CHINA RAILWAY NO.5 ENGINEERING GROUP LTD VS CANNON INSURANCE COMPANY LIMITED AND AMOS KOROBE

REPUBLIC OF KENYA

IN THE HIGH COURT AT LODWAR

CIVIL APPEAL NO. E017 OF 2024

CHINA RAILWAY NO. 5 ENGINEERING GROUP LTD....................................APPLICANT

-VERSUS-

AMOS KOROBE......................................................................................1^ST RESPONDENT

METROPOLITAN CANNON INSURNCE C0. LTD..................................2^ND RESPONDENT

(Being an appeal from the judgment of the Learned Magistrate HON D. ORIMBA (Chief Magistrate, delivered on 7^th Day of July, 2024 in LODWAAR CMCC NO. E027 OF 2022 – Amos Korobe vs China Railway No. 5 Co. Ltd & Metropolitan Insurance Co Ltd)

JUDGEMENT

1. By way of a plaint dated 20^th April 2022, the 1^st Respondent (herein the ‘Respondent’) filed a suit at the trial court seeking for damages, costs and interests following a road traffic accident. The facts of the case were that on 05/11/2021 along Kakuma – Lokichoggio road the Appellant’s servant, employee and/or driver so carelessly and negligently drove motor vehicle Registration No. 3HD318509 owned by the Appellant and caused an accident hitting the Respondent’s motor cycle Registration No. KMFA 776T. That as a result of the said accident the plaintiff sustained serious bodily injuries and has undergone several surgeries.
2. The particulars of both negligence and injuries were pleaded by the Respondent as follows; (a) that the driver failed to look out when driving on the road having in mind that there are other road users; (b) the servant, employee and/or the defendant was driving  at a high speed, recklessly and negligently; and, (c) the plaintiff suffered multiple soft tissue injuries, extensive loss over the right shoulder, deltoid debride cut wounds over the right elbow, cut wound over the right palmar tenor eminence.
3. The Appellant denied liability and claim in the Respondent’s claim and averring that if any accident occurred, it was solely occasioned by the negligent and careless acts of the Respondent.
4. The trial court delivered judgement dated 7^th July 2024 where it found the Respondent to have proven its case on a balance of probability. Liability was fully entered against the Appellant and who was vicariously liable to compensate the Respondent for the injuries sustained. The court entered judgement in favour of the Respondent against the Appellant in the following terms; (i) special damages Kshs.674,776/=, pain and Suffering Kshs.850,000/=, Loss of future earning capacity Kshs.1,000,000/=; and, Cost of Crutches Kshs.150,000/=, totaling to Kshs.2,674,776/=
5. Aggrieved with the decision of the trial court, the appellant lodged an appeal vide memorandum of appeal dated 7^th November 2024 seeking orders to have the decision by the trial court set aside, awarded damages be downwardly reviewed as well as costs of the appeal. The grounds put forth and upon which the appeal is premised on are, THAT;
6. The Learned Trial Magistrate erred in Law and in fact by finding that the Appellant was wholly to blame for the accident.
7. The Learned Trial Magistrate erred in Law and in fact by failing to consider the Appellant’s submissions and judicial authorities on liability and quantum thereby failing to award damages (sic ??).
8. The Learned Trial Magistrate erred in Law and in fact by awarding the Respondent Kshs.2,674.776/= an amount which is manifestly high taking into account the injuries suffered.
9. The court gave directions that the appeal be canvassed by way of written submissions and both parties made compliance by filing their respective submissions on diverse dates.

Appellant’s submissions

1. The Appellant submits that special damages must be specifically pleaded and strictly proven. It is its case that even though the respondent pleaded Kshs.674, 776.00, the receipts filed and produced only amounted to Kshs.400,102.00, hence that was the only sum the trial Court ought to have awarded and no more.
2. On Pain & Suffering, it is the Appellant’s submission that the Respondent never amended the plaint to show that the nature of injuries changed from those pleaded in the original plaint. The Appellant avers that there was no medical report produced at trial to prove that the Respondent suffered the injuries described in his submissions hence the submissions before the court ran affront both pleadings and evidence. It is thus submitted that the Respondent having not amended his plaint, the trial court misdirected itself in awarding and excessively high sum of Kshs.850, 000.00 for soft tissue injuries hence the same should be reduced to Kshs.250, 000.00.
3. On Loss of Earning Capacity, the Appellant indicates that the same must not only be pleaded but also strictly proven by way of medical report assessing the degree of permanent incapacity as well as evidence of earning. It is submitted that there was no evidence tendered at trial showing that the Respondent was incapacitated as to be disadvantaged in the job market. The Appellant herein cites the decision in British Transport Commission v Gourley [1956] AC 135 stating that the award under loss of earning capacity should have been absorbed under loss of General Damages for Pain and Suffering.
4. On the cost of crutches and future medical expenses, it is submitted that the same was never pleaded in the Respondent’s pleadings or proved by way of evidence. The Appellant urges the court to make entries in the sum of Kshs.400,102.00/= for special damages and Kshs.250, 000.00.

