[2023] KEHC 26226 (KLR)

Wainaina v Wagacha (Civil Appeal 16 of 2019) [2023] KEHC 26226 (KLR) (9 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26226 (KLR)

Republic of Kenya

In the High Court at Naivasha

Civil Appeal 16 of 2019

GL Nzioka, J

November 9, 2023

Between

Joseph Waweru Wainaina

Appellant

and

Patrick Thuku Wagacha

Respondent

(Being an appeal against the judgment of Hon. E. K. Nyutu Principal Magistrate (PM) on 6th November 2018 vide Civil Case No.137 of 2016 at the Principal Magistrate’s Court at Engineer)

Judgment

1. By a plaint dated 7th September 2016, the plaintiff (herein “the Respondent”) sued the defendant (herein “the Appellant”) seeking for judgment against the Appellant for:a.Special damages of Ksh 212,000b.General damages for pain and sufferingc.Costs and interest

2. The Respondent’s claim arose out of a road traffic accident that occurred on 10th October 2015, along Murugaru Ndunyu Njeru road involving the Appellant’s Motor Vehicle Registration No. KBS 205N and the Respondent’s Motor Cycle Registration No. KMCZ 502B.

3. The case proceeded to full hearing and by a judgment delivered on 6th November 2018, the trial court entered judgment on liability at 100% in favour of the Respondent as against the Appellant and awarded general damages in the sum of; Ksh. 700,000, special damages of; Ksh. 82,000, plus costs and interest.

4. However, the Appellant being aggrieved by the award of damages has appealed against it on the following grounds: -a.That the Learned Trial Magistrate erred in applying wrong principles and failing to take into account material facts arriving at an erroneous award;b.That the Learned Trial Magistrate erred in law and in fact by disregarding the Appellant’s submissions on all points of fact and law in as far as the award of damages is concerned.c.That the Learned Trial Magistrate erred in law and in fact in awarding Kshs 700,000 as general damages which is excessive and unrealistic in circumstances against the injuries allegedly sustained

5. As a result of the aforesaid, the Appellant seeks for the following orders: -a.That the finding of the Learned Trial Magistrate on quantum be set aside, be reviewed and/or revised and/or be substituted with the judgment of this Honourable Court.b.That this Honourable Court do make such further orders as it may deem fit.c.That this appeal be allowed with costs to the Appellant.

6. The appeal was disposed of by the parties filing submissions. The Appellant filed submissions dated 11th January 2023 and argued that, the Learned Trial Magistrate misdirected herself in holding him liable at 100% for the accident while the Respondent did not discharge his burden of proof. That, he was driving on his lane when the motorcycle, which was being driven in a fast and zigzag manner, encroached on his lane, and, that he tried to swerve to avoid the accident but the motorcycle was too close.

7. Further, he was not charged with any traffic offence relating to the accident, and furthermore, the police abstract did not blame him for the accident and neither was there adequate evidence to blame him for the same. He relied on the case of; Jospeh Munyumba Karega vs Charles Ogolla Obiero Nairobi Civil Appeal No. 513 of 2010 where the court stated that the police abstract merely proves the fact that the accident occurred.

8. On quantum, the Appellant submitted that, courts must ensure that justice must not only be done but be seen to be done to all parties. He relied on the case of; Kemfro Africa Ltd t/a Meru Express Services Gathogo Kanini vs A M Lubia & Olivia Lubia where the Court of Appeal laid down the principles that an appellate court needs to consider warrant interreference with an award of damages. That, it must be satisfied that, the judge took into account an irrelevant factor, or left out a relevant fact, or that the award is so inordinately low or so inordinately high, that it must be erroneous.

9. The Appellant argued that, the award of Ksh. 700,000 general damages by the trial court of for one fracture that had completely healed was excessive, unfair and unjustified. He relied on the case of; West (H) & Son Ltd vs Shepard (1964) A.C 326 as cited in the case of Cecilia Mwangi vs Ruth W. Mwangi C.A No. 251 of 1996 where the Court of Appeal stated that money cannot renew a physical frame that has been battered and shattered.

10. Thus the Appellant urged the court to set aside the award of Ksh. 700,000 and substitute with an award of Ksh. 300,000. He relied on the case of Patrisia Adhiambo Omolo v Emily Mandala [2020] eKLR where the High Court upheld the award of Kshs. 180,000 where the claimant sustained a fracture of the left forearm radius and ulna, swollen and deformed distal aspect of the forearm and multiple bodily injuries.

