Gabriel Kariuki Kigathi & Godfrey Kimani Njeri v Monica Wangui Wangechi [2015] KEHC 106 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

HCCA NO.  322 OF 2012

GABRIEL KARIUKI KIGATHI……...…......………….1ST APPELLANT

GODFREY KIMANI NJERI …………………………2ND APPELLANT

VERSUS

MONICA WANGUI WANGECHI……………...………  RESPONDENT

JUDGMENT

This appeal arises from the judgment and decree of Honourable B.J. Ndeda, Principal Magistrate passed on 22nd May 2013 in Thika Senior Resident Magistrate’s court Civil suit No. 897 of 2009.  The appellants herein  Gabriel Kariuki  Kigathi  and Godfrey Kimani Njeri  were the 1st and 2nd defendants  in the court below  whereas  the  respondent herein Monicah Wangui  Wangechi  was the plaintiff.

The Respondent  Monicah Wangui Wangechi  sued the  appellants  jointly with one Bolpak Trading  Company Ltd as the  3rd defendant  claiming  that  on  or about the 11th day of December  2008 she was lawfully travelling  as a passenger  along Thika- Nairobi road near  Lewis Hospital in motor vehicle  registration No, KBC  401V Toyota Premio  controlled  by one Godfrey  Kimani Njeri  the 2nd appellant  herein and  owned  by the  3rd defendant  Bolpak Trading Company Ltd  when the  said motor  vehicle  was so negligently recklessly and or carelessly driven at  a high speed  without  any due care, regard  /or attention by the 1st defendant  driver, servant and or agent that  it lost control and veered off the  road and hit a pedestrian  causing  a road traffic  accident as  a result  of which the  respondent herein  sustained  serious injuries  and suffered  loss and damage.

The 1st appellant was sued   as the driver of the accident motor  vehicle,  the 2nd appellant as the person in control, possession and or ownership of the accident motor vehicle  while the  3rd defendant  Bolpak Trading  Company Ltd  was sued  as the registered  owner of the  accident motor vehicle.

The respondent maintained that the defendants were solely negligent for the material accident’s occurrence and set out particulars of negligence as follows:

Driving motor vehicle registration KBC 401 V Toyota Premio in a careless manner.

Driving in an excessive speed in the circumstances of the road.

Failure to slow down, break, swerve or act in any other reasonable manner to avoid the accident.

Failure to keep proper look out to other road users or at all.

Driving in a zigzag manner in the circumstances.

Driving on the wrong side of the road.

Failure to take regard   of other road users.

Failure to prevent the said accident.

Driving a defective motor vehicle KBC 401 V Toyota Premio.

Driving without due care and attention.

The respondent also sought to rely on the doctrine of Res Ipsa loquitor, the Traffic Act and the Highway Code.

The respondent further contended that as a result of the material accident, she sustained the following injuries:

Fracture of the neck.

Bilateral rib fractures.

Bilateral  lung contusion

Injuries to both hands.

Injuries to both legs.

Further particulars to be furnished at the hearing by way of a medical report.

She also claimed for special damages in the sum of shs 114,515, costs of the suit and interest and any other relief deemed fit to grant by the court.

The 1st  and 2nd appellants filed  defence  dated 20th April 2010 denying  the occurrence  of the accident  and all the  particulars  of negligence  attributed  to them.  They also pleaded alternatively that if any injuries or damages resulted from the alleged accident then they were solely caused or contributed to by the respondent’s own negligence in that:

She failed to put on the safety belt while travelling on motor vehicle KBC 401V.

Failed to take care of her own safety.

Travelled in a dangerous manner.

The appellants also denied   all particulars   of injuries and or damage as pleaded by the respondent and urged the court below to dismiss the respondents suit with costs.

The respondent  filed reply to  defence dated 21st  April 2010  joining issues  with the appellant’s  defence and maintaining/reiterating   contents  of the plaint as  pleaded .  The trial court heard the case with only the plaintiff testifying.

The defendants/appellants did not call any evidence/witness and closed their case.

In his impugned judgment,  the trial magistrate  found the appellant  jointly and severally  liable for  the accident  at 100% and awarded  the plaintiff shs 800,000 general damages   together with shs  202,623 special damages, costs  and interest.

Being dissatisfied with the above judgment, the appellants herein filed     this appeal on 25th June 2012 vide Memorandum of Appeal dated the same day contending that:

The sum of shs 800,000 general damage for pain, suffering, loss of amenities and ought to be reduced.