Respondent’s Submissions

1. The Respondent submits that the Appeal offends the Order 42 of Civil Procedures Rules, 2010 that the memorandum of appeal must be filed within thirty days. It is indicated that Judgment at the trial court was delivered on 7^th July 2024 but the appeal was filed on 7^th November 2024, four months later outside the required period hence the same remains an afterthought with an intention to delay the realization of judgement.

1. The Respondent indicates that there is no sufficient reason given why they failed to file the application immediately after receiving the judgment but waited until the auctioneers served the judgment debtor with the proclamation notice. Further, that the Appellant had an Advocate on record and whom they duly served every mention notice and hearing notice, the Judgment as well as mention date for assessment of costs and that in all occasions they acknowledge the receipt thereof.
2. It is the Respondent’s case that when he filed the suit, the injuries sustained had led to his lack of mobility and total physical disability without the ability to ever work again. His movement henceforth would only be aided by the use of crutches.
3. On special damages, it is submitted that claim of Kshs.674, 776.00 for special damages awarded at the trial court was not only pleaded but also was proven by the Respondent. The Respondent points the case of Joseph Mwangi Thuita vs Joyce Mwole [2018] eKLR where sum of Ksh.700, 000/= was awarded on general damages where the Appellant had sustained injuries in the nature of fractures to the right femur, compound fracture on tibia, Compound fracture right fibula, shortening right leg and Episodic pain (r) thigh with inability to walk without support. It is as such submitted that the judgment was merited for awarding Kshs.850.000.00 for general damages.
4. On loss of future earnings, it is submitted in reliance on the case of Mumias Sugar Company Ltd -Vs Francis Wanalo [2007] eKLR that the Respondent prior to the accident was 35 years old and an Appellant’s employee who could earn up to Kshs.60.000.00/= per month but now could not work again for being half paralyzed following the accident. In making comparisons to the case of Claytone Chimwani Shikote vs Njuguna Sarmuel & 2 Others (2017) eKLR where the court used a multiplier of 20 years where the plaintiff was a carpenter of 35years old, the Respondent submits that the award thereof was rightfully awarded. It is thus submitted that the Respondent being the breadwinner of his family and the fact that his immobility can’t allow him to work again, the Respondent is entitled to the award under this limb by the trial court.
5. On cost of crutches, the Respondent cites the case of Nicholas Njue Njuki vs Eliud Mbugua Kahuro (2014) eKLR where the court held that;

“...the wheelchair will need replacement every 5 years......... the multiplier adopted is 20 years and therefore if each wheel chair is given a lifespan of 5 years, it follows that four replacements will be done....”

1. It is submitted that the crutches will need replacement every 3 years hence it is reasonable to adopt the multiplier of 20 years the same as for loss of income whereby a pair of crutches amounts to Kshs.30.000/=.
2. On costs of the Appeal, the Respondent points the Supreme Court decision in Jasbir Singh Rai & 3 Others vs Tarlochan Singh Rai & 4 Others [2014] eKLR and reiterates the principle of cost following course and submits that it should be awarded the costs of the appeal.

Analysis and Determination

1. This court has considered the grounds of appeal, the proceedings of the trial court and the submissions by both parties. The court is of the view that the issue pertinent for determination is the apportionment of liability by the trial court as well as the quantum of damages payable.
2. The court first wish to point that the Appeal herein was lodged vide memorandum of appeal dated 7^th November 2024 seeking orders to have the trial court’s apportionment of liability and award on quantum of damages be downwardly. The impugned judgment in the original suit was delivered on 7^th July 2024. From the date of its delivery to when the memorandum of appeal was filed is a duration of four months.
3. Section 79G of the Civil Procedure Act provides as follows as to filing of appeals in this court from subordinate courts:

Every appeal from a subordinate court to the High Court shall be filed within a period of thirty days from the date of the decree or order appealed against, excluding from such period any time which the lower court may certify as having been requisite for the preparation and delivery of a copy of the decree or order:

Provided that an appeal may be admitted out of time if the appellant satisfies the court that he had good and sufficient cause for not filing the appeal in time.

1. No application is on record by the Appellant seeking orders for extension of time for filling appeal out of time. Tritely, an appellant desiring to lodge an appeal from the lower court out of the 30 days provided must first apply for the leave of the court for such appeal to be allowed. In the application, the appellant must satisfy the court that it has good and sufficient cause for filing the appeal out of time.^[1] Such failure then is an implication that what is before this court for determination is not an appeal but an illegality.

