[2013] KEHC 4456 (KLR)

REPUBLIC OF KENYA

High Court at Mombasa

Civil Appeal 197 of 2007 [if gte mso 9]><![endif]

SIMON MUTISYA KAVII.......................................................................PLAINTIFF

-VERSUS-

SIMON KIGUTU MWANGI.................................................................DEFENDANT

JUDGMENT

1. This is an appeal for the Judgment of Hon. H. Adika in SRMCC 66 of 2006. The appeal is on quantum, which was awarded in the amount

of Shs. 202,000/-

2. The appellant urges as follows: that the award of Shs.200,000 for general damages was unlawfully low, and failed to take into account the submission on extent of injuries and on quantum. 3. This court is entitled to evaluate the evidence on fact and on issues of law. On 27th March the PlaintiffAppellant was a pedestrian walking along Kongowea when he was knocked down by the 2nd Defendant's lorry, driven by its authorized driver.

4. The appeal revolves around the significant conflict of evidence in the medical reports of Dr. Udayan Sheth and Dr. Adede. The latter examined the Appellant on 24th November 2005 eight months after the accident. He concluded his medical opinion as follows:

“Conclusion: Permanent incapacity of both the left leg bones due to i) Fracture ii) Post trauma arthritis, iii) shortening permanent incapacity of the left leg due to all above plus a) Disfigurement b) Stiffness at the Knee joint. Temporary incapacity from extensive burns and wounds of the left lower leg.”

5. On examination Dr. Adede had also found:

“......There is extensive scanning of the left lower limbs disfigurement. The thigh muscles and muscles of the left leg are wasted. There is movement ….of about 30 degrees on bending the left knee backward. X-rays confirm the fractures. I find shortening of the left leg by 1 cm.

6 On the contrary,when Dr. Udaya Sheth examined the Appellant on 27th October, 2006, nineteen months after the accidents. On examination he found:

“........extensive scar mark over medical aspect of left thigh

knee area and left leg up to lower 3rd...Movement of left

knee and ankle are full. There is no limp and no shortening of left leg. Rest of physical examination is normal.”

He did not indicate any incapacity. In his opinion he found that:

“[Appellant] was admitted at Coast General Hospital with compound comminuted fracture of left tibia fibula with severe friction burn left thigh and leg.

7. In his judgment, the magistrate found that on the strength of Dr. Sheth's report, the Plaintiff had healed, and therefore awarded Shs. 200,000/-

8In my view, the report of Dr. Sheth carries more weight because he is stated to be an orthopedic consultant. That is, his specialization is in the area of bones, whilst Dr. Adede's line is stated as “M.O.” Which I take to mean Medical Officer. Accordingly, Dr. Sheth's expert evidence that the plaintiff's leg was not shortened is more credible in my view.

9. With regard to the quantum awarded, I do not see any conflict in the nature of the injuries described by the two doctors, other than on the aspect of shortening of the leg and on incapacity. In the lower court, the plaintiff relied on Jackson Radoli -vs- Systematic Suppliers Co. Ltd HCC No. 95 of 1991and Erastus Shem -vs- Kenya Port Authority HCCCNo. 318 of 1991. in both cases, the award for similar injuries was Shs. 400,000/- -490,000/- in 1993. the defendant relied on Francis Mwangi Muchiri -vs- Francis Kimani Mbugua Nairobi HCC No. 2637 of 1994 where the court awarded shs. 100,000/- for 25% disability after finding that the plaintiff there had old fractures. There also, however, the plaintiff's injuries were simple fractures of left humerus and left tibia and fibular Malleoli

10. In the present case, Dr. Sheth described the injury as “comminuted fracture of left tibia, fibule with severe friction burn”, which means that the injury resulted in multiple bone splinters. This is more in line with the Jackson Hassan Noor Mohammed -vs- Tae Youn Ann (2001) eKlR and the string of cases cited therein. I have also seen the case of Peninah Wangari Murachia -vs- Cosmos Ltd and Another [2009] eKLR where Okwengu J (as she the was) upheld an award of Shs. 100,000/- for fracture of tibia and fibula and transverse fracture distal one third fibular; in the case of Jackson Murerwa -vs- Jaiambe Enterprises [2011] eKLR where Kasango J. awarded Shs. 500,000/- in2011 for similar injuries including shortening of the leg. 11. I have also carefully reconsidered all the evidence and submissions in the lower court and submissions herein. Assessment of damages is a discretionary power exercised by the trial court. The award can only be distributed if it is so inordinately low or so inordinately high that it must be erroneous (Kenfro Africa Ltd t/a Meru Express Services -vs- Lubia & Awour [1998] eKLR 30. 12. 12.

12. In my view the award of shs. 200,000/- is not so manifestly low given the injuries, based on the submissions and authorities quoted. Accordingly, I uphold the award of Shs. 200,000/- and given by the lower court, and dismiss the appeal with costs.

Orders accordingly.

Dated and signed this 25th day of March, 2013

R.M. MWONGO

JUDGE

Read in open court by:

Date 10th April, 2013

Coram:

Judge:Hon. M. Odero

Court clerk:…........................................................

In Presence of Parties/Representative as follows:

a)…………………………………………………………

b)…………………………………………………………

c)…………………………………………………………

d)………………………………………............................

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