[2022] KEHC 675 (KLR)

Savanna International Ltd v Muka (Civil Appeal 31 of 2018) [2022] KEHC 675 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 675 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 31 of 2018

RM Mwongo, J

June 14, 2022

Between

Savanna International Ltd

Appellant

and

Dorcas Wanga Muka

Respondent

(Being an appeal arising from the judgment and decree of the honorable Z. Abdul, (D.R.) delivered on 22nd May, 2018 in Naivasha CMCC No.771 of 2015)

Judgment

1. This appeal arises from a judgment in the lower court made for injuries sustained while the plaintiff was at work 17/11/2014. According to the medical report availed she had suffered a fracture medial malleolus of the left ankle joint and severe soft tissue injury. In the lower court the defendant submitted an award of Kes 70,000/-, whilst the plaintiff proposed Kes 1,500,000/-.

2. Following a consent liability was apportioned at 20:80 in favour of the Respondent. The court awarded a figure of Kes.404,000/- made up as follows:General damages Kes 500,000. 00Special damages Kes 5,000. 00Less 20% apportioned Kes 101,000. 00Total Kes 404,000. 00

3. The trial court indicated that it was guided in its decision by the case of Muthoni Mucaki v Fridah Nyaguthii [2015] eKLR. There, Kes 450,000/- was awarded for grievous harm and there was restricted movement at the ankle joint because of pain at the time of examination a year after the injury date.

4. The appellant appeals against the award of damages only. Their grounds of appeal are summarized as follows. That the learned trial magistrate erred law and in fact by: failing, in her award of general damages, to be guided by awards made by other courts in the past that were inordinately high and excessive;

failing to recognize that awards are not meant for restitution but compensation, whilst ignoring the fact that the Respondent had recovered from her injuries

awarding excessive and unreasonable compensation and

Failing to apply and uphold the principles applicable in awarding damages and applying wrong irrelevant and inapplicable principles.

5. It is trite that the role of this court is to reconsider and reevaluate all the evidence on record and to reach its own conclusions taking into account that it did not itself hear the witnesses and see their demeanour. That court notes the principles in the case of Butt vs Khan on the non-interference of the Appellate court in awards; and the case of Charles Oriwo Odeyo vs Apollo Andabwa & another(2017) eKLR to wit: Acting on wrong principles that the award is so low or excessive; The consideration by court of issues it ought to have left out and the inconsideration of issues it ought to take into account.

6. The Appellant submitted that the plaintiff had suffered no permanent disability and no abnormalities, thus the award of Kes 500,000/- was excessive. They rely on John Oluoch Otieno vs Swan Carriers Ltd [2016] eKLR where the plaintiff suffered soft tissue injuries and a fracture of the right ankle joint and the respondent was awarded Kshs 200,000/-.

7. They further submitted the following authorities: SAO (minor thru’ Next Friend) MOO v Registered Trustee, Anglican Church of Kenya Maseno North Parish (2017) in which consideration is given for compensation in the context of the nature and extent of the injuries and comparable awards made in the past. Further reliance was placed on Akamba Public Road Services v Abdikadir Adan Galgalo[(2016] eKLR where Kes 500,000/- was awarded for a fracture on the right tibia leg bone malleolus, right fibular bone and blunt injury to the right ankle with permanent partial disability (3%) of the right tibia and fibula due to fracture weak point, post fracture arthritis and pain.

8. The Appellant prays that the award be set aside and substituted with an award of KShs 350,000/-.

9. The respondent submitted that the trisl court was within its rights in making the award as it took into consideration all relevant factors and applied the relevant principles. She pointed out that the medical report of Doctor Omuyoma was admitted by consent, and it clearly indicated that the respondent’s left ankle movements are restricted and painful; and that the injury was classified as “grievous harm”, a fact the appellant did not contest.

10. The respondent further contends that for the court to interfere with the damages awarded it must be demonstrated by the appellant that the trial court clearly applied wrong principles. This, she argues is because assessment of damages is essentially an exercise of discretion and the court will only interfere if t is shown that there are errors of principle as expressed in ASAL v Muge & another [2001] eKLR 202 (sic). The Respondent further argues that in Mombasa CA No. 148 of 2010, Jackson Murerwa v Jai-Ambe Enterprises [2011] eKLR while citing Kemfro Africa Limited T/A Meru Express services & Another vs AM Lubia sets out the guiding principles an appellate court must abide by to justify disturbing the award.

Issues for determination 11. The only issue for determination is whether the award by the lower court was commensurate with the injuries suffered and comparable to awards for similar injuries.

12. What quantum as per the law is the Respondent entitled vis a vis her injuries and the law? The Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016]eKLR stated that “comparable injuries should attract comparable awards”. As for the quantum of award, the Court of Appeal’s decision in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, gives guidance where that Court held:“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.

