[2020] KEHC 1173 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NUMBER 21 OF 2016

SOPHIA WANJIRU NJUGUNA......................APPELLANT

VERSUS

KYOGA HAULIERS KENYA LIMITED....RESPONDENT

(Being an appeal from the Judgment and Decree of Hon. Tom Mark Olando (Resident Magistrate) delivered on 20th January 2016 in Eldoret Chief Magistrate’s Court Civil Suit Number 40 of 2014)

J U D G M E N T

1. According to the judgment of the learned trial magistrate the plaintiff Sophia Wanjiru Njuguna filed suit against the defendant respondent Kyoga Hauliers Kenya Limited on 15th January, 2014 seeking the following orders;

a. General damages for pain suffering.

b. Special damages of Kshs 18,730. 00

c. Costs of the suit

d. Interest on the above at court rates

2. Liability was agreed at 85% to 15% in favor of the plaintiff, and the learned trial magistrate delivered judgement only on quantum. This is what he stated:

QUANTUM.

From the medical report by Dr. Sokobe, the plaintiff sustained the following injuries; -

a. Fracture of the right tibia fibula distally.

b. De-gloving injury of the left ankle joint with tendon tear.

c. Dislocation of the left ankle joint

d. Fracture of the right shoulder blade

e. De-gloving injury on the right arm.

The defence advocate submitted that Kshs. 500,000/= would be sufficient award for general damages. The plaintiff's advocate did not file any submissions.

GENERAL DAMAGES.

I have considered the authorities produced by both the counsel for the plaintiff and counsel for the defendant. Guided by the principles set and enunciated in Osman Mohammed & Another vs Saluro Bandit and Mohammed Civil Appeal No. 30 of 1997 that states; -

“Damages must be within limits set out by decided cases and also within limits the Kenya economy can afford. Large damages are inevitably passed to the members of public the vast majority of whom cannot afford the burden, in form of increased insurance or increased fees.”, and the case of Omar Musa Hassan and Another vs Rashid Salim and Another.”

And after considering the nature of injuries sustained by the plaintiff, submissions by both counsel, I find that an award of Kshs. 700,000/= would be sufficient award as general damages for the injuries sustained by the plaintiff.

The plaintiff also gets the special damages pleaded and proved of Kshs. 18,730/=. Judgment is thus entered for the plaintiff as against the defendant as follows; -

Liability 85%:15%

General Damages Kshs. 700,000/=

Special Damages Kshs. 18,730/=

Total Kshs. 718,730/=

Less 15% contribution Kshs. 107,809/=

Net balance Kshs. 610,921/=

The plaintiff also gets costs and interest of the suit.

3. The plaintiff was aggrieved and filed this appeal on the following grounds: That;

1. The Learned Magistrate erred in both Law and fact by pronouncing the judgement without considering all the evidence in the plaintiff's statement, injuries and pleadings in the plaint to reach a decision with balance of probability.

2. The Learned Magistrate erred in law and fact by awarding the plaintiff general damages not commensurate to the nature of injuries sustained.

3. The Learned Magistrate erred in Law and fact by not considering that the plaintiff was seriously injured and still not yet heal but under medication.

4. The Learned Magistrate erred in Law and fact by failing to take into account relevant factors arrive at a balanced judgement.

5. The Learned Magistrate erred in Law and fact by misapprehending the evidence on record and as a result arrived at an erroneous judgment.

6. The Learned Magistrate erred in both Law and fact by pronouncing the judgement without considering all the evidence in the plaintiff's statement, injuries and pleadings in the plaint to reach a decision with balance of probability.

7. The Learned Magistrate erred in law and fact by awarding the plaintiff general damages not commensurate to the nature of injuries sustained.

8. The Learned Magistrate erred in Law and fact by not considering that the plaintiff was seriously injured and still not yet heal but under medication.

9. The Learned Magistrate erred in Law and fact by fact by failing to take into account relevant factors arrive at a balance judgement.

10. The Learned Magistrate erred in Law and fact by misapprehending the evidence on record and as a result arrived at an erroneous judgment.