Liability

1. That in place, the fact of the occurrence of the accident that involved the Appellant’s Motor-vehicle Registration No. 3HD318509 and the Respondent’s motor cycle Registration No. KMFA 776T not to be in dispute. The court notes that during the trial hearing, the Respondent called 3 other witnesses with the only eye-witness evidence being his testimony. The appellant on the other hand called no witness to testify on its behalf.
2. The nub of the Respondent’s case was that he was riding his motorcycle Registration No. KMTA 7761 from Lodwar to Lokichogio when he got involved in the said accident at about 8pm. He stated that at the scene, a lorry (Appellant’s motor-vehicle) being driven dangerously emerged from a corner while another motor vehicle was coming from the opposite direction with full light on. Just then that the lorry left its lane and hit him on the right side of the motor cycle. As a result, he fell down and lost consciousness only to resuscitate hours later at about 10pm and found himself in the hospital.
3. The the Appellant only filed a defence in which it denied the Respondent’s claim and averred that the accident was caused by the Respondent’s own negligence. It never called any eye-witness to the incident to testify in rebutting the Respondent’s evidence as to the occurrence of the accident. The court has considered the Appellant’s statement of defence at the trial. Tritely, and in line with provision of Section 107(1) of the Evidence Act, any party that desires the court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
4. Where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. In the same vein the failure to adduce any evidence means that the evidence adduced by the Plaintiff against them is uncontroverted and therefore unchallenged.^[2]Further guidance is hereby sought from the decision in Mortex Knitwear Limited vs Gopitex Knitwear Mills Limited, Nairobi (Milimani) HCCC No.834 of 2002 as direct response to the appellant’s ground of faulting the trial court to be wholly found liable to blame. The Court in the said case while citing the case of Autar Sigh Bahra & Another vs Raju Govindji, HCC No.548 of 1998 stated that:

“Although the Defendant has denied liability in an amended Defence and counterclaim, no witness was called to give evidence on his behalf.  That means that not only does the evidence rendered by the 1^st plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated.  In the circumstances, the Counter-claim must fail.”

1. The court holds that the burden of proof being on the Respondent to prove his case, he tendered his evidence and blamed the Appellant wholly for the accident. The evidential burden thus shifted to the Appellant to rebut the prima facie case established by the Respondent. The court finds that the respondent did prove its case on a balance of preponderance, which remined unshaken when no evidence was led in rebuttal. The court therefore finds no basis upon which to disturb findings of the trial court on liability.

General damages

1. In the judgment, the trial court awarded to the respondent damages under the heads, pains and suffering, loss of earning capacity and cost of crutches. The appellant now contends that the sums were too high and excessive. The court shall for purposes of this decision examine each head separately.
2. Pain and suffering
3. The injuries suffered by the Respondent indicated in the medical report included; brachial plexus injury on the right arm, fracture of the left tibia fibular, multiple soft tissue injuries, cut wounds over both deltoid debride over the right elbow and over the right palmar thenar eminence. The Respondent at trial proposed award of Kshs.1, 000, 000/= while the Appellant proposed Kshs.350, 000/= for the award of general damages, with each party citing authorities in support of their proposals.

