[2022] KEHC 2258 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KISII

CIVIL APPEAL NO 12 OF 2020

PETER MOGAKA.................................................................APPELLANT

VERSUS

ZIPPORAH GESARE OMUYA.........................................RESPONDENT

(Being an appeal from the judgment and decree of Hon. Nathan Shiundu Lutta (CM) delivered on 29th January 2020 in Kisii CMCC No 100 of 2016)

JUDGMENT

1. This Appeal relates only to the issue of quantum. The appellant’s appeal was filed on 13th February 2020 vide Memorandum of Appeal dated 12th February 2020.

2. The respondent who was the plaintiff before the trial court pleaded that she was injured following a road traffic accident that occurred on 15th March 2015. The accident occurred while she was at the verge of Keroka-Sotik road. According to the respondent, the accident was caused by the appellant’s motor vehicle KBR 976X which was being driven in negligent manner causing it to veer off the road thus knocking down the respondent. The respondent claims that she sustained physical injuries, suffered loss and damage as a result of the accident.

3. The issue of liability was settled by consent in the ratio 80:20 in favour of the respondent. After conducting a hearing, the trial magistrate in his judgment awarded the respondent Kshs 4,000,000/- for general damages less 20% contribution, an award of Kshs 1,080,000/- being the cost of the caretaker nurse and special damages of Kshs 1,047,596. 88/-. The respondent was also awarded costs of the suit.

4. As observed above, the appeal is against quantum of damages only. The appeal raises 13 grounds which can be summarized as follows; the award of general damages was excessive; special damages were not proved; the costs to cover the services of the caretaker nurse were made without any basis; that damages were awarded contrary to section 5 (iv) of the Insurance (Motor Vehicle Third Party Risks) Act Cap 405 Laws of Kenya; and that the appellant’s submissions were not considered.

5. This court gave directions that the appeal be canvassed by way of written submissions. The appellant’s counsel filed written submissions on 24th June 2021. In their submissions the appellant abandoned all other grounds raised in their appeal and only took issue with the general and special damages awarded by the subordinate court.

6. Respondent’s counsel filed written submissions on 23rd July 2021 and largely supported the trial court’s decision.

ANALYSIS AND DETERMINATION

7. In an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLRthus:

The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

8. The first issue for consideration is whether the respondent proved that she suffered the injuries as pleaded in her amended plaint.

9. Zipporah Gesare Omuya (Pw2) adopted her witness statement as her evidence in chief. According to her testimony she suffered severe head injury whereby she lost consciousness and was managed in ICU while in comatose for 3 months; she sustained fracture of the cervical bone C6-7 leading to obstruction of the upper airway tracheotomy, rapture of the oesophagus necessitating tracheotomy; compound fracture of the left tibia/fibula leading to knee amputation; compound fracture of the right tibia/fibula leading to loss of bone; trauma to the back; multiple disfiguring laceration on the head; and extensive decubitus (ulcer of the pelvic).

10. It was Pw2’s testimony that her treatment expenses were more than Kshs 1,000,000/- and she was only released from the hospital after an undertaking given by her advocates. She spent Kshs 6,500/- towards procuring the medical report and a further Kshs 5,000/- to have the doctor attend court. She explained that because she is incapacitated and needs a caretaker who she has to pay Kshs 600/- per day. However, on cross examination she testified that the nurse is paid Kshs 3,000/- per month.

11. Dr. Ogando Zoga (Pw1) testified that he examined Pw2 6 months after the accident. In his testimony he confirmed that Pw2 had suffered the injuries listed in the plaint. He testified that Pw2 would need an artificial limb that would cost Kshs 250,000/- and would need a helper. He testified that he assessed permanent disability at 75%.

12. Musyoka Nzoka (Pw4) testified that he worked at Tenwek Mission Hospital and he is in charge of statistics and medical records. He produced Pw2’s discharge summary.

