[2022] KEHC 10375 (KLR)

Sindano v Keino (Civil Appeal 69 of 2020) [2022] KEHC 10375 (KLR) (19 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10375 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 69 of 2020

RN Nyakundi, J

May 19, 2022

Between

Solomon Sindano

Appellant

and

Jacob Kipkirong Keino

Respondent

Judgment

Introduction & Background 1. The respondent herein videa plaint dated the 3rd of May 2019 filed a suit in the lower court against the appellant herein seeking general and special damages among other reliefs following a road traffic accident that occurred on the 31st of January 2019 along the Ilula-Sego marram road involving Motor Vehicle Registration Number KBP 742R and Motorcycle Registration Number KMCY 877D.

2. The plaintiff’s case (respondent herein) in particular was that on or about the 31st of January 2019, he was lawfully a pillion passenger on motor cycle registration number KMCY 877D along Ilula-Sego murram road when the defendant (appellant herein), his agent, servant and or driver, drove, managed and or controlled motor vehicle registration number KBP 742 R that he hit the motor cycle the respondent was on severely injuring him. In particular, he pleaded that he suffered fracture of the right ulna distal, crushed right leg leading to amputation below the knee and fracture of the right femur. The plaintiff averred that the said accident occurred as a result of the appellant’s driver’s negligence.

3. The suit proceeded for hearing where parties recorded a consent on liability on the 14th of November 2019 at 80%:20% in favour of the plaintiff/respondent.

4. Upon full trial, the lower court vide Eldoret Chief Magistrate’s Court Civil Suit No.384 of 2019 on the 11th of September 2020 delivered judgement in favour of the plaintiff/respondent and awarded the respondent Kshs 4,500,000 less 20% liability totaling to Kshs 3,638,502/= being general damages, loss of earning, future medical expenses and special damages.

5. The appellant being dissatisfied with the above decision filed an appeal to this court vide a Memorandum of Appeal dated the 17th of September 2020 on 5 grounds namely:a.The learned trial magistrate erred in law and fact in awarding general damages that were inordinately excessive.b.The learned trial magistrate erred in law and fact in using wrong principles in awarding general damages.c.The learned trial magistrate erred in law and fact in awarding damages for loss of earnings that were neither pleaded nor proved as required by law.d.The learned trial magistrate erred in law and fact in awarding future medical expenses that were neither pleaded and proved as required by law.e.That the learned trial magistrate erred in law and fact in failing to consider the Appellant’s submissions.

6. The appeal was canvassed by way of written submissions and all parties duly filed their submissions.

Determination. 7. Having considered the pleadings of the parties, the submissions and the annextures, it is evident and as rightly pointed put by all parties, that the singular issue for dispute is on quantum of damages. That is whether the award of Kshs 3,638,502 awarded to the respondent is excessive.

8. As rightly pointed out by the appellant in his submissions, it is trite that this being a first appeal, this court has jurisdiction to relook at this appeal on both issues of law and fact and arrive at its own independent conclusion.

9. This principle is anchored under Section 78 of the Civil Procedure Act and was pronounced in Francis Ndahebwa Twala v Ben Nganyi, Siaya Civil Appeal No 5 Of 2017 as follows;“This being a first appeal, this Court is mandated by Section 78 of the Civil Procedure Act and as was espoused in the case of Kenya Ports Authority v Kushton (K) Ltd [2009] 2 EA, 212 wherein the Court of Appeal stated; inter alia: -“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither heard the witnesses and should make due allowance in that respect. Secondly, that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”

10. The principle was reiterated in Selle v Associated Motor Boat Co.] Ltd [1968] EA 123 where the court stated: -“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed in some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

11. Consequently, as a first appellate court, this court’s role is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make its own conclusions about it, bearing in mind that the court did not have the opportunity of seeing and hearing the witnesses first hand.

12. Considering that the thrust of the appeal is on quantum, this court will limit its re-evaluation of the law and facts to the issue of quantum solely.

