[2023] KEHC 24412 (KLR)

Swaleh v Mukao alias Kelly Makazi (Civil Appeal 35 of 2022) [2023] KEHC 24412 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24412 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 35 of 2022

DKN Magare, J

October 24, 2023

Between

Abdalla Swaleh

Appellant

and

Keli Makazi Mukao alias Kelly Makazi

Respondent

Judgment

1. This is an Appeal from the Judgment and Decree of Hon. Julie Osek – CM dated 12/4/2022 arising from Malindi CMCC No 126 of 2020.

2. The Appeal is on quantum. However, the Appellant factually misstates that the Trial Court awarded damages on the basis of 100% liability. I note the parties recorded a consent on liability for 80:20 in favour of the Plaintiff. I will thus deal with the Appeal on quantum only.

3. The Memorandum of Appeal, however, is a classical study on how not to write a Memorandum of Appeal. The Appellant filed a prolitixious 10 - paragraph argumentative Memorandum of Appeal dated 20th April 2022. The grounds are argumentative, unseemly and do not please the eye to read.

4. Order 42 Rule 1 that requires that the memorandum of Appeal be concise. The same provides as doth: -“1. Form of appeal –1. Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.”

5. The Court of Appeal had this to say in regard to Rule 86 (which is pari mateira with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J) dated 19th September 2018 raise only two issues…”

6. Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the court of appeal observed that: -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

7. The Memorandum of Appeal raises only one issues, that is: the quantum of damages.

8. The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial time.

9. The Plaint dated 24th November 2020 claimed damages for an accident on 9/3/2020 involving Motor Cycle Registration Number KMEU 878A Boxer on which the Respondent was aboard and Motor Vehicle Registration No KBY 972V Canter owned by the Appellant. The Plaintiff set forth particulars of negligence for Motor Vehicle Registration No KBY 972V Canter. The Plaintiff pleaded Ksh. 18,500/= as Special Damages and injuries as follows:a.Fracture of the left neck of femur with posttraumatic arthriris and stiffness of the left knee and left hip joints.b.Lacerations, bruises and abrasions on the face, both arms and left leg.

Record of Appeal 10. The Record of Appeal is a creature of the Court of Appeal for the Court of Appeal. The Record of Appeal in the High Court is a matter of practice. The High Court is a Court of record. It is bound to refer to the Trial Court’s notes and pleadings.

11. Section 79G of the Civil Procedure Act provides as follows: -“Every appeal from a subordinate court to the High Court shall be filed within a period of 30 days from the date of the decree or order appealed against excluding from such period anytime which the lower court may certify as having been requisite for preparation and delivery to the appellant of a copy of the decree or order:Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal."

12. In other words, once a decree is filed, then the Appeal is ready for hearing. Most appeals delay because of delays in the preparation of the Record, which is unnecessary and undesirable.

13. The Record of Appeal is filed in the Court of Appeal. That is why the Court of Appeal does not call for the original court file. It relies on the competency of the Record from the High Court, since the High Court, is a Court of record as opposed to the Subordinate Court.

14. Therefore, it is a waste of judicial time to argue on the completeness of the Record of Appeal. The documents that must be complete are the Trial Court file. I shall therefore disregard complaints on the Record of Appeal, in absence of a Rule of practice making the record mandatory.

15. In fact, most Records of Appeal are unusable. For example, the one filed herein has documents that have no applicability in answering the issues in question in the Appeal. They include documents filed but not produced as evidence, orders, applications, affidavits and post-judgment applications. Though there is no requirement for filing a record, those who wish to file should file the following as per order 42 rule 13(4) of the Civil Procedure Rules: -a.Memo of Appealb.Plaint and summonsc.Defence and counter claimd.Reply to defencee.Proceedingsf.Exhibits.g.Judgments and Decreeh.Statements admitted in evidence.

Defendant’s Defence 16. The Defendant filed Defence and blamed the accident on the rider of the Motorcycle. They prayed that the suit be dismissed.

Evidence 17. It was the Plaintiff’s case that he was riding the Motorcycle when he was knocked down by the driver of the accident motor vehicle. He was then taken to the Malindi General Hospital and treated but he still used medications as he had not healed.

18. PW2, Dr. Darius Kiema produced Medical Report dated 8th April 2020.

19. He testified that X-ray revealed fracture of the left neck of femur with posttraumatic arthritis and stiffness of the left hip joints.

20. He also testified that the Plaintiff would have a lifetime of recurring fracture pains with diminished capacity to work for daily living.

21. It was his case on cross examination that it was a recurring past fracture that would take three months to heal in adults but risk of permanent disability was based on after effects of arthritis.

22. The Appellant did not call any witness. However, the Medical Report by Dr. Udayan was produced by consent with a finding that the Respondent suffered soft tissue injuries on the left hip and lacerations but without deformity and permanent incapacity.

