BONIFACE NGURE AND SWERVE ENTERPRISES LTD VS RUFUS NGUGI NGIGI

(Being an appeal against the Judgment of Hon. SPM Kibet Sambu in Kigumo PMCC No. 264 of 2018 delivered on 10^th December)

JUDGEMENT

The appeal  arises  from a decision of the SPM Kigumo Law Courts in which the Learned Honourable Magistrate entered judgment in fvour of the plaintiff on Liability at 20:80% and quantum Ksh. 642,400/=.

The appellant appeals basically on two grounds that:-

1. the Honourable court awarded inordinately high amount of general damages for pain and suffering;
2. The Learned Honourable magistrate ignored the written submissions of the appellants on quantum.

ANALYSIS & DETERMINATION

1. The court sitting as a first court of Appeal is under duty to review, re-evaluate and analyse the Evidence tendered in the lower court and draw its own conclusions. The court is guided by the case of Selle Vs Associated Motor Boat & Co. Ltd (1986) E.A 123.
2. The Respondent in the matter was was a lawful passenger in Motor Vehicle KCK 246 J driven along when the motor vehicle collided with Motor vehicle KCA 947 G causing the Respondent to suffer injuries.
3. The Plaintiff according to medical evidence suffered a degloving injury on the right leg. The skin had been detached and avulsed from the deep structures from the knee down to the ankle joint.
4. The injuries caused the Respondent difficulties in Walking up and down steep inclines and could not do farming, kneel or squat.

The knee was semi-frozen at 135⁰ degrees. He also had large recent scars on the right thigh where skin grafts were harvested from.

The doctor also noted that there were recent skin graft scars covering most of the leg below the knee.

1. The doctor went further to opine that he suffered a lot of pain and blood loss from the major degloving injury. He also suffered a lot of pain and blood loss from the major surgical procedures. Permanent disability was assessed at 18%.
2. It is against this evidence that this court is called upon to review the court’s decision on quantum.
3. For a court to disturb the findings of a trial court on quantum, the court must be satisfied that the award is inordinately high and disproportionate to the injury suffered.

The court in arriving at a decision on quantum does so in exercise of its judicial discretion. For this court to interfere with discretion, it must be satisfied that the learned Honourable court misdirected itself in  some matter of law or took into account irrelevant considerations in arriving at its decision or failed to take into account the weight of evidence placed before the court or that the decision by the court is plainly wrong – Mbogo Vs. Shah (1968) at 93 followed.

1. The Respondent in this case was a passenger and was therefore not in control of the motor vehicle at the time  of the Accident. I do not understand why the lower court apportioned liability at 20%:80% in the first place. The appellant should actually thank the learned Honourable Magistrate for that. If the issue of liability had been raised before me by way of cross appeal I would have found otherwise, but be that as it may, I shall concentrate on the issue of quantum.
2. In this regard I am not persuaded to interfere with the award granted by the learned magistrate on 22/12/2020.
3. I have taken into account the evidence in totality and in particular  I am concerned about the permanent disability of 18% which the Respondent will have to live with for the rest of his life.

The submissions by counsel for the Appellant have been considered too. The proposal by the appellant to reduce the quantum to Ksh. 202,550/= is in my respectful view, most unreasonable considering that the Respondent was actually partly blamed for the accident while he was not in control of the subject Motor Vehicle. I am in agreement with the court in Buttler Vs Buttler (1984) KLR, citing with approval the case of ALI ISSA CHINA ROAD & BRIDGE CORPORATION (2011) eKLR in which the court held:-

“The assessment of damages is more like an exercise of discretion by the trial court and appellate court should be slow to reverse the trial judge unless he has either acted on wrong principle or awarded so excessive or so little damages that no reasonable court would or he has taken into consideration matters he ought not to have considered and in the result arrive at a wrong decision”.

1. In the present case I find that the trial court did not err in its decision at all.
2. The authorities cited on quantum date back to years when the economy of this country was at another level and the attendant cost of living was at least bearable.
3. In Francis Ndung’u Wambui & 2 Others Vs Purity Wangui Gichobo [2019] eKLR the court lowered an award for Ksh. 450,000 to Ksh 250,000/= for a laceration to the left foot as well as a degloving injury to the back of the thumb which healed well leaving scars.
4. The respondent in this appeal has suffered more serious injuries as set out in the foregoing paragraphs.
5. I would thus not be inclined to interfere with the award. The sum of Ksh. 250,000in 2019 cannot be the figure one would today award for similar injuries taking into account inflationary trends in this country.
6. I therefore find that the appeal lacks merit and I accordingly dismiss the same with costs.