REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT EMBU
CIVIL APPEAL NO. 5 OF 2014
(An appeal from the Judgment and Decree of
Acting Principal Magistrate, Runyenjes in
PMCC No. 35 of 2013 dated 20/02/2014)
PATRICK KITHAKA KIVUTI.................................APPELLANT
V E R S U S
JOHN MWANGI.................................................RESPONDENT
J U D G M E N T
1. The appellant was sued by the respondent in Runyenjes CMCC N. 35 of 2013 for damages arising from a road traffic accident involving the respondent's vehicle registration number KAM 357 T whereas the respondent sustained injuries. The parties recorded a consent on liability on the ratio of 40% against the plaintiff and 60% against the defendant. The award given by the magistrate was for Kshs.86,500/= special damages and Kshs.500,000/= for loss of earning capacity plus cost of the suit.
2. The application of the ratio of 60:40 gave the appellant the amount of Kshs.711,90/= payable by the respondent plus costs and interests.
3. The appellant was dissatisfied with the award of general damages of Kshs.600,000/= which was the only ground in the memorandum of appeal. He contended that the amount was manifestly and inordinately low as to amount to erroneous estimate of loss actually suffered by the appellant.
4. The appeal was argued by way of written submissions filed by the counsels for the parties. The appellant was represented by M/s Khan & Associates while M/s Munene Wambugu & Co. represented the respondents.
5. The respondent opposed the petition on grounds that the award was reasonable for it was based on comparable decisions and awards. Further that the court took into consideration of all the relevant evidence including the medical. It was further argued that the authorities cited by the appellant contained very high awards which were not consistent with the injuries sustained.
6. On the other hand the appellant argued that the learned magistrate only took into consideration the authorities cited by the respondent which resulted in an inordinately low award.
7. The duty of the first appellate court was explained in the case of MWANGI VS WAMBUGU, [1984] KLR 453:
“A Court of Appeal will not normally interfere with a finding fact by the trial court unless such finding is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principle in reaching the finding; and an appellate court is not bound to accept the trial Judge's finding of fact if it appears either that he has clearly failed on some material point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
8. This duty is based on Section 78 of the Civil Procedure Act Cap 21 which mandates the court to look at the evidence afresh and reach its own conclusions.
9. The only issue for determination in this appeal is whether the award of Kshs.600,000/= for general damages was manifestly and inordinately low to adequately compensate the appellant for the injuries she sustained.
10. According to the report of Dr. Njiru dated 3/12/2012 the appellant suffered the following injuries:-
(a) Lacerations on the left side of the face
(b) Loss of use of the right upper arm due to severed nerves with dislocated right shoulder joint (severe brachial plexus)
(c) De-gloving wound injury o the right upper limb that required skin grafting
(d) Laceration right knee joint anteriorly.
(e) Severe loss of blood due to the aforementioned injuries.
11. The loss of use of the right arm and the dislocation of the right shoulder was described as permanent disability by the doctor in his report made about one year after the accident.
12. The report of Dr. Wambugu dated 5/07/2013 described the injuries as follows:-
(a) Huge laceration wound ventral aspect severed median and ulna nerves.
(b) Right shoulder joint dislocation associated with brachial plexus injury.
(c) Lacerations on the face and right knee.
13. The doctor further stated that the appellant suffered paralysis of the upper limb, dysuse atrophy of the muscles and loss of sensation distal to the elbow joint. He concluded that there was permanent functional loss of the right limb.
14. Before the learned magistrate, the appellant prayed for an award of Kshs.4,00,000/= for general damages relying on two authorities. In the case of JEMIMAH OMBUKI VS JOSEPH MUNISI & OTHERS Kisii High Court Civil Case No. 1 of 2008 where the appellant in the year 2011 was awarded Kshs.3,000,000/= for pain and suffering of severe injuries which resulted in loss of her working ability as a secretary.
15. In the case of MUMIAS SUGAR CO. LTD VS FRANCIS WANALO [2007] eKLR Court of Appeal Kisumu Civil Appeal No. 91 of 2003, the appellant in 2007 was awarded Kshs.2,016,000/= for loss of earning capacity and Kshs.500,000/= for loss of amenities. He had suffered loss of grip of he right hand due to amputation of the small finger.
