Waruinge & another v Wambua [2023] KEHC 25558 (KLR)

Waruinge & another v Wambua (Civil Appeal E161 of 2021) [2023] KEHC 25558 (KLR) (17 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25558 (KLR)

Republic of Kenya

In the High Court at Kiambu

Civil Appeal E161 of 2021

A Mshila, J

November 17, 2023

Between

Christopher Waruinge

1st Appellant

Muna Gekonyo

2nd Appellant

and

Mwangi Wambua

Respondent

(Being an appeal from the original judgment delivered by Honourable J. M. Nagea (CM) on 24th August, 2021 in Thika CMCC NO. 932 of 2016)

Judgment

Background 1. By a Plaint filed on 30/08/2011, the Respondent herein sued the Appellants claiming compensation for injuries sustained on or about the 28th day of January, 2011 along Thika-Juja road at Ndarugo area while the Respondent was a fare paying passenger aboard the suit motor vehicle when the 1st Appellant and/or his driver so negligently drove motor vehicle registration number KBG 373E Toyota Matatu causing it to collide with motor vehicle registration number KUV 729 Isuzu Lorry.

2. The Appellants filed their Defence denying that the Respondent was a fare paying passenger in the accident motor vehicle. They denied the occurrence of the accident and the negligence attributed to them. Further that the Respondent solely caused the accident if any.

3. The matter proceeded to a full hearing. The trial court found that the Respondent’s evidence was believable as such the Appellants were held wholly liable jointly and severally.

4. On quantum, the Honourable Trial Magistrate entered judgment as follows:a.General damages…..........................................Kshs. 400,000/=b.Special damages……………………………....Kshs. 4,000/=Total Kshs. 404,000/=c.Plus costs and interests

5. The Appellants are dissatisfied with the lower Court’s judgment and preferred the present Appeal. In their Memorandum of Appeal, they have listed eight grounds of appeal as follows:-a.That the learned trial magistrate erred in fact and law and misdirected himself in finding that the Respondent is entitled to general damages of Kshs.400,000/= which amount is excessive for a fracture mandible and 1 loose lower incisor.b.That the learned trial magistrate erred in fact and law and misdirected himself in finding the Respondent 100% liable when indeed the third party motor vehicle was blamed for the accident.c.That the learned trial magistrate misdirected himself in ignoring the principles applicable in awarding quantum of damages and liability and relevant authorities on quantum and liability cited in the written submissions presented and filed by the Appellants.d.That the learned trial magistrate proceeded on wrong principles when assessing the damages and liability to be awarded to the Respondent (to apply precedents and tenets of law applicable).e.That the learned trial magistrate failed to apply himself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and liability thereby arriving at a decision unsustainable in law.f.That the learned magistrate erred in law and fact in arriving at his said decision.g.That the learned trial magistrate's decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.h.That the learned trial magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.

6. The court directed the parties to canvass the appeal by way of written submissions.

Appellants’ Submissions 7. The Appellants submit that according to the plaint the Respondent sustained a fracture mandible with mobile lower incisor tooth. That the P3 Form and medical report lists similar injuries. The lower court awarded Kshs. 400,000/= which was inordinately high as the Respondent suffered a single fracture. The Appellants submit that an award of between Kshs. 250,000/= will be reasonable. Reliance was placed on among other cases the case of Ahmed Mzee Famau t/a Najaa Coach Ltd & another vs Veronica Muiya aka Veronica Ngui Muiya (2017) eKLR. The court was urged to allow the appeal with costs.

Respondent’s Submissions 8. The Respondent submits that the he suffered a fracture of mandible and a loose incisor tooth. Reliance was placed on the cases submitted in the lower court being Patrick Kamuyu & another vs Asaph Gaundu Wanjiku (2016) eKLR and Ahmed Mzee Famau t/a Najaa Coach Ltd & another vs Veronica Muiya aka Veronica Ngui Muiya (2017) eKLR. It was submitted that the trial court was well within the authority to award Kshs. 400,000/= as such the court was urged not to disturb the award.

Trial Court’s Evidence 9. During the hearing at the trial court, NO. 84389 PC Charles Mwadime (PW1) based at Thika Police Station produced the police abstract. He stated that the driver of the accident motor vehicle was charged with careless driving and was fined Kshs. 5,000/=.

10. Dr. George Karanja (PW2) produced the medical report which indicated that the respondent sustained a fracture mandible with mobile lower incisor tooth.

