Thairu & another v Aliea [2023] KEHC 24708 (KLR)

Thairu & another v Aliea (Civil Appeal E188 of 2021) [2023] KEHC 24708 (KLR) (Civ) (3 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24708 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E188 of 2021

AN Ongeri, J

November 3, 2023

Between

Kimaru Thairu

1st Appellant

Amos Maina

2nd Appellant

and

Bonface Onyango Aliea

Respondent

(Being an appeal from the ruling and order of Hon. D. O. Mbeja (PM) in Milimani CMCC No. 1545 of 2017 delivered on 30/4/2020)

Judgment

1. The respondent in this appeal, Bonface Onyango Aliwa, was the plaintiff in Milimani CMCC No. 1545 of 2017 where he sued the appellants Kimaru Thairu and Amos Maina seeking general damages for personal injuries sustained when he was hit by the 1st appellant’s motor vehicle while standing at a bus stop.

2. The said motor vehicle registration no. KCA 969G was being driven by the 2nd appellant on 19/9/2016 off Manyanja road in Nairobi when it veered off the road and violently hit the respondent.

3. The respondent who attributed the accident to the negligence of the 2nd appellant sustained a fracture of the left tibial plateau.

4. The appellants in their statement of defense filed in the trial court denied the respondent’s case.

5. After hearing the suit, the trial court found the appellants 100% liable and awarded general damages as follows:General damages for pain & suffering 1,200,000Special damages 3,550Total 1,203,550

6. The trial court also awarded the respondent costs of the suit and interest at court rates from the date of the judgment until payment in full.

7. The appellants have filed this appeal on the following grounds;That the Learned Magistrate erred in fact and law in finding that:a.The Appellant was liable for the said accident against the height of evidence adduced in Court;b.The respondents were entitled to general damages of Kshs. 1,200,000 which were too high in the circumstances;c.Awarding interest on general damages from the date of filing the suit until the amount was paid in full.

8. The Appellants prayed for the appeal to be allowed with costs, the Judgement delivered on 30th April 2020 be set aside, the award under general damages be substituted by an appropriate amount and the cost of the appeal be borne by the Respondents.

9. The parties filed written submission which I have duly considered. The Appellants submitted that the P3 dated 26th September 2016 and the medical report by Doctor L. Okombo listed the Respondent’s injury as only a fracture of the left tibia plateau.

10. The Appellants further submitted that general damages of Kshs. 1,200,000 and special damaged of Kshs. 3,550 was inordinately high and suggested a figure of Kshs. 500,000.

11. They relied on the decisions in Godfrey Wamalwa Wamba & Anor vs Kyalo Wambua (2018) eKLR where the Court awarded Kshs. 700,000 for a compound fracture of the right distal tibia/fibula, cut wounds on the scalp, chest and lower lip and reconstructive surgery of the fibula.

12. The Appellant also relied on the finding in the matter of Hussein Sambur Hussein vs Sharif A. Abdulla Hussein & 2 others (2022) eKLR where the Court awarded Kshs. 700,000 for fractures of the right tibia and fibula and permanent disability pf 18%.

13. The Appellant prayed that this court set aside the decision of then trial court, reassess the quantum based on the Appellant’s submissions and award the Appellant the cost of this Appeal.

14. The Respondent submitted that during trial, the Appellant’s witness had testified that indeed the accident had occurred, involving the Appellant’s motor vehicle driven by the second Appellant who was blamed for the accident.

15. The Respondents said the Appellant’s had not adduced any evidence pointing to the negligence of the Respondent. They contended that the learned Magistrate apportioned liability of 100% liability to the Appellants based on the evidence on record.

16. On the issue of damages, the Respondent submitted that he had suffered bodily injuries which were particularized in his pleadings and corroborated by a Doctor’s report and P3 Form.

