Rosemary Waithira Mburu v Virginia Muthoni Njambi & Beatrice Wairimu Kamande [2015] KEHC 3419 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO. 637 OF 2007

ROSEMARY WAITHIRA MBURU ……………………...APPELLANT

VERSUS

VIRGINIA MUTHONI NJAMBI …………..………1ST RESPONDENT

BEATRICE WAIRIMU KAMANDE……………2ND RESPONDENT

JUDGMENT

This appeal arises from the judgment and decree of Hon Mr Kimani Ndungu Principal Magistrate( as he then was ) delivered  on 27th June 2007  in Muranga PMCC No. 2004.

In that  suit, the respondents  herein sued the  appellant in their capacity  as legal representatives  of the  estate  of the deceased  Regina Njambi Maina, who died  on  9th June 2002. It was contended that she was involved in an accident on 1st October, 2001 while she  was travelling  as a passenger  in motor vehicle registration No. KAL 378 J which collided with motor vehicle registration No. AE 100- 300064A and that she sustained serious injuries. Her death however was unrelated to the injuries sustained during the road traffic accident on 1st October 2001.

At the time of her death, the deceased had not filed suit for compensation.  The respondents filed suit for compensation  after her death  in 2007 and the lower court awarded them  Kshs 650,000/- general damages  for pain, and suffering of the deceased  on 26th June 2007.

The appellant herein who was the  defendant  in the lower court  was dissatisfied  with the judgment  and decree  of the lower  court and  filed a Memorandum of Appeal on 23rd July 2007  setting out  6 grounds of appeal  namely:

1. That the learned trial magistrate erred in law and fact in awarding excessively high award and not comparable to the injuries sustained.

2. That the learned trial magistrate erred in law and in fact in awarding excessively high damages for injuries where no residual  effect  of the injury was known.

3. That  the learned trial magistrate misdirected  himself  on the past authorities  and the  law.

4. That the learned trial magistrate erred in law in awarding damages to the estate of a deceased in a suit that was instituted   long after the death of the injured person.

5. That the learned trial magistrate erred in not finding that the plaintiff had not proved her case on a balance of probability.

6. That the learned trial magistrate misdirected himself on all points of law.

The appellant prayed that the judgment  of the trial court  delivered on 27th June 2007  and all consequential orders arising  there from  be set aside; That this appeal  be allowed  and the orders  of the lower court be reversed; and  the respondents  do pay the costs of this  appeal and the costs of the lower court.

The appeal  was admitted  to hearing on 12th October  2012 by Angawa J and on March 2014  by Honourable  Waweru J gave directions.

When the parties  advocates appeared  before me on 8th October  2014, they agreed  to dispose  of the appeal by way  of  written submissions  which they did by 4th December 2014  and the judgment  herein slated for 26th March 2015  on which date, unfortunately  the High Court  was not sitting.

The appellant  filed  her written submissions  on 17th October 2014 whereas  the respondents field theirs on 4th November 2014.

A perusal of the appellant’s written  submissions  show that the appellant  does not  mention any challenge  to the judgment  in the lower court  on liability  and therefore this court  shall not  belabor making any  reference to issues of  liability, but  shall focus on quantum of damages as challenged in grounds 1,2,3 and 6 which address judgment  as entered  on quantum of damages  payable.

The respondents filed their submissions on 4th November 2014 responding to the appellant’s submissions  on quantum alone.

The appellant submits that according to the evidence adduced, the deceased  Regina Njambi Maina  sustained a cut on the forehead, cuts on both legs  fracture of  tibia and blunt injuries  and that the trial magistrate  in relying on the case of Razi Amin Kulate vs Clau Kruger  & Another HCC 61/2003 by Honourable Khaminwa  J   (as she  then was) awarded  shs 600,000/- general  damages  to a plaintiff who had sustained  severe injuries involving

i. Fracture of tibia/fibula.

ii. Fracture of patella on right leg.

iii. Potts fracture on left ankle.

iv. Fracture of metatarsal bone.

v. Severe strain with rapture cruciate ligaments of the knee.

In their view , the  trial magistrate erred  by failing  to consider and  or be  guided by authorities  where  the injuries  were comparable  to what the deceased  had suffered. Counsel cited  Thomas  Karaya  Kamau vs Target Guards Ltd HCC 467/2003 where the plaintiff  suffered  fracture of tibia and fibula, dislocation of right ankle, fracture of  femur, wounds other soft  tissue  injuries  and  was awarded kshs 200,000/- for pain and suffering.

They also  complained that the trial  magistrate erred in failing to take into account the fact that even  the medical report and P3 form which were relied on were prepared based on hearsay  and documents that  were allegedly giving a  history of the deceased’s  injuries, and that the extent  of her injuries  was not based on nay professional examination and  urged this court to  allow the  appeal and award kshs  200,000/- general damages  for pain and  suffering  plus costs.

