' Background
The appellant herein, Daniel Ngigi Mbuthia , challenges the decision of the trial court in which he was awarded general damages of Kshs. 400,000 and interest from the date of judgment. The appellant was involved in an accident where he sustained fractures of the left tibia and fibula malleolus, which were fixed with metal implants, leading to a 12% permanent disability.
The appellant contended that the learned magistrate misapprehended the nature and extent of his injuries and relied on incomparable authorities, resulting in an inordinately low award. He seeks the enhancement of the award to Kshs. 1,500,000 and orders that interest on special damages be awarded to run from the date of filing suit.
The respondents opposed the appeal and urged this Court to uphold the trial court’s findings, arguing that the trial magistrate properly evaluated the medical evidence and exercised discretion judiciously in awarding damages.
The Appeal was canvassed by way of written submissions which I have considered.
Issues for Determination
From the pleadings and submissions, I find that the following issues arise for determination: -
Whether the learned trial magistrate misapprehended the nature and extent of the appellant’s injuries thereby leading to an erroneous award of general damages.
Whether the award of Kshs. 400,000 for general damages was inordinately low in the circumstances.
Whether the trial court erred in awarding interest on special damages from the date of judgment rather than from the date of filing suit.
What orders should issue as to costs.
Analysis and Determination
1. Nature and Extent of Injuries
The record reveals that the appellant sustained fractures of the left tibia malleolus and fibula malleolus, both of which were operated on and fixed with metal implants. Dr. Wokabi assessed 12% permanent disability and recommended a future operation for removal of the metal implants.
The Appellant faulted the trial magistrate for failing to appreciate that each bone had been fractured and operated upon, thereby underestimating the seriousness of the injuries.
The respondents, on the other hand, maintained that the trial court correctly appreciated the injuries. They cited the cases of Vincent Mbogholi vs. Harrison Tunge Chibalya (2017) eKLR , and Brookside Dairy Limited vs. Peter Bitata Wanjohi (2018) eKLR ,
where plaintiffs sustained fractures of the tibia and fibula and were awarded between Kshs. 400,000–563,416.
This Court agrees with the respondents that the trial magistrate properly appreciated the injuries. The court record and the medical report were expressly cited and considered, showing the magistrate understood the nature of injuries and their severity.
2. Whether the Award Was Inordinately Low
It is trite that an appellate court will not ordinarily disturb an award of damages unless it is inordinately high or low or where the trial court acted on wrong principles (See Butt v Khan [1981] KLR 349 ).
The appellant relied on the following authorities: -
David Mwangi Kiiru v Wilson Gathundu Muiruri (2019) eKLR ,
Patrick Kinyanjui Njama vs. Evans Juma Mukwenyi (2017) eKLR , and
Francis Ndung’u Wambui & 2 Others vs. V.K (a minor) (2019) eKLR , where awards ranged from Kshs. 1,000,000–1,200,000 for more severe fractures involving both tibia and fibula with operations.
I however find that the above cited cases are distinguishable because they involved compound fractures and multiple bones, including the femur, unlike the present case which involved closed fractures of the malleoli of one leg.
Comparable cases cited by the respondents include: -
Savanna International Ltd vs. Muka (2022) KEHC 675 (KLR) – Fracture of the medial malleolus of the left ankle joint , where Kshs. 500,000 was reduced to Kshs. 400,000.
Vincent Mbogholi vs. Harrison Tunge Chibalya (2017) eKLR – Fracture of the left tibia leg bone , award of Kshs. 400,000 upheld.
I find that the above cited authorities, are more consistent with the appellant’s injuries. I however find that considering the elements of the age of the authorities and the inflationary trends on the Kenyan shilling, the award of Kshs. 400,000 can be said to be inordinately low. It is my finding that an award of Kshs. 600,000 will be an appropriate compensation for the Appellant’s injuries.
3. Interest on Special Damages
The appellant argued that interest on special damages should run from the date of filing suit.
The respondents relied on the decision in Shariff Salim & Another vs. Malundu Kikava [1989] eKLR and Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1970] EA 469 , where the courts held that interest on general and unliquidated damages accrues from the date of judgment, while liquidated claims attract interest from the date of filing suit.
The principle was summarized in Shariff Salim (supra) as follows: -
“Where damages have to be assessed by the court, the right to those damages does not arise until they are assessed and therefore interest is only given from the date of judgment.”
In the present case, the damages were unliquidated and subject to judicial assessment. Consequently, I find that the trial court was correct in awarding interest from the date of judgment.
Disposition
Upon re-evaluating the evidence and the submissions of both parties, this Court finds as follows: -
The trial magistrate properly appreciated the nature and extent of the appellant’s injuries.
The award of Kshs. 400,000 in general damages is set aside and substituted with an award of Kshs. 600,000 general damages.
The trial court correctly awarded interest on general and special damages from the date of judgment.
Accordingly, the appeal succeeds, albeit only partly in respect to the award of general damages. I award the Appellant half the costs of the appeal.
