[2023] KEHC 27615 (KLR)

Wambua v Kakundo (Civil Appeal 171 of 2022) [2023] KEHC 27615 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 27615 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal 171 of 2022

F Wangari, J

November 17, 2023

Between

Samuel Mwololo Wambua

Appellant

and

Doris Mumo Kakundo

Respondent

Judgment

1. This is an Appeal from the Judgment and Decree of Hon. E. Muchoki, Senior Resident Magistrate dated 4/10/2022 arising from Mombasa CMCC No. 930 of 2021.

2. The Appeal is on quantum only. It is based on 5 Grounds. However, the grounds can be condensed into just one ground: That that trail court erred in awarding general damages that were excessive and inordinately high.

3. The Memorandum of Appeal dated 6h October 2022 and Amended on 11th April 2023 raises thus only one issue on the quantum of Damages

4. The Plaint dated 11th June 2021 claimed damages for an accident that occurred on 8/12/2020 involving the Plaintiff’s Motor Cycle Registration Number KMEP 275J and the Defendant’s Motor Vehicle Registration Number KCH 953Y and driven by the Defendant.

5. The Plaintiff set forth particulars of negligence for the accident motor vehicle. The Plaintiff pleaded Ksh. 6,400/= as Special Damages and injuries as follows:a.Post traumatic arthritis and stiffness of the right pelvic areab.Post traumatic reduction in weight bearing capabilityc.A lifetime of recurring post fracture painsd.Permanent disability of 10%.

6. The Appellant entered appearance and filed Defence denying the particulars of negligence and injuries pleaded in the Plaint.

7. The Trial Court heard the parties and proceeded to render judgement on 4th October 2022. In the Judgement, the Court found 100% liability against the Defendant and awarded the Respondent Kshs. 800,000/- in General Damages for pain and suffering and diminished earning capacity together with special damages of Kshs. 4,550/-.

8. Aggrieved by the finding of the Trial Court, the Appellant lodged a Memorandum of Appeal hence this Appeal.

The Appellants’ case 9. The Appellants called one witness, the driver and owner the accident motor vehicle, Samuel Wambua Mwololo. He relied on his witness statement and documents in his testimony in chief.

10. It was his testimony that he was at a round-about and the Plaintiff came from behind at a high speed and knocked him.

The Respondent’s Case. 11. The Respondent called 4 witnesses. PW1, PC. Kennedy Onyina on liability testified that the Appellant was to blame for the accident.

12. PW2, Dr. Doris Wambua relied on her medical report dated 11/5/2021 testified that the Plaintiff had not recovered. She recommended physiotherapy and pain killers.

13. PW3, the Plaintiff relied on his witness statement and documents to testify. It was his case on quantum that he had not healed and often went for physiotherapy. On cross examination, he stated that he had a fracture on the leg. He used to cook and hawk food which he could not do after the injury and that people contributed for his medical bills.

The Appellants’ Submissions. 14. The Appellants filed written submissions on 2nd June 2023 in support of the Appeal. It was submitted that the trial court erred in awarding damages when the Respondent had not pleaded the particulars of the injuries suffered. Reliance was placed inter alia on the case of Raila Odinga & Another v IEBC (2017) eKLR.

15. Counsel also submitted that general damages awarded were based on irrelevant facts and as such were excessive and inordinate. To canvass the submissions, reliance was placed on the cases of John Bwire v Joram Saidi & Another(2021)eKLR.

16. It was further submitted that an award of Kshs. 400,000/- would have been adequate compensation. Counsel relied inter alia on the case of Gorge Okewe Osawa v Sukari Industries (2015)eKLR. Where the court awarded Kshs. 400,000/ for comparable injuries.

The Respondent’s submissions 17. The Respondent filed written submissions dated 25th July 2023. The Respondent submitted that the Record of Appeal was defective as there was no copy of Decree attached, thus offending Order 42 Rule 13 (4) of the CPR which provides as follows;(4)Before allowing the appeal to go for hearing the judge shall be satisfied that the following documents are on the court record, and that such of them as are not in the possession of either party have been served on that party, that is to say—(a)the memorandum of appeal;(b)the pleadings;(c)the notes of the trial magistrate made at the hearing;(d)the transcript of any official shorthand, typist notes electronic recording or palantypist notes made at the hearing;(e)all affidavits, maps and other documents whatsoever put in evidence before the magistrate;(f)the judgment, order or decree appealed from, and, where appropriate, the order (if any) giving leave to appeal:Provided that—(i)a translation into English shall be provided of any document not in that language;(ii)the judge may dispense with the production of any document or part of a document which is not relevant, other than those specified in paragraphs (a), (b) and (f).”

