[2020] KEHC 1346 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MACHAKOS

Coram: D. K. Kemei - J

CIVIL APPEAL NO. 237 OF 2014

PETER KIOKO MUTUNGA..............................................................................1ST APPELLANT

EDWARD NDUGU..............................................................................................2ND APPELLANT

-VERSUS-

CATHERINE KAVATA MBALUTO......................................................................RESPONDENT

(Being an Appeal from the judgment and decree of Hon D. J. Karani, Principal Magistrate

delivered on the 17. 9.2014 in Kithimani PMCC 19 of 2010)

BETWEEN

CATHERINE KAVATA MBALUTO............................................................................PLAINTIFF

-VERSUS-

PETER KIOKO MUTUNGA.............................................................................1ST DEFENDANT

EDWARD NDUGU.............................................................................................2ND DEFENDANT

JUDGEMENT

1. Vide plaint in the trial court filed on 28. 1.2010 the suit arose out of a road traffic accident where the respondent had been a passenger aboard KAR 498H that was being driven by the 2nd appellant’s agent. It was pleaded that on 3. 9.2009 the 1st appellant so recklessly drove and managed the vehicle KAR 498H that it lost control and veered off the road and rolled and as a consequence the respondent sustained injuries, pain and damages. The respondent instituted Yatta SRMCC 19 of 2010 where she attributed negligence to the appellants and she indicated that she sustained blunt injuries on the upper jaw, upper right incisors teeth missing, blunt injuries on the lower jaw, 2 right canine teeth missing, blunt injuries on the lower lip and blunt injuries on the right hand. She sought special damages of Kshs 2,000/- as well as general damages, costs and interest. The parties recorded a consent of 90:10 contribution by the respondent against appellants. The suit was set down for assessment of damages and vide judgement delivered on 17. 9.2014 the trial court awarded Kshs 407,000/- general damages to the respondent and Special damages of Kshs 2,000/- as well as costs and interest thus prompting instant appeal.

2. The appeal is solely on quantum and sets out the following 4 grounds that are to the effect that the trial magistrate erred in fact and in law in: -

I. Finding that the plaintiff was entitled to general damages of Kshs 405,000/- and special damages of Kshs 2,000/- that were too high in view of the injuries suffered by the plaintiff.

II. Failing to consider conventional awards for general damages in such cases.

III. Failing to consider general and special damages under the Insurance (Motor Vehicle Third Party Risks Amendment) Act 2013.

IV. Failing to consider the defendant’s submissions.

3. The appellant’s counsel prayed that the appeal be allowed and that the lower court’s judgement on quantum be discharged and set aside and an award commensurate with the respondent’s injuries be made.

4. The parties agreed to canvass the appeal via written submissions which they filed and exchanged.

5. Learned counsel for the appellants vide submissions filed on 4. 2.2020 submitted that the award of Kshs 450,000/- was high. Reliance was placed on the case of Denshire Muteti Wambua v KP&L Co (2013) eKLR. It was submitted that comparable awards commensurate to the injuries suffered by the respondent in the case of Paul Kipsang Koech & Another v Titus Osule Osore (2013) eKLR and James Nganga Kimani & Anor v Giachagi Njoroge & 2 Others (2019) eKLRwhere the court gave amounts of Kshs 200,000/- for pain and suffering.

6. In reply, learned counsel for the respondent submitted that the respondent proved that she suffered the injuries as pleaded and that the court did not err in its award. Counsel cited the case of Joseph Mutua Nthia v Fredrick Moses M Katuva (2019) eKLRwhere Shs. 400,000/= was awarded as general damages in respect of similar injuries; Martha Agok v Kampala Coach (2017) eKLRwhere Shs. 350,000/= was awarded as general damages in respect of similar injuries. The court was urged to dismiss the appeal.