Quantum i. General damages 13. The appellant disputed Kshs 2,000,000 awarded by the trial court as general damages on grounds that the same was excessive. His view was that an amount of Kshs 300,000 would suffice under this heading. In his submissions, the appellant observed that the amount of Kshs 2,000,000 was excessive and noted that Kshs 800,000 was sufficient. In this regard, he relied on the cases of Humphrey Okumu Odondi v Imperial driving School[2018] eKLR and Joyce Moraa Oyaro v Hussein Dairy Ltd [2016] eKLR where the court awarded Kshs 1,300,000 to a 41-year-old woman for loss of her right leg by amputation.

14. The appellant thus submitted that the injuries sustained by the plaintiffs in the above cases were severe compared to those sustained by the respondent herein and thus opined that the amount of Kshs 2,000,000 was inordinately high in the circumstances.

15. On his part the respondent submitted that he suffered severe injuries that are well documented submitting that the amount awarded was proper. He placed reliance on the cases ofJohn Kinyua Murage & 2 others v Joseph Onyango Obura [2018] eKLR and Jackson Mutuku Ndetei v AO Bayusuf & Sons Ltd [2007] eKLR where the court awarded Kshs 2,500,000 and Kshs 2,000,000 respectively for damages similar to those of the respondent herein.

16. I have perused the evidence on record and note that the appellant pleaded in his plaint that due to the accident, he sustained the following injuries: fracture of the right ulna distal, crushed right leg leading to amputation below the knee and fracture right femur. This was confirmed by the medical report marked exhibit No 2a and found at pages 11-12 of the record of appeal prepared by Dr Sokobe and who confirmed the same at trial during his testimony. In particular, PW2 noted that the appellant suffered loss of his right leg below the knee and confirmed that he did an x-ray of the respondent’s right forearm which confirmed fracture of the ulna distal and also fracture femur of the right thigh. The same was never challenged by the appellant through a second medical examination or otherwise.

17. In addition, PW2 Dr Sokobe, PW2 confirmed that the respondent sustained severe both soft and bony tissue injuries from which he had recovered. He further noted that he suffered a permanent disability of 35% and that the respondent will need Kshs 150,000 to remove implants and Kshs 250,000 to fit a prosthesis replaceable every 10 years.

18. PW1, Dr Paul Rono of Moi Teaching and Referral hospital also testified to the same on the 30th of January 2020. He noted that the respondent had suffered a fracture of the right tibia fibula and produced medical report showing that the respondent had an amputation below the knee. He noted that the degree of injury was grievous harm. On cross-examination, PW1, testified that as per the discharge summary, the respondent suffered multiple fractures of the right tibia fibula, ankle joint and femur and left radius/ulna and that the leg was later amputated below the knee. PW1 also testified that he was not sure if the respondent had healed but noted that it can take up to 5 years for a fracture to heal.

19. On the above basis, the trial court awarded Kshs 2,000,000 to the respondent which the appellant disputes.

20. It has been stated and restated from time to time 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. This court will, therefore, in determining this appeal, establish whether the trial court followed this principle and if so, whether this court should interfere with the award of general damages.

21. The Court of Appeal in Alfarus Muli v Lucy M Lavuta & Another Civil Appeal No 47 of 1997 held that:“The appellate Court interferes only if it is shown that there was absolutely no evidence or that the evidence that was there could not possibly support such a finding…Even if a Judge does not give his reasons for his finding the appellate Court can find the same in the evidence.”

22. The Appellant has urged this court to reduce the award of general damages on account that the Respondent was awarded damages that are so excessive as to be an erroneous estimate of the injuries suffered.

23. In Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini v AM Lubia & Olive Lubia [1982-88] I KAR 727 at page 730, Kneller J.A. stated:“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 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. See Ilango v Manyoka [1967] EA 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] EA 414, 418, 419. This court follows the same principles.”

24. I will therefore look at comparable cases in order to determine whether the trial magistrate erred in awarding Kshs 2,000,000 as general damages.

25. In Macharia Francis Mundui & another v Joel Wanje [2017] eKLR, the court upheld an award of Kshs 3,000,000 for the respondent who suffered multiple fractures and had his left leg amputated.

