[2017] KEHC 10133 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMABAY

CIVIL APPEAL NO.1 OF 2016

BETWEEN

PAULINE GESARE ONAMI.................................APPELLANT

AND

SAMUEL CHANGAMURE......................1ST RESPONDENT

RIMUI MARTIN.......................................2ND RESPONDENT

(Being an appeal from judgment of Hon. Resident Magistrate

J.S WESONGAdated 7th day of December 2015 in

theoriginalOyugis PMCC NO.29 OF 2015)

JUDGMENT

1. The appellant (PAULINE GESARE ONAMI) had filed a claim in the lower court against (SAMUEL CHANGAMURE (1st respondent) and RIMUI MARTIN (2nd respondent) arising from a road traffic accident which occurred on 17th June 2012 along Oyugis – Kisumu road at Bondeni area where she was travelling as a passenger in motor vehicle registration NO.KBJ 066 EToyota matatu. It was her contention that the 1st respondent negligently drove, controlled and or permitted the same to lose control and hit motor vehicle registration number GKA 796S Land Rover, as a result of which the she sustained serious injuries and had suffered pain, loss and damage. At the material time the 1st respondent was the driver/agent/servant of the 2nd respondent who was the actual owner of the mentioned motor vehicle and sued vicariously for the acts of the 1st defendant.

2. As a result of the accident the appellant suffered:

a) Fracture of the right tibia and fibula bone

b) Fracture of left tibia and fibula bone

c) Laceration on the neck area

d) Blunt trauma to the chest

e) Deep cut wound on both legs mid shaft

3. She prayed for judgment against the defendant for general damages, special damages (medical report kshs.6500 and treatment expenses kshs.500) and costs incidental to this suit.

4. PAULINE GESARE ONAMI (Pw1) testified to the effect that she was a board motor vehicle registration number KBJ 066 J, and involved in an accident along Oyugis – Kisumu road. Subsequently, she sustained fracture on both legs, cut wounds on the neck and blunt injury on the chest. As such, she received initial treatment at Matata nursing hospital then she was referred to Tenwek Mission Hospital (She produced treatment notes from the two hospitals). She was later examined by DR. OGANDO and a medical report was prepared, paid kshs 6500/- for the report (MFI.7). She further stated that she is still in pain and visits the hospital for checkups.

5. On 21/9/15 the parties recorded a consent on liability apportioned on the ratio of 70% - 30% in the favor of the plaintiff against the 1st defendant.

6. On 2/11/15 the parties recorded a further consent to the effect that medical report by DR.OLIWAdated 8/3/15 be produced as DEXH.1 and the defence case be deemed closed.

7. Parties filed and exchanged submissions where the appellant proposed a sum of kshs.1, 500,000 as compensation for the pain and injuries suffered.

8. In the respondent’s submissions it was pointed out the injuries that the appellant suffered coupled with the last report by DR. OLIMA showed that the she had fully recovered and there was no residual disability. He suggested that an award of Kshs. 500,000 was sufficient for the injuries suffered.

9. The learned trial magistrate consequently, awarded kshs.6500 for special damages being payment for medical report as the appellant had produce a receipt and kshs.600,000 for general damages for pain and suffering.

10. The appellant being dissatisfied by the judgment contested the findings on grounds that the trial magistrate erred in law and in fact by;

a) Awarding the appellant a sum of kshs.424,550 as general damage whichamount was manifestly low and constituted an erroneous estimate of alleged injuries

b) Disregarding the authorities relied by the appellant without giving any reason

11. Hence the appellant prays that the appeal be allowed.

12. Parties agreed to dispose the appeal by way of written submissions. They filed and exchanged there submissions.

13. The appellant stated that trial court awarded general damages which were inordinately low considering the injuries and the submissions together with the relevant decisions that the parties relied on.

14. In addition they submitted that the appellant sustained severe injuries which were a fracture of the right tibia and fibula bone, fracture of the left tibia and fibula bone, laceration of the left neck area, blunt trauma to the chest and deep cut wound on both legs shaft as per medical report by DR. OGANDO ZOGA.

15. The appellant relied on the decisions in:;

a) MACHAKOS: CIVIL APPEAL NO. 141 OF 2011, ALPHONCE MULI NZUKU VS. BRIAN CHARLES OCHUODHO

b) MOMBASA: CIVIL SUIT NO. 79 OF 2012, GABRIEL MWASHUMA VS. MOHAMMED SAJJAD & MILLY GLASS WORKS LIMITED

16. They relied on the first case on the grounds that as much as the defendant in the case filed an appeal to have the amount (kshs.800,000) that was awarded in trial court to be set aside, the said appeal was dismissed on the ground that the injuries suffered by the plaintiff were severe. Their reliance on the latter case law is, they alleged, that the plaintiff therein suffered the same injuries as the plaintiff in this case and was awarded kshs.3,000,000.

