[2017] KEHC 3413 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NUMBER 229 OF 2012

PRIMIA MANAGEMENT LTD. ……………………APPELLANT

VERSUS

WILSON SUBA KINDARANGA.………………..RESPONDENT

(Being an appeal against the Judgment and Decree of Hon. Obulutsa delivered in Milimani CMCC 3272 of 2009 on 10th April, 2012)

J U D G M E N T

On or about 4th September, 2007 the Plaintiff was loading bags of coffee onto a lorry with other workers in the course of his employment with the defendant when the co-worker carelessly and/or negligently handled the bags that they or him fell onto the Plaintiff injuring his left leg seriously and the Plaintiff suffered loss and damage. The said accident was caused by the breach of statute by the Defendant, its employee’s servants or agents.

The Defendant its employees, servants or agents were negligent or in breach of contract or statute in that it or they: -

a) Subjected the Plaintiff to a risk of bodily injuries they knew or ought to have known.

b) Failed to have due regard for the Plaintiff’s safety.

c) Failed to provide safe means of work or a safe place of work.

d) Failed to warn the Plaintiff in time and or at all.

e) Failed to keep any or any proper look out or to have due regard for plaintiff’s safety.

f) Employed untrained or careless and employees.

g) Failed to warn the Plaintiff in time or at all.

The Plaintiff prayed for judgment against the Defendant for: -

a) General damages for pain suffering, loss of amenities of life and future medical costs.

b) Special damages Ksh.2,000/-.

c) Costs and interest.

The Defendant/Appellant filed its defence on 10th July, 2009 and stated as follows: -

1. The Defendant denies that the alleged accident occurred by reason of negligence and/or breach of statutory duty or contract on the part of the Defendant and/or its agent as alleged in paragraph 6 of the Plaint and puts the Plaintiff to strict proof thereof. The defendant denies all the allegations of negligence and/or breach of contract or statute as set out and particularized in paragraph of the plaint and puts the Plaintiff to strict proof thereof.

2. In the alternative and without prejudice to the foregoing even if the said accident occurred as alleged (which is denied) the same was entirely caused by and/or substantially contributed to by negligence on the part of the Plaintiff in carrying out the duties assigned to him.

He alleged that the Plaintiff was negligent in: -

a) Failing to keep any or any proper lookout.

b) Failing to take any measures that would be expected of him to avoid being injured.

c) Failing to observe the laid down procedure in carrying out his duties.

d) Exposing himself to the risk of damage or injury which he knew or ought to have known.

e) Failing to use the protective gadgets provided by the Defendant.

f) Willfully and/or negligently inflicting injuries on himself.

The parties filed a consent on liability which was appropriate where judgment on liability was agreed at 80% as against the Appellant and 20% to be borne by the Plaintiff/Respondent. By judgment dated 10th April, 2012 the trial magistrate awarded the plaintiff Ksh.761,600/- a sum deducting the 20% contribution. This appeal, therefore is against the quantum of damages awarded.

The Appellant having dissatisfied with the Judgment of the learned trial magistrate he filed an appeal on the following main grounds: -

a) That the learned magistrate erred in law and fact in finding that the Respondent’s injuries were of such severity as to warrant an award of Ksh.900,000/- as general damages.

b) That the learned magistrate erred in assessing general damages for pain and suffering that are grossly so high as to represent an erroneous estimate of the loss suffered.

c) That the learned magistrate erred in law and in fact in making an excessive award based on facts which were not pleaded and had no basis on the evidence tendered.

d) That the learned magistrate erred in law and in fact in basing her decision on extraneous matters not relevant to the facts in issue.

The Appellant prays that: -

1. The appeal be allowed.

2. The assessment of damages done by the sub-ordinate court be set aside and this Honourable court be pleased to assess the same.

3. The Appellant be awarded costs of this appeal of the lower court below.

4. Such other relief as this Honourable Court deems fit.

This is a first appeal. This court has a duty to evaluate the evidence before the trial court and make its own findings.

The Respondent was examined by two Doctors who presented to court their Medical examination reports. Dr. W. M. Wokabi who examined the Respondent on 30th April, 2009 found that the Respondent sustained a complete fracture of the left femur and formed opinion that: -

“The medical and clinical evidence indicates that he indeed sustained a fracture of the shaft of the left femur. He must have suffered a lot of pain and some blood loss form this major injury. The major surgery to insert an interlocking nail also caused pain. He is reasonably rehabilitated in that he is walking normally. However, he has some restriction of the full flexion of the left knee. He will never revert to hold vitality and residual permanent disability of approximately 12% (twelve percent) will persist. He will require to undergo surgery to remove the K-nail at an estimated cost of approximately Ksh.60,000/- (Sixty Thousand Shillings).”

Dr. R. P. Shah who prepared a second report dated 12th January, 2010 stated in the report that: -

“His injury of fractured left femur bone and its operation are accepted to have caused pain for a week followed by some discomfort for several months and is expected to have healed fully in 5 – 6 months, as such injury usually does.

His temporary disability cannot exceed 7 to 8 months and his permanent disability is only 5 percent.

He has full movement of left knee and full strength has been restored to that knee. He needs removal of the K-nail of lower femur. That operation will cost total of Ksh.50,000/- shillings.”

These are the injuries sustained.

Counsel for the Appellant M/s Ann W. Kimani submits that an award of Ksh.350,000/- would be adequate compensation. Counsel refers this court to the decision in Francis Maina Kahura Vs Nahashon Wanjau Muriithi [2015] eKLR, where the Plaintiff who sustained a segmented fracture of the mid-shaft right femur and a cut would on the left knee was awarded by the High Court ksh.500,000/- general damages. In Kenyatta University Vs Isaac Karumba Nyuthe [2014] eKLR where the Plaintiff sustained fracture of right femur, soft tissue on head and bruises on right knee, the High Court awarded Ksh.350,000/- (Aburili J) for general damages.

Nelson Kaburu Advocate for the respondent in his submission supported the award. He submitted that there is no evidence that the award was so high or so low as to warrant the interference of this court. He submits that the grounds upon which a court can interfere with an award of damages do not obtain in this suit and urged the court to dismiss the same with costs.

The only issue in this appeal is the submission by Appellant that the damages awarded are too high and this court should reduce the same to Ksh.350,000/- which in her view will be adequate compensation.

The ground upon which an appellate court will interfere with an award of genuine damages were well stated in Butt Vs Khan (1981) KR 349 where Law J stated: -

“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 arrive a figure which was either inordinately high or low.”

The Appellant must in an appeal to set aside an award, such as this, demonstrate to court that the trial magistrate in arriving at the award: -

1. Considered extraneous factor,

2. Failed to consider relevant factors or,

3. Misapprehended the evidence or,

4. Proceeded on wrong principles of assessment or

5. The award is so high or so low as not to amount to a correct assessment of damages or erroneous estimate.

In this appeal the Appellants contention is that the award is erroneous as it is higher than comparable awards made by other court for similar injuries. This should not be the only reason. As the Court of Appeal expressed in George Kirianki Laichena Vs Michael Mutwiri, Civil Appeal No. 162 of 2011.

“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 in 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 judge 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 as 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”.

While it is true that some degree of uniformity might be sought in the award of damages and regard should be made to comparable awards. I am not persuaded that the award for general damages in this case was so low or so high as to warrant the interference of the same by this court. I, therefore, do not find any merit in this appeal which is hereby dismissed with costs.

Dated, signed and delivered at Nairobi this 18th day of September, 2017.

………………

S N RIECHI

JUDGE