[2022] KEHC 13447 (KLR)

Wanjiku & another v Kariuki (Civil Appeal E160 of 2021) [2022] KEHC 13447 (KLR) (6 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13447 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E160 of 2021

MM Kasango, J

October 6, 2022

Between

Lilian Wanjiku

1st Appellant

Nicole Wanjiru Wanjiku

2nd Appellant

and

Nicholas Mithamo Kariuki

Respondent

((An appeal from the judgment and decree of the Senior Principal Magistrate’s Court at Ruiru (J.A. Agoda, PM) dated 10th August, 2020 in Ruiru SPMCC No. 81 of 2020)

Judgment

1. The Ruiru principal magistrate’s court determined the damages of the respondent for motor accident injuries he suffered and that determination provoked an appeal and a cross appeal.

2. The respondent, Nicholas Mithamo Kariuki (hereafter Nicholas) filed his case before the Ruiru Magistrate’s Court. His pleading was to the effect on May 19, 2019 he was driving his motor vehicle registration No KAV 887V along the eastern by-pass road. That the 1st appellant, Nicole Wanjiru Wanjiku (hereinafter, Nicole) is the registered owner of motor vehicle registration NoKCJ 283R. Nicholas by his plaint pleaded that Nicole’s servants and or agent, the 2nd appellant namely Lilian Wanjiku (hereafter Lilian) so negligently and dangerously drove the vehicle KCJ 283R that she failed to control it that it left its lawful course and hit Nicholas vehicle causing it to roll over several times. Nicholas further pleaded that he sustained grievous harm.

3. Doctor Cyprian Okoth Okere by his report submitted in evidence by consent, stated Nicholas suffered the following injuries:- Deep cut on the right hand.

Fracture of the right 1st, 2nd ribs.

Fracture of the right femur

Fracture of the right calcaneus.

Compound fracture of the left tibia.

Fracture of the left calcaneus.

4. Nicholas on being taken to at Aga Khan Hospital he was admitted into the ICU for one day while the hospital monitored his cardio vascular and respiratory system. The next day, he was taken to theatre where he had internal fixation using metal implant on his left ankle joint and right femur. His fracture on the left tibia and both calcaneus were managed conservatively.

5. Doctor Okere in his opinion found that the degree of permanent incapacity on the right femur was 40% and on the left leg was 30%.

6. Doctor PM Wambugu also presented to court a report and in his opinion Nicholas suffered permanent incapacity of 30%.

7. Nicholas gave oral evidence which supported his pleading. He also called as his witness, a police officer who exhibited the police abstract. The police officer stated that the driver of the motor vehicle of Nicole, 1st appellant was blamed for the accident.

8. Nicole and Lilian did not adduce any evidence to support their defence.

9. The trial court by its judgment found Nicole and Lilian 100% liable for the accident and further made the following awards:- General damages - Kshs 1,800,000

Loss of future earnings - Nil.

Future medical expenses - Kshs 130,000

Special damages - Kshs 476,587. 14Total = Kshs 2,406,587. 14

10. Nicole and Lilian filed this appeal where they stated the trial court erred for finding them 100% liable; that the trial court erred in awarding general damages that were manifestly excessive, and that the trial court failed to consider their written submissions.

11. Nicholas filed a cross appeal where he brought the ground that the trial court erred in failing to consider his pleading and thereby failing to award him loss for future earning capacity.

DISCUSSION AND DETERMINIATION 12. This is the first appellate court. The principle attendant to this court is that this court should consider the appeal as a retrial. the duties of first appellate court were discussed in the case Gitobu Imanyara & 2othersvAttorney General (2016) eKLR where the Court of Appeal stated:-“[A]n appeal to this court from a trial by the High 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 allowances in this respect”

13. The appeal raises two issues, that is:-a.Whether the trial court erred in finding appellants 100% liable for the accident.b.Whether the trial court erred in the amount it awarded the respondent in general damages.

