[2021] KEHC 685 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 543 OF 2017

PETER KUSIMBA NYONGESA........1ST APPELLANT

GRACE MURORIA.............................2ND APPELLANT

-VERSUS-

WILLY MULI MUSYOKA MAATI.......RESPONDENT

(Being an appeal against the judgment and decree delivered by A.M. Obura (Mrs.) (Senior Principal Magistrate) on 22nd September, 2017 in Milimani CMCC No. 5956 OF 2015)

JUDGMENT

1. The respondent founded a suit against the 1st and 2ndappellants by way of the plaint dated 29th September, 2015 and sought for general and special damages, future medical expenses and future earnings plus costs of the suit and interest thereon.

2. The respondent pleaded in his plaint that sometime on or aboutthe 9th day of March, 2015 while at his place of business at Patroza House along Muchumbi Road in South B area in Nairobi, the motor vehicle registration number KBD 116Q (“the subject motor vehicle”) being owned by the 2nd appellant at all material times and being driven by the 1st appellant, veered off the road and knocked down the respondent, causing him to sustain various injuries which are particularized in the plaint.

3. The respondent attributed the accident to negligence on thepart of the appellants by setting out the particulars thereof in the plaint.

4. Upon service of summons, the appellants entered appearanceand filed their statement of defence dated 16th December, 2015 jointly to deny the allegations set out in the plaint.

5. At the hearing of the suit, the parties herein recorded a consenton liability in the ratio of 90:10 in favour of the respondent, and the parties agreed to put in written submissions on quantum.

6. Upon filing of submissions, the trial court delivered judgment infavour of the respondent and against the appellants in the following manner:

a. General damages Kshs.1,800,000/

b. Loss of earning capacity Kshs.1,800,000/

c. Future medical expenses Kshs.100,000/

d. Special damages Kshs.171,223/

Gross total Kshs.3,871,223/

Less 10% contribution Kshs.387,122. 30

Net total Kshs.3,484,100. 70

7. The aforementioned judgment has precipitated the appeal nowbefore this court. To challenge the assessment of damages, the appellants have put forward the following grounds of appeal in their memorandum of appeal dated 13th December, 2018:

i. THAT the learned trial magistrate erred in law and fact in making an award on general damages that was inordinately high considering the respondent’s injuries.

ii. THAT the learned trial magistrate erred in law and fact in making an award on loss of earning capacity which had not been proved and which was inordinately high.

iii. THAT the learned trial magistrate erred in law and fact in making an award on loss of earning capacity without taking into consideration that the plaintiff was only partially incapacitated and not rendered 100% incapacitated.

iv. THAT the learned trial magistrate erred in law and fact by failing to consider the plaintiff’s reduced earning capacity rather than making an award for total incapacity.

v. THAT the learned trial magistrate erred in law and fact by failing to appreciate that the loss of earnings is a special damage claim that ought not only to be pleaded but strictly proved.

vi. THAT the learned trial magistrate erred in law and fact by failing to appreciate that no evidence was presented in support of earnings to guide the court in assessing the alleged loss of earnings or earning capacity if at all.

vii. THAT the learned trial magistrate erred in law and fact by applying the minimum wage thus introducing evidence that was not before the court for consideration and adopting the same to award the alleged loss of earnings.

viii. THAT the learned trial magistrate erred in law and fact by adopting a multiplier of 10 years in a case where the plaintiff’s earning capacity was only diminished.

ix. THAT the learned trial magistrate erred in law and fact by failing to appreciate the law on loss of earning or earning capacity and thus misled herself to arrive at a finding which lacked any or any reasonable backing in law.

x. THAT the learned trial magistrate erred in law and fact by failing to find that the alleged loss of earnings or earning capacity had not been established or proved and ought to have been dismissed.

8. This court directed the parties to file written submissions on theappeal.

9. On the part of the appellants, it is reiterated that the awardmade on general damages for pain, suffering and loss of amenities is inordinately high and ought to be substituted with a more reasonable award in the sum of Kshs.600,000/=.

10. The appellants also submit that the trial court ought to havetaken into account the reduced earning capacity of the respondent as opposed to making an award on the basis of total incapacity.

11. The respondent urges this court to uphold the award made bythe trial court and submits that the sum awarded on general damages for pain, suffering and loss of amenities is commensurate to the injuries sustained.