16. The respondent relied on two authorities and proposed an award of general damages of Kshs.60,000/= as adequate.
17. In the case of Nairobi HCCC No. 1110 of 1993 VICTORIA MUTIO VS RAPHAEL K. NZAA, for a fracture of the left medial malleous causing paralysis, a plexus injury of the ankle and bruises on the leg, face and on the right arm, the plaintiff was awarded Kshs.400,000/= in the year 2000 by Angawa, J.
18. the respondent relied on the above cases of Angawa, J. where the awards were made about 10 – 14 ears ago. There are more recent authorities which the respondent would have relied on and also by different judges to avail this court with a variety.
19. I have looked at those awards and find that they are not comparable with the injuries suffered by the appellant herein for it was very grave compared to the injuries suffered by the plaintiffs in those cases.
20. I note that the appellant was awarded damages for loss of earning capacity which he is not complaining about and which is not subject of this appeal.
21. I note that both Dr. Njiru and Dr. Wambugu show in their reports that the plaintiff was admitted at PCEA Chogoria hospital from 5th October to 12th November 2012 which was over one month and referred to Kenyatta National Hospital for further investigations at the Neurology Centre and the Orthopedic Clinic in the same hospital. Although the reports from Kenyatta National hospital were not produced, the appellant who had sustained nerve damage and fractures must have received further treatment.
22. Dr. Njiru described the injuries as severe with loss of use of the right hand of a patient who was right handed. The severed branchial plexus with dislocation of the right shoulder must have caused a lot of pain and suffering let alone mental anguish to the young man.
23. The magistrate in his judgment said that the injuries sustained by the plaintiffs in the case of Jeremiah Ombuki (supra) were more serious than those sustained by the appellant. I beg to disagree with thisobservation for the reason that in the Jeremiah Ombuki case, the plaintiff lost the small right finger thus reducing the grip of the right hand while in this case it was total use of the right arm. The other injuries healed well and did not cause any permanent disability save for the plaintiff therein being re-admitted in hospital for further surgeries.
24. I find that the injuries in this appeal and those of theJeremiah Ombuki case are comparable with thosesuffered by the appellant having caused a severe permanent disability of loss of the right limb to a young man of 23 years who was right handed and had to struggle to learn how to use his left limb.
25. The magistrate failed to take into consideration the severe permanent disability and the young age of the appellant. The award was therefore based on wrong principles and failure to take into consideration important factors. This resulted in an award that was inordinately low.
26. In the case of KEMFRO AFRICA LTD T/A MER EXPRESS SERVICES & ANOTHER VS A.M. LUBIA & ANOTHER [1982-88] 1 KAR 727 the court held that assessment of damages is at the discretion of the court.
27. Having considered all the above factors, I find that this court has a sound basis of interfering with the award of general damages. However, I still find the prayer by the appellant of Shs.4,000,000/= on the higher side.
28. All relevant issues and factors considered, I hereby set aside the award of general damages of Shs.600,000/= made by the learned magistrate and substitute it with Kshs.2,000,000/=. The other award remains the same.
29. The tabulation will be as follows:-
(a) Special damages - Kshs. 86,500/=
(b) General damages - Kshs.2,000,000/=
(c) Loss of earnings - Kshs. 500,000/=
Gross total - Kshs.2,586,500/=
Less 40% - Kshs.1,034,600/=
Kshs.1,551,900/=
30. The respondent is liable to pay to the appellant Kshs.1,51,900/= plus interest and costs. The interests on special damages will be payable from the date of filing the suit while those of the general damages and loss of earning will run from the date of judgment of the lower court.
31. The appeal is allowed.
32. It is hereby so ordered.
DELIVERED, DATED AND SIGNED AT EMBU THIS 2ND DAY OF OCTOBER, 2017.
F. MUCHEMI
JUDGE
In the presence of:-
Mr. Ongweno for Appellant
Mr. Maina for Respondent