Likimani Sopiato, Agility Logistics Limited & Bernard Musembi Maitha v Caroline Nyanchama Baabu [2022] KEHC 2005 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NO. 123 OF 2016

LIKIMANI SOPIATO.................................1ST APPELLANT

AGILITY LOGISTICS LIMITED..............2ND APPELLANT

BERNARD MUSEMBI MAITHA..............3RD APPELLANT

VERSUS

CAROLINE NYANCHAMA BAABU............RESPONDENT

(BEING AN APPEAL FROM THE JUDGEMENT AND DECREE OF

HON. AMWAYI DATED 14TH SEPTEMBER 2016 IN MOLO CMCC NO 102 OF 2015)

JUDGEMENT.

1. The respondent was involved in a road traffic accident on 10th January 2015 along Eldoret- Nakuru road at Migaa area. She was travelling aboard motor vehicle registration number KBU 779F which collided with motor vehicle registration number KAY 476L/ZC 6524 and she sustained the following injuries.

a) Crush injury to the right leg leading to below knee amputation.

b) Soft tissue injuries of the chest wall.

c) Soft tissue injuries of the left forearm.

d) Soft tissue injuries of the left leg.

2. When the matter came up for hearing, the parties entered into a consent on liability where the appellants were held 100% liable. What the court was only confronted with was the issue of quantum of damages.

3. At the end of the trial the court awarded the respondent general damages of Kshs. 3,000,000 as well as proven special damages.

4. The appellants were dissatisfied with the same and they have filed this appeal basically challenging the said award. According to them the trial court failed to take into consideration their submissions hence arriving at an award which was excessive in the circumstances. They have therefore prayed that the same be reduced downwards and in particular what they had proposed in their submissions, namely Kshs1,600,000.

5. When the matter came up for hearing the court directed that the appeal be disposed by way of written submissions. At the time of writing this judgement, there were no submissions on the part of the appellants. The respondent on her part has complied.

6. The respondent has urged this court to find that the trial court did not err nor did it take into account irrelevant matters when it reached its conclusion. That the authorities which had been cited by the appellants were not recent and the injuries not commensurate to those suffered by the respondent.

7. The respondent placed reliance in the case of Catherine Njeri Njoroge v. Bernard Njeru (2016 eKLR where the court awarded a sum of Kshs. 3,000,000 to the plaintiff who had suffered similar injuries.

8. The respondent further attacked the appeal on the grounds that the same was defective for it did not comply with Order 42 Rule 13 (4) of the Civil Procedure Rules. In other words, the same did not have all the necessary pleadings despite being granted leave by the court to file further supplementary record of appeal.

9. The respondent consequently prayed that the appeal should be dismissed with costs and let her enjoy the fruits of the judgment.

ANALYSIS AND DETERMINATION.

10. The court has perused the entire record of appeal as well as the evidence tendered at the lower court. It is apparent that this court will not interfere with the award unless it is shown that the court misapprehended the law, the award was too low or too high or the same was plainly wrong as was enunciated in the cases of Selle & Another v. Automobile Associated Motor Boat co. ltd, Buttv. Khan and Kemfro.

11. I have perused the injuries sustained by the respondent as well as the medical reports by doctors Omuyoma and Wambugu and both reached a finding that the respondent suffered a 40% disability. They classified the injuries as grievous harm.

12. As to the award, the court has perused the authorities cited by both the appellants and respondent. It is true that the appellant’s authorities’ inches around a figure of Kshs.1,600,000 whereas those of the respondent gravitates between Kshs.2,500,000 and Kshs.3,000,000. The trial court took into consideration the same and formed an opinion that those of the respondent were more recent hence it relied on the same.

13. The injuries she suffered and the amputation of her leg meant that she could not stand at her saloon to carry on her business. This line was not disputed by the appellants. The only bread winner so to speak was her husband. At the time of the case she had been fitted with Jaipur artificial limb which it seems had not been paid for in full.

14. Whichever way one would look at it the injuries suffered were permanent and it will forever affect the respondent.

15. The authorities relied on by the respondent at the lower court especially those of Nickson Muthoka Mutavi v. Kenya Agricultural Research Institute (2016) and Catherine Njoroge(supra) are in tandem with the injuries herein. The trial court was therefore right in relying on the same.

16. This court in evaluating the evidence does not see the need to depart from the findings of the said court. The award was not excessive in the circumstances neither was it exaggerated nor way beyond what was expected. With the kind of injuries sustained by the respondent I do not find the same on the higher side. On this limb therefore the appeal fails.

17. On the issue of the appeal being defective and not complying with Order 42 rule 13 of the Civil Procedure Rules, the court takes notice that the appellants filed a supplementary record of appeal dated 15th September 2021 which was way after the orders of 20th January 2020 granting them 30 days to file the same. There was no evidence that the appellants sought an extension of time to file it but they simply placed it in the court file.

18. Although this may have been an arguable ground, the period taken of over one year was indeed inordinate and on this ground alone and in the absence of any other explanation the appeal ought to have been struck out for failure to conform with the provisions of Order42 rule 13(4) of the Civil Procedure Rules. The record of appeal must always contain all the pleadings and complete record of the court appealed from. More importantly is the decree which must always be certified.

19. The sum total is that this appeal is not meritorious for the reasons given above and the same is dismissed with costs to the respondent.

DATED SIGNED AND DELIVERED VIA VIDEO LINK AT NAKURU THIS 3RD DAY OF MARCH 2022.

H K CHEMITEI.

JUDGE.