LNK (A Minor Suing Through CNK As Next Friend), BGK (Minor Suing Through CN As Next Friend) & AWW v Simon Gatuni Njukia [2022] KEHC 2497 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYAHURURU

CIVIL APPEAL CASE NO. 16 OF 2017 AS CONSOLIDATED WITH HCCA 17 OF 2017 AND HCCA 18 OF 2017 ON 20/07/2020

LNK (A Minor suing through CNKas next friend)............1st APPELLANT

BGK (Minor suing through CNas next friend)................2ND APPELLANT

AWW.................................................................................3RD APPELLANT

-VERSUS-

SIMON GATUNI NJUKIA.................................................RESPONDENT

JUDGMENT

1. The Appellants’ appeal against decrees of Hon. Mikoyan SPMinNyahururu SPM Case No. 162, 163 and 164 of 2012 in which Appellants were awarded Kshs.20,000/- each for injuries sustained set out in their pleadings as:

a) 1st Appellant LN:

Ø Cut wound to occipital region.

Ø Cut wound on the neck.

Ø Cut wound on right ankle and foot.

b) 2nd Appellant BG:

Ø Soft tissue injuries occipital region forehead and left cheek.

Ø Soft tissue injuries of left lower limb.

Ø Soft tissue injuries to the chest.

c) 3rd Appellant AW:

Ø Soft tissue injuries tempered and parietal region.

Ø Soft tissue injuries right shoulder region joint.

Ø Soft tissue injuries to the chest.

Ø Soft tissue injuries of the lower limbs.

2. The above said injuries were confirmed on examination by Doctor Kiamba vide medical reports produced in court for 3 Appellants.

3. The Appellants were aggrieved by the above decrees on quantum and thus in summary raise the complainants in their appeals namely:

i. Trial court never considered testimony in court, medical documents produced and submissions on injuries in awarding general damages.

ii. The trial court misdirected himself in awarding inordinately law damages.

iii. The trial court did not consider Appellants injuries.

4. The parties agreed to canvass appeal via submissions which Appellants filed in the same and exchanged.

5. The court has gone through the evidence on record and the submissions on record:

APPELLANTS’ SUBMISSIONS:

6. It is the Appellants’ submissions that the trial court did not consider the medical evidence and especially the evidence by the Appellants and it further did error in making the decision considering the injuries sustained by the Appellant.

7. In convincing the court to award a favourable amount, the Appellant relied on the case of Micah Lekeuwan Julius Amakoye Yosi Mombasa Civil Appeal No. 127 of 2002 in which an award of Kshs.150,000/- was made as general damages for pain and suffering and loss of amenities and considering the issue of inflation since the judgment was delivered in May, 2005,it was proposed  awards he enhanced- be made in lieu of kash 20000 made by trial court.

8. The trial court in its judgment at page 60 of the Record of Appeal notes that, guided by the defence suggestion an award of Kshs.20,000/- was adequate.

9. It is contended that, the awards made were inordinately low for it is not within the range of award made for similar and comparable injuries as the ones the Appellants herein sustained. Authorities relied as below.

10. Devki Steel Mills Ltd v James Makau [2012] eKLR,the injuries sustained by the Respondent in the afore mentioned case were:

Ø Severe soft tissue injuries to the left side of the pelvis.

Ø Severe soft tissue injury to the right shoulder joint.

The trial judge awarded Kshs.250,000/-.

11. Channan Agricultural Contractors Ltd v Fred Barasa Mutayi Civil Appeal No. 29 of 2012, the injuries sustained by the Respondent herein were:

Ø Blunt injury to the chest.

Ø Cut wounds to the head.

Ø Cut wounds to the left leg.

The trial judge awarded Kshs.150,000/-.

12. Joseph Njoroge Kariuki v Dennis Kiatu Malombe Civil Appeal 59 of 2009, the injuries sustained by the Respondent herein were:

Ø Blunt injury to the neck.

Ø Blunt injury to the chest.

Ø Blunt injury to the back.

Ø Blunt injury to the right knee.

The trial judge awarded Kshs.150,000/-.

