[2023] KEHC 19797 (KLR)

Wambui v Muchoki (Civil Appeal 26 of 2017) [2023] KEHC 19797 (KLR) (29 June 2023) (Judgment)

Neutral citation: [2023] KEHC 19797 (KLR)

Republic of Kenya

In the High Court at Murang'a

Civil Appeal 26 of 2017

SC Chirchir, J

June 29, 2023

Between

Jane Wambui

Appellant

and

Thomas Wanyoike Muchoki

Respondent

(Appeal from the Judgment of Hon. M. Wachira delivered on 8th June 2017 at the chief magistrate’s court at Muranga in Civil Case No. 442 of 2015)

Judgment

1. The Respondent filed the above lower court case at the Chief Magistrate’s court at Muranga seeking for Damages for injuries and related loss sustained, following a road accident which occurred on 22nd February 2015 along Muranga- Kobil Road.

2. Liability was settled by way of consent of the parties in which it was apportioned at 90% as against the Appellant and 20% against the Respondent. The issue of of damages was left to the determination of the court.

3. The court proceeded to assess damages and awarded the Respondent Kshs. 1, 700,000 in general damages and special damages of Kshs. 11,380/=

4. Aggrieved by the judgment, the Appellant filed this Appeal, limited to the award on damages only, and set out the following grounds:a.That the learned Magistrate proceeded on wrong principles in entering judgment for the Respondent for the sum of Kshs. 1,700,000/= in general damages.b.That the learned Trial Magistrate erred in failing to scrutinize/ evaluate the evidence tendered in support of the injuries suffered by the respondent and to correctly relate them to case law citied to her and thereby failed to arrive at a fair and reasonable compensation.c.That the learned magistrate erred in failing to give her reasons for finding that the sum of Kshs. 1,700,000/= in general damages to the Respondent was reasonable and/or adequate compensation.d.That the learned magistrate erred both in law and fact in failing to find that the nature of injuries suffered by the Respondent did not warrant an award of Kshs. 1,700,000/=e.That the learned Magistrate erred in law in failing to uphold the doctrine of precedent.f.That the learned trial magistrate erred in awarding such an inordinately high award of damages for such injuries that have resolved and that the said award can only be adjudged to be an entirely erroneous estimate of the correct damages awarded to the Respondent.The appeal proceeded by way of written submissions.

Appellant’s submission 5. It is the Appellant’s submission that the learned magistrate took into account the medical reports of Dr. E.M Njoroge and Dr. Gitau but failed to consider the medical report prepared by Dr. Waithaka Mwaura who had given a simplified more and recent assessment of the Respondent’s injuries . That by failing to take into consideration Dr. Waithaka’s report the trial court arrived an erroneously high estimate of the injuries suffered.

6. It is submitted in arriving at the exorbitant sum of Kshs. 1,700,000/= the learned magistrate applied an arbitrary and unknown compensation assessment, and which went against the principles of just compensation. Reliance was placed in the court of appeal decision inSimon Taveta vs. Mercy Mutitu Njeru (2014) eKLR and in John Kipkemboi & Another vs. Morris Kedolo (2019) eKLR.

7. The Appellant further contends that, no amount of compensation can ever put back the Respondent to the shape he was and that the court is only required to award a just compensation. He has relied on the decision of Nancy Oseko vs BOG Maasai Girls high school (2011)e KLR and Cecelia Mwangi& Ano vs Ruth Mwangi C 251/1996 in this regard.

8. It is argued that the respondent would be adequately compensated with the sum of Kshs. 500,000/= in general damages and the following past decisions were cited in support of their proposal:a.)Catherine Gatwiri Vs. Peter Mwenda Karaai, Meru High Court Civil Appeal No.69 of 2016 (2018) eKLRb).Gladys Lyaka Mwombe vs. Francis Namatsi & 2 others Kakamega High Court Civil appeal no. 36 of 2017 (2019) eKLRc).Mombasa Maize Millers ltd &Another vs. Rengo Joshua Wafula, Kisumu High court Civil Appeal No. 71 of 2016 (2017) eKLR.

Respondent’s submission. 9. In response, the Respondent has laid out the injuries sustained by the Respondent as set out in the various medical records produced in court .

10. It is his contention that Dr. Waithaka failed to itemise the specific fractures sustained by the respondent and further that did not indicate the primary documents he relied on in his asessement.

11. The Respondent urges the court to confirm the award by the trial court and has relied on the following Authorities in their submissions:a).Duncan Kimathi vs Ngugu David & 3 others(2016) e KLRb).Joseph Musee vs Julius Mbogo & 3 others (2013)e KLRc).Stantley Maore vs Geoffrey Mwenda- Nyeri Civil Appeal No. 147 of 2002

summary of evidence 12. PW1, was the Respondent. He told the court that after the accident, he went to Maragua District hospital, then was referred to Murang’a General hospital and finally to Kenyatta National hospital where he was admitted. He produced treatment cards from two of the hospitals. He also produced CT- Scan from German hospital and a P3 form. He said he suffered injuries to the neck, head and bruises all over the body and his teeth were knocked out.

13. Medical reports from two doctors representing each party were produced. A CT scan report from German medical center was also produced.

14. The rest of the witnesses’ testimonies were on the aspect of liability which was resolved by consent and therefore is not an issue in this Appeal.

