[2019] KEHC 3622 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYERI

CIVIL APPEAL NO. 19 OF 2017

SWISS CONTACT LTD.......................................................1ST APPELLANT

PETER MUNGUTI KIETI.................................................2ND APPELLANT

VERSUS

ESTHER MUMBI MUTHEE...................................................RESPONDENT

(Being an appeal from the judgment and decree in Chief Magistrates Court Civil Case No. 337 of 2017

(Hon. Mburu, Senior Resident Magistrate) delivered on 9th May 2017)

JUDGMENT

On 10 August 2015 the respondent was travelling as a passenger in a saloon car registration No. KBC 794 Q (Nissan Sunny) when it was hit from the rear by another vehicle registered as No. KBR 625 A (Toyota station wagon) owned by the 1st appellant but driven at the time by the 2nd appellant. The accident occurred at Naromoru town along Naromuru-Nyeri road. The respondent attributed the accident to the negligence of the 2nd appellant in driving, managing or otherwise controlling his motor-vehicle and so she sued him together with the 1st appellant for both special and general damages. According to her plaint dated 16 October 2015 but filed on 19 October 2015, she sustained injuries particularised as back, ribs and chest injuries and also what she described as ‘inability to control urine’.

The appellants denied the claim and filed a joint statement of defence dated 11 April 2015 in that regard; in particular, they denied all the allegations of fact including ownership of the Toyota vehicle; the occurrence of the accident as alleged or at all; or negligence on the part of the 2nd appellant. They also denied that the respondent was a passenger in the Nissan vehicle or that she was injured at all. In the alternative, they contended that if any accident happened, it was as a result of the respondent’s negligence and that of the driver of the vehicle in which she was travelling.

At the conclusion of the trial, the learned magistrate found for the respondent and held the appellants solely responsible for the accident. She awarded the respondent the sum of Kshs. 550,000/= in general damages and Kshs. 3,500/= as special damages. Being dissatisfied with this decision, the appellants have now appealed to this court and it is their appeal that is the subject of this judgment. They have raised only four grounds of appeal in their memorandum of appeal dated 7 June 2017; they are listed as follows:

1. That the learned magistrate erred in both law and fact when she awarded a sum of Kshs.550,000 as damages for injuries suffered which amount is manifestly excessive and high in the circumstances and connotes an erroneous estimate of the damages suffered for soft tissue injuries.

2. That the learned magistrate erred in law and in fact in failing to consider or even adequately adopt and appreciate the written submissions of the defendant on record and the authorities annexed therein in support of the defendant’s case.

3. That the learned magistrate erred in fact and in law by failing to follow rules of precedents in awarding general damages.

4. That the learned magistrate erred both in law and in fact for considering irrelevant matters in arriving at the said decision in favour of the respondent as against the appellant.

These grounds suggest that the appeal is against the award of damages and not necessarily on liability.

As usual, this honourable court, in exercise of its appellate jurisdiction, has the obligation to evaluate the evidence afresh and come to its own conclusions which may or may not be consistent with those of the trial court but bearing in mind that this latter court had the advantage of seeing and hearing the witnesses. (See Selle Vs. Associated Motor Boat Co. [1968] EA 123 and Kiruga Vs. Kiruga & Another [1988] KLR 348).

According to the respondent she was on the backseat of the Nissan vehicle. The driver slowed as they approached road bumps. Just then, their vehicle was hit from behind by the appellants’ Toyota. As a result of the impact, she sustained injuries on the head and the back. She was treated as an outpatient at Naromoru and Nanyuki Teaching and Referral Hospitals.

Dr Muchai Mbugua examined her and presented a report of his observations and opinion in court. According to him, the respondent sustained a blunt injury to the forehead and the back. There was also a swelling on the right buttock region. She was treated and discharged. At the time of examination, she complained of headaches and back pains. She still felt pain when one touched the gluteal region but the x-ray showed that the pelvis and the lumbosacral spine were normal. She had no scars or swelling on the head, back or the gluteal region. From all these observations, the doctor concluded that the respondent suffered soft tissue injuries secondary to blunt injuries on the head, the back and the buttocks area.

The 2nd appellant admitted in his testimony that indeed the Toyota belonged to the 1st appellant and that he was driving it on the fateful day; it was his evidence that his vehicle rammed into the vehicle in which the respondent was travelling. He blamed a vehicle which, according to his evidence, was ahead of the respondent’s vehicle. He admitted, however, that the vehicle in which the respondent was travelling did not hit the vehicle ahead.

It is apparent from the appellants’ own evidence that the Nissan car was not to blame for the accident; they blamed some unknown vehicle whose owner or driver they did not sue as third parties for determination of the question of liability as between them or for indemnity. In the absence of any evidence of such a vehicle, it was reasonable to assume, as the learned magistrate probably did, that there was no other vehicle which may have caused or contributed to the accident. The appellants were solely responsible for the accident and no doubt, it is for this reason, that they have not impugned the learned magistrate’s finding on liability.

This leaves the question of assessment of general damages as the only issue of concern at this stage and the pertinent question is whether the award was excessive as suggested by the appellants:

The assessment and award of damages is always within the discretion of the trial court and, for this reason, the appellate court will be hesitant to interfere with the award unless it can be demonstrated that the trial court proceeded on wrong principles and arrived at an erroneous award in the sense that it is either too high or too low in the circumstances of a particular case. The oft-cited decisions in this regard are Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 and Kemfro Africa Ltd T/A Meru Express Service, Gathogo Kanini versus A.M. Lubia & Olive Lubia (1982-1988) 1 KAR 728. In the former case the Court of Appeal noted:

An appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.

