[2023] KEHC 23375 (KLR)

Wanjohi v Kuria & another (Civil Appeal E120 of 2021) [2023] KEHC 23375 (KLR) (6 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23375 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E120 of 2021

A Mshila, J

October 6, 2023

Between

Jacinta Wanjiru Wanjohi

Appellant

and

John Kibathi Kuria

1st Respondent

Perminus Kagunda

2nd Respondent

(Being an appeal from the Judgment of Hon. G. Onsarigo (PM) delivered on 10th June, 2021 in Civil Case No. 67 of 2018 at Kikuyu)

Judgment

Background 1. By a Plaint filed on 12th March, 2018 the Appellant herein prayed for judgment as against the Respondents jointly and severally for special damages of Kshs. 131,127/=, damages for lost income, future medical costs of Kshs. 120,000/=, general damages for pain and suffering and costs and interest from the date of filing suit.

2. The Appellant sued for injuries that she sustained on or about 11th January, 2016 when she was a lawful passenger in Motor vehicle Registration number KAR 076U which was travelling along the Wangige-Kikuyu Road when the 2nd Respondent so negligently drove the 1st Respondent’s motor vehicle registration number KBG 875K that he caused it to ram violently into motor vehicle registration number KAR 076U.

3. The 1st and the 2nd Respondents filed their Defences denying any liability for the accident. In particular, they blamed the Appellant and the driver of motor vehicle registration number KAR 076U.

4. The matter proceeded to a full hearing. At the conclusion of the trial, the Honourable Trial Magistrate found the 1st and the 2nd Respondents jointly and severally liable for the accident. On quantum, the Honourable Trial Magistrate entered judgment as follows:a.General damages………………………………….Kshs.700,000/=b.Future medical costs……………………………....Kshs.120,000/=c.Incidental costs…………………………………….Kshs.131,127/=Kshs.951,127/=*Plus costs and interest of the suit

5. The Appellant being dissatisfied with the lower Court’s judgment has preferred the present Appeal. In her Memorandum of Appeal, she has listed three grounds of appeal as follows:a.THAT the Learned Magistrate misapprehended the factual and medical evidence on the nature, extent and effect of the Appellant’s injuries and therefore made a disproportionately low assessment of general damages.b.THAT the Learned Magistrate completely ignored the Appellant’s submissions on the nature, extent and effect of the Appellant’s injuries and therefore made a disproportionately low assessment of damages.c.THAT the Learned Magistrate misapprehended the legal principles and guidelines set for the award of damages and therefore made a disproportionately low assessment of general damages.

6. The court directed the parties to canvass the appeal by way of written submissions.

Appellant’s Submissions. 7. The Appellant submits that her appeal is only against the quantum of general damages which she submits are so inordinately low as such the same should be interfered with. She relied on the case of Kemfro Africa Limited t/a Meru Express Services (1976) & another vs Lubia & another (No.2) (1985) eKLR. It was submitted that according to Dr. Wokabi’s medical report and the P3 form the Appellant sustained fractures of both inferior pubic ramii of the pelvis, fracture of the left tibia, blunt impact injuries to the chest, back and pelvis, multiple cuts to the left shin and massive swelling and scarring of the left shin. The degree of permanent incapacitation was assessed at 20%. She submitted that she was admitted in hospital on 11/1/2016 and discharged on 19/2/2016 but continued to attend physiotherapy sessions until June 2017. The Respondents filed a medical report prepared by Dr. Modi where the doctor confirmed that the Appellant had sustained a fracture to the left tibia, fractures bilateral inferior ramii and back soft tissue injury. The degree of permanent incapacitation was assessed at 15%. The doctor also noted that there was a decrease in mobility of the ankle and that the fracture rendered the Appellant prone to developing arthritis. The Appellant submitted that her injuries were comparable to the injuries sustained by the Plaintiff in Peace Kemuma Nyang’era vs Michael Thuo & another (2014) eKLR where the Plaintiff therein suffered a fracture of the sacrum bone, fracture of the right superior pubic ramus of the pubic bone, fracture of the right ischium/inferior pubic ramus of the pelvic bone, haematoma on both thighs and lumbo-sacral haematoma. Further in Meru HCCA No. 79 of 2017 Purity Kauri vs Jacob Kirari & Josphat Mwiti Kirari (consolidated with HCCA NO. 78 AND 80 OF 2017) the Appellant therein sustained multiple scalp cuts, mild head injury, fracture mid shaft femur, massive blood loss and multiple cuts on the left hand and knee. Mabeya J. enhanced the award of Kshs. 1,000,000/= to Kshs. 1,500,000/=. Lastly the Appellant relied on the case of P W vs Peter Muriithi Ngari (2017) eKLR wherein the Appellant sustained a fracture of the left femur which was fixed with a metallic plate, a fracture of the left fibula and tibia malleoli which was fixed with K-wires and plates and blunt injuries to the pelvis causing fractures of the pelvis with 20% disability. The award of Kshs. 600,000/= was replaced with Kshs. 1,600,000/=. In the circumstances, the court was urged to make an award of Kshs. 3,000,000/= in place of Kshs. 700,000/=,