'
The appellant herein, Daniel Ngigi Mbuthia , challenges the decision of the trial court in which he was awarded general damages of Kshs. 400,000 and interest from the date of judgment. The appellant was involved in an accident where he sustained fractures of the left tibia and fibula malleolus, which were fixed with metal implants, leading to a 12% permanent disability.
The appellant contended that the learned magistrate misapprehended the nature and extent of his injuries and relied on incomparable authorities, resulting in an inordinately low award. He seeks the enhancement of the award to Kshs. 1,500,000 and orders that interest on special damages be awarded to run from the date of filing suit.
The respondents opposed the appeal and urged this Court to uphold the trial court’s findings, arguing that the trial magistrate properly evaluated the medical evidence and exercised discretion judiciously in awarding damages.
The Appeal was canvassed by way of written submissions which I have considered.
Issues for Determination
From the pleadings and submissions, I find that the following issues arise for determination: -
Whether the learned trial magistrate misapprehended the nature and extent of the appellant’s injuries thereby leading to an erroneous award of general damages.
Whether the award of Kshs. 400,000 for general damages was inordinately low in the circumstances.
Whether the trial court erred in awarding interest on special damages from the date of judgment rather than from the date of filing suit.
What orders should issue as to costs.
Analysis and Determination
1. Nature and Extent of Injuries
The record reveals that the appellant sustained fractures of the left tibia malleolus and fibula malleolus, both of which were operated on and fixed with metal implants. Dr. Wokabi assessed 12% permanent disability and recommended a future operation for removal of the metal implants.
The Appellant faulted the trial magistrate for failing to appreciate that each bone had been fractured and operated upon, thereby underestimating the seriousness of the injuries.
The respondents, on the other hand, maintained that the trial court correctly appreciated the injuries. They cited the cases of Vincent Mbogholi vs. Harrison Tunge Chibalya (2017) eKLR , and Brookside Dairy Limited vs. Peter Bitata Wanjohi (2018) eKLR ,
where plaintiffs sustained fractures of the tibia and fibula and were awarded between Kshs. 400,000–563,416.
This Court agrees with the respondents that the trial magistrate properly appreciated the injuries. The court record and the medical report were expressly cited and considered, showing the magistrate understood the nature of injuries and their severity.
2. Whether the Award Was Inordinately Low
It is trite that an appellate court will not ordinarily disturb an award of damages unless it is inordinately high or low or where the trial court acted on wrong principles (See Butt v Khan [1981] KLR 349 ).
The appellant relied on the following authorities: -
David Mwangi Kiiru v Wilson Gathundu Muiruri (2019) eKLR ,
Patrick Kinyanjui Njama vs. Evans Juma Mukwenyi (2017) eKLR , and
Francis Ndung’u Wambui & 2 Others vs. V.K (a minor) (2019) eKLR , where awards ranged from Kshs. 1,000,000–1,200,000 for more severe fractures involving both tibia and fibula with operations.
I however find that the above cited cases are distinguishable because they involved compound fractures and multiple bones, including the femur, unlike the present case which involved closed fractures of the malleoli of one leg.
Comparable cases cited by the respondents include: -
Savanna International Ltd vs. Muka (2022) KEHC 675 (KLR) – Fracture of the medial malleolus of the left ankle joint , where Kshs. 500,000 was reduced to Kshs. 400,000.
Vincent Mbogholi vs. Harrison Tunge Chibalya (2017) eKLR – Fracture of the left tibia leg bone , award of Kshs. 400,000 upheld.
I find that the above cited authorities, are more consistent with the appellant’s injuries. I however find that considering the elements of the age of the authorities and the inflationary trends on the Kenyan shilling, the award of Kshs. 400,000 can be said to be inordinately low. It is my finding that an award of Kshs. 600,000 will be an appropriate compensation for the Appellant’s injuries.
3. Interest on Special Damages
The appellant argued that interest on special damages should run from the date of filing suit.
The respondents relied on the decision in Shariff Salim & Another vs. Malundu Kikava [1989] eKLR and Mukisa Biscuit Manufacturing Co. Ltd v West End Distributors Ltd [1970] EA 469 , where the courts held that interest on general and unliquidated damages accrues from the date of judgment, while liquidated claims attract interest from the date of filing suit.
The principle was summarized in Shariff Salim (supra) as follows: -
“Where damages have to be assessed by the court, the right to those damages does not arise until they are assessed and therefore interest is only given from the date of judgment.”
In the present case, the damages were unliquidated and subject to judicial assessment. Consequently, I find that the trial court was correct in awarding interest from the date of judgment.
Disposition
Upon re-evaluating the evidence and the submissions of both parties, this Court finds as follows: -
The trial magistrate properly appreciated the nature and extent of the appellant’s injuries.
The award of Kshs. 400,000 in general damages is set aside and substituted with an award of Kshs. 600,000 general damages.
The trial court correctly awarded interest on general and special damages from the date of judgment.
Accordingly, the appeal succeeds, albeit only partly in respect to the award of general damages. I award the Appellant half the costs of the appeal.
'