Wambugu v Onchomba (Civil Appeal 418 of 2019) [2024] KEHC 12252 (KLR) (26 September 2024) (Judgment)
Neutral citation:
[2024] KEHC 12252 (KLR)
Republic of Kenya
Civil Appeal 418 of 2019
MA Otieno, J
September 26, 2024
Between
Rael Wambui Wambugu
Appellant
and
Ronald Nyakundi Onchomba
Respondent
(Being an appeal from the Judgment delivered on 13th March 2019 by Hon. M.W. Murage, RM in Nairobi CMCC No. 7728 of 2015)
Judgment
Background
1.This is an Appeal from the decision of the magistrate’s court in the Nairobi CMCC No. 7728 of 2015 delivered on 13th March 2019 in which the Respondent had sued the Appellant seeking damages for injuries suffered in a road traffic accident which occurred on 18th May 2015 along Mombasa Road at Olesereni bypass.
2.The Respondent’s claim at the lower court was that while lawfully riding his motor cycle registration number KMCZ 445Q, he was hit by the motor vehicle registration No. KCB 115F, then being driven by the Appellant. The Respondent blamed the Appellant for causing the accident.
3.The Appellant entered appearance and filed her defence dated 4th March 2016 denying liability, instead blaming the Respondent for the accident.
4.On 13th March 2019, the trial court rendered its judgment in the dispute in favour of Respondent in the following terms; -a.Liability at 100% against the Appellantb.General damages at Kshs. 800,000/-c.Special damages of Kshs. 369,625/-d.Costs and interest of the suit
The Appeal
5.Aggrieved with the decision of the trial court particularly on quantum, both general and special damages, the Appellant vide her memorandum of appeal dated 17th July 2019 appealed to this Court against the trial court’s decision raising the following four grounds of appeal; -i.That the learned trial Magistrate erred in law and in fact in making an award on General Damages which was inordinately high considering the Respondent’s injuries.ii.That the learned trial Magistrate erred in law and in fact in making an award on Special Damages in excess of the amount proven.iii.That the Learned trial magistrate erred in law and in fact in failing to appreciate the discrepancies in the injuries suffered by the Plaintiff as presented by two competent medical doctors.iv.That the learned trial Magistrate erred in law in failing to consider and/or appreciate the Appellant's Submissions as well the authorities thereto.
6.In a nutshell, it was the Appellant’s position in this appeal that the sum of Kshs. 800,000/- awarded by the trial court as compensation in general damages for pain, suffering and loss of amenities was inordinately high in the circumstances of the case and did not take into account the Respondent’s injuries.
7.Additionally, the Appellant challenged the award of Kshs. 369,625/- in special damages on the basis the award was excessive of the amount proven in evidence submitted by the Respondent at trial.
Submissions By the Parties
8.On 13th February 2024, directions were given that the appeal be canvassed by way of written submission. Both parties complied with both the Appellant and the Respondent filing their respective submissions on 12th March 2024.
9.The first issue taken up by the Appellant in his submissions was that the trial court erred in law and in fact by awarding Kshs. 800,000/- in general damages. According to the Appellant, the award was inordinately high and excessive in the sense that it failed to take into account injuries suffered by the Respondent.
10.The Appellant submitted that considering the injuries suffered by the Respondent as a result of the accident, an award of Kshs. 250,000/- ought to have been sufficient. She supported her position by citing the decision in Kisii HCCA No. 105 OF 2019, Reamic Investment Limited v Joaz Amenya Samuel (2021) eKLR of Kshs. 350,000 was made by Ougo J for injuries which included open femur fracture, contusion on the anterior chest and soft tissue injuries.
11.The second and final limb of the Appellant’s submissions was on special damages. It was the Appellant’s submissions that the amount of Kshs. 369,625/- awarded by the trial court was excessive of that which had been proven at trial. According to the Appellant, the cost of future medical expenses of Kshs. 141,000/- which was part of the special damages claimed ought not have been awarded since the Respondent had confirmed on cross-examination that the implant had been removed but failed to produce in evidence, receipts in relation thereto.
12.Additionally, the Appellant submitted that the Respondent did not produce a receipt for Kshs. 400/- being the total cost of obtaining both the Police Abstract and P3.
13.On his part, the Respondent supported the trial court’s judgment and urged this court to uphold the same. On general damages, the Respondent submitted that the award of Kshs. 800,000/- by the trial court was in line with the injuries suffered. He cited the case of Kihara & Another v Mutuku (Civil Appeal No. 27 of 2018) [2022] eKLR where an award of Kshs. 700,000/- was made for fracture of the right femur, blunt injuries to the chest, thigh and bruises to the forehead.
14.Regarding special damages, the Respondent submitted that the cost of future medical expenses related to the removal of the implant was supported by the medical report of Dr. Okoth Okere dated 29th January 2015 which expressly gave the figure at Kshs. 150,000 as well as that of Dr. P.M. Wambugu dated 27th February 2017 which confirmed that the Respondent had sustained a fracture of the right femur with a 4% level of incapacity.
Analysis and Determination
15.I have considered this appeal in the light of evidence on record and the respective parties’ submissions in this appeal, including the authorities cited. I note that the appeal is primarily on the quantum of damages awarded by the trial court.
16.When dealing with an appeal on quantum, this court is alive to the principle that assessment of damages is within the discretion of the trial court and that as an appellate court, I should only interfere in instances where the trial court, in assessing damages, erred in principle by either taking into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is based on no evidence (see Mbogov Shah (1968) EA 93 and Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727).