The sum of shs 800,000 is not consistent with the level of damages awarded to the other plaintiffs in similar circumstances.

The  Learned magistrate  erred in  law and fact when he  failed to  consider the evidence  of the appellants  submissions  and dismissed the same without  giving any  reason or at all.

The appellants prayed that the appeal herein be allowed, judgment of 28th May 2012 be set aside, the respondent be ordered to pay costs of the court below; costs of the appeal and such further or other relief   as may appear to the court to be just.

From the grounds  of appeal and submissions by the appellants  dated  9th July 2015 and filed in court  on 21st  July 2015, the appellant’s  only challenge  the judgment  of the lower court  on the quantum of damages  as decreed by   the trial court.

The appellant invites this court to review the evidence on record since this is a first appeal, according due regard to both the facts and the law as they emerged. They  relied on  the case of Mukube  V Njamiru [1988] KLR 403  cited  by the Court of Appeal in Nzola Sugar Company Ltd V Capital  Insurance  Brokers Ltd wherein it  was held  inter alia that:

“ A Court of Appeal will not  normally interfere  with a finding  of fact by the trial court  unless it is based on no evidence  or on a misapprehension of the evidence, or the Judge is shown demonstrably  to have acted  on wrong principles  in reaching the finding  he did.”  The appellant also cited KirugaV Kiruga [1988] KLR 348 where the Court of Appeal cited with approval Watf V Thomas [1947] 1ALL ER 582 per Sir Charles O’connor that:

“ It is  a strong thing  for an appellate  court to differ  from the finding  on a question of fact, of the judge who tried the case  and who has   had the advantage  of seeing  and hearing the  witness. An appellate  court has  indeed jurisdiction to review  the evidence  in order to  review  the evidence  in order to determine  whether  he conclusion reached  upon that  evidence should stand.”

The  appellants contended that the trial magistrate failed to appreciate  both the facts and evidence placed  before him during the time of hearing  and in particular, failed  to take into account  the defendant’s submissions on quantum and the 2nd medical report of  Dr Bodo and that  he only  considered the defendants’ submissions in assessing  liability.  This court was referred   to page 69 of the record of appeal and page 68 wherein the trial magistrate stated that he had compared the two medical reports by Dr Jane Ikonya and the other by Dr. Bodo and to him, they were similar. Further, that the trial court ignored Dr. Bodo’s assessment that the respondent   had no permanent disability.  In addition, the appellants contend  that the trial court ignored  their submissions at page 48  of the record  of appeal line  20 and  that he failed to give  reasons for   dismissing the appellant’s proposal for  shs 180,000 without taking  into account  case law as cited. The appellants  urged this court to  interfere  with the trial court’s  award of damages and  find the award  of shs 800,000 excessive  and reduce it, relying on the case of Osmam Mohammed  & Another V Saluro Bundit  Mohamed  CA  3 of 1997 that:

“Damages must be within limits   set by decided   cases and also within limits the Kenyan economy can afford.  Large damages are inevitably passed to the members of the public the vast majority of whom cannot afford the burden, in the form of increased insurance and or increased fees.”

In the appellant’s view, the respondent’s injuries were less serious and that she had healed.  They also  attached the decisions in case of Nairobi HCC 2048/94 Francis  Shamalla  V Kerenge Bus  Service , Machakos  HCC 364/98 Joseph Marulu Mutua V Samuel  Njoroge  Mwangi;and Nairobi HCC 1617 of 1998  Billad Mwangi Gichukui  V TM-AM Construction  Group (Africa ) urging  this court  to allow the  appeal with costs.

In her written submissions dated  5th  October 2015 and filed on her behalf on 7th October  2015  by  her advocate, the respondent maintains that  the sustained  serious injuries  which necessitated  her hospitalization and the  injuries were confirmed by  Dr Jane Ikonya  and Dr Joan Bodo.  She also maintained that the  trial magistrate  took into account  evidence  as adduced at the  trial, the severity of the  injuries , the written  submissions  of both parties  and authorities  cited and  justifiably awarded the  respondent  general damages at shs  800,000.  Further  that the trial magistrate  clearly took into account Dr Bodo’s medical report   at page  69 of the record  of appeal,  and that  he also  considered  the parties written  submissions.