Respondents’ Submissions 8. The Respondents submit that the trial court did not err in awarding general damages of Kshs. 700,000/= as the court took into consideration all the principles of awarding damages. It was submitted that the medical report confirmed the fractures of pubic ramii, fracture of left tibia and blunt injuries to the chest, back and pelvis with the doctor stating that the fractures had united well. Disability was assessed at 20%. The defence produced a report where disability was assessed at 15%. The Respondents submitted that the appellate court will only interfere with an award of damages in cases where the award is high or low as to represent an erroneous estimate. Reliance was placed in the case of Gitobu Imanyara & 2 others vs Attorney General (2016) eKLR. The trial court was said to have considered the submissions that highlighted comparable injuries that would attract comparable awards. Reliance was placed on the case of Odinga Jacktone Ouma vs Moureen Achieng Odera (2016) eKLR. The trial court was urged to maintain the award of general damages. in the case of Mwavita Jonathan vs Silivia Onunga (2017) eKLR where the Plaintiff sustained a fracture at the hip joint and had insertion of surgical plates and screws and disability had been assessed at 85%, an award of Kshs. 1,000,000/= was reduced to Kshs. 400,000/=. Also in the case of Eldoret Steel Mills Limited vs Elphas Victor Espila (2013) eKLR where the Plaintiff suffered subtranteric fracture of the right femur and metatarsal bones of right foot, soft tissue injuries to the right arm, right hip, right thigh and right foot. Disability was assessed at 35%. General damages were assessed at Kshs. 300,000/=. The court was urged to dismiss the appeal and maintain the lower court’s award.

Trial Court’s Evidence 9. Dr. Washington Wokabi (PW1) a surgeon by profession produced his report dated 8/12/2017 for Jacinta Wanjiru whom he examined. He stated that she was limping but had no permanent injury on the pelvis. He also stated that the permanent disability assessed could be lower. His assessment of future medical expense was based on a private hospital.

10. 70453 Joseph Muthui (PW2) attached to Kikuyu Police Station testified that there was an accident at Kanjeru area which involved motor vehicle registration number KAR 067U matatu and KBG 875 Lorry Mitsubishi. He stated that the lorry rammed into the matatu causing serious injuries to Jacinta Wanjiru. He further, stated that the driver of the said lorry was charged with careless driving and was fined Kshs. 50,000/= in default six months imprisonment. He produced the police abstract.

11. Jacinta Wanjiru Wanjohi (PW3) wished to adopt her witness statement recorded on 7/3/2018. She blamed the driver of KBQ 875K because he was careless as he veered off to their lane. She indicated that she has metal implants in her leg. She prayed for damages. she also prayed for lost income as she used to sell mitumba clothes at Wangie Market where she was earning Kshs. 50,000/=.

