Mwavita Jonathan v Silivia Onunga [2017] KEHC 2176 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT AT KISUMU

CIVIL APPEAL NO. 17 OF 2017

BETWEEN

MWAVITA JONATHAN.......................APPELLANT

AND

SILIVIA ONUNGA............................RESPONDENT

(Being an appeal from the Judgment and Decree of Hon.T. Obutu, PM dated 20^th January 2017 at the Chief Magistrates Court at Kisumu in Civil Case No. 375 of 2014)

JUDGMENT

1. This appeal is against the trial court’s judgment on quantum. The respondent was injured in a road traffic accident that took place on 6^th December 2013 while she was walking along the road leading to Kodiaga Prison when she was knocked down by the appellant’s motor vehicle registration number KBB 465 W. In due course, liability was agreed in the ratio 70:30 against the appellant. The trial magistrate awarded the respondent Kshs. 1,000,000/- and Kshs. 327,518/- as general and special damages respectively. It is the award of general damages that has precipitated this appeal.

2. The injuries sustained by the respondent were not in dispute. After the accident, the respondent was admitted to Jaramogi Odinga Oginga Teaching and Referral Hospital on 6^th December 2013. She was later admitted to St Luke’s Orthopaedic and Trauma Hospital on 11^th December 2013 and was discharged on 16^th December 2013. Dr Manasseh Onyimbi examined her on 19^th May 2014 and prepared a report in which he detailed the injuries sustained by the respondent as follows:

• Left hip commuted intertrochanteric fracture
• Blunt chest injury
• Dislocated right knee joint
• Sprains at the cervical spine of the neck and the lumbar-sacral spine of the back
• Deep wound on the left lower leg which cause lot of blood

3. At the time Dr Onyimbi examined the respondent, she could not walk without the support of crutches and as a result of the injuries she could not engage in and perform routine physical tasks. She complained of persistent painful sensations from the damaged left hip causing her sleepless nights. He noted that she had post-operative surgical plating and screws at the damaged left hip joint. After reviewing her history of treatment, concluded that the respondent has suffered disabling grievous harm. He assessed her disability at 85% and concluded that reasonable recovery could be realised in the next 4 to 5 years’ subject to diligent follow up.

4. The respondent was further examined by Dr Olima on 21^st October 2015. He confirmed that the respondent sustained head and neck injuries which resulted in unconsciousness, blunt injuries on the chest and inter-trochantric fracture of the right femur. When he saw the respondent, he noted that she complained of pain at the fracture site, inability to walk without crutches and inability to lift the right leg. His prognosis and opinion was that the she suffered a fractured surgical neck of the right femur which had not united well with internal fixation.

5. In quantifying the level of award, the respondent proposed Kshs. 2,000,000/- as general damages. She cited Charles Wanyoike Githuka v Joseph Mwangi Thuo & 2 Others NKU HCCC No. 68 of 2005 [2008]eKLR where the plaintiff suffered head injuries (cerebral concussion), abrasion over the left foreheard,8^th right rib fracure, fracture of the mid-shaft of the femur, segmental fractures of the right left femur, compound fracture of the right lower legs (tibia and fibula), fracture of the tibia plateau, fracture of the right ankle joint, deep cut wound on the medial aspect of the left foot, fracture of the right upper incisor tooth with loss of the fracture fragment and deep abrasion of the left lower leg.  In considering the award, the trial judge noted that the plaintiff was admitted for 2 months in hospital and underwent several operations. The trial judge awarded Kshs. 2,000,000/- as general damages in 2008.

6. The respondent also relied on Milicent Atieno Ochuonyo v Katola Richard NRB HCC No. 38 of 2012 [2015]eKLR where the plaintiff sustained severe bodily injuries and complex pelvic fracture of the right public bone and separation of the pubic symphysis. The degree of permanent disability was assessed at 40%. The court awarded the plaintiff was awarded Kshs. 2,000,000/- as general damages.

7. The appellant proposed an award of Kshs. 300,000/- as general damages. He cited several cases as follows. In Ibrahim Kalema Lewa v Esteel Company Limited NBI HCCA No. 475 of 2012 [2016]eKLR the High Court upheld an award of Kshs. 300,000/- on appeal in 2016 where the plaintiff sustained an inter trochanteric fracture of the left femur. He was admitted to hospital for 2 months and his physical disability assessed at 25%. The doctor noted that he would not attain normal functional capacity of his limb. In Eldoret Steel Mills Limited v Elphas Victor Espila ELD HCCA No. 72 of 2006 [2013]eKLR, the plaintiff was awarded Kshs. 300,000/- in 2013. He had sustained a sub-trachanteric fracture of the right femur, fracture of the metarsal bones of the right foot and soft tissue injuries to the right arm, right hip, right thigh and right foot. Permanent disability was assessed at 35%. The plaintiff in Kenyatta University v Isaac Karumba Nyuthe NRB HCCA No. 193 of 2012[2014]eKLR was awarded Kshs. 350,000/- in 2014 for sustaining a fracture of the right femur, soft tissue injuries to the head and bruises on the right knee. One year after the accident he was still walking in crutches. He was hospitalised for 2 months where fixation was done. He was awarded 20% permanent incapacity.

