[2023] KEHC 24269 (KLR)

Wanyama v Nyongesa (Civil Appeal E53 of 2022) [2023] KEHC 24269 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24269 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal E53 of 2022

REA Ougo, J

October 24, 2023

Between

Aban Wanyama

Appellant

and

Simon Juma Nyongesa

Respondent

(Being an appeal from the judgment and decree of Hon. A. Adawo delivered on 4/7/2022 in Bungoma CMCC NO 353 of 2019)

Judgment

1. This is an appeal on quantum. According to the respondent in his plaint before the subordinate court, on 21st August 2017 he was riding a motorcycle registration no. KMDR 670M along Musikomba Nambacha Murram road at Sangalo area when the appellant’s motor vehicle registration no. KBV 832M lost control knocking down the motorcycle and as a result, the respondent sustained serious injuries. The injuries sustained by the respondents were compound fracture right mid tibia and fibular, fracture of the femur, bruises on the head and bruises on the right hand. The respondent sought general damages, special damages, cost for further medical treatment, cost of the suit and interest.

2. The appellant filed his amended statement of defence denying the respondent’s claim. He also pleaded in the alternative without prejudice That if any accident occurred the same was wholly contributed to by the negligence on the part of the respondent while riding his motorcycle. They also denied the applicability of the doctrine of res ipsa loquitor.

3. After a full hearing the trial court found That the respondent sustained a fracture of the right tibia and fibular and a fracture of the right femur. The trial magistrate assessed liability in the ratio of 50:50 and found That a sum of Kshs 1,200,000/- was sufficient compensation for general damages. She awarded future medical expenses of Kshs 150,000/- and special damages of Kshs 102,000/-, cost of the suit and interest at court rates.

4. The appellant dissatisfied with the finding of the trial magistrate has preferred this instant appeal on the following grounds:1. That the learned magistrate erred in law and in fact in adopting the wrong principles in making a determination as to the damages payable to the respondent thereby arriving at an erroneous decision.

2. That the learned trial magistrate erred in law and in fact in failing to take into account the medical documents and in particular the 2nd medical report in making a determination as to the damages payable thereby arriving at an excessive amount in damages.

3. That the learned trial magistrate erred on law and fact by failing to take into consideration and/or be guided by relevant authorities and/or precedents with comparable injuries like the ones sustained by the respondents thereby arriving at an excessive amount payable for general damages.

Analysis and Determination 5. The appeal was canvassed by way of written submissions and both parties have filed their respective submissions. I have carefully considered the submissions by parties and the main issue for determination in this appeal is whether the trial court made an excessive award of damages. The assessment of damages is a discretion That an appellate court will not lightly interfere with unless the award is inordinately high or low as to represent an entirely erroneous estimate; it is shown That the court proceeded on wrong principles, or That it misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low. (See Butt v Khan Civil Appeal No. 40 of 1977 [1978] eKLR).

6. The appellant in his submissions did not challenge the injuries sustained by the respondent. He however submitted That an award of Kshs 500,000/- would be adequate compensation for the injuries sustained. He relied on the case of Joseph Mwangi Thuita v Joyce Mwole (2018) eKLR where the court awarded Kshs 700,000/- as general damages to a plaintiff who fractured his right femur, sustained a compound fracture of tibia/fibula, had a shortened right leg causing him to be incapable of walking without support. In That case disability had been assessed at 30%. In Tirus Mburu Chege & Another v JKN & Another [2018] eKLR the court reduced the award of Kshs 800,000/- to Kshs 500,000/- for the plaintiff who sustained a fracture of the tibia and fibula on both legs. The appellant contends That the trial magistrate failed to take into consideration the principle That comparable injuries ought to attract comparable awards to ensure uniformity and correctness of awards. The trial magistrate therefore proceeded on wrong principles of law thereby awarding a figure That was inordinately high.

7. The respondent on the other hand submits That Kshs 1,200,000/- is very reasonable and urged the court to dismiss the appeal. In George William Awuor v Beryl Awuor Ochieng [2020] eKLR the respondent suffered fracture of the tibia and fibula as well as a fracture of the femur and the court awarded her Kshs 1,200,000/-. In Francis Ndungu Wambui & 2 Others v Benson Maina Gatia Embu HCCA No 61 of 2017 the respondent suffered compound fracture of distal tibia and fibula as well as loss of consciousness and the lower court award of Kshs 1,000,000/- was upheld. The respondents contends That the award of Kshs 1,200,000/- is reasonable.

8. The factors That a court considers in determining the award to give in damages include the nature and extent of the injuries, the awards made for comparable injuries as well as inflation rates. A court must however bear in mind That no two cases are exactly the same. In the case of Stanley Maore vs Geoffrey Mwenda Nyeri CA No. 147 of 2002 the Court of Appeal had the following to say on the assessment of general damages;“It has been stated now and again That in assessment of damages, the general method of approach should be That comparable injuries should as far as possible be compensated by comparable award keeping in mind the correct level awards in similar cases.”

