[2022] KEHC 14430 (KLR)

Ras Holdings Limited & another v Obiri (Civil Appeal E005 of 2021) [2022] KEHC 14430 (KLR) (11 February 2022) (Judgment)

Neutral citation: [2022] KEHC 14430 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E005 of 2021

JN Njagi, J

February 11, 2022

Between

Ras Holdings Limited

1st Appellant

Priscilla Bwari Manono

2nd Appellant

and

Silvia Kerubo Obiri

Respondent

(Being an appeal from the judgment and decree of B.M. Kimtai, PM, in Nyamira PM’s Court Civil case No. 229 of2017)

Judgment

1. This appeal is on quantum against the judgment of the lower court where the trial magistrate awarded the respondent Kshs. 400,000/= in general damages in compensation for injuries sustained in a road traffic accident. The appellant was dissatisfied with the award and filed the instant appeal.

2. The grounds of appeal are in summary that the award of Kshs. 400,000/= was excessive, unjustified and was contrary to the evidence in record; that the respondent had failed to prove that the injuries pleaded were sustained; that the trial court erred in failing to consider the applicable principles in assessment of damages and also erred in failing to consider the appellants’ evidence and submissions on record.

3. According to the evidence adduced before the lower court, the respondent was treated of the injuries at Hema Hospital in Kisii town where a CT scan was taken that revealed that:i.No intracerebral features of traumaii.Left fronto-temporal scalp soft tissue injuryiii.Nasal tip fractureiv.Incidenta left maxillary sinusitis.

4. After the respondent was discharged from hospital she went for the filling of her P3 form at Keroka District Hospital. The injuries that were captured in the P3 form were:Deep cut wounds on the left cheekTraumatic extraction of 4 teethTenderness on the chest wall.

5. When the respondent filed her claim the injuries that were noted in the plaint were those stated in the P3 form.

6. The appeal was canvassed by way of written submissions by the advocates for the parties. The advocates for the appellants, Kimondo Gachoka & Company Advocates, submitted that the respondent did not sustain the injuries that were captured in the plaint. That whereas the plaint indicated that the respondent had lost some teeth, the documents from Hema Hospital where the respondent was treated did not mention that she had lost any teeth. That the issue on the loss of teeth was noted in the P3 form at another hospital where the respondent went for the filling of the P3 form after she was discharged from Hema Hospital. That the discharge summary from Hema Hospital, Pexl, dated 19/9/2017 diagnosed the injuries as "crash wounds." That the injuries disclosed by the head CT scan report from the same hospital, Pex.2 dated 11/9/2017 were fronto-temporal scalp soft tissue injury which were the same injuries stated in a subsequent report from the same hospital, Pexh 4. .. That the medical report by Dr. DO. Nyameino of Kisii Referral & Teaching Hospital dated 16/11/2017, Pex.6, lists both the injuries captured in the P3 form and from Hema Hospital. That the injuries sustained by the respondent must have been as enumerated in the CT scan report. That there were no treatment notes produced from the hospital where the P3 form was completed to prove that the respondent had sustained injuries as captured in the P3 form. The advocates submitted that without such treatment notes the findings in the P3 form are of no consequence. The advocates relied on the case of Timsales Limited v Wilson Libuywa, Nakuru HCCA No. 135 of 2006 where the court emphasized the importance of producing the initial treatment notes and held that:“…..A medical report by a doctor who examined him (the plaintiff) much later is of little, if any, help at all. Although it may be based on the doctor's examination of the plaintiff on whom he may, like in this case, have observed the scars, unless it is supported by initial treatment card it will not prove that the plaintiff indeed suffered an injury on the day and place he claimed he did. The scars observed on such person would very well relate to injuries suffered in another accident altogether….”

7. The advocates urged the court to award quantum based on the injuries noted at Hema Hospital and not as noted in the P3 form.

8. On quantum the advocates submitted that the award of Ksh. 400,000/= was unfair, unjustified and manifestly high. That an award of Ksh. 140,000/= would be adequate compensation.

9. The advocates for the respondent, Kulecho & Co Advocates on the other hand submitted that the respondent sustained injuries as pleaded in the plaint and was treated at Hema Hospital. That in their submissions at the lower court they had requested for general damages in the sum of and relied on the case of Anne Nyachomba Gitau & Another v Paul Muigai Murigi (2019) eKLR where a sum of Ksh.600,000/= was awarded.

10. The advocates further submitted that the advocates for the appellant had at the lower court proposed an award of Ksh. 200,000/= in support of which they had relied on the case of James Nganga Kimani & Another v Giachagi Njoroge & Another (2019) eKLR where Ksh. 200,000/= was awarded for deep cut wound on nasal bridge, cut wound on left eyebrow, bruises on the forehead, blunt injury (tender) on anterior chest wall, swollen and tender left wrist and cut wounds on left leg and broken upper incisor. That the trial magistrate in his judgment relied on the said authority when he made the award. Therefore, that the appellants have not demonstrated that the award of Ksh. 400,000/= was erroneous. The advocates urged the court to uphold the award.

Analysis and Determination 11. The principles under which an appellate court may interfere with an award of damages made by a lower court are well settled. These are as was stated by the Court of Appeal in Mariga v Musila (1984) KLR 251 that —“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the Judge acted on a wrong principle of law or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court could award but whether the lower court Judge acted on the wrong principles."

12. Similarly, in Kemfro Africa Limited T/a Meru Express Services v Lubia & Another, NO. 2 (1987) KLR 30 the same court held that—“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 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."