17. In the respondent’s submissions, he pointed out that the appellant testified that she sustained fractures on legs, cut wounds, neck and injury on the chest. Further submitted, that her medical report from DR EZEKIEL ZOGA was the only one that made reference to fractures of tibia/fibula of both legs. On the other hand DR. OLIMA in his report (exhibitD1) confirms the fracture of the right tibia and left tibia only.

18. He further submitted that in the treatment notes from MATATA HOSPITAL (exhibit P1) and TENWEK HOSPITAL, the plaintiff’s injuries were shown to be fractures of tibia, not tibia and fibula as pleaded.

19. He further argued that the case that the appellant relied on in the trial court in regard to injuries, were not at all similar to their case. In addition, the authorities relied on by the appellant on appeal were not cited before the trial court. He cited 2 authorities where the appeal court decided that they would not rely on the authorities that the party did not provide at the trial court, being

1. KISUMU HCCA NO.88 OF 2016, COAST BUS (MSA) LTD VS. JOSEPH ODHIAMBO MAKAMBORA (2017) E KLR

2. MACHAKOS HIGH COURT CIVIL APPEAL 20 OF 2008 QUENTINE WAMBUI V NDUDA WAMBUI KITUU(2012) EKLR

20. It was further contended that the gravity of the injuries in the decisions cited by the appellant were more intense compared to the injuries suffered by the appellant herein. He added that the authorities that the respondent relied on in the trial court were comparable to the injuries suffered by the appellant herein and emphasized that as was stated in the case of Morris Mugambi &Another vs. Isaiah Gituru Nairobi CA No. 138/2002 “…..The court of appeal held that comparable injuries should as far as possible be comparable by comparable awards keeping in mind the levels of awards in similar cases”.

21. He referred to decisions that prove that the award by the trial court was not inordinately low to prefer an appeal. He refers to NAIROBI HIGH COURT CIVIL APPEAL NUMBER 432 OF 2012 John Njenga Maina vs. Humphrey Kinyua Rukeria (2016) eklr where a plaintiff who had fractured both tibia and fibula bones of both legs was awarded kshs.750,000; and ELDORET CIVIL APPEAL NO.121 OF 2013 Sammy Mugi Kinyanjui & Another vs. Cairo Thuo (2017) eklr where the plaintiff with similar injuries as appellant herein was awarded kshs.600,000.

The issues for determination are

1. The nature of injuries the appellant sustained

2. Whether the award was inordinately low compared

22. In the pleadings the particulars of injuries were listed that as bone fracture of tibia and fibula of both legs.

23. It is evident that the two doctors who examined the appellant had conflicting findings as regards the extent of the injuries, one stated that she sustained fracture on both legs bones of tibia/fibula and the other one stated that he sustained fracture on both legs bones of tibia.

24. A closer look at her treatment notes from MATATA HOSPITAL (pg 32) shows that appellant had fracture on tibia. The treatment note further stated the way the injury was managed. Since the treatment note is the initial document on the injury suffered by the plaintiff, I am persuaded that they reflect the injury that the plaintiff suffered.

1. Whether the award issued to the appellant is inordinately low compared to the injuries suffered by the appellant

25. In the cases of MORRIS MUGAMBI AND H.WEST AND SONS LTD referred to by the respondent in his submissions the court stated “……. in the assessment of damages the general method of approach should be comparable injuries should be as far as possible be compensated by comparable awards keeping in mind the level of awards in similar cases”.

26. According to the treatment notes from MATATA HOSPITAL the appellant sustained fracture of both legs of tibia and cut wound on the both legs.

27. Both the appellant and the respondent cited various authorities to support their cases. In the appellant authorities the injuries that the plaintiff’s suffered thereat were substantially different from the ones suffered by the appellant herein and the injuries suffered by the authorities cited by the respondent were particularly similar to the injuries suffered by the appellant herein.

28. In CIVIL APPEAL NO 21 OF 2015; AKAMBA PUBLIC ROAD SERVICES V ABDIKADIR ADAN GALGALO [2016] EKLRwhere the plaintiff therein suffered injuries that were almost similar to the appellant herein the awarded kshs.500,000 as damages (paragraph 45). As such the award for general damages by the trial judge was in line with the damages suffered by the appellant.

29. As it has been held in various decisions, some cited by the respondent herein, the appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the trial magistrate 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. In my opinion the trial magistrate award for general damages of Kshs. 600,000 are not inordinately low so as to allow an appeal. Consequently the appeal has no merit and is dismissed with costs to the respondents.

Delivered and dated this 4th day of October, 2017 at Homa Bay

H.A.OMONDI

JUDGE