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JudgmentJosephat Gitau Kamau VS Elly Mukolwe Toli7 min read

Josephat Gitau Kamau VS Elly Mukolwe Toli

High Court at Milimani High Court · · Wendy Micheni

(Being an Appeal from the Judgment of the Honourable Court delivered on the 10th December, 2021 by the Honourable Magistrate D.W. Mburu Senior Principal Magistrate, in Nairobi Chief Magistrate’s Court Civil Suit No. 3170 of 2019)

JUDGMENT

Background Information

  1. The plaintiff (hereinafter the respondent) instituted his suit as a against the defendant (hereinafter the appellant) claiming general damages for pain, suffering and loss of earning capacity, special damages, costs and interests.
  2. The trial proceeded on 27th February, 2020, and PW1; Joseph Gitau Kamau; adduced evidence as the sole witness, thereto narrating that he was lawfully riding his motorcycle when the appellant’s motor vehicle was so carelessly, negligently and/or recklessly driven that it knocked him from behind.
  3. The appellant duly entered appearance and filed a statement of defence denying the respondent’s claim in its entirety and further pleaded contributory negligence as against the respondent. The appellant however failed to call any evidence in favour of his defence.
  4. At close of the hearing the learned trial magistrate delivered a judgment dated 10th December, 2021 and ordered as follows;

“There shall therefore be judgment for the plaintiff against the defendant as follows;

  1. Liability 100%.
  2. General Damages kshs.700,000/=
  3. Loss of earning capacity kshs.600,000/=
  4. Special damages kshs.2000/=

Total kshs.1,302,000/=

The plaintiff shall also have costs of the suit.”

  1. The appellant was aggrieved by the above Judgment of the lower court and filed a memorandum of appeal dated 10th January, 2022 citing the following grounds: -
  2. That the learned magistrate erred in law and fact in holding the appellant herein 100 liable in negligence without the evidence which pointed to the fact that the accident was solely caused by the respondent.
  3. That the learned magistrate erred in law and fact in holding that the respondent had established a case against the appellant contrary to the evidence on record.
  4. The learned magistrate erred in law and fact in entering judgment for the respondent without considering the credible evidence by the defence witness who confirmed that the appellant had fully healed.
  5. That the learned magistrate failed to consider the submissions and authorities filed by the appellants hence erroneous judgment.
  6. That the learned magistrate erred in law and fact in failing to dismiss the respondents claim with costs for want of proof.
  7. The learned magistrate erred and misdirected himself proceeding on wrong principles when assessing damages to be awarded to the respondent under the head of general damages and thereby failed to apply precedents and tenets of the law applicable.
  8. The learned magistrate erred and misdirected himself by proceeding on wrong principles when assessing damages to be awarded to the respondent under the head of loss of earning capacity and thereby failed to apply precedents and tenets of the law applicable.
  9. That the learned magistrate erred in law in failing to capture and/or record all the evidence and/or testimonies adduced in court thereby omitting important material which were necessary for determination of issues in question.

Written Submissions

  1. The appellant filed submissions dated 15th April, 2024 in which he submitted that the appeal may be summed up as purely an issue of quantum. He argued that in view of the nature of the injuries sustained being a single fracture of the left distal tibia and fibula a re-evaluation of the quantum would be prudent.
  2. On quantum, the appellant relied on the case of Jitan Nagra vs Abidnego Nyandusi Oigo (2018)eklr, and Gladys Lyaka Mwombe vs Francis Namatsi & 2 others (2019)eklr among other authorities as guiding precedent for general damages. As to loss of past, present and future earnings, he argued that no evidentiary nexus was provided in evidence to justify the award.
  3. The respondent argued that the trial court based its award on the authorities cited in the parties’ submissions, thereby siding with the respondent based on their age of pronouncement and commensurate nature of the injuries sustained. He relied on the authorities in Savanna Saw Mills Ltd vs George Mwale Mudomo (2005)eklr, Gitobu Imanyara & 2 others vs Attorney General (2016)eklr. As to loss of earning capacity, the respondent maintained that the medical report assessed his permanent incapacity at 30%, and the global award granted was sufficient.