The respondents  in their  response  submitted  through their  counsel that  indeed although the deceased  was involved  in an accident, she died  from other causes  unrelated to the  accident and injuries sustained.  That according  to Doctor C.N. Kigo’s report  the deceased sustained  injuries involving

1. Blunt injuries  and  cut on the  forehead

2. Blunt injuries  and deep cut  on both  legs  with compound fracture of both  tibia

She was admitted at Thika District Hospital  for one month  and  3 weeks, wore plaster paris on both legs for  3 months  and 1 week.

The respondents  support  the award of Kshs 650,000 made by the trial court  and urge this court not to interfere  with the award which was made  judiciously.  They relied on the  case of  Razi Amin Kulate vs Clau Kruger  & Another( Supra)and maintained that the deceased suffered  two serious fractures  to warrant that award, the trial court  having noted  that the authority as cited  above  provided a useful guide, having  been decided on 30th July 2004.

Citing the  case of Stephen M. Mumbi vs Peter M. Katili  CA 98/2004 Lenaola  J citing with approval Shaban  vs CNN (1985) KLR 516  page  527, counsel for the respondent urged  the court not to interfere with the quantum of damages  awarded  by the trial court unless this court is  satisfied that the  award  was based on some wrong principle  or is so manifestly excessive  or inadequate  that may be interfered with.  He therefore urged  this court to uphold  the judgment of the lower court  and  dismiss this appeal with  costs to the  respondents.

I have carefully considered  this appeal, the submissions by parties  counsels  on  record and the lower  court record  and the decision.   According to the plaint dated 9th August  2004, the plaintiff/respondents  pleaded that the deceased  Regina Njambi Maina  sustained the following  injuries as a result of  an accident  on 1st October 2001 along Sagana/Kenol Road  while she  was travelling as a passenger  in motor vehicle  registration KAL 378J which  collided with motor vehicle registration AE 100-303464A:

(a)   Bilateral fractures (both legs ) of the tibia and fibula.

On the other hand, the medical report  by Doctor Kigo C.N. consultant  surgeon  on 16th August  2004  after only examining  documents  related  to the accident, and not examining  the deceased, he found that the deceased who  had by that time died  of other causes  not related  to the injuries  sustained  in the accident sustained injuries involving:

Blunt injuries and cut on the forehead.

Blunt injuries  and deep cut on both legs

The doctor concluded that the multiple injuries  were consistent  with the  accident  and  were potentially life threatening  ie compound fractures  on both legs which resulted  in long layoff in hospital, long  immobilization of both legs  in plaster case, and  wounds  on the  legs that had delayed  healing.  That  at the time of her death, she had  nonetheless not  regained  full weight  bearing  on both legs  from the accident.  The doctor  conceded that he did not  have the  opportunity of examining  the patient  personally as she had died.  The plaintiff produced the deceased’s  medical treatment  notes from Thika District  Hospital  which showede the injuries  to be clear fracture of  both legs   tibia(see discharge summary for 21st November 2001.  The police abstract  issued on 29th January 2004  classified the deceased’s injuries  as maim.

The law  is clear  that he who alleges  must prove.  In this case, it is clear that  the deceased  died before  she could  be examined by the doctor to confirm  the injuries sustained by her  in the material accident.  The medial report was prepared after her demise.  However , the  doctor was clear that  he was provided  with the  medical treatment  notes  from Thika District  hospital including  the discharge summary  which  were clear  on the injuries  sustained  by the deceased  in the accident.  The discharge summary  dated  21st November 2001  is clear that the  deceased sustained  fractures  of both  tibia and even without  the medical report  of Doctor C.N. Kigo, those injuries  are crystal clear  and the  period the deceased remained in hospital as an in  patient  is also not disputed, being  one month and 21 days.

The deceased remained  in plaster pains of both legs which no  doubt means that  her movements were limited except on crutches and she continued with physiotherapy in  the orthopedic  clinic. Plaster paris  was removed  on 15th February 2002 and she continued  with  physiotherapy for a long time.  The treatment notes show upto 1st October 2002.

The trial magistrate  found that  the treatment  notes were  authentic  records  from Thika  District  hospital  as produced by PW5 Mr Peter Karaya Ndirangu , the health records  officer from Thika District Hospital who  confirmed that the said treatment  notes with  respect  to the deceased  Regina Njambi  indeed  emanated from the  said hospital which attended to her  as an inpatient  No. 10169.  The witness  confirmed  that the patient  (deceased) was  attended  to by doctors Mulingua and doctor Waihenya  and she  was referred to  the orthopaedic  clinic reference No. 47754 which  all confirmed  compound fractures  of both tibia.

