[2018] KEHC 4690 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL 131 OF 2016

PREM GUPTA

VARUN GUPTA.......................................................APPELLANTS

VERSUS

GRIMLEY OTIENO......................................1ST RESPONDENT

NYADUM JAMES.........................................2ND RESPONDENT

RACHAEL G. MLERERE...........................3RD RESPONDENT

RICHARD CLIFF KARIUKI......................4TH RESPONDENT

(An appeal from the Judgment of Hon. G.O. Kimanga, Senior Resident Magistrate delivered on 16th August, 2016 in Mombasa Senior Principal Magistrate’s Court Civil Suit No. 930 of 2014)

JUDGMENT

1. The suit the subject of this appeal was filed as a result of injuries that the 1st respondent sustained while traveling on board motor vehicle registration No. KBB 660Z along the Mombasa-Malindi Road, which collided with motor vehicle registration No. KBV 949J on 3rd November, 2013. The 1st respondent was awarded Kshs. 1,000,000/= as general damages.

2. The appellant being aggrieved by the said award filed a memorandum of appeal on 3rd October, 2016 raising the following grounds of appeal:-

(i) That the Learned Resident Magistrate erred in law in awarding to the Plaintiff Kshs. 1,000,000/= for general damages (on the basis of 100% liability) in that the said sum is so excessive as to amount to an erroneous estimate of the damages payable to the Plaintiff;

(ii) That the Learned Resident Magistrate erred in failing to consider or adequately consider the medical report of Dr. Ronald F. Kaale dated 18th June, 2015 on the injuries sustained by the Plaintiff which was tendered in evidence and marked Dex1;

(iii) That the Learned Resident Magistrate erred in holding that the plaintiff in the authority cited by Counsel for the plaintiff, Nakuru Civil Appeal No. 162 of 2005 Everest Adhiambo vs Gilgil Telecommunications Industries Ltd. (annexed to their written submissions dated 30th March, 2016) suffered comparable injuries to the plaintiff in this case when it was clear from the 2 medical reports prepared by Dr. S.K. Ndegwa dated 22nd July, 2015 and Dr. Ronald F. Kaale dated 18th June, 2015 (both of which were tendered in evidence and marked Pex1 and Dex1 respectively) that the injuries suffered by the plaintiff in this case were far less severe than those suffered by Everest Adhiambo in Nakuru Civil Appeal No. 162 of 2005;

(iv) That the Learned Resident Magistrate erred in awarding to the plaintiff Kshs.1,000,000/= as general damages on the basis of 100% liability and basing the same upon the authority cited by Counsel for the plaintiff being Nakuru Civil Appeal No. 162 of 2005 Everest Adhiambo -vs- Gilgil Telecommunications Industries Ltd;

(v) That the Learned Resident Magistrate erred in failing:-

(a) To consider or properly consider all the evidence before him; and/or

(b) To make any or any proper findings on the aspect of quantum of damages on the evidence before him; and

(vi) That the Learned Resident Magistrate erred in failing to consider or adequately consider all the evidence before him and the written submissions dated 18th April, 2016 filed by Counsel for the Appellant and the written submissions dated 26th April, 2016 filed by Counsel for the 3rd, 4th and 5th defendants.

3. The appellant prays for the appeal to be allowed with costs and for the Judgment delivered on 16th August, 2016 to be set aside or varied as this Honourable court deems proper. The appellant also prays for costs in respect to the proceedings in the lower court and in this appeal.

4. In highlighting the appellant’s submissions filed on 5th March, 2018, Mr Mwambonje, Learned Counsel for the appellant condensed the grounds of appeal into one and submitted that the appeal is purely on quantum of damages and not liability. He referred to page 5 of the record of appeal where the particulars of injuries suffered by the 1st respondent are pleaded. Counsel submitted that Dr. Adede certified the injuries suffered by the 1st respondent as per page 24 of the record of appeal.

5. He further referred to page 46 of the record of appeal which contains the report by Dr. Ndegwa who also examined the 1st respondent. It was submitted that the appellants relied on a medical report by Dr. Leonard Kaale and that the Hon. Magistrate awarded Kshs. 1,000,000/= as general damages. In his view, the said award was excessive as an amount of Kshs. 300,000/= would have been adequate compensation for the injuries suffered by the 1st respondent. Counsel relied on the case of Francis Ochieng and Another vs Alice Kajimba [2015] eKLR where an award of Kshs. 350,000/= was made. He also relied on the case of Kamenju Charles vs Gideon Muia Mutisya [2014] eKLR which was cited in the case of Joseph Njoroge Kariuki vs Mary Nyambura, Machakos High Court Civil Appeal 42 of 2009, where an award of Kshs. 400,000/= general damages was made. He prayed for the damages awarded to be varied to Kshs. 300,000/= and for costs to be granted to the appellant.

