[2018] KEHC 6770 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT EMBU

CIVIL APPEAL NO. 16 OF 2016

ROBERT MWANIKI NDWIGA.......APPELLANT

V E R S U S

AGATHA KAUGI RIUNGU...........RESPONDENT

J U D G M E N T

1. The appellant's claim in CMCC No. 24 of 2015 was for special and general damages arising from injuries sustained in a road traffic accident on 5/10/2013 along Embu – Meru road. He was dissatisfied with the judgment of Runyenjes Senior Resident Magistrate in which he was awarded damages all inclusive of Kshs.603,380/= less 30% contribution plus costs of the suit and interests.

2. Parties recorded consent on liability at 70:30 ratio with the respondent bearing 70%. The grounds of appeal may be summarily as follows:-

(a) That the evidence and the submissions of the appellant were not taken into consideration by the learned magistrate in assessing damages for pain and suffering.

(b) That the damages for pain and suffering for Kshs.500,000/= were based on erroneous estimate and were inordinately low.

3. The appeal was disposed by way of written submissions Messrs Khan & Associates appeared for the appellants while Munene Wambugu & Kiplagat was for the respondent.

4. The appellant submitted that the court failed to consider the serious nature of the injuries he sustained being:-

(a) Fracture of the right tibia bone which healed with malunion and subsequent contractures.

(b) Fractured right medial malleous which healed with deformity.

5. Dr. Njiru explained in his report the complications caused by the injuries. The magistrate acknowledged that the injuries were severe in nature; that the plaintiff was not fully healed and that he had deformity. The respondent did not produce Dr. Ruga's report in evidence and it ought not have been relied on in assessing damages.

6. It is further argued that the decision relied on by the learned magistrate of KENNY NYAGA MBOI VS MASH BUS SERVICES LTD [2005] eKLRhad less serious injuries and was not comparable.

7. The appellant relied on the case of MWAURA MUIRURI VS SUERA FLOWERS LTD NKU HCCC 184 OF 2009which is a more recent decision and with comparable injuries. The plaintiff was awarded Kshs.1,450,000/=.

8. The appellant argued that in the case of JOASH NYABICHA VS KTDA & ANOTHER Civil Appeal No. 302 of 2010the plaintiff was awarded Kshs. 1,000,000/= for only a fracture of the right leg. The injuries were less serious compared to those of the appellant.

9. In the case of AMOS GATHIRWA NGUNGI VS MULTIPLE HAULIERS & ANOTHER Nairobi HCCC 658 of 2009the plaintiff was awarded general damages of Kshs.1,500,000/= similar to those of the appellant.

10. The appellant prays that the damages for pain and suffering be enhanced to Kshs.1,200,000/=.

11. The respondent opposed the appeal on grounds that it is not correct to say that the appellant's evidence and submissions were not considered by the learned magistrate. All was considered including the evidence of the expert as to the degree and nature of injuries and that the award of Kshs.500,000/= general damages was reasonable in the circumstances.

12. The respondent laid emphasis on the principle laid down by courts applicable to the assessment of damages:-

(a) UGENYA BUS SERVICE VS GACHIKI [1976 - 1985] EA 575where the court observed:-

General damages for personal injuries are difficult to assess accurately to as give satisfaction to both parties. It is a heavy task. …... I do not aim to give complete satisfaction but do the best I can.

(b) STANLEY MAORE VS GEOFFREY MWENDA Civil Appeal No. 147 of 2002in which the Court of appeal said:-

It has been stated now and again that in assessment of damages, the general method of approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct levels of awards in similar cases.

13. The respondent urged the court not to disturbed the award of the lower court since it was based on correct principles.

14. The duty of the appellate court was discussed in the case of KEMFRO AFRICA LTD T/A MERU EXPRESS SERVICES [1976] & ANOTHER VS LUBIA & ANOTHER (No.2) [1985] eKLR. The court observed:-

….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 by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that 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.

15. It is trite law that an appellate court shall not disturb an award of damages unless the appellant can show that it was inordinately low or inordinately high or that some relevant factors were not taken into consideration. This was held in the case of BUTT VS KHAN [1977] 1 KAR.

16. The only issue for determination in this appeal is that of quantum of damages for pain and suffering.

17. The magistrate in his judgment considered the authorities cited by both parties but did not go further to examine whether they were comparable to the case before him or not. He made a few observations on the injuries and then relied on the case of KENNY NYAGA MBOI VS MASH BUS SERVICES LTD [2015] eKLRand awarded the appellant Kshs.500,000/= for pain and suffering.

18. The learned magistrate did not mention what injuries the plaintiff in the KENNY NYAGA MBOI (supra)case had suffered in order to compare them with those of the appellant. It cannot therefore be said that the award was based on comparable injuries. This was not in conformity with the principles laid down for assessment of general damages.