8. The appellant also relied on T A M (a minor suing through her father next friend JOM) v Richard Kirimi Kinoti & Another NRB HCCA No. 82 of 2008 [2015]eKLR where the plaintiff sustained a fracture of the left femur, lacerations on the left temple and blunt chest injuries. A metal plate was inserted in the fractured leg. He was awarded Kshs. 250,000/- in 2015. In the case of Bhachu Industries Limited v Peter Kariuki Mutura NRB HCCA No. 503 of 2009 [2015]eKLR the plaintiff suffered an  injury on the chest, thigh and a fractured femur which was fixed by insertion of a K-nail resulting in him walking with a limping gait. He was awarded Kshs. 300,000/- in 2015.

9. In awarding making the award the trial magistrate found that he plaintiff had more serious injuries in case of Charles Wanyoike Githuka v Joseph Mwangi Thuo & 2 Others (Supra) but chose to be guided by the case of Eldoret Steel Mills Limited v Elphas Victor Espila (Supra) where he found the case the therein more serious than those of the respondent. In assessing the award, the trial magistrate noted though that the case was decided in 2006 it was applicable as a guide in addition to the fact that the respondent was treated in several hospitals and had not healed by the time the case was heard.

10. Both parties agreed on the nature and extent of the injuries sustained by the respondent. The point of departure, which is the gravamen of this appeal, is that the trial magistrate made an award that was inordinately high and excessive. Mr Karanja, counsel for the appellant, submitted that the trial magistrate did not consider the authorities cited by the appellant which were appropriate. Further, he submitted that the trial magistrate failed to consider and appreciate the entirety of the decisions cited by the parties and thus came to a wrong conclusion by relying on a single decision.

11. Mr Okoth, counsel for the respondent, supported the decision of the trial magistrate. He submitted that the trial magistrate appreciated the nature and extent of the respondent’s injuries and took into account the decisions cited and their age and came to a correct conclusion in assessing general damages.

12. The parties agree that the extent to which an appellate court may interfere with an award of damages. It must be shown that the trial court, in awarding of the damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that a wrong principle of law was applied (see Butt v Khan [1981] KLR 349).

13. This appeal concerns the award of general damages. General damages are damages at large and the court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike as the Court of Appeal observed in Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004]eKLR that:

Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.

14. In addition, the current value of the shilling and the economy have to be taken into account and although astronomical awards which must be avoided, the court must ensure that awards make sense and result in fair compensation (see Ugenya Bus Service v Gachoki NKU CA Civil Appeal No. 66 of 1981 [1982]eKLR and Jabane v Olenja [1986] KLR 661).

15. Looking at the cases cited by the appellant and respondent before the trial court, it is easy to see that the respondent cited cases where the injuries were more serious and awards on the higher side. The respondent cited several cases where the claimants sustained injuries similar to the case at hand. From the judgment, the trial magistrate elected to look at one case; Eldoret Steel Mills Limited v Elphas Victor Espila (Supra) and noted that it was decided in 2006.  This was an error because the case relied on affirmed a decision of the trial court in 2013. Nevertheless, the appellant cited decisions made between 2013 and 2016 with a range of awards between Kshs. 250,000/- and Kshs. 300,000/-. The cases cited by the respondent were outliers and the preponderance of decisions cited by the appellant were more reflective of comparable awards. Even taking into account a reasonable rate of inflation an increase of the award by a factor of three over a period of 3 years resulted in an award that that was too high and excessive in the circumstances.

16. Since the award of general damages was excessive, this court is entitled to intervene. The respondent sustained a fracture at the hip joint which corrective surgery involving insertion of surgical plantings and screws. The other injuries she sustained were in the nature of soft tissue injuries. The latest examination revealed malunion of the joint at the fracture point leaving her to walk with crutches and pain. Unlike the cases cited where the level of permanent disability was less than 40%, in this case Dr Onyimbi assessed disability at 85%. When considered against the decisions cited, I am of the view that a sum of Kshs. 400,000/- would be reasonable in the circumstances.

17. I allow the appeal to the extent that I set aside the award of general damages and substitute it with an award of Kshs. 400,000.00 subject to contribution by the appellant before the trial court. The said sum shall accrue interest at court rates from the date of judgment in the subordinate court.

18. The appellant shall have costs of the appeal.

DATED and DELIVERED at KISUMU this 20^th day of November 2017.

D.S. MAJANJA

JUDGE

Mr P. Karanja, Advocate for the appellant.

Mr Okoth instructed by Geoffrey Okoth & Company Advocates for the respondent.