11. He further relied on the decision, in the case of; Gogni Rajope Construction Company Limited v Francis Ojuok Olewe [2015] eKLR where the claimant was awarded Kshs. 350,000 for having sustained a fracture of the radius and ulna, a dislocation of the elbow joint and was hospitalized for six (6) weeks.

12. Further reliance was placed in the case of; Philip Musyoka Mutua v Leonard Kyalo Mutisya [2018] eKLR where the plaintiff was awarded Kshs. 300,000 for a fracture of the distal left radius, bruises on the chest and left hand, cut wound on the face near the right eye and blunt injury on the forehead and both shoulders.

13. Furthermore, that in the case of; Charles Odhiambo vs Omar Tranmortors Ltd & Another [2001] eKLR the plaintiff suffered a fracture of the left lower leg tibia and fibula bone and the High Court awarded him damages of Ksh. 100,000, and, in the case of; Joseph Mutua Kinuthai vs David Kamande Kunuthai HCC 621/98 the High Court awarded the plaintiff Ksh. 120,000 as general damages having sustained compound fracture of right tibia and fibula on both legs, fracture of femur with grave soft tissue injuries.

14. That, in the case of David Kamande Mbui vs. Kenya Bus Services Ltd (Nairobi HCCC No. 281 Of 1998) the plaintiff sustained a fracture of the proximal ulna and was award general damages of Kshs. 100,000.

15. However, the Respondent on his part filed submissions dated; 20th December 2022, and observed that based on the grounds of appeal, the appeal herein is strictly on quantum therefore submissions on liability are not relevant. He cited the case of Mugambi and Silas vs Isaiah Gitiru Civil Appeal No, 138 of 2002 where the Court of Appeal held that, an appellate court can only interfere with an award of damages by the lower court where it is satisfied that the lower court acted on the wrong principles of law or made an award that is inordinately high or low to represent a wholly erroneous estimate.

16. The Respondent further submitted that, the evidence he adduced in the trial court that he sustained a fracture of the left hand necessitating him to be admitted and operated on was corroborated by the medical report of Dr. A. K. Mwaura and the discharge summary from AIC Kiajbe Hospital. That, the trial court considered the evidence of the injuries and submissions of both parties in arriving at its judgment on quantum.

17. Further, the Appellant has not pointed out the irrelevant factor which the trial court considered or relevant factor not taken into account in arriving at the award. Furthermore, the award of Ksh. 700,000 for the injuries sustained, which required him to be in a plaster for three (3) months is not inordinately excessive to warrant interference by this Court.

18. The Respondent relied on the cases of; John Muli Kasike & another v Samuel Gitau Waweru [2020] eKLR whereby the plaintiff was award of Ksh. 800,000 for similar injuries. Further, in the case of Debora Omari vs Kenya Woodfuel & Agroforestry Programme Ltd Kisii HCC No. 132 of 1998 where the plaintiff suffered a fracture and displacement of the right radius and dislocation of right hip, and was awarded Ksh. 650,000 as general damages.

19. At the conclusion of the argument by the parties, I have considered the appeal in the light of the materials placed before the court in particular, the trial court’s record and the submissions filed herein and I find that, the parties have articulated well the legal principles that guide the appellate court while considering whether to interfere with the decision of the trial court on quantum or not. I shall not regurgitate the same.

20. However, the legal principles that govern the award of quantum are settled by the court. In that regard, in the Court of Appeal’s decision in Mohamed Mahmoud Jabane V Highstone Butty Tongoi Olenja [1986] eKLR, Kneller, JA (as he then was) stated as follows: -“The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his court to an award of damages by a trial judge.1. Each case depends on its own facts;2. Awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);3. Comparable injuries should attract comparable awards.4. Inflation should be taken into account; and5. Unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone.”

21. Furthermore, in the case of Cecilia W. Mwangi & Another vs Ruth W. Mwangi [1997] eKLR the Court of Appeal stated that: -“We would commend to trial judges the following passage from the speech of Lord Morris of Borth-y-Gest in the case of West(H) & Son Ltd. vs. Shephard [1964] AC 326 at page 345:"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."