14. The respondent’s cross appeal raises one issue, that is:- Whether the trial court erred in failing to award him for loss of future earning capacity.

15. I shall consider those issues seriatim.

16. The appellants did not adduce evidence to support their pleading. What is the effect of that failure? It has often been held that when a party fails to call evidence, their pleading remains unsubstantiated. The pleading on its own cannot prove the case. This indeed was the holding in the case Chrispine Otieno CalebvAttorney General (2014) eKLR thus:-“What are the consequences of a party failing to adduce evidence? In the case of Motex Knitwear Limited v Gopitex Knitwear Mills Limited Nairobi (Milimani) HCCC No 834 of 2002 Justice Lesiit, citing the case of Autar Singh Bahra and another v Raju Govindji, HCCC No 548 of 1998 stated:-‘Although the defendant has denied liability in an amended defence and counterclaim, no witness was called to give evidence on his behalf. That means that not only does the defence rendered by the 1st plaintiff’s case stand unchallenged but also that the claims made by the defendant in his defence and counter-claim are unsubstantiated. In the circumstances, the counter-claim must fail’”.

17. It follows that the evidence adduced by Nicholas and his witness remained unchallenged. The police officer who was Nicholas’ witness stated that after the accident was investigated, the investigating officer found the appellants to blame for the accident. Nicholas stated in evidence that on the day in question as he drove his vehicle on Eastern by-pass the appellants or their servant or agent negligently drove the car registration No KCJ 283R. As a consequence, the said car lost control thereby leaving its course and hit Nicholas’ vehicle causing him to overturn severally whereby he sustained grievous bodily harm.

18. That evidence was uncontroverted and although Nicholas and his witness were subjected to cross examination, the responses to the cross examination only seemed to give more damning evidence against the appellants. Indeed, the police officer on being asked whether the police abstract was based on opinion or fact, he responded thus:-“Paragraph 7 of the abstract is not an opinion. It was the result of accident.”

19. Nicholas on his part responded to cross examination by stating:-“The driver was driving at a very high speed. I was driving at 80 kph and I tried hooting for her (sic) and I was on the highway. It happened so fast and it was 20 meters and I tried to avoid the accident and I took responsible (sic) caution and I was unable to avoid the accident. It was impossible to avoid the accident.”

20. The trial court was correct to find the appellant 100% liable in view of the above evidence which the appellant failed to controvert.

21. On the issue whether the award of general damages was in error, it would be fitting to first consider the statement made in the appellants’ submissions that the trial court failed to consider their written submission. My response is that there is no basis for making that submission. The trial court indeed and very clearly mentioned in the judgment the appellants’ submission and even in that judgment, the trial court put a title “defendants’ submissions”. That submission therefore is rejected.

22. On my consideration of the quantum, I shall be guided by the principle that an appellate court will not disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It needs to be shown that the trial court proceeded on wrong principles or that it misapprehended the evidence in some material respect and hereby arrived at a figure which was inordinately high or low. This was the essence of the holding in the case of Jackson Kiao Kivuvav. Penina Wanjru Muchene(2019) eKLR as follows:-“The court further makes reference to the case of Gicheru v Morton And another (2005) 2 KLR 333 where the Court stated:-‘In order to justify reversing the trial judge on the question of the amount of it was generally necessary that the Court of Appeal should be convinced either that the judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of the court, an entirely erroneous estimate of the damage to which the appellant was entitled.’”

23. The award of damages is an exercise of discretion. It is indeed not an easy task. This was recognized in the case of Mary Wambui Mugnaiv. Antony Githinji Kihuga.

24. I have considered the authority provided by the appellants that is the case of Joseph Mwangi Thuitav. Joyce Mwole (2018) eKLR. The injuries suffered in that case cannot be compared to the injuries suffered by Nicholas. They were less severe. In the case of Francis Kagunda Mwangiv. Samuel Ngugi & 2others(2017) eKLR the judge upheld the trial court’s award in general damages but did not state how much that award was. That case relied upon by the appellant does not assist me.