23. The Court delivered its Judgment on 12/4/2022. The Judgment was as follows:a.Liability 80:20. b.General Damages Kshs 700,000/= pain and sufferingc.future earning capacity Kshs 300,000/=d.Special Damages Kshs 18,500/=Total Kshs 1,085,500/=80%= Kshs 814,800/=.

Analysis 24. This being a first appeal, the Court should with judicious alertness re-evaluate the evidence, and consider arguments by parties and apply the law thereto, and, make its own determination of the issues in controversy.

25. Except however, it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies.

26. In the case of Selle & Another v Associated Motor Board Company Ltd. [1968] EA 123, the Court stated as follows:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon 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 on 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.”

27. Circumstances in which an Appellate court will interfere with the quantum of damages awarded by a trial court were clearly laid out in the case of Kenya Bus Services Limited v Jane Karambu Gituma Civil Appeal Case No 241 of 2000 where the Court of Appeal stated as follows:“…in this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account of some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low so as to represent a wholly erroneous estimate of the damages.”

28. This Appeal being on quantum only, the principles guiding this Court as the first Appellate Court have crystalized. This is in recognition that the award of Damages in discretionary.

29. The Court of Appeal pronounced itself succinctly on the principles of disturbing awards of damages in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR as follows: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 that 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.

30. The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance v British Columbia Electric Co Ltd, in the decision of Henry Hilanga v Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-'The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance.

31. We find the words of Lord Denning in the West (H) & Son Ltd (1964) A.C. 326 at page 341 on excessive awards on damages important to replicate herein thus:“I may add, too, that if these sums get too large, we are in danger of injuring the body politic, just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and they are passed to the public in the shape of higher and higher fees for medical attention. By contrast we have a National Health Service. But the health authorities cannot stand huge sums without impending their service to the community. The funds available come out of the pockets of the taxpayers. They have to be carefully husbanded and spent on essential services. They should not be dissipated in paying more than fair compensation.”

32. The words of Lord Denning were reiterated by Nyarangi, JA. in Kigaragari v Aya [1985] eKLR thus:“I would express firmly the opinion that awards made in this type of cases or in any other similar ones must be seen not only to be within the limits set by decided cases but also to be within what Kenya can afford. That must bear heavily upon the court. The largest application should be given to that approach. As large amounts are awarded, they are passed on to members of the public, the vast majority of whom cannot just afford the burden, in the form of increased costs for insurance cover (in the case of accident cases) or increased fees.”

33. Further, in the case of Kilda Osbourne v George Barned and Metropolitan Management Transport Holdings Ltd & another Claim No 2005 HCV 294 being guided by the principles enunciated by both Lord Morris and Lord Devlin in H. West & Sons Ltd v Shephard {1963} 2 ALL ER 625 Sykes J stated as follows:“The principles are that assessment of damages in personal injury cases has objective and subjective elements which must be taken into account. The actual injury suffered is the objective part of the assessment. The awareness of the claimant and the knowledge that he or she will have to live with this injury for quite sometime is part of the subjective portion of the assessment. The interaction between the subjective and the objective elements in light of other awards for similar injuries determines the actual award made to a particular claimant.”

34. It is common reasoning that astronomical awards may lead to increased insurance premiums thus hurting the insurance industry as well as the economy. See the case of H. West and Son Ltd v. Shepherd [1964] AC.326 (supra) where it was stated that:…but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation.In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional…..”

35. With the above guide, if the Award is inordinately high, then I will have to set it aside. If, however, it is just high but not inordinately high, I will not do so. For the Appellate Court to interfere with the Award, it is not enough to show that the Award is high or had I handled the case in the Subordinate Court I would have awarded a different figure.

36. The Court is this case awarded Kshs 700,000/- in General Damages for pain and suffering.

37. I wish to state the position in that case of Easy Coach Limited v Emily Nyangasi [2017] eKLR where Court opined that in assessing damages for personal injuries, the general method of approach is that comparable injuries should as far as possible be compensated by comparable awards, keeping in mind the correct level of awards in similar cases. See also (Arrow Car Limited v Elijah Shamalla Bimomo & 2 Others [2004] eKLR).

38. Therefore, it is trite law that in assessment of damages in this case, regard should be had to the nature, severity and extent of the injuries suffered by the Appellant which, as is clear from the evidence and medical report was fracture of the neck of the femur 3 with posttraumatic arthritis and stiffness.

39. I note too that the Honourable Court in awarding damages for pain and suffering and loss of earning capacity relied on the Medical Report by the Respondent’s Doctor. The reasoning was that this medical report was tested in cross examination and had a higher probative value than the medical report by Dr. Udayan that was produced by consent without calling the maker.

40. This Court notes that where experts differ in their opinions, the Appellate court will not interfere with the findings of the trial court merely because were it the trial court, it would have preferred one opinion and not the other.

