Joho v Thoya (Civil Appeal E104 of 2022) [2023] KEHC 23452 (KLR) (25 September 2023) (Judgment)
Neutral citation:
[2023] KEHC 23452 (KLR)
Republic of Kenya
Civil Appeal E104 of 2022
DKN Magare, J
September 25, 2023
Between
Yusuf Abubakar Ali Joho
Appellant
and
Katana Syria Thoya
Respondent
(Being an Appeal from the Judgement and Decree of Honourabe D. Sitati, Resident Magistrate delivered in Kilifi SPMCC No. E119 of 2020 on 17th October 2022)
Judgment
1.The Appeal arises from the Judgement and Decree of Court delivered on 17th October 2022 in Kilifi SPMCC No. E119 of 2020 in favour of the Respondent as follows:1.Liability 100%2.General Damages for pain and suffering Kshs. 750,000/-3.Loss of earning capacity Kshs. 100,000/-4.. Future Medical Costs. Kshs. 86,000/-5.Special Damages Kshs. 2,000/-Total Kshs. 938,000/=with costs of the suit and interest.
2.The Appellant being aggrieved by the Award filed this Appeal and preferred 5 grounds in the Memorandum of Appeal.
3.I have perused the 5 paragraph Memorandum of Appeal. It is prolixious, repetitive, and unseemly. The proper way of filing an Appeal is to file a concise Memorandum of Appeal without arguments, cavil or evidence. The rest of the King’s language should be left to submissions and academia. Order 42 Rule, 1 provides as doth: -
4.The Court of Appeal had this to say in regard to Rule 86 (which is pari materia with Order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -
5.Hitherto, in the case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the Court of Appeal observed that: -
6.The Memorandum of Appeal raises only one issue, that is,
7.The Appellant did not appeal against the liability which the Court awarded at 100% in favour of the Respondent.
8.The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial time. The question this court will have to deal with is whether the Magistrate’s court had jurisdiction to hear and determine this dispute. This is the only issue addressed in submissions before the court below and before this Court.
9.The matter was placed before me in an initiative to decongest the case backlog at the Malindi High Court. The Parties were directed to file submissions.
The Appellant’s Submissions
10.The Appellant filed submissions in support of the Appeal contending that the award was inordinately excessive as the Trial Court failed to analyze the evidence.
11.The Appellant relied on the case of Sumaria & Another vs Allied Industries Limited and Selle and another Vs Associated Motor Board Company and Others (supra) to assert the position that this Court was entitles to re-evaluate the evidence and law and make a determination as to whether the damages assessed by the Trial Court amounted to an extraneous estimate.
12.It was the submission of the Appellant that the Trial Court disregarded the evidence by, PW1 confirmed during cross examination that he had been reexamined by the Appellant’s Doctor, Dr. Noorani in September 2021 who had told him that the fractures had healed although he still experienced pain on his waist.
13.Further, the Trial Court did not take into regard that PW2, Dr. Kiema awarded the Respondent 7% permanent incapacity.
14.Counsel also relied on Abdi Haji Gulleid vs Auto Selection Kenya Limited (2015) eKLR where the Plaintiff sustained injuries to the upper limbs and wedge compression fracture at the back pf L1 spine and General Damages were awarded at Kshs. 750,000 in placed of Kshs. 300,000/ awarded by the Trial Court to assert that Award herein was excessive.
15.The Appellant submitted for the award of Kshs. 750,000/- as General Damages did not consider that the Respondent’s incapacity was merely 7%. And there was variance in time the medical reports in this and the Decision in the case of Abdi Haji Gulleid (supra) where disability was assessed at 25% and proposed Kshs. 3000,000/= as reasonable and adequate compensation.
16.Counsel also cited the case of Getange vs Waridi Limited (2022) KEHC where the High Court upheld an Award of Kshs. 300,000/= for a Plaintiff who had sustained injuries on the neck and back, compressed cervical spine fracture C3 & C4
17.On loss of earning capacity, the Appellant submitted that should be specifically pleaded and proved and that the Respondent’s evidence was that he was a carpenter and had resumed work after the accident. Reliance was placed on the case of Tile and Carpet Centre Warehouse vs Okello (2022) KECA and submitted that the Award of loss of earning capacity was wholly erroneous and without legal basis.
Respondent’s Submissions
18.The Respondent submitted that the reasoning of the Trial Court in the award of the General Damages was sound and supported and was not erroneous.
19.It was the submission by counsel that the Respondent suffered fracture of lumbar 3 vertebra with loss of curvature blunt trauma to the neck and forearm and bruises and lacerations to the forearm, legs and face.
20.Further, it was submitted that in Tomothy Maina Mwangi v Virginia Kuria (2020) eKLR with a similar and comparable injuries, the Court awarded of Kshs. 1,000,000/=.
21.The respondent submitted that the award of diminished earning capacity was correct and well supported since there was evidence that the Respondent, though had resumed carpentry work, would work on and off due to recurrent pains. Reliance was placed on the case of Mumias Sugar Company Limited v Francis Wanalo (2007) eKLR as cited in John Kipkemboi v Morris Kedollo 2019 eKLR.
Analysis
22.This being a first appeal, the Court should with judicious alertness re-evaluate the evidence, and consider arguments by parties and apply the law thereto, and, make its own determination of the issues in controversy. Except, however, it should give allowance to the fact that it neither saw nor heard the witnesses’ testimonies.
