Samuel Ndung’u Ngugi & Kenneth Ndichu Karanja v David Kihara Mbu [2019] KEHC 9859 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CIVIL APPEAL NO. 54 OF 2014

SAMUEL NDUNG’U NGUGI....................................1ST APPELLANT

KENNETH NDICHU KARANJA.............................2ND APPELLANT

VERSUS

DAVID KIHARA MBUI.................................................RESPONDENT

[Appeal from thejudgmentof D. Orimba, Senior Principal Magistrate, in Kigumo PMCC No. 92 of 2013 delivered on 20th June 2014]

JUDGMENT

1. The appellants are aggrieved by the quantum of damages awarded in the lower court.

2. By an amended plaint dated 4th October 2013, the respondent pleaded that on 16th May 2012, he was a passenger in motor vehicle KAZ 312A. It was being driven along the Murang’a-Kenol Road. He claimed that the appellants’ truck registration number   KAK 610D was driven carelessly; that it eventually lost control and collided with the other vehicle.

3. The respondent suffered serious injuries; lost capacity for future earnings; and, incurred special damages pleaded at paragraph 10 of the amended plaint. He prayed for damages and costs.

4. In a statement of defence dated 16th July 2013, the appellants denied the claim in toto. They disputed that they were negligent; and, blamed the respondent; and, the driver of motor vehicle KAZ 312A for contributory negligence.

5. On   20th December 2013   the disputants entered into a consentjudgmenton liability in the ratio of   75% to 25%   in   favour   of   the plaintiff.

6. The learned trial magistrate assessed damages as follows: Kshs 1,500,000   as general   damages; special   damages Kshs 263,700; periodical replacement   of   the prosthesis at Kshs 720,000; removal of metal implants at Kshs 65,000; and,  loss of   earning   capacity   at Kshs 1,852,110.

7. The respondent was also granted costs of the suit.

8. The appellant filed a memorandum of appeal on 10th July 2014. There are eight grounds. They can be condensed into four. First, that the learned trial magistrate disregarded the appellants’ submissions; secondly, that the trial court misapprehended the evidence on loss of earnings, loss of income and applicable multiplier; thirdly, that part of the special damages awarded were not strictly proved; and, fourthly, that the general damages were manifestly excessive.

9. At the hearing of this appeal, learned counsel for the appellant relied entirely on written submissions filed on 17th July 2017 and a further reply filed on 7th November 2017. The respondent’s counsel relied on the submissions filed on 30th June 2017.

10. This is a first appeal to the High Court. It is thus an appeal on both facts and the law. I have re-evaluated all the evidence and drawn independent conclusions. There is a caveat because I neither saw nor heard the witnesses. See Peters v Sunday Post Limited [1958] E.A 424, Selle v Associated Motor Boat Company Ltd [1968] E.A 123, Williamson Diamonds Ltd v Brown [1970] EA 1, Mwanasokoni v Kenya Bus Services Ltd [1985] KLR 931.

11. I will deal first with general damages. According   to   the medical   report   of Dr.   Wambugu dated 3rd October 2013     the   respondent   sustained   the   following injuries:

a) Traumatic   amputation   of the right   leg   below   the knee   joint;

b) Fracture of the right   femur;

c) Laceration   wound   on the right   scapular   region; and,

d) Multiple   bruises   on the right   side of   his face.

12. The appellants contend that the   respondent’s   wound healed   well; and, that movements   across   the knee   joint   and   hip joint were normal. They conceded that   the fracture   was   managed   by   the   reduction   and internal   fixation   using   metal implants. Accordingly an   award of   Kshs 1,000,000 would have been sufficient.   The appellants contend that their submissions on that point were disregarded by the lower court.

13. As a general rule, an appellate court will not interfere with quantum of damages unless the award is so high; or, inordinately low; or, founded on wrong principles. SeeButt v Khan [1982-88] KAR 1, Arkay Industries Ltd v Amani[1990] KLR 309.

14. The appellants cited Douglas   Erick   Nyakundi   Masira   vs Rongai   workshop   Ltd   & another, Nairobi, High Court Civil Case 28 of 2007 [2009] eKLR. The plaintiff there suffered compound   fractures   of   the   right   leg which was later   amputated.    Damages   for pain,   suffering   and   loss   of   amenities were assessed at   Kshs 800,000.

15. Reliance was also made  on the decision by Maraga J (as he then was) in Jane Otieno v Mombasa Liners Ltd & another, Mombasa, High Court Civil Case 47 of 2003 [2005] eKLR. The plaintiff’s right leg was amputated; there were fractures to the left ulna and radius among other injuries.  She was awarded Kshs 800,000 for pain and suffering.