13. Longonot Horticulture Ltd v Isaac Oluoch Kichama Civil Appeal No. 39 of 2005:

Ø Soft tissue injuries to the hip and chest.

Ø A sprain of the wrist joint.

Ø Cut wound on the right leg.

The trial judge awarded Kshs.150,000/-.

14. It is submitted that, the injuries sustained from the above mentioned authorities are similar to those sustained by the Appellant herein.  The Appellant therefore submits that an award of Kshs.350,000/- is reasonable and within range especially in consideration to the factors of inflation.

15. Further it is contended that, the Magistrate did not consider the evidence by the Appellant and especially the medical evidence adduced in court in addition to the medical reports prepared by Dr. Wellington Kiamba who examined the Appellants three weeks after the accident.

16. It is the Appellants’ submissions that the trial court did not consider the medical evidence and especially the evidence tendered in court by the Appellants.

17. The trial Magistrate did not consider the age of the authorities he relied on, the facts of inflation and the injuries sustained by the Appellants.  The trial court only considered the defence’s submissions and failed to consider the Plaintiff’s submissions and thus they seek for the appeal to be allowed and the trial court judgment be set aside.

RESPONDENT’S SUBMISSIONS:

18. It is submitted that, the learned trial Magistrate in his judgment addressed all the factual and legal issues that had been raised.

19. He looked at the evidence on record together with the precedents and made an awards of special damages, justified as per the legal requirements on awarding damages.

20.  Further the court looked at factual evidence when awarding general damages and arrived at the amount he finally awarded.  The court stated that it had looked at the treatment card and noted that it contained general complaints of pain and nothing much was observed and that it why he made that award.

21. The trial court did exercise its discretion and followed the principles are enumerated above.  As this court and the Court of Appeal have stated, a party is only entitled to what is in the circumstances of each case fair compensation.

22.  The trial court in the case the, clearly stated as per the documents produced by the Appellant, specifically the treatment card that the Appellant did not suffer any serious injuries.

23. Thus it is submitted that, the court awarded a fair amount as per the injuries sustained and the evidence on record. And therefore contend that the damages were not inordinately low but fair in the circumstances.

24. 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.

25. The Appellant in appeal no 16 of 017 herein sustained the following injuries – cut wound on the occipital region, cut wound on the neck region, cut wound on the right ankle and foot, this is what was pleaded in the pleadings.  The trial court stated that according to the treatment card produced the Appellant only had general pain and nothing else.

26. There was no evidence of serious injuries that would have necessitated a higher award being given.

27. Order 21 Rule 4 of the Civil Procedure Rules provides as follows on the issue of what a judgment should contain:

“Judgments in defended suits shall contain a concise statement of the case, the points for determination, the decision thereon and the reasons for such decisions.”

28. The trial court did indeed follow the mandatory requirements as laid out under Order 21 Rule 4 of the Civil Procedure Rules.  And this arm of the appeal should therefore be disallowed.

29. There are no adverse effects that were suffered by the Appellant due to the alleged delay in delivery of the judgment.  Thus it is contended that if indeed there was a delay in the delivery of the judgment the same should not be a ground to vitiate a duly delivered judgment.

30. Respondent cited authorities including Bashir Ahmed Butt v Uwais Ahmed Khan (1982 – 88) KAR on the parameters under which an appellate court will interfere with an award in general damages. See also Loice Wanjiku Kagunda v Julius Gacharu Mwangi CA 142/2003, Gitobu Imanyare & 2 Others v Attorney General [2016] eKLR, Kemfrom Africa Ltd T/A Meru Express Service Gathogo Kanini v AM. Lubia and Olive Lubia [1982 – 88] 1KAR 727 at Pg. 730and Gicheru v Morton and Another [2005] 2 KLR 333  and Major General Peter M. Kariuki v Attorney General – Civil Appeal No. 79 of 2012.

31. The foregoing sets out the law and the guiding principles which court is bound to apply in the determination of the appeal.

DETERMINATION

32. After going through the record and the parties submissions, I find the issues are;

(a) whether the awards of Kshs.20,000/- were inordinately low in the circumstances of the instant appeals,

(b) whether delay in judgement delivery should be a ground to nullify the same and what is the order as to costs?

