[2022] KEHC 10999 (KLR)

Palak International Limited & another v Langat (Civil Appeal 17 of 2018) [2022] KEHC 10999 (KLR) (19 July 2022) (Judgment)

Neutral citation: [2022] KEHC 10999 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 17 of 2018

GWN Macharia, J

July 19, 2022

Between

Palak International Limited

1st Appellant

Kiritkumar Patel Girdharbhai

2nd Appellant

and

Kibii Langat

Respondent

(Being an appeal from the judgment and decree in the Chief Magistrate’s Court at Naivasha CMCC No. 96 of 2015 delivered by Hon. Renee Kitagwa (Mr), RM on the 19th day of February, 2018)

Judgment

The Appeal 1. The instant appeal is with respect to the judgment by Hon. R. Kitagwa, RM delivered on the 19th day of February, 2018 in Naivasha CMCC 96 of 2015 where the trial court found in favour of the Respondent in the following terms:a.Liability100% in favour of the Plaintiff.b.General damages: Kshs. 1,500,000. 00c.Special damages: Kshs. 5,500. 00d.Costs and interests thereon.

2. The Appellants being aggrieved by the said decision of the Learned Trial Magistrate filed their Memorandum of Appeal dated the 14th day of March, 2018 seeking to have this Honourable Court interfere with the findings of the Trial Court on both liability and quantum.

3. The Appellants’ Memorandum of Appeal set out three (3) grounds of dissatisfaction with the decision of the Learned Trial Court as hereunder:a.The Learned Magistrate erred in law and in fact by failing to give a concise statement of the case, points of determination, decision thereon and reasons for his judgment viz-a-viz the damages awarded in his judgment pronounced on the 19th day of February, 2018. b.The Learned Magistrate erred in law and in fact in awarding damages that are excessive and unrealistic in particular:i.The Learned magistrate failed to make a finding on the nature and extent of injuries suffered by the Plaintiff when awarding damages,ii.The Learned Magistrate erred in law and in fact in disregarding and ignoring medical treatment record and contents thereof and failed to make any finding on the nature and extent of injury.iii.The Learned Magistrate misread the medical report before him and ignored the medical report by a Consultant Gynecologist who was not qualified to report on the nature of the injuries suffered by the Respondent/Plaintiff.iv.The Learned Magistrate ignored submissions filed by the Appellants/Defendants andv.The Learned Magistrate erred in awarding damages which are arbitrary and not based on any decided authority and failed to give sound reasons for making the high award of damages which is excessive.c.The Learned Magistrate erred in law and in fact by failing to appreciate the totality of the evidence before him when awarding damages.

4. The Appellants sought the following prayers:a.The Appeal be allowed and the award for damages be set aside.b.The damages awarded be reviewed and revised.c.The costs of the appeal and the costs of the Chief Magistrate’s Court be granted to the Appellants.d.Any other order this Honourable Court may deem fit to grant.

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

6. 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 and so give regard for that. See:Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123.

Background 7. The Respondent initiated his claim against the Appellants vide a Plaint dated the 25th day of March, 2015. It was the Respondent’s claim that he sustained injuries as a result of an accident which occurred on or about the 28th day of March, 2012 along Mai Mahiu-Narok Road. The Respondent averred that the said accident was as a result of the negligence of the Appellants and/or their servants and/or employees who were in control of motor vehicle registration KBA 5xxx which collided with motor vehicle registration number UAL 7xxx which the Respondent was travelling in as a passenger.

8. It was further averred by the Respondent that as a result of the said accident, he sustained the following injuries:a.Weakness of both upper and lower limbs.b.Fracture of C5, C6 with spondyloisis cord compressed.

9. As a result of the accident the Respondent blamed the Appellants fully for negligence and breach of duty of care as particularized in paragraph 5 of the Plaint.

10. The Respondent sought judgment against the Appellants for:a.Special damages of Kshs. 2,100. 00. b.General damages.c.Costs of the suit.d.Interests on a, b and c above.e.Any other and/or further relief that this Honourable Court may deem fit and just to grant in the circumstances.

11. The Appellants filed a joint Statement of Defence dated the 6th day of July, 2015 in which they denied the occurrence of the accident, negligence on their part and suffering of any injuries by the Respondent as a result of the aforementioned accident.

Evidence 12. The Respondent’s case was supported by the testimony of two witnesses, the Plaintiff and a police officer.

13. The Respondent testified as PW1. He stated that he worked with the Kenya Police Service and was a resident of Bomet County. He indicated to have been involved in an accident on the 28th day of March, 2012 while travelling from Nairobi to Kericho. Motor vehicle registration KBA 5xxx which was headed the opposite direction lost control and rammed into motor vehicle UAL 7xxx which he had boarded. He found himself at Narok District Hospital and was admitted for a day. He was then referred to Kenyatta National Hospital where he was admitted and was implanted with a metal plate at a cost of Kshs. 300,000. 00

14. He sustained a spinal injury and still had the metal implants. He further testified that charges were pressed against the driver of KBA 5xxx and he was fined Kshs. 5,000. 00 or to serve a prison term of three months.

