December alias Dorcus Muthina Ndeto & another v Januaris & another [2023] KEHC 27077 (KLR)

December alias Dorcus Muthina Ndeto & another v Januaris & another (Civil Appeal 234 & 232 of 2019 (Consolidated)) [2023] KEHC 27077 (KLR) (Civ) (8 December 2023) (Judgment)

Neutral citation: [2023] KEHC 27077 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 234 & 232 of 2019 (Consolidated)

JN Njagi, J

December 8, 2023

Between

Dorcus Muthina December alias Dorcus Muthina Ndeto

Appellant

and

Munywoki Januaris

Respondent

As consolidated with

Civil Appeal 232 of 2019

Between

Munywoki Januaris

Appellant

and

Dorcus Muthina December alias Dorcus Muthina Ndeto

Respondent

(Being an Appeal from the judgment and decree of Hon. I. Orenge, SRM, in Milimani CMCC No. 2381 of 2017 delivered on 26/3/2019)

Judgment

1. There are two appeals in this matter, Nos.234 and 232 of 2019, all of which emanate from the judgment and decree of Hon. Orenge, SRM, in Milimani CMCC 2381 of 2017 delivered on 26th March 2019. The two appeals were consolidated during the hearing of the appeal.

2. The brief facts of the case are that the appellant in Appeal No. 234 of 2019 (herein referred to as the appellant) sued the Defendant (herein referred as the respondent) in civil case number 2381 of 2017 seeking both general and special damages for injuries she sustained as a result of a road traffic accident which occurred on the 13/09/2014. It was the case for the Appellant that she was at the time of the accident travelling as a lawful passenger in motor vehicle registration number KBZ 861R along Ngong Road when the respondent/his driver negligently controlled motor vehicle registration number KBZ 861R causing the vehicle to lose control and collide with motor vehicle registration number KBC 055Y whereby the appellant received serious injuries. After conducting a hearing, the learned trial magistrate found the respondent/defendant 100% liable for the accident and awarded the appellant general damages at Ksh. 350,000/=.

3. The appellant in appeal No. 234 of 2019 being dissatisfied by the award of general damages preferred this appeal vide the memorandum of appeal dated 24th April 2019 where she raised the following grounds:(1)That the learned trial magistrate erred in fact and in law by failing to give a concise statement of the case, points of determination, decision thereon and reasons for his judgment.(2)That the learned trial magistrate erred in fact and in law by awarding the sum of Kshs.350, 000/= on general damages which is inordinately little and unrealistic in the circumstances against the injuries sustained by the appellant.(3)That the learned trial magistrate erred in law and in fact in failing to consider both the appellant`s and respondent`s submissions who had given reasonable proposals on general damages and thereby ignoring relevant guiding facts to reach a fair and reasonable determination.(4)That the trial magistrate erred in law and in fact by applying wrong and inapplicable principal of law in civil case and which did not form any basis to warrant her determination n general damages.

4. The respondent was also dissatisfied with the judgment and filed Civil Appeal No. 232 of 2019 vide a memorandum of appeal dated 25th April 2019 where he raised one ground of appeal as follows:That the learned trial magistrate erred in law and fact in awarding general damages that were manifestly excessive, which were not in line with the evidence on record which were against the tenor, spirit and principles of awarding general damages and incompatible with recent decided authorities.

5. It is clear from the two memorandums of appeal that the appeal is only on issue of quantum of damages. The appeal was canvassed by way of written submissions.

Appellant’s Submissions 6. According to the appellant, the issue for determination is whether the trial magistrate erred in law and in fact by awarding quantum of general damages and whether the trial court applied proper principles and precedents as required by law.

7. In submitting on the role of the first appellate court, the appellant cited the case of Ratilal Gova Sumaria & another Vs Allied Industries Limited [2007] eKLR where it was held that the duty of a first appellate court is to reconsider the evidence, re-evaluate it and make its our own conclusions, but remembering that it has neither seen nor heard the witnesses.

8. The appellant submitted that the trial magistrate erred by awarding general damages that were manifestly low noting the evidence tendered during trial. She particularized the injuries sustained as a deglolving injury on the right foot whereby she underwent several skin grafting procedures which resulted in wasting muscles which in turn led to shortening of her leg.

9. The appellant proposed an award of Ksh. 1,200,000/=. She relied on the case of Wycliffe Lumula M'masivs Ernest Waithatka & another [2020] eKLR where the court awarded Kshs. 800,000/= to a claimant who had sustained extensive deglolving injury on the right foot and extensive skin loss. The appellant also cited the case of Kiru Tea Factory & Another Vs Peterson Watheka Wanjohi [2008] eKLR where the High Court upheld an award of Ksh. 800,000/= for degloving injury on the right hand with extensive skin and muscle loss on the forearm and general pains. The appellant urged the court to consider inflation rates since the above-cited decisions were rendered.

10. Counsel for the appellant argued that the injury has cosmetic significance for the rest of the appellant’s life and therefore that the same should be taken into consideration in awarding damages.