16. The respondents countered by relying on Salome Wachira v Signon Freight Ltd & others, Nairobi, High Court Civil Case 658 of 2004 [2007] eKLR. In that case there was an amputation at mid-thigh, injuries to the chest, ribs, left leg, hip and abrasions to the arms. Damages   were assessed at   Kshs 1,200,000.

17. From the evidence, the respondent suffered a crush injury of the right lower limb. It was amputated on 17th May 2012 below the knee joint. He underwent an open reduction of the fractured femur with a metal implant on 17th June 2012; and was fitted with a prosthesis in November 2012.

18. Dr. Ikonya’s opinion was that the respondent “may suffer” permanent incapacity of about 65%. The statement is inconclusive. Dr. Wambugu’s opinion on the other hand was emphatic that incapacity was 40%. The learned trial magistrate erroneously found that incapacity was “agreed” to be 65%. There was no such agreement by the disputants.

19. Granted the injuries the award of Kshs 1,500,000 was too high as to be founded on wrong principles. Taking into account inflation and the age of the authorities, I find that a sum of Kshs 1,000,000 was more than sufficient. I set aside the award of general damages.

20. Special damages must be specifically pleaded; and, strictly proved. Kampala City Council v Nakaye [1972] E.A 446. The special damages were specifically pleaded at paragraph 10 of the amended plaint. I have studied the bundle of receipts (exhibit 2). I find that the respondent only proved the sum of Kshs 246, 585. I thus set aside the award by the lower court of Kshs 263, 700. I substitute it with the sum of Kshs 246, 585.

21. Ground 3 challenges the cost of the prosthesis. I am satisfied that the initial cost including fitting and training was Kshs 240,000. The receipt is attached. Dr. Wambugu’s further opinion dated 14th February 2014 puts the cost of future prosthesis at Kshs 120,000. In that report, the doctor states that replacement should be done every 4 to 6 years. The learned trial magistrate found that with the plaintiff’s young age, he would require 6 replacements. The total cost is Kshs 720,000. The finding is reasonable and supported by professional evidence. I decline to disturb that award.

22. There was a consent filed on 8th May 2014 on the cost of removing the metal implants at Kshs 65,000.

23. I will now turn to loss of future earnings. In assessing loss of income, the court must be guided by the age of the deceased, the incapacity, life expectancy, and vicissitudes of life. See generally Kemfro v Lubia [1982-88] KAR 727.

24. The appellants did not call any witnesses. From the evidence, the respondent was 22 years at the time of the accident. The multiplier of 30 years adopted by the trial court was quitereasonable.

25. The respondent was working in his uncle’s water vending business. He said the daily wage was Kshs 1,000. The burden to prove the earnings fell on his shoulders. Section 107 of the Evidence Act. See also Esther Wanjiru Kiarie v Mary Wanjiru Githaka, High Court, Eldoret, P&A Cause 244 of 2002 [2016] eKLR.

26. The respondent did not produce any pay slip or a document to confirm it. But it was not controverted that he was employed. I find that the learned trial magistrate correctly relied on the minimum wage of Kshs 7,915 per month. The only error in the arithmetic was that the court factored incapacity at 65%. As I stated earlier there was no such agreement; and, the more emphaticfinding was by Dr. Wambugu at 40%. The arithmetic should thus work out as follows: Kshs 7,915 x 12 x 30 x 40/100 = 1,139,760.

27. Finally, it is not true that the appellant’s submissions were completely disregarded. Final submissions are only for the guidance of the court: they are unlike pleadings. There is no requirement that each and every submission or authority tendered be analyzed in the judgment. Joshua Shitawa v Kishan Builders Limited, High Court, Eldoret, Civil Appeal 32 of 2012 [2015] eKLR. That ground of appeal fails.

28. The upshot is that this appeal partially succeeds. The judgment and the decree of the lower court are set aside. There shall now be judgment in favour of the respondent in the following terms-

a) General damages for pain and suffering: Kshs 1,000,000.

b) Loss of earnings: Kshs 7,915 x 12 x 30 x 40/100 = Kshs 1,139,760.

c) Special damages: Kshs 246, 585.

d) Future medical expenses on replacements of the prosthesis:Kshs 720,000.

e)  Future medical expenses on removalof metal implants: Kshs 65,000.

Subtotal………………………………………....…Kshs 3,171,345. 00

Less 25% contributory negligence……………......Kshs     792,836. 25

Net Award...............................................................Kshs  2,378,508. 75

29. Costs follow the event and are at the discretion of the court. I grant the respondent costs in the lower court. Each party shall however bear its own costs in this appeal.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 26th day of February 2019.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of-

Mr. Mbuthia holding brief for Mrs. Wang’ombe for the appellant instructed by L. W. Wang’ombe & Company Advocates.

No appearance by counsel for the respondent.

Ms. Dorcas and Mr. Elizabeth, Court Clerks.