4. Parties were expected to have filed their respective submissions on or before 1st October 2020. By the time of writing this judgment, the only submissions on record were those of the appellant.

5. It is the appellant’s position that the award of General Damages was so manifestly low to warrant the interference of this court and that the trial magistrate did not cite any authority for the award of Kshs. 700,000/=.

6. This court will be guided by principles set in the case of Kemfro Africa Limited T/A Meru Express Services Gathogo Karuni vs A. M. Lubia & Another (1982 – 1988) KAR 77;where the court 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 court of account a relevant one or that short of this the amount is so inordinately low or so inordinately high that it must be wholly erroneous estimate of the damages.” (Emphasis mine)

7. In support of her case the appellant relied on the case of Denshire Muteti Wambua vs Kenya Power Lighting Co. Limited (2013) eKLR where the court held that awards must be within consistent limits taking into account comparable injuries and awards; the case of Millicent Atieno Ochonyo B Katola Richard (2015) eKLR where it was held inter alia that comparable injuries should be compensated by comparable awards.

8. On General Damages the appellant relied on Jitan Nagra vs Abidnego Nyandusi Oigo [2018] eKLR, Gladys Lyaka Mwombe vs Francis Namasi & 2 Others [2019] eKLRwhere the Jitan Nagra case was cited. Benuel Bosire vs Lydia Kemunto Mokora [2019] eKLR, SammyMugo Kinyanjui & Another vs Kairo Thuo [2017] eKLR SBI International Holdings (AG) Kenya vs William Ambunga Ongeri [2018] eKLR.

9. This being a first appeal the court is bound to review the evidence and draw its own conclusions see Selle vs Associated M/Boat Company Limited [1968] EA 123.

10. Since the parties consented on liability, the reviewable evidence is that in relation to the injuries that were sustained by the appellant in order to determine whether, on that evidence, the general damages awarded were sufficient.

11. The plaintiff/appellant testified that on 15th August, 2013 she was at a bus stage when a motor vehicle came and hit her from behind. She lost consciousness and came to the next day. She sustained a degloving injury on both legs, a fracture of the right ankle, dislocation of her left hand, and was in hospitalised for seventy-seven (77) days from 15th August 2013 to 31st October 2013.

12. Dr. Joseph Sokobe testified and produced the medical report dated 6th November 2013 and on the injuries he had seen, assessed disability at 70%. He wrote the following report;

1. De-gloving injury of the right arm.

2. Fracture of the right shoulder

3. Fracture of the right tibia/Fibula

4. De-gloving injuries of the left ankle joint with tendon tare.

5. Dislocation of the left ankle joint

She was treated for the injuries. There was also open reduction of the fractures and dislocation. At the time of examination she complained of constant pain on the right lower limb and she was on a wheel chair and had to be fed and taken to the toilet. She was on plaster. The injures were confirmed by the X-ray report. She sustained several soft tissue and had tissue injury. Disability was assessed at 70%.

Then, at the time of discharge, she had the following;

1. Fracture right tibia fibula

2. De-gloving injury of the left uncle

3. Dislocation of left ankle

f. Fracture of the right shoulder blade.

5. De-gloving injury of right arm.

I examined her after three (3) months. She needed total support at that time. I have not seen her again she may have improved by now. The disability may be less than 70% as at now.

13. The defence did not call any witnesses, but the medical report by their witness Dr. V. Lodhia was produced by consent. He examined her on 22nd July 2014 about one (1) year after the accident. He made the following findings:

COMPLAINTS ON 22/07/2014

1. Alleges that she is unable to walk due to numbness of lower limbs.

2. Alleges that she is unable to lift the right arm.

MEDICAL EXAM ON 22/07/2014

G.C.Satisfactory

Systemic Exam: NAD

LOCAL EXAM

Right Leg- Appearance – A surgical scar on anterior aspect of lower leg measuring 12 cm in length.

-Movements at ankle joint are within normal limits.

-No loss of muscle mass of the leg or foot.

-Power in the leg is about grade 3/5.