9. It is not in dispute That the respondent sustained compound fracture right mid tibia and fibular, fracture of the femur and soft tissue injuries. In Martin Mwirigi Mbaya & another v Abdulrahman Salim Mwakumbuko [2022] eKLR the Respondent sustained fracture at the right femur and soft tissue injuries and was awarded Kshs 1,000,000/-. In this case, other than a fractured femur, the respondent also sustained compound fracture of tibia and fibula. In my view, the respondent having also sustained a compound fracture of the tibia and fibula an award below Kshs 1,000,000/- is inconceivable. Therefore, the award of Kshs 500,000/- as proposed by the appellant is too low. Although the appellant relied on the case of Joseph Mwangi Thuita v Joyce Mwole HCCA No. 177 of 2011 [2018] eKLR where the plaintiff therein sustained similar injuries with those of the respondent herein, the decision is 5 years old and a little bit dated and would not take into account the rate of inflation. The case of George William Awuor v Beryl Awuor Ochieng (2020) eKLR has comparable injuries to those sustained by the respondent herein. The respondent in George William Awuor v Beryl Awuor Ochieng (supra)suffered tibia fibula fractures which were compound while the femur fracture was simple and was awarded Kshs 1,200,000/-. It is my considered view That the award by the trial court cannot be faulted.

10. On the issue of special damages, the appellant submits That the respondent did not adduce any receipt used in obtaining the P3 form and That the National Health Insurance Fund was used to offset the medical Bills. The respondent did not therefore incur any medical expense. In any event the trial court made an award of Kshs 102,000/- for special damages yet the respondent had only pleaded for an award of Kshs 96,000/-. The respondent maintains That special damages was duly proved and properly awarded by the trial court.

11. I have carefully evaluated the amended plaint and note That the respondent at paragraph 5 (c) listed the particulars of special damages as follows:a.Medical expenses 91,000b.Medical Report 3,000c.Filling P3 Form 2,50096,500/-d.Cost of Further treatment and medical care 150,000/-

12. Special damages pleaded with the exception of the future medical costs amounted to Kshs 96,500/- and there was no basis for the trial magistrate to award Kshs 102,000/- as special damages. According to the Final Summary Invoices printed on 24/01/2018 by Friends Lugulu Mission Hospital, the total bill was Kshs 139,910/- and the same was settled by NHIF, this bill included Kshs.91,000/- pleaded as special damages. The Court in John Mwangi Munyiri & another v Paul Wachira Njuguna [2020] eKLR in considering whether the respondent therein was entitled to special damages where the hospital bill had been settled by NHIF stated as follows:“Whether the respondent was entitled to the special damages of Kshs.111,255/-. In the plaint, the respondent claimed special damages of Kshs.111,455 and further medical expenses of Kshs.12,215/-. I agree with counsels submission That the Respondent having admitted That Kshs.107,800/- which he incurred in medical expenses for treatment and admission, were paid by NHIF, just like any monies paid by any insurance, the respondent could not be compensated for it again. Section 43 of NHIF Act provides as follows“Recovery of compensation or damages where a contributor to the Fund is entitled, whether under the Workmen’s Compensation Act (Cap.236) or otherwise, to recover compensation or damages in respect of any injury or illness, he shall not, to the extent to which such compensation or damages are recoverable, be entitled to any benefits in respect of any treatment undergone by him as a result of such injury or illness, and any benefits paid in respect of such treatment, shall to the extent to which such compensation or damages have been recovered, be repaid to the Board: Provided That the payment of any benefits as aforesaid shall not preclude the right of the contributor to recover any compensation or damages.”It follows That if any sums paid by the Fund to the hospital were again paid to the respondent as compensation, then it is recoverable by the Fund. The respondent was therefore not entitled to claim the Kshs.107,800/- which had been paid to the Hospital by NHIF. It would amount to unjust enrichment to claim it.”

13. The respondent cannot claim for the monies paid by NHIF towards his medical bill and this would amount to unjust enrichment. The respondent also availed a receipt in which he paid Kshs 6,000/- towards obtaining a medical report, however, in his plaint he pleaded That he spent Kshs 3,000 for the medical report. It is trite law That special damages must be specifically pleaded and proved thus the respondent is awarded Kshs 3,000/- as per his plaint. There was no evidence That Kshs 2,500/- was paid towards obtaining a P3 Form. In That regard, the plaintiff is awarded Kshs 3,000/- as special damages.

14. On future medical expenses, the appellant submits That Dr. Gaya did not indicate That the plaintiff was in need of any further medical treatment. The respondent conceded That Dr. Gaya was silent on the removal of the implant, however, the said doctor confirmed That the right ankle joint had an implant flexion. However, Dr. Sokobe in his medical report confirmed the implant removal at Kshs 150,000/-. The respondents urged the court to hold That future medical expenses were properly proved.

15. In the report by Dr. Sokobe, it was noted That the respondent would require further treatment (i.e., removal of implants) at an estimated cost of Kshs. 150,000/-. The report by Dr. Gaya notes That on the lower leg fracture, the respondent was treated by external fixation and when this failed, he underwent internal fixation. Therefore, the opinion by Dr. Sokobe That the respondent would require further treatment for the removal of implants is well founded when read together with the notes in Dr. Gaya’s report. In my view therefore, respondent proved That he will incur future medical costs of Kshs 150,000/-.

16. In the end, the appeal is partially successful to the extent of special damages. The respondent will have judgment made up as follows:a.General damages Kshs 1,200,000/- less 50% contribution (Kshs 600,000/-)b.Special damages Kshs 3,000/-c.Future medical expenses Kshs 150,000/-Total Kshs 753,000/-

17. The appeal having been partially successful, the appellant is awarded 30% of the cost of the appeal. Orders accordingly.

DATED, SIGNED, AND DELIVERED AT BUNGOMA THIS 24TH DAY OF OCTOBER 2023. R.E. OUGOJUDGEIn the presence of:Miss Orikodi - For the AppellantMr. Bwonchiri h/b Mr. Mwebi - For the RespondentWilkister - C/A