23.In the case of Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123, the Court stated as follows:
Submissions
24.I have not sighted the Respondent’s submissions.
25.The Appellant opened by addressing the duty of the court as settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others (supra)
26.The circumstances in which an Appellate court will interfere with the quantum of damages awarded by a trial court were clearly laid out in the case of Kenya Bus Services Limited vs. Jane Karambu Gituma Civil Appeal Case No. 241 of 2000 where the Court of Appeal stated as follows:
27.This Appeal being on quantum only, the principles guiding this Court as the first Appellate Court have crystalized. This is in recognition that the award of Damages in discretionary.
28.The Court of Appeal has pronounced itself succinctly on the principles of disturbing awards of damages in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR as follows:
29.The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance v British Columbia Electric Co Ltd, in the decision of Henry Hilanga v Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-
30.The words of Lord Denning were reiterated by Nyarangi, JA. in Kigaragari v Aya [1985] eKLR thus:
31.Further, in the case of Kilda Osbourne v George Barned and Metropolitan Management Transport Holdings Ltd & another Claim No. 2005 HCV 294 being guided by the principles enunciated by both Lord Morris and Lord Devlin in H. West & Sons Ltd v Shephard {1963} 2 ALL ER 625 Sykes J stated as follows:
32.It is common reasoning that astronomical awards may lead to increased insurance premiums thus hurting the insurance industry as well as the economy. See the case of H. West and Son Ltd v. Shepherd [1964] AC.326 (supra) where it was stated that:
33.With the above guide, if the Award is inordinately high, then I will have to set it aside. If however, it is just high but not inordinately high, I will not do so. For the Appellate Court to interfere with the Award, it is not enough to show that the Award is high or had I handled the case in the Subordinate Court I would have awarded a different figure.
34.The Court is this case awarded Kshs. 750,000/- in General Damages.
35.I have evaluated the authorities relied upon by counsel for the Appellant. I note that except Abdi Haji Gulleid (supra), the authorities cited by the Appellant do not present comparable injuries. The injuries suffered therein are not comparable and counsel was not candid.
36.In Abdi Haji Gulleid (supra), the injuries are comparable but this Court, like did the Trial Court notes that the injuries in that case and this are comparable and the award of Kshs. 750,000/ was reasonable based on the injuries suffered.
37.I wish to restate the position in that case of Easy Coach Limited v Emily Nyangasi [2017] eKLR where Court opined that in assessing damages for personal injuries, the general method of approach is that comparable injuries should as far as possible be compensated by comparable awards, keeping in mind the correct level of awards in similar cases. See also (Arrow Car Limited v Elijah Shamalla Bimomo & 2 Others [2004] eKLR).
38.Therefore, it is trite law that in assessment of damages in this case, regard should be had to the nature, severity and extent of the injuries suffered by the Appellant which, as is clear from the evidence and medical report was fracture of lumbar 3 spine with loss of curvature and blunt trauma, bruises and lacerations.
39.I note too that the Honourable Court in awarding damages for the loss of earning capacity relied on him having resumed duties. However, the Court wrongly treated resumption of duty as a minus for loss of earning capacity. With 7% earning capacity, it means he had 93% earning capacity that is not lost.
40.The best way to settle this issue is to find reasonable earning less 93% capacity to get lost earnings. The award of Kshs. 100,000/-was thus on the lower side for the 54 year old. He would have worked well for the next 10 or so years at a minimum wage of Kshs. 28,487.42 for carpentry in Mombasa based on the Regulation of Wages (General) (Amendment) Order, 2022.
41.For instance, in the case of Kibue & another v Ngige (Civil Appeal E258 of 2021) [2022] KEHC 478 (KLR) (Civ) (6 May 2022) (Judgment) the court stated as follows when faced with an issue of assessing damages for loss of earning capacity:
42.In this case, this then works out as current minimum wage of Kshs. 18,936.85 for ungraded artisan. The Respondent indicated that he was a carpenter. This was not challenged. He was 54. He could work for 10 more years this works as follows; -
43.Further, in the case of Peter Kusimba Nyongesa & another v Willy Muli Musyoka Maati [2021] eKLR, the Court stated as follows: -
44.The award of 100,000/= was well within the discretion of the court. In any case, the Respondent did not appeal against this Award and I cannot thus fault the Trial Court for the judgement passed in that respect.
45.I will not disturb the award of special damages and future medical costs, General Damages and Loss of Earning Capacity as the same are within the range of similar decisions.
46.In the circumstances, and based on the evidence and authorities, I find that the award by the Trial Court of Kshs. 750,000/- for General Damages was not inordinately high or low as to be wholly erroneous estimate of damages.
47.The Appellant did not lay basis for the court to disturb the award. Accordingly, in exercise of the powers granted to the Court under Section 27 of the Civil Procedure Act, I award costs of the Appeal of Kshs 90, 000/= payable to the Respondent within 30 days from the date hereof. In default execution to issue. It is so ordered.
Determination
48.In the upshot of the foregoing, I make the following orders: -i.I dismiss the Appeal with costs.ii.costs of the appeal are awarded at a sum of Ksh. 90,000/= to the respondent.iii.The costs be payable within 90 days in default execution to issue.
DELIVERED, DATED AND SIGNED AT MALINDI, VIRTUALLY ON THIS 25TH DAY OF SEPTEMBER, 2023. .KIZITO MAGAREJUDGEIn the presence of:Baraka for the AppellantNo appearance for RespondentCourt Assistant - Brian