17.In the case of Gitobu Imanyara & 2 Othersv. Attorney General [2016] eKLR the Court of Appeal held as follows in relation to the circumstances under which an appellate court may disturb an award of damages by the trial court: -
18.I am equally alive to the principle that in awarding general damages, courts ought to give an award that reflects the nature and gravity of the injuries. That comparable injuries should as far as possible, be compensated by comparable awards, always bearing in mind that not two cases are precisely alike. This is the guidance by the Court of Appeal in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR when it stated that: -
19.A perusal of the pleadings and proceedings reveals that the Respondent in his amended Plaint dated 11th August 2016 found at page 33-35 of the record of appeal pleaded that as a result of the accident, he suffered broken right thigh.
20.The medical report of Dr. Okoth Okere dated 29th January 2015 and that of Dr. P.M. Wambugu dated 27th February 2017 were largely in agreement with the initial treatment notes from Kenyatta National Hospital that the Respondent sustained a fracture of the right femur and that he had been treated with an open reduction and internal fixation of the fracture with an implant.
21.It is the duty of the advocates to avail relevant authorities to guide the trial court in arriving at a fair award. The Appellant cited the case of Reamic Investment Limited v Joaz Amenya Samuel [2021] eKLR where an award of Kshs 600,000/- by the trial court was on appeal reduced to Kshs. 350,000 for injuries which included open left femur fracture, abrasion on the left knees, face, neck, right upper imp and left upper lip as well as a contusion on the anterior chest.
22.The Respondent on the other hand cited two cases, the case of Pestony Limited & another v Samuel Itonye Kagoko [2022] eKLR where a sum of Kshs. 800,000 was awarded for a fracture of the left femur (mid-shaft) and swollen left tender thigh. The other is that of Kihara & another v Mutuku (Civil Appeal 27 of 2018) [2022] KEHC 15626 (KLR) where Mwongo J maintained an award of Kshs. 700,000/- for blunt injuries to the chest, blunt injuries left thigh which developed into ecchymosis, bruises on forearms and Fracture of the right femur.
23.I have considered the authorities cited by both the Appellant and the Respondent in support of their respective positions and note that the injuries suffered in the instant case were more comparable to those suffered in the case of Pestony Limited & another v Samuel Itonye Kagoko [2022] eKLR cited by the Respondent.
24.In the premises, find no reason in this case to interfere with the trial court’s assessment of general damages for pain, suffering. I therefore uphold and maintain the award of Kshs. 800,000 in general damages given by the trial court.
25.Regarding the award of Kshs. 400 being the cost of obtaining the police abstract and P3 in special damages, the Appellant submitted that the court erred in awarding the same since the Respondent did not avail any receipt in respect of the same. The Respondent in his submissions did not controvert this ground of appeal.
26.The law on special damages is that special damages must not only be specifically pleaded, but must also be strictly proven. In Nairobi Civil Appeal No. 283 of 1996 – David Bagine –v – Martin Bundi [1997] eKLR, the Court of Appeal had the following to say on the issue; -
27.While I note that the Respondent in his amended Plaint of 11th August 2016 pleaded a sum of Kshs. 200 as the cost of obtaining the Police Abstract and a further Kshs. 200 as the cost of obtaining the P3 Form, I have been unable to sight any evidence in form of receipts in respect of the same. Consequently, and in line with the settled principle that special damages must be specifically pleaded and strictly proven, I agree with the submissions by the Appellant that the two items, totaling to Kshs. 400, ought to have been excluded by the trial court in awarding special damages.
28.On the claim for cost of future medical expenses of Kshs. 150,000/- awarded by the trial court, it was the Appellant’s submissions that the same ought not to have been awarded since Respondent testified at trial that the implant had been removed at a cost of Kshs. 141,000/- but did not produce a receipt in respect thereof. According to the Appellant, the fact that the implant had been removed at the time of trial excluded the claim from being “a future medical expense” to a claim within the ambit of special damages for which strict proof is required by way of production of a receipt. The Appellant therefore urged this court to have this amount deducted from the special damages awarded by the trial court since the Respondent did not provide any proof of payment.
29.In Tracom Limited & Anotherv Hassan Mohammed Adan [2009] eKLR, the Court of Appeal stated as follows regarding the claim for future medical expenses: -
30.I have looked at the pleadings and the evidence tendered by the parties and note that Dr. Cyprianus Okoth Okere in his medical report dated 28th September 2015 stated that the Respondent would require a sum of Kshs. 150,000 in future for the removal of the implant. This position was not controverted by the second medical report by Dr. Wambugu. There is no evidence on record in support of the Appellant’s submissions that the implant had in fact been removed at the time of trial and that the Respondent paid a sum of Kshs. 141,000/- for the same. This ground of appeal therefore fails as well.
31.In view of the foregoing, I find the appeal is partly merited and I hereby substitute the trial court’s award of Kshs. 369,625/- in special damages with an award of Kshs. 369,225/=.
32.The rest of the Judgment remains the same.
33.Each party to bear their own costs of this appeal.
34.It so ordered.
SIGNED, DATED & DELIVERED IN VIRTUAL COURT THIS 26TH DAY OF SEPTEMBER 2024ADO MOSESJUDGEMoses – Court AssistantMs Lucheno for the AppellantN/A for the Respondent.