Respondent’s Submissions 11. The respondent submitted that the discretion in assessing general damages will only be disturbed if the trial court took into account an irrelevant factor or failed to take into account a relevant factor or that the award is so inordinately high that it must be wholly erroneous estimate of the damages or that it was inordinately low.

12. The respondent argued that the learned magistrate findings on quantum was supported by facts and law hence regular. He further argued that the award by the trial court was in tandem with the injuries suffered by the appellant.

13. The respondent submitted that an appellate court should only interfere with the finding of the trial court if the said decision is founded on wrong legal principles. He cited the case of Power Lighting Company Ltd & Another vs Zakayo Saitoti &Another [2008] eKLR.

Analysis and Determination 14. In assessing the award for general damages, the usual approach is that an appellate court will not interfere with an award of damages by the trial court unless the appellant can prove that the trial court applied the wrong principles or misapprehended the evidence and so arrived at a figure that was so inordinately high or low as to represent an erroneous estimate. This approach was adopted in Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30 where it was held that:“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”

15. The same court stated in Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] I KAR 5 that:“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”.

16. The general method of assessment of damages is that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases -see- Denshire Muteti Wambua Vs Kenya Power & Lighting Co. Ltd (2013) eKLR.

17. The appellant proposed an amount of Ksh.1, 200,000/= for general damages for pain, suffering and loss of amenities. She relied on the case of Wycliffe Lumula M'masi v Ernest Waithatka & another (supra) and the case of Kiru Tea Factory & Another v Peterson Watheka Wanjohi [2008] eKLR.

18. At the lower court the appellant had relied on the case of P.N. Mashru Limited v Omar Mwakoro Makenge (2018) eKLR where Ksh. 1,200,000/= was awarded for loss of consciousness, fracture of the femur distal third, fracture of the temporal bone with heamatoma, head injury to the right frontal parietal bone with brain oedema and left subdural heamotama. The injuries had left the respondent with memory loss and five (5%) percent incapacity on the limbs.

19. On the other hand, the respondent had at the lower court cited the case of Al Samah Enterprises & Abubakar I Omar vs DM minor suing thr` mother & next friend) CGK (2016) & Another [2016] eKLR where the court upheld an award of Ksh. 400,000/= for degloving injuries measuring 25 x 5 centimetres and extending between the right knee and the leg which were expected to heal with 10% disability due to scaring on the right leg and thigh.

20. According to the medical report of Dr. Mutunga, the appellant herein had sustained a degloving injury on the right foot as a result of which several skin grafting procedures were done resulting in wasting of muscles leading to a deformed foot and shortening of the leg due to the deformity. The report further indicated that the appellant was left with ugly scars on the foot and was walking with a limping gait.

21. I have looked at the authorities relied on by the parties. In Kiru Tea Factory & Another v Peterson Watheka Wanjohi that was cited by the appellant the claimant had sustained degloving injury on the right hand with extensive skin and muscle loss on the forearm, fractures of the radius and ulna bones, fracture of the right iliac bone in the pelvis and generalized pains over most of the chest but without any fractures, indicating soft tissue injuries. Ksh. 800,000/= was awarded. It is obvious that the injuries in that case were more severe than those sustained by the appellant in this matter.

22. In Wycliffe Lumula M'masi v Ernest Waithatka & another [2020] eKLR, that was cited by the appellant, the court upheld an award of Ksh. 700,000/= in general damages for extensive degloving injury on the right foot and extensive skin loss on the right foot.

23. In Al Samah Enterprises & Abubakar I Omar vs DM minor suing thr` mother & next friend) CGK (2016) & Another [2016] eKLR that was relied on by the respondent the court upheld an award of Ksh. 400,000/= for degloving injuries measuring 25 x 5 centimetres and extending between the right knee and the leg which were expected to heal with 10% disability due to scaring on the right leg and thigh.

24. I have noted that the appellant in this case suffered injuries that left her with a deformed foot and a shortened leg. The trial magistrate did not seem to have taken this into consideration when he awarded the sum of Ksh. 350,000/=. The court failed to consider a relevant factor in the case which is sufficient reason for this court to interfere with the award.

25. I have considered the injuries sustained in the case of Al Samah Enterprises & Abubakar I Omar vs DM that was cited by the respondent and note that there was no deformity of the leg as was the case for the appellant herein. I am of the view that the injuries in the case of Wycliffe Lumula M'masi v Ernest Waithaka & another (supra) compared well with the injuries suffered by the appellant herein. I consider a sum of Ksh 700,000/= to be fair compensation for the injuries sustained by the appellant herein.

26. The upshot is that the appeal in Civil Appeal No.234 of 2019 is allowed and the award of Ksh. 350,000/= is set aside and substituted with one of Ksh.700,000/=. The appeal in Civil Appeal No.232 of 2019 is on the on the hand dismissed. The appellant in Civil Appeal No. 234 of 2019 to have the costs of the consolidated appeals.Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 8TH DAY OF DECEMBER, 2023. J. N. NJAGIJUDGEIn the presence of:1. Miss Muya for Appellant2. Mr. Muthomi for Respondent3. Court Assistant – Amina30 days right of appeal.