7. This being an appeal against quantum, the role of the Appellate court in this regard was considered in the case of Lukenya Ranching and Farming Coop. Society Ltd v Kavoloto (1979) EAwhere the learned Judge recapped the grounds that the Appellate court will interfere with exercise of discretion by the trial court when assessing damages as laid down by the Court of Appeal inHenry Hidaya Ilanga v Manyema Manyoka (1961) EA 705, 709, 713where the grounds were if the trial court in assessing the damages, took into consideration an irrelevant factor, failed to take into account a material factor or otherwise applied a wrong principle of law. Secondly, it may intervene where the amount awarded by the trial court is so inordinately low or inordinately high that it is a wholly erroneous estimate of the damage sustained.

8. The case ofBoniface Waiti & Another v Michael Kariuki Kamau (2007) eKLR listed some principles to guide the court in awarding general damages, viz;

a. An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered.

b. The award should be commensurate to the injuries suffered.

c. Awards in decided cases are mere guides and each case should be treated on its facts and merit.

d. Where awards in decided cases are to be taken into consideration then the issue of an element of inflation has to be taken into consideration.

e. Awards should not be inordinately high or too low.

9. The Appellants aver that the learned magistrate’s award was extremely high. They asked the court to review the evidence and facts on record and reduce the award.

10. The evidence in the trial court was as follows; Pw1 was the respondent who testified that as a result of the accident she went to Matuu district hospital. She stated that she lost 4 teeth. She told the court that she was seen by Dr Kasuki and a medical report prepared. She closed her case while the appellants called no witnesses.

11. The proceedings indicate that the medical report of Dr Kasuki was agreed to be admitted without calling the maker. There is no indication on the presentation of the 2nd medical report but however the same was relied upon.

12. I have analyzed the evidence that was adduced in court. The issues for determination as elicited from the appeal are: -

1) Whether a case for disturbing the award by the trial court has been made.

2) If yes, how much is the respondent entitled to?

13. The respondent testified that she was involved in a road traffic accident and was injured. The trial court made a finding on liability at 90:10% after a consent was entered into by the parties.

14. On quantum, the respondent pleaded that she suffered blunt injuries on the upper jaw, upper right incisors teeth missing, blunt injuries on the lower jaw, 2 right canine teeth missing, blunt injuries on the lower lip and blunt injuries on the right hand.

15. According to the medical reports on record, there seems to be agreement that the respondent suffered mouth injuries being gingival injuries with loss of upper and lower incisors loss of upper right canine and left canine as well as blunt injuries on the lower lip and the right hand.

16. I have gone through the written submissions that were filed by the counsels of either parties as well as the authorities that were supplied therein.

17. The appellant seems to disagree with the finding on damages by the trial court and urged the court to reduce the award. In addressing the entitlement of the respondent in respect of damages, the cardinal principle in awarding damages is 'restitutio in integrum' which means, in so far as money can do it, the law will endeavour to place the injured person in the same situation as he was before the injury was sustained – See Halsbury's Laws of England 3rd Ed. Vol. II p.233 para 400.

18. In this regard bearing the fact that the medical reports agree that the respondent suffered soft tissue injuries, and loss of teeth it is probably true that the respondent suffered the same and comparable awards by courts are to the tune of Kshs 350,000/-to 400,000/-. In the case of Isaac Muriungimbataru v Silas Kalumani [2017] eKLR,the court reduced an award of Kshs 350,000/- to Kshs 200,000/- for similar injuries. In Joseph Mutua Nthia v Fredrick Moses M Katuva (2019) eKLRwhere Shs. 400,000/= was maintained by the High Court as general damages in respect of similar injuries. I therefore retain the award of the trial court as the same was not inordinately high as claimed by the appellants.

19. The plaint claimed for special damages of Kshs 2,000/- and the court awarded the sum. Because the amount is not disputed, I see no reason to disturb the same.

20. In sum the appeal lodged by the appellants lacks merit. The same is dismissed with costs.

It is so ordered.

Dated and delivered at Machakos this 3rd day of December, 2020.

D. K. Kemei

Judge