11. Mwangi Wambua (PW3) wished to adopt his witness statement as his evidence in chief as well as his bundle of documents. He blamed the accident motor vehicle for the injuries sustained as it was speeding. That he suffered injuries to the head and his tooth broke. That he was treated at Thika Level 5 hospital. He prayed for compensation and costs of the suit. The Respondent closed his case. The defence did not call any witness.

Issues For Determination 12. Having read and considered the submissions by the parties and the case law relied upon, the main issue for determination is whether the damages awarded were inordinately high.

Analysis 13. This being a first appeal, it is the duty of the Court to review the evidence adduced before the lower court and satisfy itself that the decision was well-founded. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

14. On quantum, the Appellants alleges that the Honourable Magistrate awarded damages that were excessive for a fracture mandible and one loose lower incisor.

15. General damages awarded at the lower court can only be interfered with if it is “so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the (court) 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.” (Refer to the case of Butt –vs- Khan, Nairobi Civil Appeal NO. 40 of 1977).

16. A similar view was expressed in by the Court of Appeal in Gitobu Imanyara & 2 others v Attorney General (2016) eKLR thus:-“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.”

17. The Appellate court has jurisdiction to only interfere with the assessment of damages by a trial court if it is demonstrated that the trial court:-a.Took into account an irrelevant factor orb.Left out of account a relevant factor or,c.The award is so inordinately high that it must be a wholly erroneous estimate of the damage. See the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & another vs Lubia & another (NO.2) (1985) eKLR.

18. The report prepared by Dr. George Karanja indicated that the Respondent sustained a fracture mandible with a loose incisor tooth. The Respondent testified that he suffered injuries to the head and one of his tooth broke. That he was treated at Thika Level 5 hospital.

19. The Appellants submitted that an award of Kshs. 250,000/= would be adequate for a single fracture of the mandible and a loose incisor tooth. They placed reliance on among other cases the case of Ahmed Mzee Famau t/a Najaa Coach Ltd & another vs Veronica Muiya aka Veronica Ngui Muiya (2017) eKLR

20. The trial magistrate in considering the authorities cited by parties and the relevant factors, the Respondent was awarded Kshs. 400,000/=.

21. Courts have held that comparable injuries should be compensated by comparable awards. See the case of Denshire Muteti Wambua vs Kenya Power & Lighting Co. Ltd (2013) eKLR on the general method of assessment of damages being that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases.

22. The trial court exercised its discretion in this matter. Neither the Appellant nor the Respondent have shown that the awards were either extremely low or high to represent an entirely erroneous estimate of the awards the Respondent was entitled to.

23. In the instant case, it is this courts considered view that the damages awarded by the trial are reasonable. In arriving at this conclusion, this court is alive to what Kneller J.A, stated in Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.M. Lubia and Olive Lubia (1985) that:-The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

24. In Gicheru v Morton & another [2005] 2 KLR 333, the Court of Appeal again stated that“in order to justify reversing of the trial court’s amount of damages, it is necessary that the appellate court be convinced either that the trial court acted upon some wrong principle of law, or that the amount awarded is so extremely high or so very small as to make it, in the judgment of the court, an entirely erroneous estimate of the damage to which the appellant was entitled.”

25. Having applied these principles to this appeal, the fact that the Respondent was involved in the accident in 2011 and bearing in mind the inflationary trends, this court finds no good reason to disturb the said award given that as it is satisfied that the award was not inordinately low or excessively high and/or based on the wrong principles of law. Refer to the case of Paul Kithinji Kirimi & another v Gatwiri Murithi [2018] eKLR where Majanja J. substituted an award of Kshs. 700,000/= with an award of Kshs. 450,000/= where the plaintiff had sustained a fracture of the mandible and a broken leg and thigh bone in 2018.

26. Only in clear cases should an appellate court interfere with a trial court’s assessment of damages. The Appellate court should not impose its own view on what it would have awarded had it been the one trying the matter at first instance.

Findings And Determinations 27. For the forgoing reasons this court finds that the appeal is devoid of merit and it is hereby dismissed with costs to the Respondent.

DATED SIGNED AND DELIVERED VIA TEAMS AT KIAMBU THIS 17TH DAY OF NOVEMBER, 2023. A.MSHILAJUDGEIn the presence of;Mourice – Court AssistantNjuguna – for AppellantMaina – for the Respondent