13. In light of the law, I peruse the facts. I note that Doctor Omuyoma’s report shows the injuries as follows:1. Fracture medial malleolus of the left ankle joint2. Severe soft tissue injuries of the left ankle jointThe report indicates that the respondent was taken to the company clinic where she was given first aid. She was later taken to Naivasha District hospital where she was put on the following treatment: POP application and Oral analgesics. The findings on examination were that the respondent was is in a fair state of health. On examination of the lower limbs, the doctor found that “Movement of left ankle joint are restricted because of pain, x-ray left ankle joint shows fracture medial malleolus of the left ankle joint.” He opined that the degree of injury is grievous harm

14. In Vincent Mbogholi v Harrison Tunje Chilyalya [2017] eKLR the injuries suffered and the award were as follows: Fracture of the left tibia leg bone (medial malleolus); Blunt object injury to the chest and left lower limb and Bruises on the left forearm, right foot and right big toe. The Appellate court upheld the award of KShs.300,000/-

15. The trial court considered the authorities placed before the court including Mt.Longonot Medical Services ltd v Another vs Andason Kitonyo Kinyenze[2017] eKLR and Kornelius Kweya Ebichet v C&P Shoe Industries Ltd by the plaintiff in her claim for 1,500,000/-. She also noted that the Defendant submitted David Okola Odero v Kilindini Tea Warehouse Ltd eKLR 2008; Mokaya Mochama v Julis Momanyi Nyokwo and Estern Produce (K) ltd v Gilbert Muhunzi Makotsi.

16. Having considered the parties authorities the learned magistrate court noted that they are for soft tissue injuries, and that the instant case involved a fracture. She found the authorities were not comparable and relied on the authority of Lucy Muthoni Mucaki v Fridah Nyaguthii[2015] eKLR.

17. In the case of Ambrose Micheni Kinyamu v Gilbert Bundi & Another [2012] eKLR, the appellant sustained fracture of the right leg on the ankle. The appellate court in 2012enhanced the award given by the trial court to Kshs.400,000/=. In Beatrice Wairimu Wandurua v C. Dorman Limited [2009] eKLR appellant sustained serious injuries to her legs which resulted in compound fractures of the left tibia and dislocation of the left ankle joint. The court of appeal awarded Kshs.550,000/= in 2009. The latter case is however not comparable to the present case as the injuries are greater

18. In Nairobi HCCA No.147 of 2013; Said Abdullahi & Anor v Alice Wanjira where, in addition to soft tissue injuries, the Respondent sustained a fracture of the right humerus bone with a permanent incapacity of 10%. An award of Kshs. 600,000/= was reduced to 300,000/= on appeal. In Zacharia Mwangi Njeru v Joseph Wachira Kanoga (2014) eKLR a Plaintiff who suffered a fracture of tibia/tibula was awarded ksh.400,000/= in general damages. In Clement Gitau v GKK [2016] eKLR, the Plaintiff sustained a fracture of the tibia/fibula and bruises on the neck. An award of Kshs. 600,000/= was upheld on appeal. In Nkaruarau Lejumurt v Vegpro (K) Limited t/a Kantara Farm [2018] eKLR the Appellant suffered traumatic injury to the right leg, blunt trauma to the right hand, a deep cut in the right upper limb, a traumatic mild head injury and multiple soft tissue injuries. The appellate Court awarded a sum of Kshs. 200,000/= on account of general Damages.

19. In the Victor Mbogholi case (supra), the appellate court declined to disturb an award of Kshs. 500,000. 00 for a fracture of the left tibia leg bone (medial malleolus), blunt injury to the chest and left lower limb and bruises on the left forearm, right foot and right big toe. I note that these injuries are slightly more serious than those in the present case.

20. In Brookside Dairy Limited v Peter Butata Wanjohi [2018] eKLR the High court noted the following injuries: Compound segmental fracture of the right tibia and fibula, Fracture to the right medial malleolus, Fracture to the left lateral malleolus and Blood loss, Physical and psychological pain and upheld the judgment of the lower court at KShs. 563,416. 00/-. Again it is to be noted that the injuries in the Brookside Dairy case were more severe than those in the instant case.

21. I think I have cited sufficient comparative authorities to show that an award for Kshs.400,000/- in light of the respondent’s injuries is in order in this case.

Disposition 22. Accordingly, the appeal succeeds to the extent that I set aside the award of 500,000/- and substitute therefore an award of 400,000/-. Special damages were not challenged and the figure will remain at 5,000/-.

23. Taking into account the apportioned liability of 20%, I deduct 81,000/- to give a total award of Kes 324,000/-, payable to the respondent.

24. The appellant will have 50% of the costs of the appeal.

25. Orders accordingly.

DELIVERED AT NAIVASHA ON THIS 14TH DAY OF JUNE,2022. R MWONGOJUDGEDelivered in the presence of:No representation for Mirugi for AppellantObae for RespondentQuinter Ogutu - Court Assistant