[2022] KEHC 1308 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAROK

CIVIL APPEAL NO. 10 OF 2019

(CORAM: F.M. GIKONYO J.)

(Being an appeal from the judgment of Hon W. Juma (C.M) Delivered on 28th March 2019 in Narok CMCC No. 222 of 2014)

THUGE CAROLINE....................1ST APPELLANT/RESPONDENT

FRANCIS NGANGA...................2ND APPELLANT/RESPONDENT

SAMUEL NDANI KAMAU..…..3RD APPELLANT/RESPONDENT

VERSUS

KIMANI NGANGA KAGO................RESPONDENT/APPLICANT

JUDGMENT

Impugned judgment

1. In its judgment, the trial court on the 28th March 2019 made the following awards: -

a. Apportioned liability; 1st and 2nd defendants vicariously liable for the negligent acts of the 3rd defendant, to bear 100% liability jointly and severally for injuries sustained by the Plaintiff.

b. General damages………… Kshs. 1,600,000/=

c. Special damages……………Kshs. 12,932/=

Total …………………….…Kshs. 1, 612, 932/=

d. costs of the suit and interest at court rates from the date of the judgment

2. In accordance with memorandum of appeal dated 16th April 2019, this appeal challenges quantum of damages awarded above.

3. According to the plaint dated 18th December 2014, the respondent sustained the following injuries: dento alveolar fracture involving the maxillary, displaced fractures of both right and left zygoma, fracture of the 4th, 5th and 6th ribs on the right side of the chest, loss of five incisors teeth (2 upper and 3 lower), soft tissue injuries of the left knee joint and soft tissue injuries of the right hip joint.

APPELLANT’S CASE

4. The appellants called one witness; DW1-Dr. Jennifer Kahuthu, a general practitioner and a holder of an under graduate in medicine and surgery. She examined the respondent herein on 6/7/2015 who had been involved in an accident on 4/1/2012. The respondent was treated at Narok district hospital and later transferred to AIC Kijabe Hospital for dental- alveolar fracture involving the left mandibular management. The same was conservative i.e. no surgery was done. She observed during re-examination that the respondent was in a fair normal condition, walking with normal gait. The respondent complained of pain and numbness on the left side of the face. He also complained of tooth sensitivity and difficulties of chewing food.

5. On physical examination, DW1 noticed that he did not have 5 incisors; two on the upper gum and three on the lower. All other systems were essentially normal. Initial x ray confirmed he had rib fractures. A repeat x ray of the full skull was reported normal. She requested for the initial x ray of the skull from his advocate for comparison. It was availed and she sent it to Dr.Muluka consultant radiologist. The report dated 6/9/2017 indicated normal skull radiograph with no facial bone structures. The zygoma maxilla and mandibles were all normal. She concluded that the respondent had sustained fractured ribs and dental alveolar fracture with loss of 5 teeth. She advised that the respondent needed Kshs. 50,000/= to replace the teeth @ Shs. 10,000/= per tooth. She produced the medical reports dated 4/6/2015 and 13/9/2017 as D Exh. 1 and 2.

6. On cross examination, DW1 disputed the skull fracture, the zygoma and maxillary fractures. She stated that she took the X ray to the consultant and he did not see the fractures of the right and left zygoma. She confirmed that she is not an expert in reading x ray. Her qualification does not include dentistry.

7. The Appellants submitted that the respondent only sustained the injuries listed in the treatment notes from AIC Kijabe Hospital, which are; dento-alveolar fracture on the left involving the maxillary tuberosity non- displaced fractures on the right and left zygoma.

8. The Appellants submitted that the medical report by Dr. Kiamba prepared two years after the accident, lists further injuries not listed in the treatment note which injuries could have been sustained in another accident. Therefore, the trial court ought to have disregarded them in assessing general damages payable to the respondent. They cited the case of Timsales Ltd V Wilson Libuywa [2008] eKLR.

9. The Appellants submitted that the fracture of the 4th,5th and 6th ribs , loss of 5 incisors teeth and soft tissue injuries of the left knee joint and right hip joint are not listed in the initial treatment note from Kijabe Hospital where he was treated the next day after the accident. They urged this court to note that the learned trial magistrate erred in considering these injuries while assessing damages and thereby set aside the general damages.

