[2022] KEHC 1512 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT SIAYA

CIVIL APPEAL NO. E8 OF 2020

PETER ROBERT KINUTHIA............................................................................1ST APPELLANT

NYAMUNDE MOKEIRA....................................................................................2ND APPELLANT

VERSUS

JACKLINE ATIENO OTIENO...............................................................................RESPONDENT

(An appeal from the Judgement and decree of Hon. C.N. Sindani

delivered on 21st October 2020 in Ukwala P.M.C.C. No. 66 of 2018)

JUDGMENT

1. On the 25. 7.2018 the respondent herein who was the plaintiff in the lower court filed suit by way of a plaint dated the 11. 7.2018 seeking among others general damages and special damages for injuries sustained from a road traffic accident alleged to have occurred on the 8. 12. 2015 along Kisumu – Busia Highway involving motor vehicle registration number KBJ 414A said to have been driven by the 1st defendant and owned by the 2nd defendant, now appellants.

2. The appellants filed a joint statement of defence denying the allegations made by the respondent/plaintiff. The parties recorded a consent on liability in the ratio of 90:10 in favour of the respondent /plaintiff on the 25. 12. 2019.

3. The trial court after hearing the parties and scrutinising the evidence before it awarded the respondent general damages of one million Kenya Shillings-Kshs. 1,000,000 which was reduced to Kshs. 900,000 taking into consideration the liability apportioned to her by consent. The court further awarded special damages of Kshs. 14,451.

4. Aggrieved by the trial court’s award of general damages, the appellants filed their memorandum of appeal dated 13. 11. 2020 on the 19. 11. 2020 setting out the following grounds:

a) That the learned trial magistrate erred in law and fact in the assessment of quantum thereby giving an award on quantum on general damages of Kshs. 1,000,000 that was overly in excess in the circumstances of the case.

b) That the learned trial magistrate erred in law and in fact in failing to pay regard to decisions filed alongside the defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar injuries as the case he was deciding.

c) That the learned trial magistrate’s exercise of discretion in assessment of quantum was injudicious.

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

The Appellants’ Submissions

6. It was submitted that the award of damages depends on the circumstances of the case and further should be commensurate to the injuries sustained as was held in the case of Kipkebe Ltd v Moses Kauni Maska HCAP 127/2004 (Kisii) as was cited in the case of John Kaindo Ngugi & Another v Alice Wanjiku Njoroge [2020] eKLR.

7. The appellants further submitted that the award of Kshs. 1,000,000 made in favour of the respondent as general damages was inordinately high and disproportionate to the injuries sustained. They urged this court to review the said award as was held in the case of FM (Minor suing through Mother and next friend MWM) v JNM & Another [2020] eKLR.

8. The appellants submitted that an award of Kshs. 500,000 was a fair and adequate compensation for the injuries sustained by the respondent. Reliance was placed on the cases of GA (Minor suing through her father and next friend BZ) v Paul Muthuku [2020] eKLRwhere the appellant sustained multiple fractures of the frontal left orbital roof (comminuted) right temporal bones (petrous), bleeding in the skull airspaces (haemosinus), cut on the head (frontal) a cut on the chin and the court substituted an award of Kshs. 300,000 with Kshs. 500,000. Further reliance was placed on the case of Specialized Aluminium Renovators Limited & Another v Stephen Mutuku Musyoka [2021] eKLR where the respondent suffered injuries of fracture of the frontal nasal bones, fracture of right orbit, frontal lobe haemorrhage contusion and the court set aside an award of Kshs. 800,000 and substituted it with an award of Kshs. 500,000 which the court deemed to be fair and sufficient compensation.

9. On costs, the appellants submitted and urged the court to award them the costs of the appeal on the basis of section 27 (1) of the Civil Procedure Act that gives a judge the discretion to award costs on the basis that costs follow the event unless the judge for good reasons deems it otherwise.

The Respondent’s Submissions

10. The respondent submitted that a court sitting on first appeal can only interfere with an award of damages only where the trial court took into account irrelevant factors or left out relevant factors when assessing damages or where the amount of damages is so inordinately high or low that the award must be wholly erroneous estimate of damages as was stated in the case of Butt v Khan (1977) KAR 1.

11. The respondent submitted that she proved her case before the trial court on a balance of probabilities as required in civil cases and relied on the cases of Kanyungu Njogu v Daniel Kimani Maingi [2000] eKLR and the Court of Appeal case of Kirugi & Another v Kabiya & 3 Others [1987] KLR 347.

12. It was submitted that the award of Kshs 900,000 in general damages for pain and suffering awarded by the trial court was reasonable and should not be said to be so overly in excess in the circumstances/ inordinately high as to represent an entirely erroneous estimate based on some wrong principle, on a misapprehension of the evidence nor was it injudicious.