18. The Respondent submitted that failure by the Appellant to attach a certified copy of the decree offended paragraph (f) above. Upon perusal of the Record of Appeal, the Appellant attached the copy of judgment dated 4/10/2022. From the above quoted Rule 13 (4) (f), before allowing an appeal for hearing, the judge must be satisfied that ‘the judgment, order or decree appealed from’ is on record. I find that the copy of the judgment having been filed, the Appellant was in compliance with Order 42 Rule 14 (4) (f) of the CPR, hence the Record of Appeal is not defective as alleged.

19. It was submitted on quantum that the trial court was correct and did not take into consideration any irrelevant factor because the general damages awarded was adequate compensation. They urged this court to dismiss the Appeal.

Analysis 20. This being a first Appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a Trial Court, unlike the Appellate Court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.

21. In the cases of Peters vs Sunday Post Limited [1958] EA 424 , the court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

22. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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..."

Quantum 23. The Appellant submitted that an award of Kshs. 400,000/- would be adequate compensation while the Respondent submitted that the trial court correctly assessed general damages of Kshs. 800,000/= as commensurate compensation in the circumstances of this case.

24. The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd Vs Meru Express Service Vs. A.M Lubia & Another 1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages.

25. It is thus settled that for the Appellate court, to interfere with the award it is not enough to show that the award is high or had if I handled the case in the subordinate court, I would have awarded a different figure.

26. Damages must be commensurate with similar injuries. I note that the Respondent suffered a fracture of the pelvis. This was correlated by the evidence of the medical doctor.

27. The Appellant submitted that the Plaintiff did not plead and particularize injuries suffered. I have perused the Plaint and I agreed. The Plaintiff stated the consequences of the injuries sustained as assessed by the medical doctor. I find that this can be cured by reassessing the general damages afresh based on the actual injuries sustained.

28. The medical report produced in court categorized the injuries as fracture of the pelvic and trauma to the left leg. There is no dispute that the Respondent suffered a fracture on the leg. In assessing injuries arising from a road traffic accident, consistency in the award of damages is necessary for judicial predictability and certainty. This is achieved through awarding similar injuries with similar or relatively similar damages.

29. The Court of Appeal in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”

30. In the Lower Court and this Court, the Appellant relied on Peter Gakeri Ndiangui v Sarah Wanjeri Maina [2021] eKLR. Therein, the injuries suffered were stated as Multiple fractures including pelvic fracture and soft tissue injuries. The award was made in 2012.

31. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -1. An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.2. The award should be commensurable with the injuries sustained.3. Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.4. Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.5. The awards should not be inordinately low or high.

32. 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.

33. 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.

34. 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 Kshs. 630,0000/- in 2017.

35. The injuries in the above cited cases are slightly more severe than in this case.

36. The most comparable judicial authority in my view is George Okewe Osawa vs Sukari Industries Limited, (2015) e KLR wherein the Plaintiff suffered a fracture of the pelvis and was awarded Kshs. 400,000. The award was also in 2015 about 8 years ago. I will take into consideration inflation.

37. All these authorities show that the Appellant’s proposed Award of Kshs. 400,000/= is a fair estimate of general damages. It is low but not inordinately low. The Award of Kshs. 800,000/- by the trial court is however inordinately high. It was not based on authorities on similar injuries.

38. I also observed that the trial court awarded damages for pain and suffering and diminished earning capacity together. Damages for diminished earning capacity were not proved. They should have been awarded separately and not lamped together with damages for pain and suffering. The Plaintiff testified that he cooked and delivered food as a hawker. No evidence was filed or proved to conform this fact. The inclusion of damages for diminished earning capacity was misplaced.

39. I will interfere with the award of general damages. I take into consideration inflation and changes in economic times from the time the above decided cases were decided. An award of Kshs. 600,000/= in General Damages for pain and suffering would in my view be adequate compensation based comparable authorities cited above. The Appeal on General Damages is thus merited and I allow it.

40. The Appellant did not appeal against the award of Special Damages. I will not disturb the award under this head.

Determination 41. In the upshot, I make the following orders: -a.The Judgement on quantum is set aside and substituted with Kshs. 600,000/= in general damages- for pain and suffering.b.The Appellant is awarded 25% costs of the Appeal.

DATED, SIGNED AND DELIVERED AT MOMBASA THIS 17TH DAY OF NOVEMBER, 2023. ……………………..F. WANGARIJUDGEIn the presence of: -N/A by the AppellantKitoo Advocate for the RespondentBarile, Court Assistant