26. Similarly, in Jackson Mutuku Ndetei, Civil appeal No 6 of 2003, an award of Ksh 2,000,000/= was made in year 2007 for amputation of a leg and fractures of the other leg while in Edwina Adhiambo Ogol v James Kariuki [2020] eKLR, the court set aside the lower court’s award of Kshs 1,500,000 as general damages and substituted it with Kshs 2,200,000 where the appellant suffered Fracture of left humerus; Compound(open) fractures of the left tibia and fibular and amputation of the left leg above the knee.

27. In Samuel Musinga Mwatete v Taz freighters Ltd & Another, Mombasa HCC No 230 of 2009 the court granted Kshs 1. 5 million on 11/4/2012 for 50% permanent incapacity and amputation of one leg below the knee together with other injures.

28. Furthermore, inCM (a minor suing through mother and next friend) MN v Joseph Mwangi Maina [2018] eKLR, Meoli J. increased an award of Ksh 1 million to Ksh. 2 million for amputation of the right leg below the knee.

29. Finally, in Akhwaba Olubuliera Nicodemus v Dickson Shikuku [2020] eKLR the court affirmed an award of Kshs 2,000,000 to the respondent for amputation of the right leg and fractures. These were less severe injuries compared to the ones suffered by the respondent herein.

30. I am therefore satisfied that the amount of Kshs 2,000,000 awarded to the respondent by the lower court is within range and is therefore not excessive. The same shall not be disturbed but is rather affirmed.

ii. Loss of earnings 31. The appellant submitted that the learned trial magistrate misdirected herself both in law and in fact in awarding loss of earnings that were neither pleaded nor proved. It was his submission that parties are bound by their pleadings and therefore the court should not suo moto award damages to a litigant who has not prayed for it. He relied on the case of Philmark Systems Co Ltd vs Andermore Enterprises [2018] eKLR and other cases where courts have held that loss of earning must be specifically pleaded. His view was that loss of earning is a special damage that ought to be pleaded and specifically proved unlike loss of earning capacity.

32. It is important to note that loss of earning and future earnings are two separate and distinct concepts. This distinction between loss of earning capacity and loss of future earnings was brought out in the case of SJ v Francesco Di Nello & Another [2015] eKLR where the Court of Appeal stated as follows:“Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved. This was the position enunciated in Fairley v John Thomson Ltd [1973] 2 Lloyd’s Law Reports 40 at pg. 14 wherein Lord Denning M.R. said as follows:“It is important to realize that there is a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings is awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity is awarded as part of general damages.”

33. Loss of earning capacity is therefore compensable. The same must however be specifically pleaded and strictly proved as was held by court in Joel Motanya v Swan Carriers Limited [2015] eKRL.

34. The Court of Appeal inWilliam J Butler v Maura Kathleen Butler [1984] eKLR noted that: -“A plaintiff’s loss of earning capacity occurs where, as a result of his injury, his chances in the future of any work in the labour market or work, as well paid as before the accident, are lessened by his injury. The English Court of Appeal made an award under this head in Ashcroft v Curtin [1971] 1 WLR 1731, and by now, it is not a new principle in that jurisdiction.”

35. As such, earnings already lost by the time of trial and prospective loss of earnings are included. Consequently, loss of earning capacity can be classified both as special damages that is past loss and general damage, that is prospective loss even though there would appear to be no substantive difference between the two, the dividing line depending purely on the accident of the time that the case comes on for hearing. See Harvey McGregor, McGregor on Damages, 16th Edition, Sweet & Maxwell Limited, 1997 at 1020.

36. Finally, in Douglas Kalafa Ombeva v David Ngama [2013] eKLR, the Court of Appeal held that:“Loss of earnings is a special damage claim, and it is trite law that special damages must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically”

37. The above position had earlier been reiterated by the same court in Cecilia W Mwangi and Another v Ruth W. Mwangi NYR CA Civil Appeal No 251 of 1996 [1997] eKLR.

38. It follows therefore that loss of earning must be specifically pleaded and proved as they constitute special damages. Where they have not been pleaded, the court cannot act in a vacuum and grant the same. Similarly, where they have also been pleaded but not proved, the court cannot grant the same.