13. The respondent relied on the case of Uziel Cohen v Kenya Power & Lighting Company Co. Ltd Mombasa H.C.C.S. NO. 111 of 2006 (F. AZANGALALA J. on the 23. 02. 2010) in which the learned Judge awarded the Plaintiff Kshs. 1,200,000/= in general damages for pain suffering and loss of amenities for injuries which were comparable to the ones suffered by the respondent in the instant case of multiple facial injuries.

14. Regarding costs, it was submitted that the trial court awarded the respondent costs of the suit given that the respondent was 90% successful (by consent) which award of costs was not the subject of this appeal and should therefore not be interfered with.

15. The respondent further submitted that it was trite law that costs follow the event and are granted at the discretion of the Court and further that the Court has unfettered discretion to award costs as was held in the case of Republic vs Rosemary Wairimu Munene, Exparte Applicant vs Ihururu Dairy Farmers Co-operative Society (2014) eKLR, and provided in Halsbury’s Laws of England 4th Edition (Re-issue), (2010), Vol. 10.

Analysis & Determination

16. I have considered the grounds of appeal and submissions by both counsel for the parties. It is trite law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and arrive at its own conclusions as was held by the Court of Appeal for East Africa inPeters v Sunday Post Limited [1958] EA 424 and reiterated by the Court of Appeal in several cases including the case of Gitobu Imanyara & 2 others v Attorney General [2016] eKLR.

17. The single issue for determination in this appeal is whether the award of general damages of Kshs. 1,000,000 less 10% contribution made in favour of the Respondent herein by the trial court, in light of the injuries suffered by the respondent, was manifestly high to persuade this court to interfere with it.

18. The Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards.”

19. Re-evaluating the material and evidence placed before the trial court, in her plaint filed on the 25. 7.2018, the respondent pleaded that she suffered the following injuries:

i. Bilateral frontotemporal non-haemorrhagic cerebral cortical contusions

ii. Displaced comminuted fractures of the anterior, posterior lateral and medial walls of the left and right maxillary sinuses.

iii. Displaced fracture of the left superior orbital rim

iv. Fractures of the left lamina papyracea

v. Displaced fragmented fractures of the nasal bones

vi. Linear fracture of the right hard palate through the maxillary alveolus

vii. Nasal septum fracture

viii. Displaced fracture of the right lamina papyracea

ix. Bilateral maxillary, ethmoid and frontal haemosinuses

x. Loss of 3 upper teeth

xi. Severe nose bleeding

xii. Severe pain on the jaws

xiii. Swelling and pain on the right thigh

xiv. Chest pain

xv. Lower back pain

20. The nature of the fracture injuries sustained by the respondent as pleaded was corroborated in the X-ray report dated 8/12/2015 from West Kenya and Imaging Centre produced in evidence as PEx 2a & b, treatment documents from Moi teaching and referral hospital produced as PEx 3a, b & c and treatment documents from Sagam Hospital produced as PEx 5a & b which all reiterated the injuries suffered by the respondent as those pleaded in the plaint.

21. At the hearing, the respondent adopted his witness statement filed in court in which he reiterated the averments in his plaint regarding the occurrence of the accident. In cross-examination, the respondent reiterated her claim and further stated that she was married and had a family.

22. The nature of the injuries sustained by the respondent were aptly summarised by Dr. Otieno W a radiologist who prepared Exhibits 2a & b and stated that the injuries sustained by the respondent were as follows:

i. bone windows revealed the following:

ii. Displaced comminuted fracture of the anterior, posterior lateral and medial walls of the left and right maxillary sinuses;

iii. Displaced fracture of the left superior orbital rim;

iv. Fractures of the left lamina papyracea;

v. Displaced fragmented fractures of the nasal bones;

vi. Linear fracture of the right hard plate through the maxillary alveolus;

vii. Nasal septum fracture;

viii. Displaced fractiure of the right lamina papyracea;

ix. Bilateral maxillary, ethmoid and frontal haemosinuses.

He concluded that there was

a. Bilateral frontotemporal non-haemorrhagic cerebral cortical contusions;

x. Multiple facial bone fractures and

xi. Bilateral maxillary, ethmoid and frontal haemosinuses.

23. In light of the above, it was clear that the respondent who was aged 31 years old at the time of the material accident suffered multiple facial fractures as well as loss of 3 upper teeth which were broken. She was admitted in hospital from 8th December 2015 until 16th December 2015. She continued with outpatient treatment. At the time of hearing of the case, the respondent testified that she had not healed. She was married and had a family.

24. I have considered the Appellant’s submissions on the quantum of damages, the authorities cited by both parties in their submissions for and against this appeal. I have also considered the clinical report summary prepared by Dr. Otieno W. a radiologist.

