Kioko v Onkware [2023] KEHC 24647 (KLR)

Kioko v Onkware (Civil Appeal E058 of 2022) [2023] KEHC 24647 (KLR) (Civ) (2 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24647 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E058 of 2022

AA Visram, J

November 2, 2023

Between

Veronica Syombua Kioko

Appellant

and

Vincent Ondieki Onkware

Respondent

(Being an appeal from the judgment dated 11th February, 2022 of Hon. D. M Kivuti Principal Magistrate in Chief Magistrate’s Court at Milimani Civil Case No. E3528 of 2022)

Judgment

Introduction 1. This judgment determines that Appellant’s appeal dated 25th November, 2022 vide its Memorandum of Appeal of 14th February, 2022. The appeal relates to the issue of quantum.

2. The parties entered into a consent on the issue of liability in the lower court in the ratio of 70:30 in favour of the Appellant. The parties further agreed to dispose of the issue relating to quantum of damages in the lower court by way of submissions. The Trial Magistrate in his judgment awarded the Appellant the following damages together with costs of the suit:-i.General damages 70% x1,000,000 = Kshs. 700,000ii.Special damages = Kshs. 200,165iii.Total Kshs. 900,165

3. Aggrieved by the said judgment, the Appellant has filed this appeal dated 14th February, 2022 on the following grounds:-a.The Learned Magistrate erred in awarding an inordinately low sum for the injuries suffered in the face of the evidence adduced and submissions made by the Appellant’s counsel on general damages for pain and suffering and loss of amenities.b.The learned Trial Magistrate erred in law and misdirected himself when he failed to consider the Appellant’s submissions and authorities.c.The learned Magistrate having misapprehended and misunderstood the extent and severity of the injuries erred in law and fact in relying on authorities which were irrelevant and thus arrived at an award on general damages that is so manifestly low as to be erroneous.d.The Learned Magistrate erred in assessing an award, hereunder, which was inordinately low and wholly erroneous estimate of the loss and damages suffered by the Appellant: General damages for pain and suffering and loss of amenities of Kshs. 1,000,000/=.e.The Learned Trial Magistrates erred in law and fact by failing to apply the doctrine of stare decisis when assessing the damages awarded to the Appellant.

4. The parties agreed to dispose of this appeal by way of written submissions and accordingly, filed and served their respective submissions dated 24th March, 2023, and 24th April, 2023.

Appellant’s Submissions 5. The Appellant cited the Court of Appeal case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini v AM Lubia and Olive Lbia (1982-88) 1 KAR 727 and aptly restated by the Court of Appeal in the case of Arrow Car Ltd v Elijah Shamalla Bimomo and 2 Others (2004) eKLR as follows:-“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that 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 damage.”

6. The Appellant submitted that the amount awarded was so inordinately low that it must have been a wholly erroneous estimate of damages. She referred to the medical report by Dr.W.M Wokabi dated 26th June, 2020 which confirmed that the Appellant sustained the following injuries: fractures of the pelvis; fracture of the left pubic ramii; double fracture of left femur; fracture of the right femur; double fractures of the right tibia; fracture of the right fibula; wasting of the bulk of muscles of the left thigh; wasting of the bulk of muscles of the right thigh; and total permanent disability of 25%.

7. Further, the Appellant submitted that the doctor had reported that she went through a lot of pain and suffering from the injuries and the surgical procedures applied. Moreover, the pain in the pelvic region would continue to be experienced for an indefinite time. There was also higher than normal possibility of the left hip developing arthritis; and the former vitality of both legs would never be fully achieved.

8. The Appellant submitted that comparable injuries ought to be compensated by comparable awards. She relied on the decision of the High Court in Stanley Maore v Geoffrey Mwenda, NYR CA Civil Appeal No.147 of 2002(2004) eKLR, where the court stated as follows:-“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 case.”

9. In support of the above submissions, the Appellant relied on the following decisions of the High Court:-i.Board of Trustees Anglican Church of Kenya Diocese of Marsabit v Naomi Gaima Galgalo (2019) eKLR, where the court awarded general damages of Kshs.1,400,000/= where the Respondent sustained pelvic fracture and open back facial bruises. There was no permanent disability.ii.Millicent Atieno Ochuonyo v Katola Richard (2015) eKLR, where the Plaintiff was awarded general damages of Kshs.2,000,000/= for a fracture of right pubic ramus and diastasis of the symphysis pubis.iii.Frankline Chiluba’s Spii v Kirangi Liston (2017) eKLR, where the Plaintiff compound and comminuted fractures of the right distal tibia and fibula and soft tissue injuries and was awarded Kshs.1,800,000/=.iv.Zipporah Nangila v Eldoret Express Limited & 2 Others (2016) eKLR, where the Plaintiff sustained comminuted compound fracture of the right distal and fibular, fracture of the left distal and fibular and was awarded Kshs.2,400,000/=.