The respondent also maintains that the award of shs 800,000 in general damages was not excessive considering the serious injuries she sustained following the material accident.  She  relied on  Mehari Tewoldge t/a  Mehari  Tranporters Limited Vs Damu Muasya Maingi, Machakos  HCCA 190 of 2008, Anne  Njeru (minor) V The Headmistress of Machakos  GirlsandOthers Machakos HCC 165/2000, Boniface  Mwaliwa V Isaac Mwaliwa &Another, Mombasa HCC 17/1997and Peter Maina  Mwaura  v Solomon Kinuthia  Mwaura HCC 1081/91 wherein all the cases   cited above  the courts awarded  damages  ranging between 1. 5  million – 300,000 depending on the severity, with the least bearing  only soft tissue  injuries. The respondent also  relied on the Court of Appeal decision in Kemfro Africa Ltd t/a  Meru Express Services  & Another [1982-1988] KLR  727 wherein  the court stated that the assessment  of general damages  is at the  discretion of the trial court  and an appellate  court is not  justified   in substituting  a figure of  its own for that awarded by  the court below, simply because  it would  have awarded  a different  figure if it had tried the case  at just instance .  Further that “the appellate court  can justifiably interfere  with the quantum of damages  awarded by  the court only if it is  satisfied  that the trial court  applied   the wrong principles ( as  by taking   into account  some relevant  one)  or misapprehended  the evidence  and so arrived  at a figure   so inordinately  high or   low as  to represent  an erroneous  estimate.”

The respondent urged this court to find   that this appeal lacks merit and to dismiss it with costs.

As correctly submitted by the  appellant’s counsel, this being  the first  appeal, this court is obliged  by Section  78 of  the Civil Procedure  Act to re-examine  and re-evaluate  the evidence  before  the trial court  and arrive at its own  independent  conclusion  bearing in mind that  it never  heard or saw the  witnesses as  they testified.  In the present case, only the plaintiff did testify, parties having agreed on production of documents  by consent   as recorded  by the court and filed  documents  for purposes   of assessment of damages only.  It therefore  follows that  this court  in determining  the merits of  this appeal shall examine the plaintiff’s oral evidence  and documentary  evidence  placed on record by consent of parties and the evaluation of  that evidence  by the trial  magistrate  and establish  whether  she arrived at a  correct  decision or she  misapprehended  the law or  facts.

Re-evaluating the evidence on record, vis a vis the pleaded facts, it is worth noting that the respondent pleaded the following injuries:

Fracture of the neck.

Bilateral rib fractures.

Bilateral lung contusion

Injuries to both hands.

Injuries  to both legs

Further particulars of injuries to be furnished at the hearing hereof by way of medical report.

The discharge summary from MP Shah Hospital  produced  as P exhibit 1  shows  final diagnosis  as incomplete  fracture  C2, bilateral rib fractures and  bilateral  lung contusion. The respondent  was managed on anti biotics, analgesics and collar and given off duty three weeks on discharge.  The P3 form, P exhibit 4 show incomplete facture C2, bilateral rib fractures bilateral lung contusion.  The medical report by Dr Ikonya, P exhibit 6(a) dated 9th March 2009 revealed incomplete fracture cervical spine, fracture of the ribs bilaterally and fracture right ankle.

At the time of examination the respondent complained of pain on the neck, chest pain and pain and swelling right ankle.  The doctor concluded that the respondent sustained severe grievous harm in nature.  The injuries were still in the process of recovery and could cause temporary incapacity for two years.  She was then still on treatment and physiotherapy and could suffer permanent incapacity of about 20%.

On the  other hand, the medical  report by Dr. Joab Bodo made on  5th April 2011 about 2 years after  the first  medical report  by Dr  Ikonya  revealed that  the respondent had suffered  injuries  involving, incomplete  fracture of  the 2nd cervical  vertebra, fracture of  ribs 1-5  undisplaced on the left and 2nd and 3rd  on the right  and  fracture medial maleolus  right ankle undisplaced. Doctor Bodo confirmed that   the respondent was admitted to hospital on 11th December 2008 and continued review as an outpatient. On examination, the respondent  had occasional  right sided  chest  pain, fractured  ribs had well united, neck movements  were  normal with normal grip  in both hands  and the fracture  C2  was well united.  He concluded that she had no permanent disability.

The respondent testified on 2nd April 2012 and produced all her documents as filed, confirming   the injuries   as per discharge summary and the two doctor’s medical reports as well as the P3 form.  She stated that she still attended hospital.