19. The injuries from the report of Dr. Njiru were as follows:-

(a) Fracture of the right radius bone

(b) Fracture of the right tibia distal end

20. The doctor indicated that the fracture of the right radius and ankle healed with Mal-union and that there was need for orthopedic surgery for reconstruction to correct the mal-union with a cost of Kshs.100,000/=.

21. The appellant argued that the medical report of Dr. Maina Ruga should not have been relied on because it was not produced in evidence. I note that it is only the appellant who gave evidence and was re-examined. The defendant did not testify.

22. The parties recorded consent on liability and that the reports of the two doctors (Dr. Njiru and Dr. Ruga) are part of the documents produced. This means that Dr. Ruga's report was admitted in evidence by consent. The court may have omitted to put that on record but that is neither here or there. If the appellant opposed the production of the report during the hearing, he would have indicated so and applied that the maker be called. The fact that he did not so confirm that the report was produced by consent. This issue is not in the grounds of appeal and was not raised in the court below. The report is properly in the record of appeal and the learned magistrate was entitled to rely on it alongside other documents.

23. Dr. Ruga's report is not at variance with that of Dr. Njiru the nature and degree of the injuries as well as on the deformities. It acknowledges that the appellant suffered “severe harm” which fact was observed by the learned magistrate. Dr. Ruga also acknowledges the need for an orthopedic surgery to correct the deformities as well as the risk to develop osteoarthritis of the affected joints.

24. The defendant relied on the following decisions and proposed an award of Kshs.400,000/= relying on three authorities:-

(a) WILSON LONAPA VS PATRICK KAMANDA NGUGI [2012] eKLR

In this case the plaintiff who had sustained a fracture of right tibia tibula was granted Kshs.350,000/=

(b) S.D.V. TRANSAMI K-LTD VS SCHOLASTIC NYAMBURA [2012] eKLR

In this matter the plaintiff who had sustained compound fractures of tibia and fibula was granted Kshs.250,000/=

(c) SIMON MUTISYA KAVII VS KIGUTU MWANGI [2013) eKLR

In this case the plaintiff was awarded Kshs.200,000/= for communited fractures of tibia and fibula with a severe friction burn on the left thigh and shortening of the leg.

25. The appellant proposed an award of Kshs.1,200,000/= relying on the two decisions:-

(a) MWAURA MUIRURI VS SUERTA FLOWERS LIMITED & ANOTHER [2014] eKLR,in this matter the court awarded Kshs.1,450,000/= on general damages for pain and suffering. The plaintiff in this matter had sustained;

(i) Multiple lacerations on the face

(ii) Soft tissue injuries on the chest case

(iii) Communated fractures of the right humerus and lower third of the tibia.

(iv) Compound double fractures of the right leg upper and ?tibia fibula.

(b) JOASH M. NYABICHA VS KENYA TEA DEVELOPMENT AUTHORITY & 2 OTHERS [2013] eKLR.

In this case the plaintiff who had sustained a fracture on his right leg was awarded Kshs. 1,000,000/= for pain and suffering.

26. The injuries in the defendants authority were much less serious as compared to those suffered by the appellant. I find them not comparable.In looking at the MWAURA MUIRURI (supra) case I find that the plaintiff suffered a communated fracture of the right humerus as well as a compound double fracture of the right leg. These two injuries are more severe than the injuries suffered by the appellant. I do not find this authority comparable.

27. The case of JOASH M. NYABICHA (supra)appears to me to be comparable to the injuries sustained by the appellant. The award was made in 2013 which is about four years ago and factors of inflation have to be taken into consideration.

28. In view of the above analysis, I find that the award of Kshs.500,000/= in this case was inordinately low. The learned magistrate failed to take into consideration the severe nature of the injuries which fact he had acknowledged and failed to take into consideration the severe nature of the injuries which fact he had acknowledged and failed to use comparable decisions in assessing the damages.

29. I hereby set aside the award of Kshs.500,000/= for pain and suffering and substitute it with that of Kshs. 1,050,000/= the other heads of damages remain undisturbed.

30. The final award will be as follows:-

(a) General damages - Kshs.1,050,000/=

(b) Future medial expenses - 100,000/=

(c) Special damages - 5,380/=

Total 1,155,000/=

Less 30% contribution - 346,614/=

Net total 808,766/=

31. The appellant to meet the costs of this appeal and of the court below

DELIVERED, DATED AND SIGNED AT EMBU THIS 21ST DAY OF MAY, 2018.

F. MUCHEMI

JUDGE

In the presence of:-

Mr. Okwaro for Ogweno for Appellant

Ms. Njeru for Wambugu Kiplangat for respondent