Samuel Kipkemoi Kirui v Ibrahim Shero Husein, Wesley Murai & Wesley Kipkorir [2016] KEHC 3759 (KLR)

REPUBLIC OF KENYA

INTHE HIGH COURT OF KENYA AT NAKURU

CIVIL APPEAL NUMBER126 OF 2012

SAMUELKIPKEMOI KIRUI.................................................................APPELLANT

VERSUS

IBRAHIMSHERO HUSEIN......................................................1ST RESPONDENT

WESLEY MURAI....................................................................2ND  RESPONDENT

WESLEY KIPKORIR...............................................................3RD RESPONDENT

(Being an appeal from the Judgment/Decree of Honourable Nyaga, Senior Principal

Magistrate in Molo SPMCC NO. 83 of 2011 delivered on 19th   June 2012)

J UD G M E N T

1. The appeal before the court is against the award of general damages to the appellant on  the 19th  June 2013 in Molo SPMCC No. 83 of 2011. The appellant  was dissatisfied  with  the award as being  inordinately low and urges this court to enhance the same.

Following the traffic road accident on the 10th  December 2010 between the respondent's motor vehicle,  the appellant sustained the following injuries that were confirmed in Dr. W.K. Kiamba's medical report dated 10th February  2011,  the  P3  form  and  discharge     summary  from  Nakuru Provincial Hospital dated 20th  December 2010.

Fracture of the left femur

Severe   soft   tissue   injuries   of   the   left   knee  joint   that   has haemoarthrosis  and bruises  on the anterior aspect Xrays of the left femur showed open reduced and internal fixation was done.

The Doctor made findings that the Appellant complained of pain in the left thigh and had swelling of the left knee joint, had commuted fracture of the left  femur on the one third  and 5 cm scar on the anterior aspect of the knee.

The trial Magistrate awarded to the appellant Kshs.400,000/= for general damages for pain and suffering.  It is this sum that has been appealed from as being inordinately low.

2. This  is  the first  appellate  court.   It  is  mandated to  reconsider and re­ evaluate the evidence tendered in the trial court and come up with its own findings  and conclusions,  and in deciding  whether or not to disturb the quantumof damages, it has to satisfy itself whether the trial Magistrate in assessing the said damages took into account an irrelevant factor or left out a relevant one or whether the amount is inordinately low that it is a wholly erroneous estimate of he damages.

See Kemfro Africa Ltd t/a  Meru  Express  Service ­vs­ A.M. Lubia & Another (1982­88) L KAR 727 and Butt ­vs­ Khan (1977) I KAR.

3. I have looked  at the appellants Amended Plaint dated 25th  October 2011 and filed on the 24th  November 2011.  At Paragraph 10, it is pleaded that the appellant required a sum of Kshs.80,000/= being future medical expenses for removal of plates inserted in the fractured femur.

I have also considered the evidence tendered before the trial court by the appellant.

It was his evidence that he had plates  in situthat he was advised by his doctor  would  need to  be removed after  2½    years  at  a cost of  Kshs 110,000/=.   Dr. W.K. Kiamba  in his  report did not however refer to the cost of  future  medication,  but  mentioned  the  internal  fixations  of  the plates.

4. In  his  submissions  before the trial  court, the appellant  by his  advocate submitted that a sum of Kshs.110,000/= was required for the future operation but did not lay a basis on how the said sum was arrived at as the Doctor did not testify, his  medical  report having  been produced by the appellant by consent of the parties.

The appellant proposed general damages for pain and suffering of Kshs.800,000/=  before the trial  court while the Respondents  proposed a sum of Kshs.100,000/=.

5. Before this court, the appellant submits that the sum of Kshs.400,000/= as general damages is too low as to represent a fair assessment of damages by the  trial court.    He referred to  the  case Rosemary  Bulinda­vs­ Peter Kinyanjui Gakuru and Others Nakuru HCCC No. 86 of 1998where a sum of Kshs.650,000/= was awarded (full authority not annexed).

Also referred to is Desmond  Lempoko  ­vs­ KCB (2013)e KLR.The court on    appeal awarded Kshs.800,000/= general damages up from Kshs.250,000/= in the trial court for injuries to fracture of the femur.