10. Based on the above authorities, the Appellant submitted that the court ought to set aside the award of the lower court and award the sum of Kshs.14,000,000/= as general damages, subject to contribution.

Respondent’s submissions 11. The Respondent submitted that the claim for Kshs.14,000,000/= was outrageous. He relied on the decision of the High Court in Robert Msioki Kitavi v Coastal Bottlers Limited (1985) eKLR, where the Court held that it is well established principle of law that an appellate court can only interfere with a trial court’s assessment of damages where it is shown that the court applied wrong principles or where the damages awarded were so inordinately high or low.

12. The Respondent submitted that the Appellant had urged the Court to award Kshs.14,000,0000/= where the court had in the authorities cited, awarded between Kshs.1,400,000/= and Kshs.3,000,000/=, the submission was therefore unfounded and premised on the wrong application of the law.

13. He submitted that the principles known in law for assessment of damages were espoused in the case of Charles Oriwo Odeyo v Apollo Justus Andabwa & Another (2017) eKLR, in the following terms:-“The Assessment of damages in personal injury case by court is guided by the following principles:i.An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.ii.The award should be commensurable with the injuries sustained.iii.Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.iv.Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.v.The awards should not be inordinately low or high (See Boniface Waiti & Another v Michael Kariuki Kamau (2007) eKLR).”

14. He cited the decision of the High Court in Joseph Mwangi Thuita v Joyce Mwole (2018) eKLR, where the court awarded the Appellant Kshs.700,000/= after finding that he had sustained the following injuries:-a.Fractures right femurb.Compound fracture (r) tibiac.Compound fracture right fibulad.Shortening right lege.Episodic pain (r) thigh with inability to walk without support.

Analysis and Determination 15. The guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent, and comparable awards. This position finds support in the case of Stanley Maore v Geoffrey Mwenda NYR Civil Appeal No. 147 of 2020 [2004] eKLR where the Court of Appeal held:-“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.”

16. Further to the above, in the Court of Appeal decision of Butt vs. Khan (1977) 1 KAR the court stated that the test on whether or not to interfere with an award of damages, is 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.”

17. As this is a first appeal, I have a further duty to re-evaluate the evidence before me. This principle as set out in the Court of Appeal decision of Selle and Another Versus Associated Motor Boat Company Ltd & Others [1968] EA 123, where the court stated that:-“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 conclusion. 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 in some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence on the case generally.”

18. Looking at the evidence on the record before me, is evident that the Magistrate based his assessment on the medical report of Dr. W.M. Wokabi dated 26th June, 2020, which indicated the injuries that the Appellant had sustained to be as follows:-i.Fracture of the Pelvisii.Double fracture of left femuriii.Fracture of the right femuriv.Double fractures of the right tibiav.Fracture of the right fibulavi.Total sum of permanent disability of 25%.

19. The doctor’s report stated that the Appellant underwent surgery and the fracture was fixed with a metal plate; the right leg would sustain a residual disability of 15%; and the left leg would sustain a permanent disability of 10%.

20. I have considered the relevant awards which vary between Kshs.700,000/=on the low end and Kshs.3,000,000/= on the high end. I have also considered the decision of the High Court in Peace Kemuma Nyang’era vs Michael Thuo & Anor [2014] eKLR, where the Plaintiff sustained a fracture of the right ischium/inferior pubic ramus of the pelvic bone, hematoma on both thighs and lumbo-sacral hematoma. I note that in that matter, the injuries sustained were similar to the present matter, and the court awarded general damages in the sum of Kshs.2,500,000/=.

21. I also take note that one of the authorities cited by the Respondent namely, the high court decision in George Raini Atungu v Jared Ogwoka Ondari (2021) eKLR, actually supports the Appellant’s claim for a higher award. In the said matter, the Court, on appeal, upheld an award of Kshs.1,000,000/= in similar circumstances.

22. Having considered the variance across the relevant awards as stated above, I am persuaded that the award of Kshs.1,000,000/= was on the lower end in comparison to awards for similar injuries. Moreover, I am alive to the fact that the authorities cited above have not been adjusted for inflation and the high cost of living, which over the last year alone has increased considerably, while the shilling has depreciated substantially.

23. Based on the reasons set out above, I am of the view that an award of Kshs. 2,500,000/= would be more appropriate in the present circumstances, and I hereby adjust the award of the lower court upwards.

24. Costs of the appeal are awarded to the Appellant.

DATED AND DELIVERED VIRTUALLY VIA MICROSOFT TEAMS THIS 2ND DAY OF NOVEMBER 2023ALEEM VISRAM, FCIArbJUDGEIn the presence of;…………………………………………………..……...….…….. for the Appellant……………………………………………….……….…..…… for the Respondent