1. The Respondent cited the case of Joseph Mwangi Thuita vs Joyce Mwole [2018] eKLR where the Appellate court increased trial award of Ksh.100, 000/= to Ksh.700, 000/= as General Damages where the nature of injuries sustained included fractures to the right femur, compound fracture on both tibia and the right fibula, shortening right leg and episodic pain (r) thigh with inability to walk without support.
2. The appellant on the other hand cited the case of Catrherine Wanjiru Kingori & 3 Others vs Gibson Theuri Gichubi (2005) eKLR where the court awarded Kshs.100, 000/= for suffered injuries on the back and another Kshs.350, 000/= for multiple soft tissue injuries, injuries on the left elbow joint and injuries on both ankles. The Appellant further cited the case of Francis Omari Ogaro vs JAO (Minor suing through next friend and Godfather (2021) eKLR where Kshs.180, 000/= was awarded for injuries including multiple cut wounds on the right lower limb; bruises on the lower limb, both elbows, right iliac region, frontal region and temporal region; lacerations on the frontal region; cut wounds on the left iliac region, frontal region, temporal region; and, blunt trauma to the abdomen.
3. The trial court however awarded a sum of Kshs.850, 000/= for the general damages which the appellant considers excessive. The court has evaluated the injuries suffered by the Respondent in line with those in the respective authorities submitted by the parties. The authority cited by the appellant regarded far less severe injuries when compared with to those suffered by the Respondent in the instant appeal. That decision is thus inappropriate for the injuries are not comparable.
4. The other authority by the Appellant was decided in 2005 where the sum of  kshs.350, 000/=was awarded even though the injuries suffered were comparable but equally of lesser severity to those suffered by the Respondent herein.
5. Upon evaluation of the injuries sustained herein and the degree of permanent disability on the Respondent, the court finds that the authorities cited by the Respondent were more comparable to those in this appeal and are more appropriate and therefore the award by the trial court was well guided and reasoned and thus invites no interference.
6. The court thus finds that the Appellant has not met the threshold that would persuade the court to interfere with the award for general damages for pains and suffering made by the trial court. The trial court applied the right principle in arriving the award.
7. Loss of Earning Capacity.
8. The Respondent’s case was that prior to the accident, he was living a healthy with no medical complication having been working as an Appellant’s employee with a monthly salary of kshs.60,000/= which went towards his upkeep and that of his family and of which he was the sole breadwinner. As a result of the injuries sustained, he was left permanently disabled, immobile with the inability to ever work again to fend for his family. To the court the fact of disability ipso facto diminishes not only his ability to continue with his occupation as a lorry driver but also axiomatically reduces his earning capacity. That attracts damages for diminution of earnings and earning capacity
9. The Respondent cited to the trial court the case of Claytone Chimwai Shikote vs Njuguna Sarmuel & 2 Others (2017) eKLR, where the court used a multiplier of 20 years for a 35-year-old carpenter, just like the respondent here, residing in Kakamega and earning a monthly salary of Kshs.20, 000/= 
10. For the Appellant, it was submitted that just like special damages, loss of earning capacity must not only be pleaded but also strictly proved by way of medical report in assessing the degree of permanent incapacity as well as the evidence in earning. It is its case that there was no evidence tendered before the trial court to show that the Respondent was incapacitated as to be disadvantaged in the job market. It is asserted that the award should have been taken care of under the General Damages for pains and suffering and not distinctively.
11. Contrary to the Appellant’s averments that the claim for loss of earning capacity is a special damage claim and ought to not only have been specifically pleaded and strictly proved by the Respondent, the court is is of the learning that loss of earning capacity, unlike lost earnings, is at large claimed and awarded as part of general damages for pain, suffering, and loss of amenities or as a separate head of damages with there being no specific formula of its assessment.^[3] unlike loss of earnings, loss of earning capacity need not be specifically pleaded and proved as asserted by the Appellant. All is needed is for the claimant to prove the effect of the injury on the person's future earning ability as opposed to the present actual loss.
12. The bodily injuries suffered by the Respondent indeed impaired his health and way of life in general. The Respondent was left permanently disabled being rendered immobile and movement only to be aided by use of crutches. Undoubtedly, the Respondent’s resultant state must have had an effect on his productivity and job sustainability as a lorry driver hence impacting on his future earning ability unlike before when was in full health.
13. Accordingly, the court holds that the claim was properly made as a general damage, the same required no specific pleading nor strict proof being not a liquidated loss. Having said that he was employed by the appellant at a definite salary which was never rebutted, there was sufficient proof on a preponderance basis. Evidence tendered by the Respondent succinctly demonstrated the effect of the injuries on his body frame impacting on future earnings and was entitled to compensation for loss of earning capacity. The trial court was, in principle right in awarding a lump sum of Kshs.1, 000, 000/= under the limb and as such the court finds no reason to disturb such findings.

iii Costs of Crutches

1. The court similarly find no reason to disturb the court’s award of Kshs.150, 000 on costs of crutches. Ones the trial court found that the respondent was entitled to general damages, it was entitled to award a global sum encompassing all or to award same under different heads, provided there existed evidence to found the award.  Before the trial court there was evidence that the respondent was unable to walk without being aided by crutches. The court finds that there was proof of need to use crutches which must be costed.

Special damages:

1. It is indubitable that special damages must not only be specifically claimed (pleaded) but also strictly proved.^[4] The Respondent sought in his plaint special damages of Kshs.674, 776/=. I have equally perused the bundles of receipts tendered by the Respondent at the trial court. Cumulatively, the same sums to the claimed figures. The court holds that the Respondent pleaded and strictly proved special damages of Kshs.674, 776/= hence there is no reason to fault the trial court’s award on special damages.
2. In upshot, this Court finds no reason to disturb the judgment of the lower court as to apportionment of liability and the payable quantum of damages. The Appeal fails on two fronts being the appeal was filed out of time without first seeking the leave of court and for being unmeritorious. As a result, the Appeal is hereby dismissed with costs to the Respondent.

Dated, signed and delivered at Lodwar this 24th day of March, 2024

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See Diplack Kenya Limited vs William Muthama Kitonyi (2018) eKLR. ↑