And in the latter case, the same Court said at page 730 that:

The principle 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 damages.

In her assessment of general damages, the learned magistrate properly held that of the injuries particularised in the plaint, the inability to control urine was not supported by any evidence. The only injuries that were pleaded and proved were those sustained on the back, ribs and chest. The doctor’s opinion on these injuries was stated in the following terms:

On physical examination she was in fair general condition. There were no scars or swelling on the head, back and the right gluteal region. She reported pain on palpation of the gluteal region. X-rays of the pelvis and the lumbosacral spine were normal.

He concluded as follows:

Esther Mumbi…sustained blunt soft tissue injuries to the forehead, the back and to the right gluteal region. She was managed appropriately but was still complaining of headaches and back pain at the time of writing this report.

For the record, the appellant was examined eight days after the accident.

Going by the medical evidence the appellant suffered superficial or soft tissue injuries. In her assessment of the quantum of damages that would be payable in compensation for such injuries, the learned magistrate considered the decisions in Nyeri High Court Civil Case No. 320 of 1998 Catherine Wanjiru Kingori & 3 Others versus Gibson Theuri Gichubi submitted by the appellant’s counsel where one of the claimants was awarded the sum of Kshs. 300,000/= for injuries she sustained on the left ankle, legs and chest; the other claimant in the same case was awarded Kshs. 350,000/= for multiple soft tissue injuries and injuries on the left elbow joint and on both ankles.

She also considered the decision in Nakuru High Court Civil Case No. 477 of 1998 Miriam Athumani & Salama Rashid versus Obiya Express & Philip Kipkemoi Chesirewhere the plaintiff sustained a head concussion, lacerations on the upper back, bruises on the legs and was awarded Kshs. 600,000/= in general damages.

The appellants relied on the decision in Eldoret High Court Civil Case No. 73 of 1995 Cyrus Gachanja Muya & Others versus Abbas Mohamed & Another where the claimant was awarded Kshs. 30,000/= as general damages for a severe injury to the elbow that was dislocated, a lacerated wound on the left knee. A cut wound on the left ear and injury to the hip joint and chest. A second claimant in that same case was awarded Kshs. 70,000/= for a concussion on the head, a wound on the left side of the head and a laceration on the left side of the chest. He also sustained a cut wound on the left elbow and right palm and the left posterior region of the thigh.

Again, the appellants submitted the decision in Nairobi High Court Civil Case No. 2610 of 1993, Harrison Mbogo versus Attorney General where the plaintiff was awarded Kshs. 60,000/= for a head concussion, multiple cut wounds on the left hand and scalp and loss of consciousness for five days.

Although the learned magistrate considered all these decisions, she does not appear to have taken into account the decisions submitted by the appellant before making the award the award of Kshs 550,000/=. I say so because the awards made in the decisions submitted by the appellants were much lower than what the learned magistrate awarded yet the injuries sustained in those case were more severe. She appears to have been heavily influenced by the awards in the decisions submitted by the learned counsel for the respondent yet the injuries in those decisions were more severe.

While I appreciate no similar injuries can be sustained by different claimants in varied or even in similar circumstances (for instance where they are in the same accident vehicle) the trial court must always make a comparative analysis of the injuries sustained and the extent of the awards made for similar injuries in previous decisions; this comparison is necessary for purposes of certainty and uniformity; the award must, as far as possible, be comparable to any other award made in a previous case where the injuries for which the award is made are relatively similar, of course, bearing in mind such other factors as incidence of inflation. This point was emphasised in H. West & Son, Ltd & Another versus Shepard [1963] 2 All ER 625 where Lord Morris of Borth-Y-Gest said at page 631;

My lords, the damages which are to be awarded for a tort are those which “so far as money can compensate, will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act” (Admiralty Comrs v Susquehanna (Owners), The Susquehanna (Per Viscount Dunedin, [1926] All ER Rep 124 at p 127, [1926] AC 655 at p 661)). The words “so far as money can compensate” point to the impossibility of equating money with human suffering or personal deprivations. A money award can be calculated so as to make good a financial loss. Money may be awarded so that something tangible may be procured to replace something else of like nature which has been destroyed or lost. 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 assent 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.

And in Kenya Power Lighting Comp. Ltd & another V Zakayo Saitoti Naingola & another [2008] eKLR the court held:

On quantum the court in determining whether to interfere with the same or not, the court has to bear in mind the following principles on assessment of damages

(1) Damages should not be inordinately too high or too low.

(2) They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered.

(3) Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts.

(4) Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan shillings, then at the time of the judgment.

I would opine that considering the nature and extent of the injuries sustained by the plaintiff, the evidence of her doctor and the awards made in the decisions presented before the learned magistrate and the decisions I have referred to, the award in general damages was inordinately high; I would opine that an award of Kshs. 200,000/= would be a near adequate compensation under this head. Accordingly, I would allow the appeal and substitute the subordinate’s court award with Kshs. 200,000/= in general damages. The special damages will remain undisturbed. The award on the two heads are subject to interest at court rates from the time of filing suit till settlement of the decretal sum. The respondent shall have costs in the lower court but the appellants shall have the costs of the appeal. It is so ordered.

Dated, signed and delivered in open court this 18th day of October 2019

Ngaah Jairus

JUDGE