In his  judgment  at pages 67-70  of the record  of appeal, the  trial magistrate  after finding that the plaintiff  (sic) 100%  liable  for the accident, on quantum he stated (handwritten)-

“On quantum I have compared (not composed) the two medical reports one by Dr Joan Ikonya and the other by Dr Joab Bondo.  To me they  are  similar, plaintiff  sustained  fracture of the  cervical spine  cervical vertebrae, fractures of  the  ribs  2st  to 5th  and 2nd and  3rd  on the right  and  fracture  of the medial maleoulus  right  ankle.  Dr. Ikonya assessed permanent incapacitation at 20% and she was hospitalized for 5 days.  The defendants counsel proposed kshs 180,000/- for quantum which is clearly very low.  The plaintiff  has proposed  shs  1 million  based  on relied  upon High Court authority e KLR  George  Otieno V Attorney General…….keeping  in mind that no amount  of money  can compensate  for pain, suffering  and loss  of blood  I award the  plaintiff shs 800,000/- as quantum….”

The appellants complain that the trial magistrate failed to take into account the defendant’s submissions on quantum and the 2nd medical report by Dr Bodo.  In  their view, mere mention by the trial court, that he  had considered  the two medical  reports  and found them to be similar  was not sufficient  consideration  and that mere mention  of the proposal  by the appellant of shs 180,000 was not sufficient. Further, that the trial magistrate failed to consider Dr Bodos’ assessment that the respondent had no permanent incapacity and failed to take into account case law.

From the above record, this court finds that the trial court was clear that it had compared the two doctors medical reports and found them similar.  Indeed, the two doctor’s confirmed the respondent’s pleaded injuries and how those injuries were managed.  However, I am  in agreement  with  the appellants  counsel’s  submissions that  the trial  magistrate in arriving at the quantum payable  did  not consider  the fact that  Dr.  Ikonya’s report was made nearly two years  earlier than  Dr Bodo’s  medical report which showed that  the  respondent had healed from the injuries  sustained save for occasional pain  and the fact that  she had not suffered  any permanent  incapacity which had earlier  on been  assessed  by Dr Ikonya  at 20%.

In addition, the trial magistrate casually dismissed  the appellant’s  proposal without alluding  to the authorities  that had been  submitted  and indeed, only  referred  to the respondent’s  counsel’s authority  submitted  and concluded  that a sum  of shs  800,000/- general damaged  was sufficient, without  making any attempt  to  compare  and or contrast those authorities  and the injuries  sustained by the respective  claimants  in those decisions .

In my view, therefore, the  trial magistrate fell  into  error when  he failed to  consider the  appellant’s  submissions  and authorities  on quantum of damages  for pain, suffering  and loss of amenities.  I shall accordingly proceed to examine those decisions relied on by the appellants in their written submissions.

In Nairobi HCC 1574/91 Dorcas Anyango Oyugi V Charles A Okello, the plaintiff sustained blunt injury to the forehead with haematoma and loss of consciousness for one day, fractures of 2 ribs and dislocation of both knee joints.  She recovered fully, but was left with pains in the cheek and lumbar region.  She was 50 years at the time of the accident Githithi J (as he then was) awarded her shs 150,000 on 29th November 1993.

In Henry Kashope V Kuldip Young  Company Ltd  & Another  Mombasa HCC  526 of 1988,Omolo J ( as  he then was on 6th November 1990 awarded shs 170,000/- general damages to the  plaintiff aged  40 years  who sustained  abrasions  of the  scalp, haematoma around the eye  and a perforating injury to the  right eye.  He underwent an operation called exploration and repair of the right eye.  He lost the use  of the right eye.

In Mwinyi Ahmed  V Liarant  A. Khan  Mombasa  HCC  689/91 the court-  Wambilyanga J ( as he then was above ) awarded  shs 180,000/- general damage on 19th January  1994  to a plaintiff  who sustained  a head injury concussion, fracture of  left fibula, laceration on the left eye, abrasions  on the forehead and left shoulder and  was hospitalized  for  19 days, was aged  39 years, continued as  outpatient  and the injuries healed  with a resultant  scar  on the left  eye brow  and mild pain  and restricted movement  of the left  knee at a  range of 200degrees.

In comparison to the authorities, the respondent supported  her proposal   for shs  1,000,000 with  the decision  by Angawa J  made on 14th February  2006 in George Otieno  V Attorney General and another  wherein the plaintiff/sustained  the following injuries, Urethral stricture(long), recurrent UTI, Gatritis and cervical injury with weakness to both upper and lower limbs.