13. The discharge summary shows that the respondent was admitted on 15th March 2015 ad discharged on 15th June 2015. He clinical summary reads:

“She presented 1 hr post trauma, pedestrian hit by a vehicle, presented to the facility with agitation with a Left open T/F, taken for washout with good recovery, taken back for a repeat washout 2 days later, POD 5 noted patient hypoxic, review of CXR revealed a diaphragmatic injury on the left, taken to OR and left intubated, review of CT scan report revealed a C6, 7 jumped facet as the patient has since become quadriplegic. She was taken back to the OR where anterior fusion with ICBG done, AKA and tracheotomy for prolonged ventilator requirement, recovered slowly and gradually, tracheostomy removed after 4 weeks and site sealed, developed deep decubitus ulcers, dressed with honey with bedside debridement, currently stable with resolution of quadriplegia, still has c-collar for 2 more weeks, will do COD of ulcer at home….”

14. The discharge summary also indicates that Pw2 suffered a fracture of the tibia/fibula and sustained brain and cranial nerve injuries. Pw2 also sustained a traumatic spondylopathy and become quadriplegic.

15. In my view, having carefully considered the evidence that was adduced before the subordinate court, the injuries enumerated by the respondent in her plaint were proved during the hearing of her case.

16. Dr. Ogando Zoga testified on the injuries that were sustained by the respondent and his evidence was not shaken on cross examination. The discharge summary produced further corroborated the respondent’s testimony that indeed she had sustained serious injuries following the accident.

17. Pw3 No xxxx Corporal Priscah Nyanchama from Keroka police station confirmed that indeed the accident occurred along Keroka-Sotik road and produced the police abstract.

18. The appellant in his submissions before this court argues that the respondent ought to have gone an extra mile to provide the court with x-ray films or radiology report to support the respondent’s case that she sustained fractures or the alleged amputation.

19. Proof of one’s case in every civil case is on a balance of probabilities and the legal burden lies with the respondent to prove her case. Sections 107 and 108 of the Evidence Act provide as follows:

“107. (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.

(2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.

108. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

20. In my view the respondent through the testimony of Pw1, Pw2 and Pw4 as well as evidence from the discharge summary and medical report met the requirement under sections 107 and 108 of the Evidence Act to the required standard regarding the injuries sustained.

21. The burden of proof thus shifted to the appellant to disapprove any of the facts presented by the respondent. In the case of Anne Wambui Ndiritu vs. Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the court held that:

“As a general proposition under section 107(1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is cast upon any party the burden of proving any particular fact which he desires the Court to believe in its existence which is captured in sections 109 and 112 of the Act.”

22. The appellant did not call any witness to displace the evidence presented by the respondent. He simply filed his amended statement of defence, thus his case amounted to a mere denial. In the case of John Wainaina Kagwe v Hussein Dairy Ltd [2013] eKLR, the Court of Appeal held as follows: -

“The Respondent never called any witness (es) with regard to the occurrence of the accident. Even its own driver did not testify meaning that the allegations in its defence with regard to the blame worthiness of the accident on the Appellant either wholly or substantially remained just that mere allegations. The Respondent thus never tendered any evidence to prop up its defence. Whatever the Respondent gathered in cross-examination of the Appellant and his witnesses could not be said to have built up its defence. As it were therefore, the Respondent’s defence was a mere bone with no flesh in support thereof. It did not therefore prove any of the averments in the defence that tended to exonerate it fully from culpability. It was thus substantially to blame for the accident….”

23. Although, the respondent in his submissions now challenges the findings of Dr. Ogando Zogo, he did not call any expert witness or an orthopedic consultant to prove that the respondent sustained no fracture. In the end therefore, I find that the respondent proved on a balance of probabilities that she sustained the following injuries:

a) Severe head injury thereby losing consciousness and was managed in ICU while in comatose for 3 months.

b) Fracture of the cervical bone C6-7 leading to obstruction of the upper airway tracheotomy.

c) Rapture of the oesophagus necessitating tracheotomy.

d) Compound fracture of the left tibia/fibula leading to above knee amputation

e) Compound fracture of the left tibia/fibula leading to loss of bone.

f) Trauma of the back.

g) Multiple disfiguring lacerations on the head.

h) Extensive decubitus (ulcers of the pelvic)

24. I now turn to consider whether the general damages awarded by the trial court were excessive. The guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent and comparable awards. In the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004]eKLR where the Court of Appeal held:

“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

25. The appellant before the trial court proposed an award of Kshs 250,000/- to cover the award for general damages. The appellant now proposes an award of Kshs 800,000/- as general damages. He cited the case of Charles Oriwo Odeyo v Apollo Justus Andawa & Another [2017] eKLR, KISUMU HCCA NO 99 OF 2014 where the court awarded Kshs 800,000/- to the plaintiff who sustained injuries leading to an amputation of the right leg below the knee leading to his inability to walk.