Analysis and Determination

  1. I have carefully considered the grounds of appeal, the evidence adduced before the learned trial magistrate as well as the parties’ rival written submissions. I have also read the Judgment of the trial court. I find that the issues for determination is on Quantum/Damages awarded and whether or not this court should interfere with the award.
  2. Being a first appeal the court relies on the principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & others [1968] 1EA 123:

“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”

  1. In an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR thus:

The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

  1. The question is whether this court should interfere with the damages awarded by the trial court. As stated above, the discretion in assessing general damages payable will only be disturbed if the trial court took into account an irrelevant fact or failed to take into account a relevant factor or that the award is so inordinately high that it must be wholly erroneous estimate of the damages or that it was inordinately low.
  2. The trial magistrate awarded Kshs.700,000/= as general damages. The appellant regards the award as inordinately high. The respondent agrees with the trial magistrate that the award is commensurate to the injuries sustained.
  3. The tenets for the award of general damages were enunciated in Boniface Waiti & Another –vs- Michael Kariuki Kamau [2007]eKLR, where Lady Justice Nambuye (as she then was) opined principles inter alia that;

a) An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered.

b)  The award should be commensurate to the injuries suffered.

c)  Awards in decided cases are mere guides and each case should be treated on its facts and merit.

d)  Where awards in decided cases are to be taken into consideration then the issue of own element of inflation has to be taken into consideration.

e)  Awards should not be inordinately too high or too low.

  1. The respondent’s medical report by Dr. Okoth Okere dated 17th April, 2019 assessed a permanent disability at 30% whilst the appellant’s report by Dr. Jenipher Kahuthu dated 22nd July, 2019 stated that the respondent had healed fractures and was normal at the time of assessment.
  2. Considering the injuries sustained by the respondent and keeping in mind that no injuries can be completely similar inflation; I find that the trial court was properly guided by the authorities cited before him and arrived at a reasonable assessment of general damages. The learned trial magistrate cannot be faulted as the award is neither too low nor too high in the circumstances.
  3. As to the award of loss of earning capacity, in Mumias Sugar Company Limited vs Francis Wanalo [2007] eKLR as quoted in Hamo Transporters Company Ltd & Another vs Dorcus Wangui Kiriro [2019] eKLR the Court held that loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering and loss of amenities or as separate head of damages, as a token, modest or substantial depending on circumstances of each case. The court added that there was no formula for assessing loss of earning capacity.
  4. Further, Butler vs Butler [1984] KLR 225 where the Court of Appeal enumerated the principles to be considered in respect of a claim for loss of earning capacity as follows:

“…Loss of earning capacity or earning power may and should be included as an item within general damages but where it is not so included it is not improper to award it under its own heading”

  1. In this instant the trial court awarded a global/lump sum award of kshs.600,000/=. I cede guidance from the authority in to the case of Alpharama Limited vs. Joseph Kariuki Cebron [2017] eKLR where the court stated: -

“The court would be properly entitled to make a global award because there is a general agreement in decisions rendered by courts that there is no formula for assessing damages for lost or diminished earning capacity provided the judge takes into account relevant factors.”

  1. In my re-assessment of the facts, I find no fault in the award by the trial court.

Conclusion

  1. I find that the appeal lacks merit and is hereby dismissed.

24.Costs of the appeal assessed at Khs.50,000 all-inclusive and are awarded to the respondent.

Dated, Signed and Delivered at NAIROBI Virtually this 31st Day of JULY, 2024.


WENDY MICHENI

JUDGE

    Josephat Gitau Kamau VS Elly Mukolwe Toli Josephat Gitau Kamau VS Elly Mukolwe Toli