12. The respondent further submits that the award made ondiminished earning capacity is reasonable since he had brought evidence to show that as a result of the injuries sustained, he would suffer residual permanent disability.

13. It is also the contention of the respondent that since he was self-employed as a tailor, he had no formal record of proof of earnings and the trial court therefore acted correctly by applying the minimum wage regulations in assessing his earnings.

14. In closing, the respondent submits that the assessment ondamages is proper and therefore urges this court to dismiss the appeal with costs, to enable him enjoy the fruits of his judgment, citing the case of Machira t/a Machira & Co Advocates v East African Standard [2002] eKLRin which the court decided that as an ordinary legal principle, a successful party is entitled to the fruits of his judgment.

15. I have considered the rival written submissions on appeal.Moreover, I have considered the evidence which the trial court had the opportunity to look at. It is apparent from the grounds set out in the memorandum of appeal that the appeal relates to quantum.

16. The legal position on this is that the award of a trial court oughtonly to be interfered with on appeal under the following circumstances as articulated in the renowned case of Kemfro Africa Ltd t/a Meru Express Services 1976 & Another [1976] v Lubia & Another (No. 2) [1985] eKLR:

a. Where an irrelevant factor was taken into account.

b. Where a relevant factor was disregarded.

c. Where the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

17. It is apparent that the appellants are challenging the awardsmade on general damages and loss of earnings/loss of earning capacity. I will therefore address the damages under the two (2) heads.

a. General damages for pain and suffering and loss of amenities

18. On the one part, the respondent suggested an award in the sumof Kshs.2,500,000/= and cited among others, the case of James Gathirwa Ngungi v Multiple Hauliers (EA) Limited & another [2015] eKLR where the court awarded the sum of Kshs.1,500,000/= for various injuries including compound comminuted fracture of the right tibia and compound comminuted fracture of the right fibula; and the case of James Katua Peter v Simon Mutua Muasya [2008] eKLRin which an award in the sum of Kshs.2,000,000/= was made to a plaintiff with posterior fracture and dislocation of the left hip, fracture of acetabulum roof, comminuted fracture of left tibia and fibula, fracture of medial malleolus and cuts and bruises on the right eyebrow and on the left pacretal area of scalp.

19. On the other part, the appellants proposed a sum ofKshs.600,000/= and relied upon the case of Amos Njagi Emurasi v Augustine Willy Kariuki [2016] eKLRwhere the court assessed general damages at a similar sum at the instance of communited fractures with permanent disability of 12%.

20. In making her assessment, the learned trial magistrate foundthe authorities cited by the respondent to constitute more severe injuries in comparison to those sustained in the present instance; while finding the authority cited by the appellants to fall on the lower side.

21. For the foregoing reasons, the learned trial magistrate awardedthe sum of Kshs.1,800,000/= under this head, though she did not cite any guiding authorities.

22. Upon my re-examination of the evidence, I observed that themedical evidence is consistent with the injuries particularized in the plaint as follows:

i. Fracture of the right femur

ii. Fracture of the left femur

23. The medical evidence shows that the fractures were treatedthrough the fixing of metal implants which would require removal at a later date.

24. In the first medical report dated 1st September, 2015 andprepared by Dr. W. M. Wokabi, permanent incapacity was assessed at 40% at the time of making the report, with a predicted reduction to 20% within 18 to 24 months therefrom. In the second medical report which was prepared by Dr. P.M. Wambugu and dated 1st February, 2017 permanent incapacity was assessed at 12%.

25. Upon considering the authorities referenced by the parties, Isupport the finding of the learned trial magistrate that those cited by the respondent contained injuries of a more serious nature in comparison to those suffered in this instance, while the authority relied upon by the appellants; though constituting comparable injuries; was decided a few years back.

26. I therefore considered the court’s assessment in the case ofJohn Muli Kasike & another v Samuel Gitau Waweru [2020] eKLRinvolving injuries in the nature of fractures to the right and left femur with no permanent incapacity. Here the court substituted an award of Kshs.1,400,000/= with that in the sum of Kshs.800,000/=. I also considered the case of Hussein Dairy Limited & another v Asha Moteo Athman & 3 others [2021] eKLR in which the plaintiff who had sustained suffered contusions of the scalp/jaw & chest and a fracture of the lower 1/3rd left femur bone which was operated and fixed with a nail and screws with permanent incapacity of 5% was awarded a sum of Kshs.600,000/= on general damages on appeal.