22. To revert back to the matter herein, the only issue in contest is the award on quantum, in particular the general damages. In assessing the same the trial court relied on the following: -a.The medical report by Dr. A.K. Mwaura dated, 7th November 2016b.The case of; Tayab -vs- Kinany (1983) KLR 114 which states that money cannot review a damaged frame that, has been battered and shuttered.c.Compared the authorities cited by the parties being; Debora Omari vs Kenya Woodfuel & Agroforestry Programme Ltd [2004] eKLR, Haron Cheron vs Eastern Produce (K) Ltd [2014] eKLR, Margaret Aoko Diero vs African Line Transport Company Ltd & Another (2004) and Samuel Mwangi Kamau vs Joseph M. Kimemia & Another HCCC No. 192 of 2001.

23. Be that as it may, the role of first appellate court is to re-evaluate the evidence adduced afresh. In that case, I note that, by the plaint herein, the Respondent pleaded that, he sustained a compound fracture left distal radius and laceration on the left prosumal leg. It suffices to note that parties are bound by their pleading.

24. In support of the claim for general damages for injuries suffered, the Respondent produced, a medical report dated; 7th July 2016, prepared and signed by Dr., A.K Mwaura MD PhD. The report reiterates the injuries as pleaded in the plaint being; a fracture of the left distal radius and laceration.

25. The Respondent further produced a discharge summary from AIC Kijabe Hospital which indicates that he sustained a fracture of the left distal radius. However, it does not indicate any laceration. Finally the Respondent produced a P3 form which indicates a fracture of distal radial left side and healed lacerations on the anterior aspect of left proximal leg.

26. In the submissions filed in the trial Court, the Respondent sought for a sum of Ksh. 800,000 as general damages and relied on the case of; HCCC No. 132 of 1998 Debora Omari vs Kenya Woodfuel & Agroforestry Programme Ltd while the Appellant on its part relied on the case of Haron Cheron -vs Eastern produce (K) Ltd Eldoret Civil Appeal 92 of 2013 [2014] eKLR and proposed a sum of Ksh. 200,000.

27. As already stated herein, the Appellant submits that, the award of Kshs 700,000 is excessive and proposes a sum of Kshs 300,000 as fair compensation, relying on several authorities on comparable awards referred to herein. However, it is noteworthy that, whereas the authorities cited supports the figure proposed of Ksh. 300,000 the same were made in the years 1998, 2009, and 2015, and therefore they were as old as three (3) to twenty (20) years at the time the decision herein was delivered. Thus they cannot be guideful now, without further consideration.

28. On its part the Respondent maintains that the sum of Ksh. 700,000 awarded is fair and reasonable and should be upheld. The Respondent relies on the case of Haron Cheron vs Eastern Produce (K) Ltd [2014] eKLR cited in the trial Court and Kiambu Civil Appeal No. 13 of 2018 John Muli Kasike & another v Samuel Gitau Waweru. However, I note that, the injuries in the case cited in the trial court were more severe than herein.

29. In the case of Margaret Aoko Diero vs African Line Transport Company Ltd & Another (2004) eKLR the plaintiff suffered; a dislocation of the right ankle with fractures of Malleoli of both the tibia and fibula with a cut lacerated wound on medial side 5”x 4”;lacerated wounds on the medial side of right leg “3 x 1”, the right knee exposing patella, on lateral side of left leg 2” x 2” and on right side of face 2” x ½, a cut wound on right thigh 8” x ½ and contusion of right hand and shoulder and the court awarded Ksh. 1,250,00 as general damages.

30. Further, in the case ofSamuel Mwangi Kamau vs Joseph M. Kimemia & Another HCCC No. 192 of 2001 the Plaintiff sustained a depressed fracture of the skull, a fracture tibia and fibula, and soft tissue injuries on his upper limbs and was awarded Ksh. 1,000,000 as general damages for pain, suffering and loss of amenities.

31. In summation I find that, taking into account the legal principles that, the awards on damages should be reasonable, assessed with moderation, conventional and comparable, and that inflation factors should be considered and further, the four (4) days the Respondent was in hospital and comparable authorities cited, I make the following orders

32. That, the judgment of general damages in the sum of Ksh. 700,000 is set aside and substituted with an award of Ksh. 500,000 as general damages. The rest of the judgment by the trial court is upheld including the orders for costs and interest.

33. It is so ordered.

DATED, DELIVERED AND SIGNED THIS 9TH DAY OF NOVEMBER 2023. G. L. NZIOKAJUDGEIn the presence of:_Ms. Obura for the AppellantMr. Kamau for the RespondentMs. Ogutu Court Assistant