33. The medical report produced authored by Doctor Kiamba indicated that the Appellants sustained the injuries as in paragraph 1 above in the judgment.

34. In its judgments the trial court stated:

“On quantum Plaintiff suggested Kshs.200,000/- for soft tissues injuries as adequate while supported by authorities of more serious injuries while defence offered Kshs.20,000/- which award safe for passage of time is close.  Treatment cards generally show complain of pain but nothing much observed.  I am guided by defence suggestion and award Kshs.20,000/- as adequate.”

35. This court notes that the trial court did not set out the authority which guided it nor the particulars of injuries as pleaded or set out in medical reports produced.  Court just decided to pick the defence suggestion on quantum.  Thus provoking Appellants to complain as set out in the grounds of appeals that their evidence was ignored.

36. Among the authorities cited by the Appellant were Micah Lekeuwan Julius Amakoye Yosi Mombasa Civil Appeal No. 127 of 2002in which an award of Kshs.150,000/- was made as general damages for pain and suffering and loss of amenities and considering the issue of inflation since the judgment was delivered in May, 2005, we submitted for Kshs.200,000/-.

37. Devki Steel Mills Ltd v James Makau [2012] eKLR,the injuries sustained by the Respondent in the afore mentioned case were:

Ø Severe soft tissue injuries to the left side of the pelvis.

Ø Severe soft tissue injury to the right shoulder joint.

Ø The trial judge awarded Kshs. 250,000/-.

38. Channan Agricultural Contractors Ltd v Fred Barasa Mutayi Civil Appeal No. 29 of 2012, the injuries sustained by the Respondent herein were:

Ø Blunt injury to the chest.

Ø Cut wounds to the head.

Ø Cut wounds to the left leg.

Ø The trial judge awarded Kshs.150,000/-.

39. Joseph Njoroge Kariuki v Dennis Kiatu Malombe Civil Appeal 59 of 2009, the injuries sustained by the Respondent herein were:

Ø Blunt injury to the neck.

Ø Blunt injury to the chest.

Ø Blunt injury to the back.

Ø Blunt injury to the right knee.

Ø The trial judge awarded Kshs.150,000/-.

40. Longonot Horticulture Ltd v Isaac Oluoch Kichama Civil Appeal No. 39 of 2005:

Ø Soft tissue injuries to the hip and chest.

Ø A sprain of the wrist joint.

Ø Cut wound on the right leg.

Ø The trial judge awarded Kshs.150,000/-.

41. The above cited authorities came within the range of injuries sustained by appellants.  In the instant cases the appellant proved that they sustained soft tissue injuries namely:

-1st Appellant LN:

· Cut wound to occipital region.

· Cut wound on the neck.

· Cut wound on right ankle and foot.

-2nd Appellant BG:

· Soft tissue injuries occipital region forehead and left cheek.

· Soft tissue injuries of left lower limb.

· Soft tissue injuries to the chest.

-3rd Appellant AW:

· Soft tissue injuries tempered and parietal region.

· Soft tissue injuries right shoulder region joint.

· Soft tissue injuries to the chest.

· Soft tissue injuries of the lower limbs.

42. The court compares the injuries and finds the same to be more or less the same as the Appellants injuries noted herein. However, the court takes to account that they have healed. Thus the court finds that the fairest awards in the circumstances for the Appellants for pain and suffering are Ksh. 80,000/- for each Appellant.

43. On ground of delay in delivery of judgement, the court agrees with defence submissions that, there are no adverse effects that were demonstrated to have been suffered by the Appellants due to the alleged delay in delivery of the judgment. Same ground is rejected as a ground to vitiate a judgement as appellants did not cite law to support nullification of same on account of delay in delivery.

44. Thus the court makes the following orders:

i. The awards in general damages by trial court Kshs. 20,000/- in CC 162, 163 & 164 of 2012 are set aside and the Appellants are awarded Kshs. 80,000/-

ii. Parties to bear their costs.

iii. The order is also to apply in appeals no 17 and 18 of 2017.

DatedandSignedatNYAHURURUthis3rdday ofFebruary, 2022.

………………………………..

CHARLES KARIUKI

JUDGE