Chelule v Mwangi & another (Civil Appeal 38 of 2019) [2022] KEHC 17004 (KLR) (15 December 2022) (Judgment)
Neutral citation:
[2022] KEHC 17004 (KLR)
Republic of Kenya
Civil Appeal 38 of 2019
GWN Macharia, J
December 15, 2022
Between
Jackline Chesang Chelule
Appellant
and
George Mwangi
1st Respondent
Gorgeous Trading Company Limited
2nd Respondent
(Being an appeal from the judgment and decree of Hon. Martin Mutua, RM in the Chief Magistrate’s Court at Naivasha CMCC No.648 of 2016 delivered on the 29th day of July, 2019)
Judgment
The appeal
1.The appeal was lodged vide a Memorandum of Appeal filed on the August 9, 2019 in which the Appellant prayed that this Court sets aside the judgment of the trial court delivered on July 29, 2019 and re-assess the damages payable as well as award the Appellant costs of the appeal.
2.The grounds set out in the Memorandum of Appeal are as follows:
Background
3.The Appellant’s claim against the Respondents was instituted by way of a Plaint dated the July 21, 2016 for prayers of general damages, special damages and costs of future medical expenses. The claim was premised on alleged negligence on the part of the Respondents. The Appellant averred that on or about the May 23, 2016, while travelling as a lawful passenger in motor vehicle registration number Kxx xxxx along Naivasha Moi South Lake Road at Kwa Muhia area, the said motor vehicle was involved in an accident as a result of the driver’s negligence. The Appellant sustained the following injuries:a)Gustillo 1 fracture distal end of the right tibia and fibulab)Bimalleolar closed fracture of the left ankle joint.c)Severe soft tissue injuries of the right ankle joint.d)Severe soft tissue injuries of the left ankle joint.
4.The Appellant’s claim was opposed by the Respondents through a joint Statement of Defence dated the 1October 3, 2016 in which they disputed their contribution to the accident as well as the injuries sustained by the Appellant.
5.In its judgment, the trial court awarded damages as follows:a)Liability: 90:10 % in favour of the Plaintiff.b)General damages ………………………… Kshs 1,00,000/=c)Special damages …………………………. Kshs 112,500/=d)Total …………………………………………Kshs 1,112,500/=Less 10% contribution ……………………Kshs 111,250/=Net total ……………………………………Kshs 1,001,250/=
6.The claim for future medical care was dismissed as the same was not pleaded as it should have been, being special damages in nature.
Evidence
7.This being the first appeal, I am minded to reconsider and re-evaluate the evidence adduced afresh and draw my own conclusions, bearing in mind that I did not hear and see the witnesses who testified. See Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123.
8.PW1, the Appellant herein adopted her statement dated the July 21, 2016 as part of her evidence. It was her testimony that she was headed to Kakamega on board the subject motor vehicle. She testified that as a result of the accident, both her legs were injured and she sustained fractures on both. She was admitted for 3 days at Naivasha District Hospital and for a week at Tenwek Hospital. She testified that she underwent surgery on both legs and metal implants were fitted which were still in situ as at the said date she testified. She produced Discharge Summaries from Naivasha District Hospital and Tenwek Hospital respectively and a receipt of Kshs 108,000.00 from Tenwek Hospital.
9.Dr Obed Omuyoma was PW2. He produced a report he prepared upon examining PW1. It was his testimony that PW1 sustained a fracture of the right tibula amongst other injuries. He testified that PW1 would further incur costs of Kshs 300,000.00 for future medical expenses and he had assessed permanent disability at 40%.
10.The defence called Dr Jennifer Kahuthu. She estimated the future medical expenses to be Kshs 80,000.00. She confirmed that PW1 had sustained permanent disability of 8% based on the Albatte Medical Guide.
11.The issue of liability was agreed upon by parties to be in the ratio of 90:10% in favour of the Appellant.
Submissions
12.The parties took directions to have the appeal disposed of by way of written submissions.
13.The Appellant’s submissions were filed on the March 1, 2022. Liability having been agreed on, the only contentious issue was the assessment of damages. The Appellant relied on the case of Kennedy Ooko Ouma Dachi v Joseph Maina Kamau & another [2018] eKLR where the Court substituted an award of Kshs 1,000,000.00 with Kshs 1,400,000.00 for a claimant who had sustained injuries which were more severe, being a fracture to the acetabulum.
14.The Appellant also invited the Court to consider the holding in George William Awuor v Beryl Awuor Ochieng [2020] eKLR where the Court substituted an award of Kshs 2,000,000.00 with Kshs 1,200,000.00 where the Respondent suffered fractures of the right femur and left tibia fibula. The doctor noted that the tibia fibula fractures were compound while the femur fracture was simple. It was also noted that the Respondent’s right thigh had surgical scars and some bruising which had since healed but that the nail was still in situ and she would have to undergo a surgery to remove the nail.
15.On the issue of future medical expenses, the Appellant relied on the authority of Tracom Limited & another v Hasssan Mohamed Adan [2009] eKLR where it was stated:
16.The Appellant urged the Court to make an award for future medical expenses of Kshs 300,000.00 and revise upwards the award for general damages to Kshs 2,000,000.00.
