[2023] KEHC 26503 (KLR)

Warugongo v Kenya Industrial Research Development Institute (Civil Appeal 266 of 2019) [2023] KEHC 26503 (KLR) (Civ) (15 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26503 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 266 of 2019

AN Ongeri, J

December 15, 2023

Between

Salome Wambui Warugongo

Appellant

and

Kenya Industrial Research Development Institute

Respondent

(Being an appeal from the judgment and decree of Hon. L. GICHEHA (CM) in Milimani CMCC No. 114 of 2017 delivered on 26/4/2019)

Judgment

1. The appellant filed Milimani CMCC no. 114/2017 seeking general damages and special damages from injuries the appellant sustained on 30/1/2015 while travelling in motor vehicle registration no. KAR 370C along Nairobi-Mombasa road, when the said motor vehicle was hit from the rear by motor vehicle registration no. KBN 298E.

2. The driver of KBN 298E was charged in court. The Trial Court found the driver of motor vehicle KBN 298E (the defendant’s driver) to blame for the accident.

3. The trial court held the defendant 100% liable in negligence.

4. The trial court assessed general damages at ksh.950,000. She found that future medical expenses were not pleaded and the same was not payable.

5. The appellant has appealed against the said judgment on the following grounds;i.That the learned trial magistrate erred in law and fact in making an award of general damages which was manifestly low in the circumstances of the case.ii.That the learned trial magistrate erred in law and fact in failing to award the appellant damages for future medical expenses.iii.That the learned trial magistrate erred in law and fact when she failed to appreciate that damages for future medical expenses were pleaded and proved in the trial through a medical report.

6. The parties filed written submissions as follows; the appellant submitted that a report by Dr. Felix Musili indicated that the appellant sustained injuries on 30/1/2015 and observed that after 20 months, the appellant had difficulty with working, there was shortening of the limb with tenderness in the entire limb, there was an extensive tear in the lateral aspect of the ankle joint with flexion deformity and there was marked swelling and reduced ankle joint movements.

7. According to the Dr. Felix Musili the appellant underwent five operations and she was to use special shoes for the rest of her life due to shortening of the left leg and would require a reconstruction surgery in the ankle joint at an estimated cost of Kshs. 1,000,000. The appellant would also require further admission and surgery and further had to continue with physiotherapy.

8. There was a further report by Dr Wambugu who examined the appellant on 16/8/2017 more than two and a half years after the accident. In it he observed that Appellant had sustained crush injury on the left foot, fractures involving calcaneal bones, fracture of the tarsal bones, fracture of the left femur —shaft and fracture of left femur-neck. He awarded the appellant 18% as degree of permanent incapacitation. He also opined that the metal implants will need to be removed at an estimated costs of Kshs. 120,000 at Kenyatta Hospital.

9. The appellant argued that from the evidence on record she suffered debilitating injuries and that the trial court failed to consider how long she remained in hospital, the additional surgeries she is expected to undergo to remove the implants, pain and suffering, loss of amenities and loss of earning capacity which were occasioned by the said injuries. The award of Kshs. 950,000 for general damages was manifestly low in the circumstances and proposed the amount of Kshs. 4,000,000 as sufficient compensation.

10. The respondent submitted that the trial court was correct in its award for damages and in support the respondent cited Francis Maina Kahura v. Nahashon Wanjau Muriithi [2015] eKLR, where the appellant challenged an award of Kshs. 850,000 as damages. The respondent had suffered a segmental fracture of the mid-shaft right femur and a cut wound on the right knee. He was admitted for about almost three months. The fracture united leaving a surgical scar of 8x6cm on the right leg which was shortened by 2cm. The trial court awarded him Kshs. 850,000 as general damages. The court after hearing the appeal found this award to be inordinately high and reduced the award to kshs. 500,000.

11. On failing to award the appellant damages for future medical expenses the respondent argued that it is well established that a party is bound by its pleadings. It is also a well set out position in litigation that a court hearing a case cannot award a prayer or relief that has not been sought by a party and set out in the prayers in the plaint.Despite the Appellant having been put on notice of this fact through the submissions, and despite having the chance to amend her plaint to include a prayer for special damages and/or future medical expenses, she chose not to do so.

12. This being a first appeal, the duty of the first appellate court is to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether to support the findings of the trial court while bearing in mind that the trial court had the opportunity to see the witnesses.

13. In the case of Selle –Vs- Associated Motor Boat Co. [1968] EA 123 it was held as follows;“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An 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 allowance in this respect.”In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”

14. The issues for determination in this appeal are as follows;i.Whether the awarded general damages were manifestly low.ii.Whether the award of future medical expenses were pleaded and proved.

15. On the issues whether the award of general damages were manifestly low as to warrant interference by this court, I have noted the appellant sustained the following injuriesa.Fracture to the left femur shaftb.Fracture to the left femur neckc.Fracture to the left calcaneal and tarsal bonesd.Crush of the left foote.Shortening of the left legf.Sinus of the left ankle

16. I have considered the following authorities which are comparable;a.In the case of Godfrey Wamalwa Wamba & another vs. Kyalo Wambua [2018] eKLR, where the appellant sustained a compound fracture of the right distal tibia/fibula, cut wounds on the scalp and chest and a cut on the lower lip, he was in hospital for three weeks, he underwent surgery for repair of the fibula. The doctor testified that his leg had shortened and needed corrective surgery. The trial court awarded him general damages at Kshs. 700, 000. 00, which the appellate court upheld.b.In the case of David Mutembei v Maurice Ochieng Odoyo [2019] eKLR, the respondent suffered injuries of a fracture of the right femur and a proximal fracture of the left tibia and was awarded general damages of Kshs. 1, 600, 000 but had the same reduced on appeal to Kshs. Kshs. 800, 000c.In the case of Joseph Mwangi Thuita v Joyce Mwole HCCA No. 177 of 2011 [2018] eKLR. The plaintiff in that case had sustained fractures of the right femur, compound fracture (r) tibia, compound fracture right fibula, shortening right leg and episodic pain (r) thigh with inability to walk without support. He was awarded Kshs. 700,000/=.

17. I find that the award of ksh.950,000 is manifestly low. I enhance it to ksh.1,500,000.

18. On the issue as to whether future medical expenses were specifically pleaded. I find that the same were pleaded in paragraph seven (7) of the plaint.

19. The doctor who testified as PW 2 said the appellant had screws and plates in situ which required to be removed.

20. PW 2 also said the appellant required reconstruction surgery at a cost of kshs.1,000,000.

21. I award ksh. 1 million in respect of construction surgery.

22. I award general damages as followsGeneral damages for pain & suffering 1,500,000Future medical expenses 1,000,000Total 2,500,000

23. The trial court’s judgment be and is hereby set aside and replaced with judgment in favour of the appellant against the respondent in the sum of ksh.2,500,000 plus costs and interest from the date of the trial court’s judgment until payment in full.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 15TH DAY OF DECEMBER, 2023. ………….…………….A. N. ONGERIJUDGE