39. Consequently, I find that the trial magistrate proceeded on wrong principles of law and find that the award of Kshs 2,000,000 for loss of earning is erroneous and must be disturbed. This is because, whereas the same was pleaded by the respondent in his plaint dated May 3, 2019 at paragraph 7, the amount of Kshs 20,000 as earnings for the respondent as a tractor driver prior to the accident was never proved.

40. Consequently, the amount of Kshs 2,000,000 is struck out in its entirety.

iii. Future medical expenses 41. The appellant was of the view that the respondent never pleaded for future medical expenses and the court should not have granted the same. He relied in the Court of Appeal case of Tracom Limited & another v Hassan Mohammed Adan [2009] eKLR and Kenya Bus Services Limited v Gituma [2004] 1 EA 91 where both courts noted that future medical expenses need to be pleaded and proved before a court can grant the same.

42. I respectfully disagree with the appellant’s submissions for the following reasons.

43. The Court of Appeal in Tracom Limited & Another v Hasssan Mohamed Adan [2009] eKLR stated: -“…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd v Gituma [2004] 1 EA 91, this Court, stated: -“And as regards future medication (physiotherapy), the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself special damage and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. That follows from the general principle that all losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.”We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require…”

44. The above position which I associate with fully, it to the effect that the court can grant future medical treatment expenses even where the exact amount has not been quoted for as long as it was mentioned in the plaintiff’s plaint. As such, there is no need to quote the exact amount since it may not be clear at what time the amount may be due or what the costs may be. I find guidance in Geoffrey Kamuki & Another v RKN (Minor suing through her late father and next friend ZKN [2020] eKLR, where the court stated: -“…To demand a specific sum to be proved specifically like special damages would be unreasonable. This is a claim for money not yet spent, for money estimated to be spent depending on how the claimant’s body is responding to treatment among other things. It is not always clear at that time of filing the case what these future costs may be. The prognosis could change for the better or for the worse depending on the circumstances. Is it not for the same reason that defendants will often seek second medical opinions in injury-based claims? Where they believe that the plaintiff has healed from their injuries, they do so to influence the ultimate award of general damages for pain and suffering. This happens even when the case is already before court and it may well be in the middle of the trial. A plaintiff such as this one ought not to be denied the award because she did not have a figure in mind. It was pleaded, and if the appellant was disputing it, the right place would have been at the trial. Respondent could have done so by bringing evidence to controvert it…”

45. The respondent herein at paragraph 8 of his plaint dated the 3rd of May 2019 stated that:8. That the plaintiff will need to have implants removed at an estimated cost of Kshs 150,000/= and a prosthesis at an estimated cost of Kshs 250,00/= replaceable after every 10 years. He is 45 years of age and will require the same until later in life.

46. In addition, at trial PW 1 confirmed that the fracture can take up to 5 years to heal while PW2 confirmed that the respondent is required to fit a prosthesis of Kshs 250,000 replaceable after 10 years. I understand this to mean that the respondent would require treatment/ incur treatment expenses to fit the prosthetic leg and to ensure he heals well.

47. In the end, I see no reason to disturb the amount of Kshs 500,000 as awarded by the lower court.

48. In the end, I enter judgement in favour of the respondent against the appellant in the following terms:a.General Damages Kshs 2,000,000/=b.Future medical expenses Kshs 500,000/=TOTAL Kshs 2,500,000/=Less 20% Liability Kshs 500,000/=TOTAL Kshs 2,000,000/=Special Damages Kshs 38,502/=TOTAL Kshs 2,038,502/=

49. The Appeal succeeds to the extent stated above. Consequently, the lower court judgment is set aside and substituted with a judgment for the total sum of Ksh. 2,038,502/= in favour of the Plaintiff (Respondent) together with interest.

50. The Appeal having succeeded partially, each party to bear own costs.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 19TH DAY OF MAY, 2022. ............................R. NYAKUNDIJUDGECoram: Hon. Mr. Justice R. NyakundiM/S Kimaru Kiplangat & Co. Adv for the respondentM/S Kitiwa & Co. Adv for the appellant