15. The Respondent produced his national Identity Card as P.Exhibit-1, Demand Letter as P.Ehibit-2, Medical Report Form and receipt for the same of Kshs.2,000. 00 as P. Exhibit 3a and 3b respectively, treatment notes from Kenyatta National Hospital (KNH) as P.Exhibit-5a and 5b respectively, discharge summary from Narok District Hospital and a receipt for Kshs.3,500. 00 as P.Exhibit-6a & 6b respectively and the Police Abstract as P. Exhibit 7.

16. In cross examination, the Respondent indicated that after the accident, he could only be assigned general duties and was yet to recover from the injuries sustained as he was still attending check-ups at KNH.

17. On re-examination, he stated that he experiences mild pains during cold seasons as he has the metal plate in his body.

18. The Defence case was closed without calling any witness.

Submissions 19. The Appellants filed their written submissions on the 10th day of August, 2021. It was their submissions that the duty of proof pursuant to Section 109 of the Evidence Act had not been discharged with particular reference being made to the Respondents time spend at Kenya National Hospital. The Appellants contended that the Respondent was admitted for only a day and discharged thus his averment that he was admitted for over two weeks was exaggerated. Further, the Appellants contested the attendance of the Respondent for further treatment upon his discharge.

20. The Appellants further contended that there was no evidence in support of the Respondent suffering a fracture. In so positing, they cited the case of Pitalis Opiyo Ager v Daniel Otieno Owino & another [2020] eKLR where it was held:“This court observes and takes judicial notice of the fact that body parts allegedly fractured or dislocated such as the neck, elbow, head left shoulder and left elbow joints are sensitive areas. The P3 form was not produced as an exhibit even after being marked for identification. But that aside, there is no mention of any fracture, or treatment that involved plaster paris cast or immobilization of the neck, shoulder or elbow joints etc as a form of management of the fractured areas. No treatment plan for the alleged fractures such as plaster cast or immobilization or physiotherapy was mentioned in the treatment notes and even Prof. Okombo in his medical report only mentioned the need for an orthopaedic surgeon and physiotherapy as being for the future. He never mentioned what had been done on the fractured or dislocated sites immediately after the accident on 10/7/205 yet he was examining the patient on 20/1/2026 nearly six months later.For all the above reasons, I am inclined to reject the medical report, the injuries pleaded and testimony by Prof. Dr. Okombo as being speculative…”

21. It was further submitted by the Appellants that the Trial Court failed to closely analyse the Respondent’s documents with respect to the injuries and also did not consider the demeanour of the Respondent who appeared before the Honourable Court. In this regard, they urged the Court to re-evaluate the evidence with respect to the severity of the injuries sustained by the Respondent. Further, they urged the Court to decline reliance on the medical report by Dr. G.K. Karanja who was a gynaecologist and would not be best placed to prepare a report as to injuries in the circumstances. The Appellants cited the case of Hassan Noor Mahmoud v Tae Youn Ann [2001] eKLR where it was held:“It is imperative that where a litigant has sustained injuries and a medical report is hereby required, that the doctor who prepares the report must be an orthopeadic consultant where injuries involves the bones. That is, the doctor must be specializes in the same field of medicine as the injuries that have occurred. This court has also stated in the past that where a medical report has been submitted and after several years have lapsed the latest medical report is required to be given (sic). This court directed the plaintiff be re- examined again by an Orthopeadic consultant of his choice. The report submitted was indeed of a vast difference.”

22. Further, the Appellants submitted that the court is not bound by an expert opinion and invited the Court to consider the authority of Amosam Builders Developers Ltd v Betty Ngendo Gachie & 2 others [2009] eKLR where the Court of Appeal held:“That notwithstanding, as a general rule evidence by experts being opinion evidence is not binding on the court. The court has to consider it a long with other evidence and form its own opinion on the matter in issue. The court is at liberty to accept or reject evidence of experts depending on the facts and circumstances of the case before it.”

23. On another limb, the Appellants submitted that the failure by the Learned Magistrate to consider their submissions amounted to gross violation of the Appellants’ right to fair hearing and amounted to being denied an opportunity to vent their case.

24. On the award, the Appellants submitted that the same was inordinately high and/or excessive and needed to be set aside and/or reviewed. It was the Appellants’ submission that the Respondent ought to have been awarded Kshs. 400,000. 00. The Appellants urged the Court to consider the authorities of Gabriel Kariuki Kigathi & another v Monica Wangui Wangechi [2016] eKLR where damages of Kshs. 400,000. 00 were made for fracture of the neck, bilateral rib fractures, bilateral lung contusion, injuries to the hands, injuries of both legs, fracture C2 cervical spine and fracture of the right ankle; the case of Simon Kimote v Agro Solutions Limited [2021] eKLR where an award of Kshs. 350,000. 00 was made for right femoral fracture, tibia plateau fracture, blunt head injury and blunt neck injury was cited; and the award of Kshs. 500,000. 00 made in the case of Roseline Violet Akinyi v Celestine Opiyo Wagwau [2017] eKLR where the Plaintiff had suffered more severe injuries.