13. I have considered the grounds of appeal and the submissions by the respective advocates for the parties. The appeal is based on the ground that the trial magistrate erred in assessing the damages as pleaded in the plaint when there was no supporting document to prove that the injuries stated in the plaint were sustained. That the injuries were as enumerated in the x-ray CT scan report from Hema Hospital.

14. In her evidence in court, the respondent testified that she had sustained injuries on the face and legs and lost a total of 12 teeth. That she was treated at Hema Hospital and was also attended to at Kisii Referral Hospital.

15. The medical documents that the respondent produced in court in proof of her case were a discharge card from Hema Hospital, Pexh.l; a CT head scan report from the same hospital, Pexh.2; a summary treatment report from the same hospital, Pexh.4; a medical report by Dr. Nyameino of Kisii Teaching & Referral Hospital, Pexh.6 and a P3 form, Pexh.8.

16. I have keenly scrutinized the documents issued at Hema Hospital. None of them indicated that the respondent had sustained loss of teeth and chest contusion. The loss of teeth and chest contusion were indicated in the P3 form that was filled by a clinical officer at Keroka District Hospital (Nyamira) after the respondent was discharged from Hema Hospital. When Dr. Nyameino subsequently prepared his medical report he captured both the injuries noted at Nyamira District Hospital and those noted at Hema Hospital. The doctor's said report was prepared two months after the accident. The doctor appears to have relied on both the P3 form and the documents from Hema Hospital to prepare the report since his report makes note of injuries from both documents.

17. The respondent received her initial treatment at Hema Hospital. The CT scan report showed that the respondent had sustained left fronto-temporal scalp soft tissue injury, nasal tip fracture and incidental left maxillary sinusitis. The report dated 30th May 2018, Pexh.4, from Hema Hospital was categorical that the injuries that the respondent was treated of at the said hospital were left fronto-temporal scalp soft tissue injury and nasal tip fracture. If these were the injuries that were noted at Hema Hospital where the respondent was admitted and treated, it is not in evidence as to where from the Clinical Officer who completed the P3 form at Keroka District Hospital a week or so later after the respondent was discharged from Hema Hospital got the injuries on the loss of teeth and chest contusion. There were no treatment notes produced from Keroka District Hospital to prove that the respondent sustained loss of teeth and chest contusion as noted in the P3 form. Neither was the Clinical officer who prepared the report called as a witness in the case to shed light on the issue.

18. The respondent’s claim was based on the injuries as captured in the P3 form. It is my finding that there was no evidence to prove that the respondent sustained some of the injuries that were stated in the P3 form and in the plaint. The only injuries noted in the two documents that were sustained were the cut wounds on the face and left cheek that were confirmed by reports from Hema Hospital. The trial court did not consider the discrepancies between the injuries as contained in the P3 form and those that were in the documents from Hema Hospital. There was a head CT scan to proof the injuries observed at Hema Hospital. A subsequent report, Pexh.4, from the said hospital made note of the same injuries. It is therefore my finding that the respondent sustained injuries as noted in the documents from Hema Hospital.

19. The trial magistrate appears to have made the award by considering both the injuries as contained in the P3 form and in the medical report of Dr. Nyameino. The magistrate erred in making reliance on the injuries as contained in the P3 form when there was no evidence that the respondent had lost any teeth nor that she had sustained chest contusion. It is apparent that the trial magistrate misapprehended the evidence that was adduced before him as a result of which he made a wrong estimate of the award by considering injuries that were non-existent. This is sufficient reason for this court to interfere with the award.

20. Dr. Nyameino’s report indicated that the injuries that the respondent was managed of at Hema Hospital were:- Left fronto-temporal scalp soft tissue injury with healed scars on the said place.- Nasal tip fracture with irregular scar left face blocking the left nostril.These are the injuries that ought to have formed the basis of the compensation.

21. In this appeal the advocates for the appellant submitted that an award of Ksh. 140,000/= would be adequate compensation for the said injuries. They relied on the following authorities:i.Juma Hajee Properties v Hamidu Malio Kilio & 2 Others (2020) eKLR where Omondi J. (as she then was) set aside the lower court’s award of Ksh 200,000/= and substituted it with Ksh.150,000/= where the respondent had sustained blunt trauma to the face which was tender, blunt trauma to the nose which was tender and nose bleeding, blunt trauma to the left shoulder and left arm which were tender, blunt trauma to the left hip and left thigh which were tender and bruises on both legs which were tender.ii.Daniel Gatana Ndungu & Another v Harrison Angore Katana (2020) eKLR where Nyakundi J. set aside the lower court’s award of Ksh. 350,000/= being general damages for cut on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee and substituted it with Ksh. 140,000/=.iii.Elizabeth Wamboi Gichoni v Joo (Minor suing through mother and next of friend) VAA (2019) eKLR where Aburili J. set aside the lower court’s award of Ksh. 350,000/= being general damages for head injury with loss of consciousness for some time, multiple cut wounds on the right temporal scalp, cut wound on the left shoulder and bruises on the left leg and substituted it with Ksh. 180,000/=.

22. The advocates for the respondent on the other hand maintained the position that the award made by the trial court was reasonable.

23. I have considered that the respondent sustained soft tissue injuries on the face and a nasal tip fracture. In my view, the nasal tip fracture was a serious injury. It however appears that it healed without any complication. I consider that an award of Ksh. 230,000/= would be adequate compensation for the injury.

24. The upshot is that the award of the lower court is set aside and is substituted with an award of Ksh.230,0000/=. The appellant to have the costs of the appeal.

Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF FEBRUARY 2022. J. N. NJAGIJUDGEIn the presence of:N/A for Appellants for RespondentN/A for RespondentCourt Assistant:30 days Right of Appeal