I have also considered the case Charles  Musau Munguti ­vs­ Doshi  & Co(H) Limited (2007) e KLRbeing HCA No. 373 of 2005. Here the trial court failed to award damages for future medical expenses when the same was pleaded  and the two doctors  in their medical  reports  recommended Kshs.80,000/=. The appeal court allowed the same.

6. The Respondents on their part submit that the appeal lacks merit, and that the sum of Kshs.400,000/=  awarded is  adequate compensation  for pain and suffering.  On future medical expenses, it is submitted that it ought not be granted as doing so goes against well known and established heads of damages under the Law of Torts as it is an affront to the general principles governing an award of special damages.

It is submitted that such an award being futuristic can only be claimed and awarded under the head of general damages (quoting from Winfield and Folowizcon Torts, 17th  Edition 2002 Page 760).The respondents confirm that the claim was pleaded but not proved.  It is urged that that claim be dismissed.

7.  I     have analysed the evidence and findings of the trial court and submissions by counsel in the appeal.

An award of damages is at the discretion of the trial court and an appellate court will be slow to interfere with  the award unless  it is clear  that it is based on no evidence or is a misapprehension of the evidence.

The only issues I am called upon to determine are whether the award of Kshs.400,000/= general damages is adequate for the injuries stated in  the medical records, and whether an award for future medical expenses ought to be granted.

8. I have considered the authorities  submitted  by the appellant  in the trial court and in this court.

In  Desmond  Lempoko ­vs­ KCB (Supra)the  injuries  sustained were segmented fracture of the femur and  future treatment was required. The sum of Kshs.250,000/=  awarded as general damages  was enhanced to Kshs.800,000/=,  as the initial sum of Kshs.250,000/=  was inordinately low.

The award complained of was granted on the 19th  June 2012.  I am minded to consider the trend in inflation and the reduced value of the shilling.  In the case submitted  by the respondents, Kenyatta University ­vs­  Isaac Karumba (2014) e KLR,the injuries  sustained by the respondent were fracture of the right femur, soft tissue injuries head and bruises to the right knee.  A sum of Kshs.700,000/= were awarded as general damages. On appeal, the High Court found the award   inordinately high and an erroneous estimate  of damages.  In  doing  so, the court  considered the current trend and thought. The injuries in this case compare well with the appellant's injuries in this appeal.

I have also considered the case JamesMukathi Maria ­vs­ M.A. Bayusuf& Sons Ltd (2013)  e KLR.For fracture of the femur and shortening of the leg  by ½ cm, the court awarded Kshs.480,000/=  in general damages in November, 2014.    Having considered the above authorities, and submissions by counsel, I   come to the conclusion that the award of Kshs.400,000/=was  neither inordinately too low as to have been a wrong estimate of the damages and therefore call for this court's interference. Current trend in awards  of damages coupled  with  the recent  precedent justify the trial court's  award of Kshs.400,000/=.  I find no justification to set aside the said award and hereby confirm the same.

9. As stated  by the Respondent's  advocate, it is  true  that  future  medical expenses are pleaded.   They are futuristic in nature, and only estimates. The appellant while testifying only mentioned that he had been told that it would cost about Kshs.110,000/=to have the metal inplants removed after 2½ years. It is noted that the appellants doctor did not mention this future expense in this report.  The appellant did not tender any evidence on the claims of Kshs.110,000/=.   The trial  Magistrate had nothing to go by to consider the  claim.  I  cannot  fault  him  for  dismissing  the  claim  as unproved.

10. A claim  for future  medical  expenses  is  a special  damage though within general damages. The law is established that an award of damages to meet the cost of future medication  falls  under the rubric of general  damages. The need for future care is itself a special damages and it must be pleaded and proved by evidence and that  flows from the general principle that all losses other than those which the law does contemplate as arising naturally from the infringement of a person's legal  rights  should  be pleaded,  and proved.

See Simon Taveta ­vs­ Mercy Mutitu  Njeru  (2014) eKLRand Paul Otieno Abuya and Another ­vs­ Joshua  Atuti Ngoto (2016) e KLR in HCA No. 78 of 2012where a claim for future medical expenses is extensively expounded.  It is the court's finding that the appellant pleaded the claim  for future  medical  expenses  but failed   to prove the same.  I found that the trial Magistrate was well guided when he failed to make any award on that claim.

For those reasons, I find no merit in the appeal.  It is dismissed with costs to the respondents.

Dated, signed and delivered in open court this 14th  day of July 2016

JANETMULWA

JUDGE