[2022] KEHC 11727 (KLR)

Swift Rides Logistics Limited v Ogambo (Civil Appeal E006 of 2021) [2022] KEHC 11727 (KLR) (14 June 2022) (Judgment)

Neutral citation: [2022] KEHC 11727 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E006 of 2021

FA Ochieng, J

June 14, 2022

Between

Swift Rides Logistics Limited

Appellant

and

Clarice Akinyi Ogambo

Respondent

(Being an appeal from the Judgment of Hon Reuben K Sang (SRM) delivered on December 15, 2020 in Nyando PMCC no 110 of 2019)

Judgment

The appeal before me is only in regard to the quantum of damages which the learned trial magistrate awarded. 1. It was the appellant’s case that the trial court did not correctly analyze the evidence tendered. In particular, the court is said to have based its determination on the matters contained in the pleadings; yet when the evidence was tendered it varied from the said pleadings.

2. Secondly, the trial court was faulted for relying upon an authority in which the plaintiff had sustained injuries that were far more serious than those which the plaintiff herein had suffered. In the light of the said reliance upon a distinguishable legal authority, the trial court is said to have given an inordinately high award.

3. I have perused the pleadings, the medical report tendered by the plaintiff and the record of the proceedings.

4. In the Plaint the particulars of the injuries cited by the plaintiff were as follows;(i)Injuries on the neck(ii)Injuries on the head(iii)Injury on the chest(iv)Fractures of the right 3rd, 4th, 5th, 6th, 7th, 8th, 9th posterior and 4th auxillary line ribs(v)Injury on the back(vi)Injury on the shoulder and upper arm(vii)Injury on the right ankle.”

5. When the plaintiff testified, he told the trial court that the x-ray that was taken at the Jootrhshowed that he had suffered, inter alia, “6 ribs fractured.”

6. The medical report dated July 10, 2019 showed that the plaintiff sustained six (6) fractured ribs.

7. Therefore, the evidence tendered proved that it was 6 ribs, and not 8 ribs which had been fractured.

8. In the circumstances, when the learned trial magistrate reproduced (in the judgment), the particulars which were cited in the Plaint, and based his judgment upon the said particulars, he erred.

9. As relates to the plaintiff’s right hand, he testified that he had sustained a deep cut wound. However, Dr Olimba made reference to “crush injuries anterior aspect of the right arm.”

10. Although I do not purport to have any medical training, I find that there is a variance between a cut wound and crush injuries. Nonetheless, I have no reason to hold that there was any major discrepancy between the two descriptions relating to the right hand.

11. The trial court was alive to the principles governing the assessment of damages. He appreciated the following;a)Each case depends on its own facts.b)For the sake of those who have to pay insurance premiums, medical fees or taxes, the award should not be excessive.c)Comparable injuries should attract comparable awards.d)Inflation should be taken into account.”

12. However, within the Judgment, the learned trial magistrate did not demonstrably apply the principles. I so find because the court did not place on record, its analysis of the respective authorities which had been cited by the parties.

13. In this case, the single most serious injury is the 6 fractured ribs.

14. In the case of K B Sanghani vs LYdia Wanjiku Njuguna & 2 others HCCA no 373 of2011, the plaintiff sustained fractures to 6 of her ribs. She also suffered a bruised knee and developed chest pains when working. Whenever she was had to lift up any object, she could only manage to lift light objects.

15. Sergon J upheld the award of kshs 450,000/=.

16. The learned judge also made reference to the case of Joseph Ndumia Murage vs David Kamande Ndungu, HCCC no 101 OF 1996, in which the plaintiff was awarded kshs 500,000/= as compensation after he suffered the fracture of six (6) ribs.

17. It is significant to note that the case of Joseph Ndumia Murage was determined in the year 2004.

18. In the case of Easy Coach Bus Limited vs Mary Adhiambo Okuru Hcca No. 68 of 2015, the plaintiff suffered;“…….. fractures of the 6th, 7th, 8th and 9th ribs, and a fracture of the haemothorax. On August 28, 2013, PW3 confirmed the fractures, and noted a puncture in the right lung with haemothorax and a raptured liver in addition to other soft tissue injuries.”

19. In my considered opinion, those injuries were comparable to those which the plaintiff in this case sustained.

20. Majanja J set aside the award of kshs 1,200,000/=, and substituted it with an award of kshs 300,000/=.

21. In the case of Edward Mzamili Katana vs Cmc Motors Group Limited & another(2006) eKLR, the plaintiff sustained fractured ribs; plus;(a)fracture of the left scapula;(b)fracture of the left femur upper 1/3 shaft;(c)compound fracture dislocation of the left elbow;(d)bruises; and(e)Head Injury.

22. After the initial accident, the plaintiff fell in church, resulting in a re-fracture of the same femur. The court held the defendants liable for the resultant shortening of the plaintiff’s leg, after the fall.

23. The court awarded kshs 2,000,000/= in that case.

24. In my considered opinion, the injuries in that case were more in both number and seriousness.

25. I find that the award of kshs 3,000,000/= in the case before me, was definitely excessive and is unsupported by the available authorities. The award is therefore set aside.

26. After carrying out a comparative analysis of the authorities provided by the parties. I now substitute the original award with an award of kshs 800,000/=.

27. The costs of the appeal shall be borne by the respective parties. I so order because although the appeal was successful, the court did not reduce the initial award to the levels suggested by the appellant. In effect, the appeal was successful in part.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 14TH DAY OF JUNE, 2022FRED A. OCHIENGJUDGE