6. Ms. Mango, Learned Counsel for the 1st respondent in opposing the appeal relied on their written submissions filed on 20th March, 2018. She stated that the 1st respondent has already been paid Kshs. 678,051/= and that 15% liability was apportioned against him.

7. On the issue of quantum, Counsel relied on the case of China Wu Yi Company Limited vs Andrea Githinji Gitonga, Civil Appeal No. 194 of 2011 where the Court of Appeal cited the case of Kemfro Africa Limited and Another vs A.M. Lubia and Another [1982-1988] KLR. The said court stated that an appellate court in setting aside a Judgment must be satisfied that the Judge in assessing damages took into account an irrelevant factor or left out of account a relevant one or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.

8. Ms. Mango submitted that the appellants had not shown if the lower court proceeded on the wrong principles in making the award. She argued that Dr. Ndegwa’s and Adede’s medical reports were in agreement. She stated that the 1st respondent was unconscious for 4 days and was hospitalized for one week. She indicated that Dr. Kaale’s medical report that was produced by the appellants left certain injuries such as the 1st respondent having bled from the ear, nose and mouth. In the sequence of medical examination, Counsel explained that the 1st respondent was examined by Dr. Adede followed by Dr. Kaale, then by Doctor Ndegwa.

9. She distinguished the authority of Francis Ochieng and Another vs Alice Kajimba (supra) by stating that the plaintiff’s injuries therein were classified as harm but in this case, they were classified as grievous harm and the plaintiff therein was unconscious for 2 days. She stated that whereas the appellants had in the lower court prayed for damages of Kshs. 220,000 to 230,000/= to be granted to the 1st respondent, they did not explain why they wanted general damages increased to Kshs. 300,000/= in this appeal.

ANALYSIS AND DETERMINATION

The issue for determination is if the Hon. Magistrate exercised his discretion judiciously in the award of damages.

10. The duty of the first appellate in an appeal of this nature which is based on the quantum awarded is captured in the case of Butt vs Khan, Civil Appeal No. 40 of 1997, where Law J A pronounced himself thus:-

“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.”

11. On 23rd March, 2016, the Advocates for the parties herein appeared before the lower court, recorded a consent on liability and dispensed with the evidence of the plaintiff. A demand letter addressed to the appellants was produced as plf. exh 1, other documents produced were the P3 form as plf. ex 2, police abstract as plf. exh. 3, notes from Coast General Hospital as plf. exh 4, a medical report by Doctor Adede as plf. exh 5(A), receipt thereof plf. exh 5(B), a medical report by Dr. Ndegwa as plf. exh 6(a) and a receipt thereof as plf. exh 6(b) and the defence medical report was produced as def. exh 1.

12. The Counsel for the parties then proceeded to file submissions. The Hon. Magistrate considered the said submissions and relied on the case of Everest Adhiambo vs Gilgil Telecommunications Industries Ltd, Civil Appeal No. 162 of 2005 and awarded general damages of Kshs. 1,000,000 /= in this case. In doing so, the Hon. Magistrate noted that the 1st respondent herein suffered comparable injuries as the plaintiff in the former case and that the court therein had in the year 2007 awarded damages of Kshs. 800,000/=.

13. The P3 form produced as plf exh. 2 shows that the 1st respondent suffered a moderate head injury with otorrhoea, and mouth bleeding, raccoon eyes and was in a semicamatose state after the accident. The injuries were classified as grievous harm by Doctor Ndegwa. The said injuries were also classified as grievous harm in the P3 form. The case summary report, produced as plf. exh. 4 from Coast General Hospital indicates that the 1st respondent was admitted to hospital on 4th November, 2013 and discharged on 11th November, 2013. He was unconscious at the time he was taken to hospital after the road traffic accident. A CT scan was done which showed brain oedema.

14. The 1st respondent was examined by Dr. Ajoni Adede on 1st April, 2014 who referred to the medical history appertaining to the injuries. He established that the 1st respondent sustained a moderate head (brain) injury with loss of consciousness and brain oedema (swelling), oozing from the ears (otorrhea) and bleeding from the mouth and under both eyes (raccoon eyes). He was admitted to Coast General Hospital for one week where a CT scan was done and he was treated for head injury. As at the time he went to Dr. Adede’s clinic 5 months after the accident, the 1st respondent complained of headaches. The said concluded that the head injury presented initially with loss of consciousness and was presenting as headaches. He indicated that the risk of head injury related health complications is carried throughout life.

15. According to the medical report by Doctor Kaale produced as Def. exh 1, he examined the 1st respondent on 18th June, 2015. As at that time he complained of recent memory lapses, frequent headaches, mood swings and he had an unsteady gait. The Doctor observed that the 1st respondent walked with a “waddling” gait but had no sensory deficits. The Doctor was of the view that the 1st respondent’s recent memory assessment was difficult (sic) as he seemed to be “acting”.