The principles for awarding general damages are now well settled.  That, an award  of damages  is not meant  to enrich  the victim  but to  compensate  such a victim for the injuries  suffered, that the award should be commensurate  to the injuries  suffered, that the awards   in decided cases  are mere  guides   and each case  should be treated  on its own  facts  and merit, where  awards in decided cases are to be  taken into account then the issue of  own element  if inflation has to be  taken into account and that  awards  should not be inordinately  too high or too low.

In the instant  case, I am reminded that an appellate court  should be  slow to interfere with awards  made by the trial court in its discretion and I should not  substitute  a figure  of my own for that awarded  by the court below, simply because  I would have awarded a different figure if I had  tried the  case at first  instance. Nonetheless, an appellate court  can justifiably interfere  with the  quantum of damages  awarded  by the court if it is satisfied that  the trial court applied  the  wrong principles  as by taking  into account  some irrelevant  factor  or leaving out of  account  some relevant  one or misapprehended  the evidence  and so arrived at a figure  so inordinately high or low as to represent  erroneous  estimate.  (see Kemfro Africa Ltd t/a Meru Express Services & Another versus A.M.Lubia and Another [1982-88] KLR 727.

Having set out the rival positions as submitted in the lower court, I find that  indeed  there was no basis upon which  the trial magistrate out rightly  dismissed the appellant’s  proposal for shs 180,000/- general damages   for pain and suffering  and loss of amenities  as being too low.  He did not  examine those cited  authorities  submitted  by the appellants  which I have  taken  the liberty  to consider  in-depth.  Nonetheless, I am not  persuaded  that  the injuries  sustained  by the respective  claimants  in those authorities  were in any way similar  to the injuries sustained   by the respondent in the present  appeal.  In other words, those  injuries  were soft  tissue injuries  as opposed to the  multiple  fractures  sustained  by the respondent  herein.  In some other instances  the injuries were simply irrelevant like the one relating to loss of use of the right eye or fracture of fibula and lacerations. In addition, the awards in those cases had been made in the period between 1990-1994 over 10 years to the time of the judgment in the lower court subject of this appeal. No doubt, inflation had set in and therefore there was need to consider time lapse.

On the other hand, having  examined  the decision  relied  on by the respondent  and which the  trial magistrate  too relied on in making  his award  of shs  800,000/- general damages  ( George  Otieno V Attorney General & Another [2006] e KLR, I find that the plaintiff sustained   a gunshot  wound through  his neck.  The bullet went through his ears and affected C4-C5; C3 bone of the spinal code and   was found  with quadriplegia injuries due to gun shots to his neck and all his limbs were weak. He suffered incapacitating fracture and could only walk on crutches and learn lifting small things like tea cup.  He had permanent incapacity at 45 degrees and Angawa J awarded him kshs 900,000 general damages for pain, suffering and loss of amenities on 14th February 2006.

No doubt, those injuries sustained by the plaintiff in the above   decision of George  Otieno V Attorney General & Another [2006] e KLR,were debilitating and the court in its discretion awarded him 900,000/-.  Those  injuries compared to the ones suffered by the respondent n this case and the % of permanent  incapacity  initially  assessed by Dr Ikonya  which  had  since diminished  at the time of  examination by Dr Bodo cannot be  compared  with the injuries  sustained by the plaintiff in the Otieno v Attorney General (supra) case.  It is therefore not clear on record how the trial magistrate arrived at shs 800,000/- award.  I would in the circumstances find that award was unsupported and inordinately high to warrant interference by this court.  Comparing the decisions relied  on in the  lower court  and the respondent’s  decisions contained  in her submissions before this court, the ones that  were  submitted on appeal, I am  in agreement  that no two injuries  can be similar.

Accordingly, doing the best I  can, I would award the respondent  general damages for  pain, suffering and loss of  amenities  a sum of  shs 400,000/- taking into account  the fact that  she had substantially healed from her injuries at the time of hearing of the suit.  There is no challenge to the special damages which were pleaded and proved.  They remain undisturbed.

In the end, I allow this appeal, set aside the judgment of the trial magistrate on quantum of general damages and substitute it with judgment for the respondent for a sum of shs 400,000 general damages.  Special damages remain undisturbed. Interest to accrue from date of judgment in the lower court until payment in full. The appellants have partially succeeded. They are awarded half of the costs of this appeal.

Dated, signed and delivered at Nairobi this 10th day of December 2015.

R.E. ABURILI

JUDGE