17.The Respondents on the other hand urged the Court to uphold the findings of the trial court. The Respondents filed their submissions on April 28, 2022. It was submitted that the award of Kshs 1,000,000.00 was inordinately high in the circumstances and there was no need to have the same revised upwards. They relied on the authorities of Mbithi Muinde William v Rose Mutheu Mulatia [2019] eKLR, Naom Momanyi v G4s Security Services Kenya Limited & another [2018] eKLR, Wakim Sodas Limited v Sammy Aritos [2017] eKLR and Gladys Lyaka Mwombe v Francis Namatsi & 2 others [2019] eKLR where awards for general damages were made in the region of Kshs 300,000.00 to Kshs 500,000.00 for fracture related injuries. It was submitted that an award of Kshs 1,000,000.00 for general damages was indeed higher than what ought to have been awarded.
18.The Respondents urged the Court to dismiss the appeal with costs.
Analysis and determination
19.I have accordingly considered the evidence on record, the submissions made and the authorities cited. I have demarcated the following as the issues arising for determination:
20.On the issue of general damages, it is not disputed as to what injuries the Appellant sustained. However, there is conflicting expert opinion as to the level of permanent disability occasioned to the Appellant as a result of the injuries. Whereas the Appellant’s expert held the same to be at 40%, the Respondents’ expert who conducted a re-examination on a later date found the same to be at 8%. Further, both experts noted a 2cm shortening of the affected right lower limb.
21.As was held by the Court of Appeal in Kemfro Africa Limited t/a Meru Express Services [1976] & Another v Lubia & Anor (No 2) [1985] eKLR, comparable injuries ought to attract comparable awards. Further, in order for the appellate court to interfere with the award of the trial court, there has to be sufficient grounds and principles as was held in Butt v Khan [1981] KLR 470 and Kitavi v Coastal Bottlers Ltd [1985] KLR 470) that:
22.Indeed, the foregoing positions were reiterated in the case of Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, where the Court of Appeal held that –
23.The following cases provide a good guidance with respect to the award on general damages:i.In the case of Joseph Mwangi Thuita v Joyce Mwole HCCA No 177 of 2011 [2018] eKLR where the plaintiff sustained fractures of the right femur, compound fracture (r) tibia, compound fracture right fibula, shortening right leg and episodic pain (r) thigh with inability to walk without support, the court awarded Kshs 700,000.00ii.In the case of Kimathi Muturi Donald v Kevin Ochieng Aseso [2021] eKLR, the Respondent suffered fracture of the upper right tibia, fracture of the head of the right fibula and fracture of the floor of the socket of the left hip joint (acetabulum), the court substituted an award of Kshs 1,500,000.00 with an award of Kshs 1,200,000.00.iii.In the case of Godfrey Mugnicholas Mwiti Mwirebua v Marcella Mpaka Kiambi [2022] eKLR, the Court affirmed an award of Kshs 900,000.00 for general damages where the Appellant suffered multiple comminuted fracture of right femur, right tibia-fibular fracture and blunt abdominal trauma injuries
24.The authorities relied upon by the Appellant relate to more severe injuries while the Respondents have cited authorities relating to less severe injuries. From the material placed before me, and the authorities I have referred to, I find no reason to disturb the award of Kshs 1,000,000.00 for general damages made by the learned trial magistrate.
25.On the issue of future medical expenses, the same was pleaded in the Plaint. The Appellant’s medical expert indicated that Kshs 300,000.00 would be needed for the surgical process to remove the metal implants. On the other hand, the Respondents’ expert approximated the same to be at Kshs 80,000.00.
26.In the case of Geoffrey Kamuki & Another v RKN (Minor suing through her late father and next friend ZKN [2020] eKLR, the Court had this to say: -
27.Further, in Tracom Limited & another v Hasssan Mohamed Adan [2009] eKLR, cited by the Appellant, the court had this to say:
28.I find that based on the evidence of record, the learned trial magistrate ought to have made an award under the head of future medical expenses. It was conceded by both parties during trial, that the same would be incurred. The point of departure was the actual cost. Based on the evidence by both medical experts, a middle ground would suffice so as to serve the interests of the Appellant. I consider an award of Kshs 130,000.00 as not only fair, but sufficient in the circumstances.
Disposition
29.Consequently, the appeal partially succeeds and I issue the following orders:a)General damages Kshs 1,000,000.00b)Costs of future medical treatment Kshs 130,000.00c)Special damages Kshs 112,500.00d)Sub-total Ksh 1,242,500.00less 10% contributory negligence Ksh 124,250.00e)Net award Kshs 1,118,250.00f)The above sum shall attract interests at courts rates from the date of the trial court’s judgement until payment in full.g)Each party shall bear its respective costs in this appeal.
DATED AND DELIVERED AT NAIVASHA THIS 15TH DAY OF DECEMBER, 2022G. W. NGENYE-MACHARIAJUDGEIn the presence of:1. Mr. Owour for the Appellant.2. No appearance for counsel for the Respondents, duly notified online.