25. Bearing in mind the award of quantum of the trial court, I find no reason to interfere with the same. The trial court after considering cases cited by both parties stated in respect to quantum:-“However, taking into account the inflationary trend, nature of the injuries and general trends of awards, based on such similar injuries, I am of the humble opinion that an award of Kshs 1,800,000 would adequately compensate him. I hereby do award him the said sum as general damages for pain, suffering and loss of amenities.”

26. I uphold the trial court’s award.

27. The last issue to consider is whether Nicholas ought to have been awarded loss of future earning capacity. The trial court declined to award Nicholas on this head because, as trial court stated, he had not pleaded it.

28. Nicholas filed an amended plaint before the trial court and in that amended plaint, he inserted the prayer for “loss of future earning capacity.” That prayer was therefore there. The trial court erred to state it was not pleaded.

29. The question however that needs to be answered is did Nicholas prove that claim? But before responding to that question, it needs to be stated that Nicholas in making that prayer for loss of future earning capacity, mixed up the heads of his prayer. There are clearly two heads of prayers; that is, loss of earning capacity and loss of future earnings. Loss of earning capacity results from loss of the potential to earn income. While loss of future earnings is measured by the actual earnings that a claimant will lose. To prove loss of earning capacity, the claimant needs to prove an injury which impairs his/her ability to do broad categories of work and that the claimant’s ability to earn has been diminished.

30. Nicholas’ prayer is therefore a mix-match because he prayed for loss of future earning capacity. He relied on a letter written by his employer, Mediamax Network Limited dated October 30, 2019, terminating his employment. That letter in its opening paragraph stated:-“We write further to our notice of intention to declare redundant the positions within Mediamax Network Limited dated September 30, 2019. We regret to advise that as a result, your position has unfortunately been declared redundant.”

31. That letter proceeded to calculate dues payable by Nicholas. There is no hint in that letter, that Nicholas had his employment terminated because of the injuries he suffered he suffered.

32. Nicholas admitted in his evidence his termination of employment was due to redundancy. This is what he stated in evidence:-“I was admitted at Aga Khan for 2 weeks and I was moving with wheel chair for eight weeks and I lost my job due to redundancy. ...I pray for compensation for injuries and I lost my work and I cannot lift heavy objects.”

33. The doctor’s report did not indicate that Nicholas had lost capacity to earn. There is no proof of his ability to earn an income. In the case Mary Wambui Mungai (supra) the court stated thus:-“32. In Cecilia W. Mwangiand another vRuth W Mwangi Nyr CA Civil Appeal No 251 of 1996 [1997] eKLR, the Court of Appeal held that:“Loss of earnings is a special damage claim. It must be specifically pleaded and strictly proved. The damages under the head of “loss of earning capacity” can be classified as general damages but these have also to be proved on a balance of probability.” 33. Similarly, in the case of Douglas Kalafa OmbevavDavid Ngama [2013] eKLR, the Court of Appeal held that:-

Loss of earnings is a special damage claim, and it is trite law that special damages must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically’”.

34. Nicholas did not prove his loss of earning capacity. The trial court was correct in not awarding damages under this head.

35. In the end, both the appeal and cross appeal fails.

DISPOSITION 36. The judgment of this court is that the appellant’s appeal and also the respondent’s cross appeal fail. The trial court’s judgment is upheld.

37. Each party will bear its own costs.

JUDGMENT DATED AND DELIVERED AT KIAMBU THIS 6TH DAY OF OCTOBER, 2022. MARY KASANGOJUDGEIn the presence of:-Coram:Court Assistant:- MouriceFor Appellant: Mr. MahuguFor the Respondent :- Mr. Lugama HB GichehaCourtJudgment delivered virtually,MARY KASANGOJUDGE