In the lower court, the respondents’  counsel submitted for a sum of kshs 700,000 general damages  for pain, suffering and loss of amenities  relying on the  case of  HCC 61/2003 Razi A. Kulate vs Clau Kruger  & Another( Supra)whereas  the defendant/appellant submitted  for nominal damages as per the  injuries  suffered  since the plaintiffs  did not  prove to the court how  the deceased’s  estate suffered loss and damage.  The defendant/appellant  had also  submitted that the plaintiffs/respondents  had not  proved  their case  on a balance  of probabilities  and urged the court to  dismiss  the case with costs.

However, as I have stated above, despite  the appellants  challenging  the whole  of the judgment  in the lower court  both  on liability  and quantum, their  submissions  before this court  only touched  on the excessiveness of damages  awarded  and they  urged this court  to award  the respondents  Kshs 200,000/- general damages.  This court accordingly considers that the rest of  the grounds of appeal  were abandoned and limits  its decision to the amount of quantum of damages. It was not enough to stat in the submission that there was no proof. One has to lay a foundation for saying there was no proof and not to ask the court to go on a fishing expedition to find that there was no proof.

No doubt, the cause  of action  subject matter of the suit  in the court below and which is  the  subject of this appeal survived the deceased and under the Law Reform  Act Cap 26 Laws of Kenya, the legal  representatives  of the estate of  the deceased could  claim for damages due   to the estate of  the deceased person, provided that the suit  is instituted  within 6 months  from the date of issuance  of grant  of letters  of administration.

In this case, the limited grant  produced in  evidence  vide Nairobi HCC P & A 955/2004 was issued to the respondents  herein on 13th April 2004 produced  as P exhibit 6  and was used  to institute  suit on 17th August 2004  which was  within 6 months.  The claim was therefore valid hence the court must treat the claim as if it was filed by  the deceased herself.

I must  mention that the treatment  notes  do not  mention any blunt  injuries  and cut  on the forehead unlike doctor  Kigo’s medical  report  hence I shall ignore that injury  which  was also not pleaded  in the  plaint  dated 9th August  2004.

I shall consider the pleaded injuries which  are consistent   with the injuries recorded  on the hospital treatment notes namely bilateral fractures (both legs)  of tibia .   The trial magistrate awarded the estate of the deceased  shs 650,000 general damages  relying  on Razi Amin Kulate vs Claus  Kruger & Rosemary Nyakinya CA 6/2003.   As special damages  were not pleaded, he declined to award them  albeit there was  an attempt  to produce receipts to prove them.  He was correct in rejecting that claim  for special damages.

The appellants complain that the general damages awarded  was too excessive  and proposes  Kshs 200,000.

In Halsburys Laws  of England  4th Edition VOL 12(1) page 348-883 on pain and suffering:

“ Damages  are awarded for  the physical and mental distress caused  to the plaintiff, both pretrial and in the future  as a result of the injuries.  This includes the pain caused by the injury itself, and  the treatment intended to alienate it, the awareness of and  embarrassment  at the disability or disfigurement, or suffering caused by anxiety  that the plaintiffs condition may demonstrate.”

The general principle  is that  in the assessment  of general damages  for personal 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) e KLR.

Notwithstanding the above principle, the award of damages is at the discretion of the trial court, although that discretion is required to be exercised  judicially.(see Arrow Car Ltd vs Bimomo & 2 Others (2004) 2 KLR 101).

In this case, that the deceased sustained  serious injuries  is not in doubt.  Compound  fracture  of both legs  (tibia) must have  subjected  her to a lot of pain  and suffering taking into  account that  she remained  in plaster paris  for nearly 2 months and then walked on crutches and continued  for physiotherapy  for a long period up to 1st March 2012  according to her orthopaedic  clinic card dated  1st March 2012.  She however did not live very long and on 9th June 2002 she passed on due to other causes.  Had she lived longer no doubt she could have continued to experience  pain and  limited use of her both legs .  That pain  was however  shortened  by her death barely one  year after the accident  though as I have stated, the death  was unrelated to the  injuries sustained  in the accident.

In the circumstances, I am in agreement  with the appellant’s  submissions  in the lower court  that the amount of damages  for pain, suffering  and loss of amenities  awardable  to her estate  cannot be equivalent  to damages that  the deceased  would have  been entitled to had  she lived to seek compensation  on her own behalf.

I therefore find that the trial magistrate erred in law and fact in awarding the plaintiff’s Kshs 650,000/- and in so doing failed to take into account the above factors.

I accordingly interfere   with the  discretion of the trial magistrate and  set aside the award  of shs 650,000/- and in its place  I substitute thereto with an award of shs 320,000/- general damages  for pain, suffering and loss  of amenities, I also  award to  the appellant1/2 (half) costs  of this appeal.  The respondents shall also have ½ costs of the suit in the lower court.

Dated, signed and delivered in open court at Nairobi this 26th day of March 2015.

R.E. ABURILI

JUDGE

26/3/2015