Determination. 15. I have considered the grounds of Appeal, the parties submissions, the evidence tendered and the Exhibits produced in the lower court

16. It is trite law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court and arrive at its own conclusions as was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited[1958] EA 424 and reiterated by the Court of Appeal in several cases including the case of Gitobu Imanyara & 2 others v Attorney General[2016] eKLR.

17. There is Only one issue for determination in this Appeal, and that is, whether the award of ksh. 1,700,000 in general damages was too excessive.

18. The principles upon which the Appellate Court can interfere with an award of damages has been restated in many past decisions. In the case of Coast Bus Service Ltd v Sisco E. Muranga Ndanyi & 2others Civil Appeal Case No. 192 of 1992 the court stated: “Those principles were well stated by Law, J.A in Bashir Ahmed Butt v Uwais Ahmed Khan, By M. Akmal Khan [1982-88] I KAR 1 at pg. 5 as follows-‘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 ….”

19. The following medical documents were placed before court in support of injuries:a.CT-Scan head Report from German medical center ( Dr. Gitau). It lists the injuries as follows: Segmental fracture lateral wall of the left orbit

Left lamina papyracea

Comminuted fractures of all the walls of the maxillary antrums bilaterally

Comminuted fracture left pterygoid plate

Comminuted fracture of the nasal bone.b).Dr. E. M Njoroge- cut wounds on the forehead- segmental fracture lateral wall of the left orbit-communited fractures of the walls of the maxillary antrums bilaterally-Communited fractures of the nasal bones- Bruises on the right upper and lower limbs-Loss of 2 upper incisors and 1 left canineb.Dr. Waithaka Mwaura:-Blunt head injuries-Deep cuts on the forehead, lower lip and forearms-Injuries to both upper and lower limbs-Loss of 3 teeth and had 5 broken-CT Scan revealed multiple facial fractures- permanent disability of 10%

20. Contrary to the Appellant’s assertion it is my observation that there is fair uniformity in all the 3 medical reports. Dr. waithaka, while not itemizing the fractures nevertheless pointed out that the Respondent suffered multiple fractures as per the CT scan.

21. Again I don’t agree with the Respondent contention that Dr. waithaka did not indicate the source documents. A perusal of his report shows that he kept referring to some primary document as he wrote his report. For instance in the opening paragraph of the report he states: “A head CT scan done revealed multiple facial fractures” and as he concluded his report he stated: “… these are corroborated by treatment notes and radiological reports”. To suggest that the Doctor did not indicate the source documents because he did not itemize the said documents is a case of splitting hairs

22. It is my finding therefore that the Respondent indeed suffered multiple fractures whose particulars are as set out in three medical reports and listed on paragraph 19 (a) of this judgment

23. The guiding principles in assessing damages have been the subject of many past decisions. In the case of Odinga Jacktone Ouma v Moureen Achieng Odera [2016] fKLR for instance the court stated: “comparable injuries should attract comparable awards.”

24. I have considered the rival Authorities submitted by the parties herein. On the part of the Appellant, save for the case of Mombasa maize millers the rest of the decisions are fairly old or/and the injuries are not comparable to the injuries sustained by the Respondent herein.

25. On the part of the Respondent, as regards the case of Duncan karagania vs Ngugi David( HCCC No. 75 of 2012) cited, I note that apart from facial fractures the claimant therein also suffered a fracture of the humerus. Therefore, the injuries were more severe compared to the present case.

26. In the case of Joseph muse vs Julius mbogo (2013) e KLR, the Claimant suffered major fractures of the tibia and fibular apart from other fractures. The injuries were not only severe compared to the present case but do not compare well as the injuries are different from the ones suffered by the Respondent herein.

27. For purposes of comparison I have considered the following other past decisions:a).In the case of King Developers Limited v Samuel Kavai & Another [2020] the court set aside an award of Kshs. 1,500,000 and substituted it with an award of Kshs. 500,000 for injuries of multiple wounds and bruises on the forehead, loss of 12 teeth, blunt injuries to the chest and facial fracture.b).In Mombasa Maize millers ltd. vs RengoJoshua wafula(2017) e KLR, cited by the Appellant herein ,the claimant suffered facial injury with a fracture, injury to the right jaw and teeth, fracture of the mandible , inability to open the mouth and soft tissue injuries. The court reduced the award to ksh. 400,000 from ksh. 600,000 in the year 2016. 27. Considering the two decisions cited above, the disability of 10% and the fact that the Respondent had made good recovery I find the award of ksh. 1,700,000 to have been too excessive. I consider it to have been an erroneous estimate of the injuries suffered. I hereby set it aside and substitute it with ksh. 700,000, which, again, based on the two decisions referred to above, plus considerations of inflation, is what I consider to be a fair compensation for the aforementioned injuries.

28. In conclusion, I make the following orders:a).The appeal herein succeeds.b).The lower court award of ksh. 1,700,000 is hereby set aside and substituted with an ward of ksh. 700,000. c).The award is subject to the agreed apportionment of 90/10 ratiod).The award shall attract interest at court rates from the date of the decision of the lower court.e).The costs of the Appeal is awarded to the Appellant.

DATED, SIGNED AND DELIVERED VIRTUALLY AT KAKAMEGA THIS 29TH DAY OF JUNE, 2023. S. ChirchirJudge.In the presence of :No appearance by the parties.