12. Perminus Ngugi (DW1) testified that he was driving the accident motor vehicle. He blamed the driver of motor vehicle KAR 067Y as he was driving at a high speed.

Issues For Determination 13. I have read and considered the submissions by both parties and the case law relied upon, the main issue arising for determination is whether the general damages awarded are too low.

Analysis 14. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. 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..."

15. In the case of Butt vs Khan (1977) 1 KAR, the court therein rendered itself and held as follows:-“An Appellate court will not disturb an award for damages unless it is 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.”

16. The Appellant herein suffered fractures of both inferior pubic ramii of the pelvis and fracture of the left tibia, blunt impact injuries to the chest, back and pelvis, multiple cuts to the left shin and massive swelling and scaring of the left shin. Permanent disability was assessed at 20% by Dr. Wokabi. The Appellant was admitted in hospital for about 4o days and continued to attend physiotherapy sessions. The current findings by the doctor for the defence were that the Appellants’ left leg was swollen and 1cm short, there was decrease in mobility of the ankle and that the Appellant was walking with a stick and that the Appellant was prone to arthritis of the left ankle and knee in future. The doctor assessed disability at 15%.

17. The trial court in awarding Kshs. 700,000/= took into consideration the authorities cited by the parties herein, injuries sustained by the Appellant and inflation.

18. At the trial court and on appeal, the Appellant relied on the case of Peace Kemuma Nyangera vs Michael Thuo & another (2014) eKLR where the Plaintiff therein sustained a fracture of the sacrum, a fracture of the right superior pubic ramus of the pelvic bone, haematoma on both thighs and a lumbo sacral haematoma and was awarded Kshs. 2,500,000/=. The Respondents relied on the case of Mwavita Jonathan vs Silvia Onunga (2017) KLR where the Plaintiff had sustained a fracture on the hip joint and had corrective surgery involving insertion of surgical plates and screws and was walking in crutches. Permanent disability was assessed at 85% and the court awarded Kshs. 400,000/=.

19. This court has taken time to peruse all the authorities cited herein by both parties, the authorities cited by the Respondents are way too old and the injuries suffered therein are less serious as compared to the injuries suffered by the Appellant in this case. On the other hand, the cases cited by the Appellant are more comparable apart from the case of Peace Kemuma Nyang’era vs Michael Thuo & another (supra) where the injuries suffered therein are more serious.

20. The Court of Appeal in the case of Stanley Maore v Geoffrey Mwenda (2004) eKLR settled the principles to be applied in assessing damages and stated that:-“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

21. Having considered the evidence adduced in the Trial Court, the written submissions and the authorities relied upon by the parties herein and the nature of injuries suffered by the Appellant, this court finds that the Learned Trial Magistrate applied the wrong principles in failing to take into consideration recent comparable awards and therefore arrived at an erroneous assessment of general damages at Kshs. 700,000/=.

22. This court is satisfied that the award of Kshs.700,000/= for general damages awarded by the Learned Trial Magistrate to the Appellant herein was too low in the circumstances and as such this court is inclined to interfere with the same and to enhance it to Kshs. 1,500,000/=.

Findings And Determinations 23. For the forgoing reasons this court makes the following findings and determinations;i.The appeal on general damages is found to have merit and it is hereby allowedii.The trial court is found to have applied wrong principles of law and made a disproportionately low assessment of general damages.iii.The trial courts judgment on the award for general damages of Kshs.700,000/- is hereby set aside and substituted with an award for Kshs.1,500,000/-iv.The amounts awarded for Future Medical costs and Incidental damages and interest remain unchanged;v.The Appellant shall have costs of this appeal

24Orders Accordingly.

DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 6THDAY OF OCTOBER, 2023A. MSHILAJUDGEIn the presence of;Mourice – Court AssistantNjoroge– For AppellantSaringi – For Respondent