17. The respondent had prayed for Kshs. 2,000,000 in damages based on similar awards for injuries of that nature. He submitted that due to the injuries sustained during the accident, he could not run or walk fast and the Doctor had assessed a permanent incapacity at 20% which evidence was never challenged or rebutted by the Appellants.

18. The Respondent relied on the finding in the matter of Shadrack Mathias & Anor -v- Agnes Muluki Wambua (2012) eKLR where the Court had awarded Kshs. 1,000,000 for a blunt injury on the left leg with 12% incapacity.

19. On the formula of assessment, the respondent submitted that the award should take into account the time value of money, as explained in Kemo & Kemp, Volume 1, para 1-003 . . .Quantum of damages: To be comparable, the previous cases must have been made at the time or close to the time the injuries were suffered by a claimant, hence the provision for adjustment.

20. The Respondent also relied on the finding in the matter of Mutua Kaluku -v- Muthini Kilutu, Civil Appeal 180 OF 2008 (2018) eKLR where the Court held that:“I am guided by the legal principles that apply to an award of damages in such circumstances, which are that a sum should be awarded which is in its nature of a conventional award, in the sense that awards for comparable injuries . . . and the amount of the award is influenced by the amounts of awards I previous cases in which the injuries appear to have been comparable, and is adjusted in light of the fall in the value of money since such awards were made.

21. The Respondent thus submitted that the award of Kshs. 1,200,000 for general damages was reasonable and appropriate having put into account the injuries sustained and comparable authorities adjusted to the current inflation rates.

22. Further, the Appellants had not demonstrated whether the award of damages was based on the wrong facts or too high to warrant interreference by this Court.

23. The Respondent urged this Court to dismiss the Appeal as it is unsustainable and devoid of merit, and to uphold the trial Magistrate’s decision and the ward therein.

24. This being a first appeal, my duty is to re-evaluate the evidence adduced before the trial court and to arrive at my own conclusion whether or not to support the findings of the trial court while bearing in mind that the trial court had the opportunity to see the witnesses.

25. Section 78 of the Civil Procedure Act, Cap 21 Laws of Kenya requires a first appellate court “to re-evaluate, reassess and reanalyze the extracts of the record and draw its own conclusions.

26. These provisions was underscored in the matter of Peter M. Kariuki –vs- Attorney General [2014] eKLR where the court held inter alia as follows:-“We have also, as we are duty bound to do as a first appellate court [to] reconsider the evidence adduced before the trial court and re-evaluate it to draw our own independent conclusions and to satisfy ourselves that the conclusions reached by the trial judge are consistent with the evidence”

27. The issues for determination in this appeal are as follows;i.Whether the trial court was right in holding that the appellants were 100% liable for the accident.ii.Whether the assessment of damages was inordinately high.

28. On the issue of liability, I find that the appellants called the police officer who produced an extract of the OB as an exhibit.

29. I find that the appellants did not adduce evidence to controvert the respondent’s testimony that he was hit while at a bus stop.

30. I find that the trial court was right in finding the appellants 100% liable.

31. On the issue of assessment of damages, I find that respondent sustained a fracture of the left tibial plateau.

32. The doctor who examined the respondent said the respondent suffered 20% permanent incapacity. This evidence has not been challenged.

33. I have considered the authorities relied upon by both parties. I find that general damages of ksh.1,200,000 reasonable in view of the degree of permanent incapacity the respondent sustained.

34. The appellate court can only interfere with the award of damages if the same is too high or too low or where the trial court applied wrong principles and arrived at an erroneous conclusion.

35. In the Court of Appeal’s decision in the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR, the Court of Appeal held that –“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that:‘An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

36. I find that the appeal herein lacks in merit and I dismiss it with costs to the respondent.

37. I uphold both the finding on liability and the award of general damages.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 3RD DAY OF NOVEMBER, 2023. ......................A. N. ONGERIJUDGEIn the presence of:……………………………. for the 1st Appellant……………………………. for the 2nd Appellant……………………………. for the Respondent