[2023] KEHC 24181 (KLR)

PGC (Suing though his father and next friend JC) v Maingi & another (Civil Appeal E012 of 2023) [2023] KEHC 24181 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24181 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal E012 of 2023

DAS Majanja, J

October 24, 2023

Between

PGC (Suing Though His Father And Next Friend JC)

Appellant

and

Mary Maingi

1st Respondent

Santa -Fe World Travel

2nd Respondent

(Being an appeal from the Judgment and Decree of Hon. E. Kelly, SRM dated 28th February 2023 at the Magistrates Court, Naivasha in Civil Suit No. E606 of 2021)

Judgment

1. This appeal is against the finding on quantum of damages. The Appellant was involved in a road traffic accident that occurred on 26. 06. 2021 along the Nairobi - Naivasha road between motor vehicles KCR 298M and KCF 358H in which he was a passenger. The Appellant suffered injuries and filed suit against the Respondents in the Subordinate Court where it found the Respondents fully liable and awarded the Appellant Kshs. 800,000. 00 and Kshs 210,293. 00 as general and special damages.

2. Being dissatisfied by the award of damages, the Appellant has preferred this appeal grounded on the memorandum of appeal dated 06. 03. 2023 which states as follows:1. That the learned Magistrate erred in law and in fact by awarding judgment on quantum that was too low when there was overwhelming evidence to support the appellant’s case.2. That the learned trial magistrate erred in law and in fact by failing to consider the Plaintiff/Appellant’s submissions on quantum payable and therefore awarding general damages which were too low comparable to the injuries suffered by the appellant.3. That the learned trial Magistrate erred in law and in fact by considering extraneous facts and not the principles known in law in awarding damages and thereby ending up with an award on general damages that were too low in the circumstances of the case before her.

3. The appeal was canvassed by way of written submissions which I have considered. The Appellant submits that the amount of Kshs. 800,000. 00 awarded by the trial court as general damages is too low compared to the injuries suffered. He urges the court to intervene and award Kshs. 2,500,000. 00 citing Nolfason Obadiah Barongo v Beatrice Kinya [2021] eKLR which he solely relied on before the trial court. In that case, the plaintiff suffered severe head injury and left clavicle and the High Court reduced an award of general damages from Kshs. 3,500,000. 00 to Kshs. 2,000,000. 00. The Appellant further submits that the case of Anne Nyachomba Gitau & Another v Paul Muigai Murigi [2019] eKLR relied on by the trial magistrate was a wrong guide as it involved less severe injuries compared to those suffered by the Appellant.

4. The Respondents support the judgment. They submit that the case relied on by the Appellant before the trial court did not bear any relation to the injuries suffered by the Appellant. That the appellant spelled his own doom by not providing relevant authorities to guide the trial court to grant the amount sought. The Appellant cited Tarasila Wanja & Another v Peter Kirimi Muthuri[2014] eKLR and Cannon Aluminium Fabricators Ltd v Alex Julius Mativo & another [2019] eKLR and urges this court to disregard the new authority provided by the Appellant. They maintain that their authorities before the trial court were more relevant and comparable to the injuries suffered by the Appellant. They distinguish the case of Nolfason Obadiah (Supra) as the plaintiff therein suffered more severe injuries including permanent disability, there was no assessment of permanent disability in the present case.

5. In resolving this appeal, the court is guided by the general principle summarized in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 where the Court of Appeal stated that,“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 inordinately high or low.”

6. In awarding general damages, the court has to consider both the nature and extent of the injuries suffered and the comparable awards made in the past. This was the observation made in the case of Simon Taveta v. Mercy Mutitu Njeru [2014] eKLR. In making the assessment, the trial magistrate outlined the injuries suffered by the Appellant as multiple cranio facial fractures, traumatic brain injury, glascow coma scale 8/15 and blunt chest injury with lung contusion.

7. Regarding comparable awards made, the trial court was of the view that the authorities cited by both the Appellant and the Respondent differed greatly from the injuries sustained. The trial Magistrate observed that the case of Nolfason Obadiah Barongo v Beatrice Kinya[2021] eKLR cited by the Appellant related to more severe injuries while the cases of Elizabeth Wambui Gichoni v JOO (Minor suing through the mother and Next Friend VAA) [2019]eKLR and Kanyari Ngichu & another v EW [2019]eKLR involved injuries that were less severe. The court thus relied on Anne Nyachomba Gitau & another v Paul Muigai Murigi [2019] eKLR which resonated closer with the present case. In that case, the High Court upheld the award of Kshs. 600,000. 00 for extreme and severe craniofacial injuries, fractures of the jaw and fractures of facial bones as a result of an accident that occurred in 2006. That was about 15 years from the date the accident which is the subject of the present case occurred.

8. I have considered the injuries suffered, the authorities presented by the parties and the authorities relied on by the trial court. I note that in making her award, the trial magistrate confined her assessment to decisions which only involved head injuries. I do not see a consideration of the blunt chest injury with lung contusion suffered by the Appellant. Putting all factors into consideration, including the injuries suffered and the age of the authority relied on, I enhance the award of general damages from Kshs. 800,000. 00 to Kshs. 950,000. 00.

9. Regarding special damages, the trial court awarded Kshs. 16,000. 00 for the medical report, Kshs. 550 for the search and Kshs. 293,743. 00 as medical expenses. It however reached a sum total of Kshs. 210,293. 00 instead of a sum total of Kshs. 310,293. 00. This is an error on the face of the record which I now correct. The Appellant is therefore awarded Kshs. 310,293. 00 as special damages.

10. For the reasons I have set out, I allow the appeal, set aside the judgment of the Subordinate Court and substitute it with the award of Kshs. 950,000. 00 and Kshs. 310,293. 00 as general and special damages respectively.

11. The Respondent shall bear costs of the appeal assessed at Kshs. 40,000. 00 only.

SIGNED AT NAIROBID. S. MAJANJAJUDGEDATED AND DELIVERED AT NAIVASHA THIS 24TH DAY OF OCTOBER 2023. G. K. NZIOKAJUDGE