27. Taking the above comparable authorities into account as well asthe nature and extent of the injuries sustained, the degree of permanent incapacity and the inflationary trends, I find that the award made by the learned trial magistrate fell on the higher side and ought to be interfered with. In my view, an award of Kshs.1,000,000/= would be reasonable in the circumstances.

b. Loss of earnings/Loss of earning capacity

28. Under this head, the respondent urged the trial court to adopt amultiplier of 10 years given that he was aged 53 years at the time, and a multiplicand of Kshs.15,000/= being the minimum wage for a tailor, to be tabulated as follows: Kshs.15,000 x 10 x 12 = Kshs.1,800,000/=

29. The appellants on their part submitted that the respondent isnot entitled to any award under this head since the respondent had not shown that he would not be able to earn an income as a result of the injuries sustained and further, that there was no proof of earnings to support the claim made.

30. The learned trial magistrate awarded the sum ofKshs.1,800,000/= prayed for by the respondent under the head of loss of earning capacity.

31. Upon my further study of the medical evidence, it is indicated inthe medical report by Dr. Wokabi that during the 18 to 24 month period where the respondent would suffer 40% permanent disability, he would not be gainfully employed. The second medical report by Dr. Wambugu further indicates that the respondent would be unlikely to fully exert himself using his lower limbs.

32. On the issue of proof of earnings by the respondent, I associatemyself with the following reasoning adopted by the court in the case of Hussein Shariff Ali v Grace Karea Mutia (Suing as the legal representative of the Estate of John Mutua (Deceased)) [2021] eKLR:

“This Court agrees with the submissions made by the Respondent that proof of earnings is not limited to production of documents and certificates. See the case of Jacob Ayiga Vs Simon Obayo (Suing as personal representatives of the Estate of Thomas Ndaya Obayo) (2005) eKLR. To hold otherwise would do injustice to a lot of Kenyans who are illiterate and some of who have no records of their employment.”

33. I am therefore convinced that even in the absence of proof ofearnings or employment, the respondent had reasonably demonstrated that he worked as a tailor.

34. Concerning the loss of earnings, I concur with the position takenby the appellants that these constitute special damages and therefore ought to be pleaded and proved accordingly. I am guided by the case of Douglas Kalafa Ombeva v David Ngama [2013] eKLR where the Court of Appeal held that:

“Loss of earnings is a special damage claim, and it is trite law that special damages must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically.”

35. Be that as it may, I note from the evidence tendered that theearning capacity of the respondent would be diminished as a result of his injuries.

36. In assessing the same, I will apply a multiplicand ofKshs.18. 595. 20 being the minimum wage for a tailor pursuant to the Regulation of Wages (General) (Amendment) Order 2015. I also find the multiplicand of 10 years which was applied by the learned trial magistrate to be reasonable. I will further consider the degree of incapacity of 20% which was assessed in the first medical report. The same shall be tabulated as follows:

Kshs.18,595. 20 x 10 x 12 x 20/100 = Kshs.446,284. 80

37. Consequently, the appeal succeeds. The trial court’s award ofKshs.1,800,000/= made under the head of general damages for pain, suffering and loss of amenities is hereby set aside and is substituted with an award of Kshs.1,000,000/=, whereas the award of Kshs.1,800,000/= for loss of earning capacity is hereby set aside and is substituted with an award of Kshs.446,284. 80.

38. For the avoidance of doubt, the judgment on appeal is asfollows:

i. General damages Kshs.1,000,000/=

ii. Loss of earning capacity Kshs. 446,284. 80

iii. Future medical expenses Kshs. 100,000/=

iv. Special damages Kshs. 171,223/=

Gross total Kshs.1,717,507. 80

Less 10% contribution Kshs. 171,750. 78

Net total Kshs.1,545,757. 02

v. The respondentshall have interest on special damages at court rates from the date of filing suit and interest on general damages at court rates from the date of judgment until payment in full.In the circumstances, I hereby order that each party bears its own costs of the appeal.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 17TH DAY OF DECEMBER, 2021

.............................

J. K. SERGON

JUDGE

In the presence of:

……………………………. for the 1st and 2nd Appellants

……………………………. for the Respondent