25. The Respondent filed his submissions on the 22nd day of September, 2021 in which he urged the Court to dismiss the Appeal with costs. It was the submissions of the Respondent that the injuries were not disputed at any point during trial and no evidence was on record to rebut the medical evidence adduced by the Respondent during trial.

26. The Respondent prayed that the appeal be dismissed with costs.

Analysis and Determination 27. I have considered carefully the evidence adduced before the trial court as well as the respective rival submissions. A careful scrutiny of the grounds of appeal, the prayers sought in the appeal and the submissions made by the Appellant are a testament that the only issue for determination is whether the damages awarded were inordinately so high compared to the injuries the Respondent suffered. That is to say, whether the awards of Kshs. 1,500,000. 00 as general damages for pain and suffering and Kshs. 1,500,000. 00 for loss of earning capacity were inordinately high to warrant the interference by this Honourable 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.

28. I underscore that the award of general damages is an exercise of discretion by the trial court based on the evidence and impressions on demeanor 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.

29. 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 in Butt 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 his 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.”

30. 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 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.”

31. Further, in the case of Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, where 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.”

32. On the issue of liability, the same was not submitted on by the Appellants and the testimony of the Respondent having been uncontroverted, this Honourable Court without delving into the same upholds the learned Trial Court’s decision to find the Appellants 100% liable for the said accident.

33. I have considered the rival submissions by parties, the evidence on record and the authorities cited by both counsel and 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, the injuries should be comparable to the other person’s injuries, and the after effects.

34. It is critical then that this Court re-examines the evidence on record with respect to the Respondent’s injuries which have vehemently been contested by the Appellants. The Respondent’s Plaint particularised his injuries as weakness of both upper and lower limbs and fracture C5, C6 with spondyloisis cord compressed. The Respondent in support of the same produced the medical report, a P3 Form and treatment notes from Narok District Hospital and Kenyatta National Hospital. He was first attended to at Narok District Hospital where he was admitted between 28th to 30th day of March, 2012. As per the Discharge Summary produced as P.Exhibit-6, the Respondent on final diagnosis had suffered a C-spine injury. He was discharged upon his request to seek medical attention in a different facility.

35. The Respondent proceeded to Kenyatta National Hospital as evidenced by P.Exhibit-5a, a Discharge Summary indicating that he was admitted from 10th to 11th April, 2012 upon which he requested to be transferred to the private wing. P.Exhibit-5b was the Discharge Summary that confirmed the injuries pleaded and the duration of two weeks in the hospital as the Respondent was admitted between 12th and 26th April, 2012.

36. Dr. G.K. Karanja later examined the Respondent and confirmed that he had sustained the aforementioned injuries. He further confirmed that the Respondent underwent an operation in particular ACDF and was discharged through the surgical orthopaedic clinic. The Respondent at the time of examination complained of pain during cold seasons and inability to carry heavy objects. The said report was produced by the Respondent as P.Exhibit-3a.

37. It is crucial to note that the Appellants at the point of trial never challenged the production of the said report and made no attempt to controvert the expertise of the said author and/or subjected the Respondent to a medical expert of their choice. The said report has only been challenged by the Appellants vide their submissions at this stage of appeal.

38. I take the view that submissions cannot take the place of evidence and this was as well posited by the Court of Appeal in Daniel Toroitich Arap Moi v Mwangi Stephen Muriithi & Another [2014] eKLR:“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”

39. In view of the foregoing, I find that the Respondent presented sufficient evidence in support of the averments in terms of the injuries sustained following the accident.

40. I now turn to determine whether the award for general damages was commensurate with the injuries suffered by the Respondent. In the case of William Kitoto Andere v Easy Coach Limited [2019] eKLR the Plaintiff was awarded Kshs. 2,000,000. 00 for pain and suffering for Paraparesis (Weakness of Lower Limbs), Foot drop bilaterally, Urine incontinence and Back Pains.

41. In the case of Mburugu Fredrick Koome v Kenneth Ntoribi [2021] eKLR, the Respondent had suffered injuries to the cervical spine which necessitated treatment over a long period of time including admission for seven days and underwent a procedure the doctor described as posterior cervical decompression with lateral mass screw. The Court awarded Kshs. 1,000,000. 00 as general damages.

42. Having carried out my mandate as a first appellate court, and in view of the cited comparable authorities, I find no reason to disturb the award given by the trial court as the sum was reasonable and modest.

Disposition 43. In conclusion, I find that the appeal is without merit and is dismissed with costs.

44. It is hereby so ordered.

DATED AND DELIVERED AT NAIVASHA THIS 19TH DAY OF JULY, 2022. ........................................G.W.NGENYE-MACHARIAJUDGEIn the presence of:………………………………….. for the Appellants.…………………………………… for the Respondents.