10. The Appellants submitted that this court should exercise discretion judicially, with wise circumspect and upon some principles. They urged this court to disturb the general damages payables in accordance with the set out principles in the cases of Kemfro Africa Limited T/A “Meru Express Services [1976]’’ & Another Vs Lubia & Another (No. 2) [1985] eKLR, Kim Pho Choo Vs Camden & Islington Area Health Authority [1979] 1 Aller 332, Cecilia Mwangi & Another V Ruth Mwangi CA 251/ 1996.

11. The Appellants submitted that the lower court award of Kshs. 1,600,000/= for the injuries sustained by the respondent is disproportionate, unfair and unjustified.

12. The Appellants invited this court to consider the following cases with comparable and similar injuries to those sustained by the respondent. The awards in the said authorities range from Kshs400, 000/= to Kshs. 500,000/=for general damages. They cited the cases of Paul Kithinji Kirimi& Another V Gatwiri Murithi[2018] eKLR, Mombasa Maize Millers (KSM) Ltd & Another V Rengo Joshua Wafula [2017]eKLR, BK Suing Thro’ His Mother And Next Friend EM V Wilson Gitari Mburugu [2020] eKLR, Specialized Aluminum Renovators Limited & Another V Stephen Mutuku Musyoka [2021] eKLR, Nyota Tissue Products V Charles Wanga & 4 Others [2020]eKLR, and Elizaphen Mokaya Bogonkov Fredrick Omondi Ouna [2022] eKLR

13. The Appellants submitted that Kshs. 500,000/= shall be sufficient and adequate compensation for the injuries sustained by the respondent after the accident.

14. The Appellants submitted that costs follow the event based on Section 27(1) of the Civil Procedure Act.

15. In conclusion, the appellants prayed that this court set aside the judgment of the trial court and reassess the quantum based on their submissions herein. They further prayed that the appeal herein be allowed as prayed and the respondent to bear costs of this appeal.

RESPONDENTS’ CASE

16. The respondents called three witnesses.

17. PW3- Dr. Kiamba. he testified and confirmed the injuries sustained by the respondent as a result of the accident, the injuries are: dento alveolar fracture involving the maxillary, displaced fractures of both right and left zygoma, fracture of the 4th, 5th and 6th ribs on the right side of the chest, loss of five incisors teeth (2 upper and 3 lower), soft tissue injuries of the left knee joint and soft tissue injuries of the right hip joint. The doctor confirmed that he conducted a physical examination of the respondent. He also checked the X rays and the exam of the x rays confirmed the fractures. He saw the respondent’s treatment notes from Kijabe Hospital. He stated that the said injuries were supported by the medical report from AIC Kijabe Hospital. He produced the medical report from AIC Kijabe Hospital as P Exh 22(a).

18. The respondent submitted that the trial court took into account the evidence and submission of both parties and the award of general damages awarded was not high but reasonable. The award was within the range of awards given by courts for similar injuries. The respondent cited the case of B A J V Roadstar Limited & 2 Others [2018] eKLR where the respondent sustained orbito- zygomatical maxillary and mandibular fractures and degloving wounds right ankle medical aspect and lateral aspect of the left leg and the court awarded general damages of Kshs. 1,500,000/=

19. The respondent submitted that the trial court did not error in making its award. There is no justification for this court to interfere with the award of the trial court. He cited the case of Tridev Construction V Charles Wekesa Kasembeli [2005] eKLR and Kemfro Africa Ltd T/A “Meru Express Service Gathogo Kanini Vs a.m Lubia and olive (1982-88) l KAR 727 at page 73,

20. In conclusion, the respondent submitted that this appeal lacks merit and the same should be dismissed with costs to the respondent.