25. The principles upon which the Appellate Court will interfere with an award of damages are set out in the case Khambi & Another v Mahithi & Another v Nashir Sethna & Others {1963} EA 239. Further the Court of Appeal in the case Coast Bus Service Ltd v Sisco E. Muranga Ndanyi & 2 Others Civil Appeal Case No. 192 Of 1992 stated:

“Those principles were well stated by Law, J.A in Bashir Ahmed Butt v Uwais Ahmed Khan, By M. Akmal Khan [1982-88]I KAR 1 at pg 5 as follows-

‘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 ….”

26. I am further guided by the case of Kimatu Mbuvi T/A Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2006] eKLR where the Court of Appeal stated that:

“It is generally accepted by Courts that the assessment of damages in personal injury cases is a daunting task as it involves many imponderables and competing interests for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case. As Lord Morris stated H. West & Son Ltd vs. Shephard [1964]AC 326 at page 353- ‘The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such the present it is natural and reasonable for any member of an Appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment.”

27. I have perused the authorities relied on by the parties herein both in the trial court as considered by the trial magistrate and before this court. In support of her case before the trial court, the respondent relied on the cases of- a) Kenya Wildlife Service v Godfrey Kirimi Mwiti [2018] eKLR where on appeal, the court disturbed the trial court’s award of Kshs. 3,500,000 and substituted it with one of Kshs. 2,000,000. In that case, the respondent had suffered multiple facial fractures, loss of 9 teeth and a distal radius fracture and had to undergo surgery and had facial implants and ended up having a permanent incapacity that was accessed at 25%.

28. b) Isaac Muriungi Mbataru v Silas Kalumani [2017] eKLR where the respondent sustained multiple soft tissue injuries on the right side of the face and loss of 2 incisor teeth as well as tenderness and swelling on the lower back and was awarded general damages of Kshs. 200,000

29. The respondent also relied on number of cases specifically Francis Ochieng & Another v Alice Kajimba [2015] eKLR, Roberet Cheserek v Jackline Jepkoech Jimmy [2019] eKLR, Paul Kipsang Koech & Another v Titus Osule Osore [2013] eKLR and Leah Nyaguthi Kamunya v Kenya Boadcasting Corporation Nairobi Civil Cause 1128 of 1993, in all instances where the plaintiffs suffered soft tissue injuries and were awarded Kshs. 200,000.

30. In this appeal, the respondent relied on the case of Uziel Cohen (supra) where she alleges that the plaintiff suffered comparable injuries to hers and was awarded Kshs. 1,200,000 as general damages.

31. On their part the appellants relied on the case of King Developers Limited v Samuel Kavai & Another [2020] where the court set aside an award of Kshs. 1,500,000 and substituted it with an award of Kshs. 500,000 for injuries of multiple wounds and bruises on the forehead, loss of 12 teeth, blunt injuries to the chest and facial fracture.

32. In this appeal, the appellants also relied on the case of GA (Minor suing through her father and next friend BZ) (supra) and Specialized Aluminium Renovators Limited & Another (supra) where on appeal, the court set aside the trial court an award of general damages for injuries which the appellants claim were comparable to those suffered by the respondent herein and substituted the award with an award of Kshs. 500,000.

33. Having examined the injuries sustained by the respondent, am satisfied that the injuries were severe. The injuries consisted of multiple facial fractures. The trial court had the opportunity to see and hear the plaintiff testify and appreciated the kind of injuries that she suffered not only by looking at the medical report and treatment notes which are clear, but also the physical appearance of the plaintiff/respondent married lady with a family. In the case of King Developers Limited v Samuel Kavai & Anotherrelied on by the appellants, the injuries sustained, apart from the loss of 12 teeth, were all soft tissue injuries as opposed to the present case where the plaintiff/ respondent suffered very severe and multiple facial injuries.

34. In the circumstances, I am inclined to find that the trial court did not make an award which was excessive in comparison to the injuries suffered by the respondent. I find no reason to interfere with the award of damages made by the trial court.

35. The upshot of the above is that the instant appeal against quantum of damages fails and the same is hereby dismissed. I uphold the award of damages made by the trial court. The special damages were not in dispute in this appeal as the same were pleaded and proved.

36. The appellants further pleaded to be awarded costs of the appeal. It is trite that costs follow the event and further the same is within the discretion of the judge as provided in Section 27 (1) of the Civil Procedure Act.

37. Accordingly, having dismissed the appeal herein, I award costs of the appeal to the respondent.

DATED, SIGNED AND DELIVERED AT SIAYA THIS 14TH DAY OF MARCH, 2022

R.E. ABURILI

JUDGE