-No neurological deficit in the leg.

Left Leg-Appearance- There is a linear scar extending from below Knee joint up to dosum of foot.

-Scar has healed without any contractures.

-Scar is due to repair of the degloving injury to left ankle.

-No loss of muscle mass of the leg or foot.

-Movements at ankle joints are normal.

-There is slight loss of power in the left leg.Power grade 3/5.

-No Sensory deficit in the leg.

Right Shoulder & Arm-Appearance– healed scar on Anterior aspect of proximal part of right arm.

-A contracture extending from right axilla to arm. This band of tissue is preventing the arm from moving above the shoulder height.

-No neurological deficit in the shoulder or arm.

X-Ray done on 22/07/2014

-X-ray of right ankle joint show a plate in situ on right leg.

-Good healing of fracture & good callous formation.

-Left ankle appears normal.

-X-ray of shoulder shows healed scapula.

He concluded inter alia;

1. Sophia Wanjira Njuguna sustained severe injuries to lower limbs and right upper limb.

2. She was surgically treated at Moi Teaching and Referral Hospital and her injuries have healed.

3. Sophia was brought on a wheel chair. She is unable to stand on her own. She had movements and power in both lower limbs. She does not have paralyses of lower limbs.

4. The movements of right arm can be fully restored by surgical excision of the contracture band in axilla.

5. Lower extremities movements can be achieved by aggressive physiotherapy and medication.

6. Above measures would reduce the post injury deficit in lower limbs and right arm.

7. At present I would award a permanent disability of 40% (Forty percent) only. This disability can be reduced by taking the measures noted in para (5) and (6).

14. From the foregoing it is evident that the doctor was saying that the appellant would require some form of surgery and further medical care to reduce the impact of the Road Traffic Accident on the quality of life for her.

15. In his judgment the learned trial magistrate indicated that the plaintiff had not filed any submissions. I did not see the plaintiff’s submissions in the lower court file, but they were in the Record of Appeal, dated 12th November 2013, and though they have a court stamp I could not read, they were served upon the defendant’s counsel.

16. In those submissions the plaintiff sought General Damages of Kshs. 3,000,000/= together with Kshs. 500,000/= for future medical expenses, and cited the case of John Mwongela vs Stanley Mangi Ngeera HCC 32 of 2004 (MERU)where the court awarded inter alia General Damages of Kshs. 2,000,000/= and future medical expenses of Kshs. 500,000/= for a plaintiff who sustained fractured dislocation of the cervical vertebrate 4 and 5 resulting in permanent paralysis. In the report the doctor made the following observations;

(a) A man who is paralysed and in a wheel chair.

(b) Upper limbs have power of grade 1 out of 5 and so were the lower limbs.

(c) Sensation is lost from the arms downwards.

(d) Mortar reflexes show exaggeration.

(e) No scars noted.

(f) Had an in-dwelling urinary catheter with minimal control of bowel motions.

17. The defendant relied on the case of Veronica Mwongeli Kilonzo vs Robert Karuma [2003] eKLR where the plaintiff sustained 15% permanent incapacity with the following injuries: -

She has a painful right leg and left ankle. X-rays: compound fracture of upper shafts of right tibia and fibula with a large cut lacerated wound on the left 8” x 4” with loss of skin. Left ankle: Fracture of the tip of medical malleolus with subluxation of ankle joint. The wound of right left was stitched as much as possible and the fracture fixed by external fixator by wire needles. The leg wound was dressed daily. The left leg ankle was immobilised in plaster after manipulation. After two weeks she was transferred to Coast General Hospital. The leg wound was dressed daily and when clean and granulating – the raw area was skin grafted – donor skin from left thigh. When the graft took well, the external pins were removed and the left was immobilised in plaster. The plaster from left leg was removed after 6 weeks and from right leg after 3 months when she was discharged from the Hospital.”

and was awarded Kshs. 500,000/=

18. I have carefully considered the submissions by the appellant’s counsel. I do not have the benefit of submissions by counsel for respondent on this appeal. However, it is clear that the appellant sustained very serious injuries. It is my humble view that in their submissions counsel for the respondent failed in their duty as given under Section 1A of the Civil Procedure Act which states;

(1) The overriding objective of this Act and the rules made hereunder is to facilitate the just, expeditious, proportionate and affordable resolution of the civil disputes governed by the Act.

