[2023] KEHC 25543 (KLR)

Ruto v Otieno (Civil Appeal E047 of 2023) [2023] KEHC 25543 (KLR) (21 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25543 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E047 of 2023

KW Kiarie, J

November 21, 2023

Between

Leonard Kipkurui Ruto

Appellant

and

Sheila Achieng Otieno

Respondent

(Being an Appeal from the judgment and decree in Oyugis Senior Principal Magistrate’s SPMCC No. E232 of 2021 by Hon. B. Omwansa– Senior Principal Magistrate)

Judgment

1. Leonard Kipkurui Ruto, the appellant herein, was the defendant in Oyugis Senior Principal Magistrate’s SPMCC No. E232 of 2021 where the claim was for general damages and special damages following a road traffic accident involving motor vehicle KAY 780Y between motor cycle KMDC 532L where the respondent was a pillion passenger. He sustained injuries and filed a suit for damages. The respondent was awarded Kshs. 2,500,000/= general damages and special damages of Kshs. 6,500/=.

2. The appellant was aggrieved by the said judgment and filed this appeal through the firm of Nyamori Nyasimi & Company Advocates. He raised the following grounds of appeal:a.The trial magistrate erred in law in assessing general damages at a figure so inordinately high that manifestly represents an entirely erroneous estimate of damages for the injuries complained.b.The trial magistrate proceeded on wrong principles in assessing general damages thereby arriving at an entirely erroneous estimate of damages.c.The amount of general damages awarded by the trial magistrate in the circumstances goes against the public interest given the injuries complained.d.The trial magistrate erred in law and fact in failing to properly analyze and evaluate the evidence on record thereby arriving at wrong conclusions on liability.

3. The respondent, represented by Nyatundo & Company Advocates, opposed the appeal. She argued that the decision made by the learned magistrate regarding liability and quantum of damages was based on sound evidence and by the law.

4. As the first appellate court, I understand my responsibility to thoroughly examine all the evidence available, considering that I did not have the opportunity to observe the witnesses during their testimony. The case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123 sets the precedent that the first appellate court must review and assess the evidence presented in the trial court, and make its conclusions accordingly.

5. During the trial, Corporal James Ndeuri (PW1) testified that the accident occurred at a bump on the road. The motorcyclist had slowed down, and while both were traveling in the same direction, the driver of the motor vehicle with registration number KAY 780Y hit the motorcycle from behind. According to the witness, the driver of motor vehicle KAY 780Y had attempted to swerve to the right after noticing an oncoming vehicle.

6. This evidence was not challenged. The appellant did not call any evidence to offer a different version of the accident. I therefore find that the finding that the appellant was 100% liable cannot be faulted.

7. The appellant was not satisfied with the award of Kshs. 2,500, 000/= general damages.

8. At the trial, the appellant submitted that for the injuries the respondent sustained, he was entitled to Kshs. 300,000/= general damages. In urging his case, he relied on the following cases:a.Damaris Ombati vs. Moses Mogoko Levis & another [2019] eKLR. There were two respondents. The 1st respondent sustained the following injuries; tenderness on the neck, a cut wound on the pate of the scalp, facial bruises, tenderness on the lower back, tenderness on the anterior chest wall, tenderness on the abdomen and a fracture of the right patella (knee joint). For these injuries, he was awarded Kshs. 350,000/=.The 2nd respondent sustained a cut wound on the forehead and cheek, dislocation on the left shoulder joint, tenderness on the anterior chest wall, and a fracture of the left tibia. He was awarded Kshs. 300,000/=b.Bolpak Trading Co Ltd & another v Gilbert Onyango Odie [2022] eKLR. The respondent was given an award for Kshs. 250,000/= in general damages for the following injuries: 7th & 8th right rib fracture, chest contusion, bruises on the face, blunt trauma to the lower back, right knee, and left hand.c.In Reamic Investment Limited v Joaz Amenya Samuel [2021] eKLR the respondent sustained the following injuries: open left femur fracture, abrasion on the left knees, face, neck, right upper limb, and left upper lip as well as a contusion on the anterior chest. Kshs. 350,000 general damages were awarded.

9. The respondent on the other hand submitted that Kshs. 4,000,000/= would be adequate compensation. Two cases were cited. These are:i.Peter Mulanda Wanje v Capture Transport Limited & 2 others [2022] eKLR where the court awarded Kshs 1,800,000/= general damages for the following injuries:a)Fracture of the left radius forearm bone;b)Fractures of the chest center bone (sternum);c)Fracture of the right ribs (5th & 6th);d)Severe blunt injury to the abdomen with bleeding (hemoperitoneum);e)Bladder injury (tear);f)Severe blunt injury to the chest with traumatic air mass (pneumothorax);g)Cuts on the neck, chest, right index finger, and right middle finger; andh)Blunt injury to the left knee.ii.Hellen Atieno Oduor vs. S.S Mehta & Sons Ltd & Muthitu Nanua [2015] eKLRa.Fracture of the right tibia and fibula;b.Multiple fractures of the ribs, on the right side of the chest (3rd ,4th 5th, 6th,7th and 8th);c.Chest injury and hemothorax;d.Blunt abdominal trauma;e.Fracture of the right scapula; andf.Surgical scars on the right knees interiorly and right ankle joint medially.The plaintiff was awarded General damages of Kshs. 1,500,000/-

10. A medical report prepared by Dr. Morebu Peter Momanyi tabulated the injuries suffered by the respondent as follows:a.Left tibia fracture;b.Left fibula fracture;c.Left humerus fracture;d.Left shoulder joint dislocation;e.Chest contusion;f.Abrasion on the left thigh; andg.Blunt trauma on the right hand.

11. At the time of examination, the respondent was walking on crutches. The doctor opined that she would have permanent disfiguring ugly scars. The dislocation was likely to complicate later with ankylosis and post-traumatic chronic osteoarthritis that is associated with severe pain. He further opined that the respondent was going to surgery for the fractured bones to be corrected with metal implants at an approximate cost of Kshs. 350,000/=.

12. It is trite law that an appellate court will only interfere with an award of the trial court if certain circumstances are satisfied. In Butt vs. Khan [1981] KLR 349 on page 356 Law JA 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 arrived a figure which was either inordinately high or low.

13. I have perused the cases relied on by the parties in the trial court. These cases considered with the injuries sustained by the respondent herein, the prognosis given by the doctor, and the expected expenditure on the future treatment, persuade me to make a finding that the award was not inordinately high. I therefore dismiss the appeal with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 21ST DAY OF NOVEMBER 2023KIARIE WAWERU KIARIEJUDGE