16. Doctor Kaale was of the opinion that the 1st respondent sustained brain concussion following the accident which required eight days hospitalization and that his "waddling" gait may be due to injury of his cerebellum. He recommended evaluation by a neurologist.

17. The 1st respondent was also examined by Doctor S.K. Ndegwa on 22nd July, 2015. As at the time of examination, the 1st respondent complained of loss of memory, slurred speech, poor vision especially at night, poor hearing, unstable gait, poor sense of taste and irritability. On examining him, the Doctor noted that the 1st respondent had an obvious mild right sided facial nerve palsy, slurred dull speech and loss of short term and long term memory. The Doctor also found that the 1st respondent’s visual and hearing equity was slightly reduced in both eyes and ears, respectively. Doctor Ndegwa concluded that the 1st respondent sustained severe head injuries and suffered from 22% permanent disability due to:

(i) Loss of memory which affects his work and normal day to day activities;

(ii) Chronic headaches;

(iii) Risk of epilepsy;

(iv) Poor dull slurred speech which greatly affects how he executes his duties thus causing him social embarrassment;

(v) Paralysis on the right side of the face which makes speech and social interaction difficult; and

(vi) Poor hearing and sight which also affects his work.

18. In the lower court case, the 1st respondent’s Counsel in praying for damages in the sum of Kshs. 1,000,000/= relied on the case of Everest Adhiambo vs Gilgil Telecommunications Industries Ltd, Civil Appeal No. 162 of 2005 where the appellant suffered injuries to the head with as resultant cerebral contusion, complete deafness in the left ear and post traumatic epilepsy. He was hospitalized for one month and continued treatment as an outpatient. Permanent disability was assessed at 40% and an award of Kshs. 800,000/= was made on 16th July, 2007 as general damages for pain, suffering and loss of amenities.

19. The 1st respondent’s Counsel had also relied on the case of Lucy Ntituka vs Bernard Mutwiri and Others, HCC No. 17 of 1983, where the plaintiff was rendered unconscious at the time of the accident. She sustained head injuries with a resultant cerebral concussion, lacerations on the lateral side of the right eye, lacerations and cut wound on the left arm (elbow). She experienced headaches on and off due to brain concussion and weaknesses in her left hand. The plaintiff therein was awarded Kshs. 800,000/= general damages for pain, suffering and loss of amenities on 8th February, 2007.

20. The appellant’s Counsel on the other hand before the lower court prayed for damages to be awarded in the sum of Kshs. 220,000/= to 230,000/=. They relied on the case of Nakuru Industries Ltd. vs Michael Gitonga, Nakuru Civil Appeal No. 105 of 2006 where the plaintiff suffered head injury (concussion), facial cuts, cut on the right lower leg. The head injuries healed without any permanent incapacity. The court on 9th July, 2010 awarded Kshs. 150,000/= general damages for pain, suffering and loss of amenities. The appellant’s Counsel had in the lower court also cited the case of John Mburu Kahenya vs Leonard Kamau Kirumba and Another, HCC No. 408 of 1998 where an award of Kshs.120,000/= was made on 26th September, 2000 as general damages to the therein plaintiff who suffered head injury with scalp laceration on the right occipital region and soft tissue injury to the knee. The injuries fully healed without any permanent incapacity.

21. I have considered the authorities that were cited in the lower court and noted that the appellant in the case of Everest Adhiambo vs Gilgil Telecommunications Industries Ltd (supra) suffered more serious injuries that led to his disability being assessed at 40%. The said case was decided in the year 2007. No two cases can be similar and decided cases are merely a guide to the court in the assessment of damages. The decision herein was arrived at on 16th August, 2016 which was 9 years after the decision in the case relied on by the Hon. Magistrate. Taking into account the injuries suffered by the 1st respondent herein, had the Hon. Magistrate compared the injuries with those sustained by the plaintiff in the case of Everest Adhiambo, inflation notwithstanding. I am of the view that he would not have made an award of Kshs. 1,000,000/= as general damages. The 1st respondent herein, unlike the appellant in the case of Everest Adhiambo, suffered 22% disability.

22. In the circumstances of this case, it is my considered view that due to the disability suffered by the 1st respondent and the facial palsy, the sum of Kshs. 800,000/= would be fair compensation for the injuries sustained by him. The said amount does take into account inflationary trends. I therefore set aside the award of general damages in the sum of Kshs. 1,000,000/= and substitute the same with the sum of Kshs. 800,000/=. I order that the 1st respondent bears a third of the costs of the lower court case and this appeal since he has partly succeeded. Interest is awarded to the 1st respondent at court rates.

It is so ordered.

DELIVERED, DATED and SIGNED at MOMBASA on this 10th day of August, 2018.

NJOKI MWANGI

JUDGE

In the presence of:-

Ms Sitati holding brief for Mr. Gor for the appellant

Ms Mango for the respondent

Mr. Oliver Musundi - Court Assistant