(2) The Court shall, in the exercise of its powers under this Act or the interpretation of any of its provisions, seek to give effect to the overriding objective specified in subsection (1).

(3) A party to civil proceedings or an advocate for such a party is under a duty to assist the Court to further the overriding objective of the Act and, to that effect, to participate in the processes of the Court and to comply with the directions and orders of the Court.” (emphasis mine)

I say so because it is noted from their submissions in the lower court, counsel made no mention of the import of Dr. Lodhia’s medical report on the plaintiff /appellant. I think counsel had a duty to place before the court the full import of Dr. Lodhia’s medical report and its implications in the interests of justice.

19. Be that as it may it is evident from the judgment of the learned trial magistrate that;

i) Though he stated that plaintiff counsel did not file any submissions, still stated in his judgment that he had considered the authorities produced by counsel for each party.

(ii) He did not take into consideration the seriousness of the plaintiff’s injuries as evidenced by the assessment of each of the doctors who filed reports: viz

That soon after the accident the plaintiff appellant suffered 70% permanent disability and;

That one year after the accident permanent disability was assessed at 40% .

That the plaintiff would still need future treatment and would incur medical expenses pursuant to the injuries sustained in the accident as clearly indicated in Dr. Lodhia’s report

20. It is hence my view from the foregoing that the learned trial magistrate failed to take into consideration the relevant factors of the seriousness of the injuries sustained by the plaintiff appellant and the need for an award of future medical expenses as recommended by the respondent’s witness.

I must find therefore that the award of Kshs. 700,000/= to be inordinately low in the circumstances and proceed to reassess the general damages.

21. In assessing General Damages, I find help in the words of Majanja J in Harun Muyomawhere he stated;

“Turning to the issue of general damages, I find that the injuries sustained by the respondent are not contested. What is in issue is the level of award in light of the authorities cited by the parties. In Harun Muyoma Boge vs Daniel Otieno Agula MGR HCCA No. 7 of 2015 [2015] eKLR, I expressed the following view:

The assessment of general damages is not an exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politic is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.”

22. In Benuel Bosire the court reduced an award of Kshs. 2,000,000/= to Kshs. 700,000/= where the respondent had a single compound fracture for which disability had been assessed at 40%.

23. In Sammy Mugo the respondent had sustained multiple fractures, severe injuries that healed, there was no permanent disability. The award of General Damages of Kshs. 1,000,000/= was reduced to Kshs. 600,000/=.

24. In SBI International, the respondent sustained injuries which included fracture of hip injury, resulting in 40% permanent disability. The court upheld the trial court’s award of General Damages, Ksh. 800,000/= for pain and suffering, Ksh. 1. 5 million loss of future earnings.

25. In this case, and guided by the authorities with near similar injuries I would assess general damages for pain and suffering at Ksh 1. 2 million, and award the global sum of Kshs. 200,000/= for future medical expenses.

26. The learned trial magistrate’s judgment is set aside and substituted as follows:

Liability by consent at 85:15 in favour of the plaintiff/ appellant

General damages for pain and suffering........Kshs. 1, 200,000/=

Future medical expense..................................Kshs. 200,000/=

Special Damages............................................Kshs. 18,730/=

Total...............................................................Kshs. 1,418,730/=

Less 15%........................................................Kshs. 212,809/50.

Award.............................................................Kshs. 1,205,920/50.

The appeal succeeds.

The plaintiff will have costs here and below. Interest on this award at court rates from the date of this judgment.

27. Right of Appeal 30 days.

Dated and delivered virtually this 7th day of December, 2020.

Mumbua T Matheka

Judge

In the presence of:

CA Edna

For the appellant: Notified: N/A

For the respondent: Notified: N/A