ANALYSIS AND DETERMINATION

21. In law, first appellate court is under an obligation to re-evaluate the evidence and come to own conclusions, except, it must give allowance of the fact that it neither saw nor heard the witnesses; matters of demeanor are best observed by the trial court. See: Selle & Another Vs. Associated Motor Board Company Ltd. [1968] EA 123. In re-evaluating the evidence, the court is not beholden or compelled to adopt any particular style. Nonetheless, it must avoid mere rehashing of evidence or trying to look for a point or two which may or may not support the finding of the trial court. Of greater concern is to employ judicious emphasis and alertness, have an eye for symmetry or balance (where legally permissible) and an ear for subtleties of evidence adduced so as not to miss the grace and power of the testimony of witnesses and the applicable law. Thus, a good style would be one that insists on simplicity in writing and keeping as close as possible to the words used in the testimony recorded. Ultimately, making of the final impression of the evidence and facts of the case and the applicable law will be with little or no difficulty at all. I shall so proceed

22. This appeal is on quantum of damages only. I will, therefore, be guided by the test on when an appellate court would interfere with the discretion of the trial court in assessment of damages which was adumbrated in the case of Kemfro Africa Ltd v Lubia (supra) as follows: -

“I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

23. The trial magistrate awarded Kshs 1,600,000as general damages; the appellants regards the award as inordinately high. The Respondent considers it fair compensation for the injuries sustained.

24. Emphasis is made to the fact that an award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The respondent herein sustained the following injuries-

a. dento alveolar fracture involving the maxillary,

b. displaced fractures of both right and left zygoma,

c. fracture of the 4th, 5th and 6th ribs on the right side of the chest,

d. loss of five incisors teeth (2 upper and 3 lower),

e. soft tissue injuries of the left knee joint and;

f. Soft tissue injuries of the right hip joint.

25. The Appellants cited authorities with the awards ranging from Kshs400, 000/= to Kshs. 500,000/=.The respondent relied on an authority where the court awardedKsh. 1,500,000/=. I do also note that the injuries in the authorities cited by the appellants entails either fracture on mandibles or loss of teeth or fracture of zygoma. it does not have all the injuries suffered by the respondent in one set as compared to those cited by the respondent.

26. DW1 disputes the skull fracture, the zygoma and maxillary fractures. She however, agrees that the respondent suffered rib fractures, dental alveolar fracture with loss of five teeth.

27. I must mention that in cases such as this, medical evidence should be taken together with all other evidence on record. In Shah & Another -vs- Shah & Others (2003) I EA 290, the court held:

“The opinion of the expert witness is not binding on the court but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so---”

28. The court further stated:

“---If there is a conflict of expert opinion, acceptance of the expert evidence is the responsibility of the court – properly grounded expert evidence of scientific conclusion will be extremely persuasive in assisting the court to reach his own opinion.”

29. In Dhalay -vs- Republic (1997) KLR, the Court of Appeal held:

“It is now trite law that while the courts must give proper respect to the opinion of experts, not, as it were such opinions are binding in 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 congent basis for rejecting the expert opinion, a court would be perfectly entitled to do so.”

30. In Sentongo and Another vs. Uganda Railways Corp. Kampala HCCS No. 263 of 1987Byamugisha, J held, citing Sarkar on Evidence 12th ed. pp 506. R., that:

“Medical evidence based on the evidence of other witnesses or prescriptions without observing the facts is not of much value compared with the evidence of a Doctor who personally attended the patient as this is hearsay. Medical reports have to be proved by the person giving them. The Evidence of an expert is to be received with caution because they often come with such a bias in their minds to support the party who calls them that their judgement becomes warped and they become incapable of expressing correct opinion.”

31. The medical report by Dr. Jennipher Kahuthu found that the respondent suffered fracture ribs, dento alveolar fracture and non- displaced fractures of the right and left zygoma.

32. Reconciliation of medical evidence is done by reference to the facts. Medical report from AIC Kijabe Hospital revealed that the respondent suffered dento- alveolar fracture on the left involving the maxillary tuborsity non- displaced fractures of the right and left zygoma. The medical report by Dr. Wellington K. Kiamba indicate the injuries pleaded.

33. From the authorities cited by the appellant, it is clear that the trial magistrate made a commensurate and fair award in view of the injuries sustained by the Appellant. An award of Kshs 1,600,000. 00 is fair compensation for pain and suffering. The trial court did not commit any error of principle or made excessive award. I dismiss, the appeal.

34. In the upshot, I find that the appeal lacks merit and is dismissed with costs to the respondent. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 16TH DAY OF MARCH, 2022

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F. M. GIKONYO

JUDGE

In the presence of:

1. M/s Chichi for the appellant

2. M/s Oganga for Respondent

3. Mr. Kasaso CA