V which lost control and got involved in an accident with motor vehicle registration KCH 845P as a consequence of which he sustained very serious injuries for which she held the Respondents liable.

8. It was further averred by the Appellant that as a result of the said accident, he sustained the following injuries:a.Soft tissue injury to the face.b.Traumatic amputation of the left thumb at the proximal phalanx.c.Fracture of the middle phalanx of the left finger.d.Severe soft tissue injury of the left hand.

9. As a result of the accident the Appellant blamed the Respondents fully on negligence and breach of duty of care as particularized in paragraph 5 of the plaint.

10. The Appellant sought judgment against the Respondents for:a.Special damages of Kshs 21,070. 00b.General damages.c.Costs and interests

11. The Respondents filed a joint statement of defence dated July 31, 2017 in which they denied the occurrence of the accident, negligence on its part and suffering of any injuries by the Appellant as a result of the aforementioned accident.

12. The parties recorded consent on liability in the ratio of 95:5% in favour of the Plaintiff.

Evidence 13. The Appellant was treated at Provincial General Hospital Nakuru and issued with a P3 Form from Naivasha County Referral Hospital which confirmed the injuries he had sustained. Dr Obed Omuyoma examined the Appellant and prepared a report which was produced in support of his claim. He confirmed the injuries as particularised in the Plaint.

Submissions 14. The Appellant filed her submissions on March 23, 2022 in which he urged this Court to interfere with the findings of the learned trial magistrate on the issue of the general damages for pain and suffering.

15. The Appellant urged the Court to revise upwards the award for general damages to a figure in the region of Kshs 600,000. 00 to Kshs 750,000. 00 as the authority of Eastern Produce (K) Limited v Allan Okisai Wasike [2014] eKLR relied upon did not compare to the injuries sustained by the Appellant in the instant case.

16. The Appellant further urged this court to rely on the authority of Pyramid Packaging Limited v Humphrey W. Wanjala [2013] eKLR where the Plaintiff had amputation of three fingers at the phalanges, and an award of Kshs. 661,835. 00 was awarded. He also urged the court to rely on the case of Pietro Canobbio v Joseph Amani Hinzano [2016] eKLR where the Plaintiff had sustained amputation of the left index, ring and little finger and the Honourable Court proceeded to award Kshs 750,000. 00. Additionally, the Appellant relied on the case of Blowplast Ltd v Julius Ondari Mose [2018] eKLR – where the court awarded general damages of Kshs 600,000. 00.

17. The Respondents filed their submissions on April 20, 2022 in which they urged the Honourable Court to affirm the decision of the learned trial magistrate.

18. The Respondents invited the Court to consider the authority of Emmanuel Ithau Nyamai & another v Paul Kipsang Samoei [2021] eKLR where the Court awarded Kshs 300,000 for a fractured finger. The Respondents further relied on the authority of Kenya Power & Lighting Company Limited v Margaret Wanjiku Njunge [2019] eKLR where the Respondent lost distal phalanx of the right thumb and left little finger whereas the right index finger healed with a deformity and left ring finger healed with surgical scars and permanent disability was assessed in the region of 15-20%. The Court awarded Kshs500,000. 00.

Analysis and Determination 19. I have accordingly considered the evidence adduced in the trial court as well as the respective rival submissions. This Honourable Court is tasked with making a determination as to whether the awards of Kshs 250,000. 00 as general damages for pain and suffering was inordinately low to warrant the interference by the Court having in mind that comparable injuries should attract comparable interests as was the position in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR.

20. The Honourable Court takes note of the doctrine that the award of general damages is an exercise of discretion by the trial court based on the evidence and impressions on demeanour of witnesses made by the learned trial Magistrate which advantage an appeal court by its mode of delivery lacks. See: Simon Taveta v Mercy Mutitu Njeru [2014] eKLR.

21. It is crucial to note that 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 inButt 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.”

22. I stand guided by the principles on interfering with judicial discretion as laid down in the case of Price and Another v Hilder{1996} KLR 95 which laid down the following guidelines that:“In considering the exercise of judicial discretion, as to whether or not to set aside a Judgment the court considers whether in the light of all the facts and circumstances both prior and subsequent and of the respective merits of the parties, it would be just and reasonable to set aside or vary the Judgment. The court will not interfere with the exercise of discretion by an inferior court unless its satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong decision.”

23. Further, in the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR, 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, J.A 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.”

24. I have considered the rival submissions by parties, the evidence on record and the authorities cited by both counsels. I appreciate that injuries will never be fully comparable to other person’s injuries. What a court is to consider is that as far as possible injuries be comparable to the other person’s injuries, and the after effects.

25. The Appellant’s injuries were classified as grievous harm with permanent disability assessed at 10%.

26. The Honourable Court in the case of Stephen Kinini Wangondu V The Ark Ltd [2016] eKLR in offering guidance to conflicting expert opinions noted 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. To my mind, the weight to be given to expert evidence will derive from how that evidence is assessed in the context of all other evidence. Expert evidence is not obviously needed when the evaluation of the issues requires technical or scientific knowledge only an expert in the field is likely to possess. However, there is nothing to prevent reports for court use being commissioned on any factual matter, technical or otherwise, provided: it is deemed likely to be outside the knowledge and experience of those trying the case, and the court agrees to the evidence being called.While there are numerous authorities asserting that expert evidence can only be challenged by another expert, little has been said regarding the criterial a court should use to weigh probative value of expert evidence. This is because, while expert evidence is important evidence, it is nevertheless merely part of 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 important. 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 experts, before making any findings of fact, even provisional ones.”

27. Further, the Court of Appeal in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros V Augustine Munyao Kioko CA 203/2001[2007] 1 EA 139 held:“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.”

28. The Appellant having sustained soft tissue injuries, the following cases are a good guide:i.In the case ofChina Road And Bridge Construction v James Ponda [2020] eKLR the Plaintiff had sustained traumatic amputation of the left middle finger and traumatic amputation of the ring finger with permanent disability being assessed as 10%. The Honourable Court upheld an award of Kshs 750,000. 00 where the Respondent was 22 years old.ii.n the case of Kenya Power & Lighting Company Limited v Margaret Wanjiku Njunge [2019] eKLR the Respondent lost distal phalanx of the right thumb and left little finger whereas the right index finger healed with a deformity and left ring finger healed with surgical scars and permanent disability was assessed in the region of 15-20%. An award of Kshs 500,000. 00 was made.

29. In view of the above cited authorities, it is my considered view that the award of Kshs. 250,000. 00 for pain and suffering was inordinately low in the circumstances and an award of Kshs 450,000. 00 would be commensurate with the injuries suffered by the Appellant.

Disposition 30. The upshot, then, is that the appeal is allowed and the Court sets asides the assessment of general damages by the trial Court. In its place, the Court substitutes the assessment of quantum for general damages with Kshs 450,000. 00. The award shall be subject to 5% contribution of Ksh 22,500. 00 leaving a payable balance of Ksh 427,500. 00. Each party shall bear its cost of the appeal.

31. It is hereby so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 14TH DAY OF JULY, 2022. ......................................G W NGENYE-MACHARIAJUDGEIn the presence of:Mr Mboga for the Appellant.Mr Thairu for the Respondent.