26. The respondent on the other hand submitted that the trial court’s award of Kshs 4,000,000 was supported by both evidence and relevant authorities. She cited the cases of Samwel Kebati Osoro v Mohamed Antuly & Another (2019) eKLR and Duncan Kimathi Karagania v Ngugi David & 3 others (2016) eKLR in support of the trial court’s finding.

27. In the case of Ngure Edward Karega v Yusuf Doran Nassir [2014] eKLR the plaintiff therein became a quadriplegic as was unlikely to gain any further muscle power in his leg. Permanent physical disability was assessed at 100%. The plaintiff was awarded Kshs 5,000,000/- as general damages for pain and suffering.

28. In this case, the respondent sustained the injuries outlined in paragraph 21 and become quadriplegic. However, disability was assessed at 75-80%. The award of Kshs 4,000,000 was therefore not excessive. I find no reason why this court should therefore interfere with the award of general damages.

29. The appellant has also challenged the special damages awarded by the trial magistrate arguing that they were not strictly proved.

30. The respondent in her amended plaint sought for the award of special damages. It is trite law that special damages must be pleaded and strictly proved. The respondent sought for treatment and transport expenses of Kshs 1,040,596/- However, the total cost of treatment from Tenwek Mission Hospital indicate that the total amount due for the respondent’s treatment was Kshs 1,037,596. 88/-. It is clear from the professional undertaking by the respondent’s advocate and the receipt issued by the Tenwek Mission Hospital that the respondent had only paid Kshs 53,000/- and had an outstanding medical bill of Kshs 984,596. 88/-. The respondent also spent Kshs 3,000/- towards the purchase of a metallic walking stick. She produced a deposit slip proving payment of the motor vehicle search of Kshs 500/- and a receipt issued.

31. According to the amended plaint the cost of employing a nurse was Kshs 18,000/- per month. According to the evidence from the Medical Report by Dr. Ogando Zoga, he proposed that the respondent would be unable to move and thus needed assistance from a caretaker to help her with her day to day activities. The discharge summary indicates that the respondent sustained injuries of the nerves and spinal cord injury at the neck level leaving her quadriplegia.

32. The respondent was 38 years at the time of the accident and would therefore need an assisting nurse for the rest of her life. Pw2 testified that she pays her nurse Kshs 3,000/- per month.

33. The respondent in her submissions before the trial court argued that since the life expectancy in Kenya is 60 years, the court ought to consider a multiplier of 30 years. The appellant in their submissions before the trial court simply submitted that the court ought not to award damages on this head. Although the appellant has faulted the trial magistrate for failing to consider its submissions on damages on this head they did not attempt to guide the subordinate court with authorities for damages under this head.

34. However, I find that the multiplier of 30 years adopted by the trial magistrate was erroneous as it would lead to damages that are inordinately high. The amount under this head would thus be made up as follows: 3000 x 12 x 22 = 792,000/-.

35. In sum, this appeal is partly successful only to the extent of the cost for Pw2’s nurse/caretaker. The award shall therefore be made as follows:

General Damages Kshs 4,000,000/- less 20% liability

Special Damages Kshs 1,047,596. 88

Costs for Nurse/Caretaker Kshs 792,000/-

Total Kshs 5,039,596. 88

36. The appellant shall have a quarter (1/4) the costs of this appeal.

DATED, SIGNED AND DELIVERED AT KISII THIS 9TH DAY OF FEBRUARY 2022.

R. E. OUGO

JUDGE

IN THE PRESENCE OF:

MISS ONDIEKI FOR THE APPELLANT

MISS KUSA FOR THE RESPONDENT

KEVIN COURT ASSISTANT