41. Fact finding is primarily the duty of the trial court and once evidence is presented before it on the basis of which it could arrive at a finding one way or the other, as was held in Job Obanda v Stage Coach International Services Limited & Another Civil Appeal No 6 of 2001, it is not for the appellate court to set aside the trial court’s exercise of discretion and substitute its own simply because if it had been the trial court it would have exercised the discretion differently.

42. Furthermore, in Parvin Singh Dhalay v Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that:“It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo v George Matata Ndolo, Civil Appeal No 128 of 1995. There the Court said with regard to the evidence of experts:-"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."..."

43. On the damages awarded pain and suffering at Kshs 700,000/-, I have to consider whether the award was inordinately high.

44. In EWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School [2018] eKLR the Plaintiff sustained a fracture of the right mid shaft femur with tibia fibular fracture and facial injuries with bruises. The court upheld the award of Kshs 800,000/= in general damages in 2018.

45. Further, in the case Thomas Mwendo Kimilu v Annne Maina & 2 others [2008] eKLR and Jacinta Wanjiku v Samson Mwangi [2006] eKLR of the Court awarded Kshs 700,000/= for the Plaintiff who sustained fracture of the right tibia and fibula, fracture of the humerus and amputation of the finger in 2006.

46. Furthermore, in David Kimathi Kaburu v Dionisius Mburugu Itirai [2017] eKLR the plaintiff suffered a dislocated hip, and fragmented fractures to the right femur and was awarded Kss 630,0000/- in 2017.

47. The injuries in the above cited cases are slightly more severe than in this case. The most comparable judicial authority in my view is Dickson Kariuki Nyaga & Anor v Emma Mbandi Nyaga, (2015) eKLR wherein on appeal an award of Kshs 400,000/= for general damages was made where the Plaintiff suffered a fracture of the right fibula and multiple soft tissue injuries, with the likelihood of developing osteoarthritis and osteomyelitis in future. In that case it was however opined that the fracture and soft tissue injuries had healed without any complications. The award was also on 2015 about 8 years ago. I will take into consideration inflation.

48. Therefore, I will not interfere with the trial court’s award of Kshs 700,000/= in general damages for pain and suffering. The award was not inordinately high and was commensurate to the injuries suffered.

49. On damages for loss of future earning capacity, the Medical Report assessed the Respondent’s incapacity at 15%. The Respondent testified that he was a driver by profession. He did not avail any evidence on the how the injuries had impacted his work as a driver. The Medical report only suggested that the Respondent would have diminished capacity to work and undertake other activities of daily living. If his profession as a driver would be affected, the extend should have been stated. The trial court erred in awarding Kshs 300,000/- without basis. The figure could have been lower or even higher if the effect on his work as driver was proved in evidence.

50. The best way to settle this issue is to find reasonable earning less 85% capacity to get lost earnings. The award of Kshs 300,000/-was thus on the lower side for the 46 year old. He would have worked well for the next 15 or so years at a minimum wage.

51. For instance, in the case of Kibue & another v Ngige (Civil Appeal E258 of 2021) [2022] KEHC 478 (KLR) (Civ) (6 May 2022) (Judgment) the court stated as follows when faced with an issue of assessing damages for loss of earning capacity:In assessing the same and contrary to the figure applied by the learned trial magistrate, I will apply a multiplicand of Kshs 18,319. 50 being the minimum wage for a car/light van driver pursuant to the Regulation of Wages (General) (Amendment) Order, 2018.

52. Further, in the case of Peter Kusimba Nyongesa & another v Willy Muli Musyoka Maati [2021] eKLR, the Court stated as follows:“In assessing the same, I will apply a multiplicand of Kshs18. 595. 20 being the minimum wage for a tailor pursuant to the Regulation of Wages (General) (Amendment) Order 2015. I also find the multiplicand of 10 years which was applied by the learned trial magistrate to be reasonable. I will further consider the degree of incapacity of 20% which was assessed in the first medical report. The same shall be tabulated as follows:Kshs 18,595. 20 x 10 x 12 x 20/100 = Kshs446,284. 80

53. However, the Respondent did not appeal against this Award and I cannot thus fault the Trial Court for the judgement passed.

54. In the circumstances, and based on the evidence and authorities, I find that the award by the Trial Court of Kshs 700,000/- for General Damages for pain and suffering was not inordinately high or low as to be wholly erroneous estimate of damages.

Determination 55. In the upshot, I dismiss the Appeal.

56. Accordingly, in exercise of the powers granted to the Court under Section 27 of the Civil Procedure Act, I award costs of the Appeal of Kshs 90, 000/= payable to the Respondent within 30 days from the date hereof. In default execution to issue. It is so ordered.

DELIVERED, DATED AND SIGNED AT MALINDI, VIRTUALLY ON THIS 24TH DAY OF OCTOBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Adede for Gor for the AppellantNo appearance for the RespondentCourt Assistant - Brian