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JudgmentJOYCE ONGERA VS LINET BOSIBORI NYARANGA15 min read

JOYCE ONGERA VS LINET BOSIBORI NYARANGA

High Court at Kisii High Court · · Anne Ong'injo


By a Plaint dated 3rd December 2020 the Plaintiff sought judgment against the Defendants jointly and severally for;

  1. General damages for pain, suffering and future medical expenses
  2. Special damages of Kshs.104,709/=
  3. Costs and incidentals to the suit
  4. Interests on a, b, and c above at court rates
  5. Any other relief the court may deem fit to grant.

The Appellant’s case was based on the tort of negligence against the Respondents following a road traffic accident that occurred along Kisii-Nyamataro road near Jokevilla area on 14/05/2020 involving motor vehicle Reg. KAC 306 and motor cycle Reg. KMFC 206G.

The Respondent was travelling as a pillion passenger when motor vehicle Registration KAC 306 G was driven negligently that it entered into the main road from a feeder road and hit the plaintiff and as a result the plaintiff sustained severe bodily injuries for which the Plaintiff prayed that the defendant be  held vicariously liable.

The Respondent produced Discharge Summary from Kisii TRH showing she was admitted following RTA where she suffered a fracture of the tibia/ fibula. She also produced Clinic Appointment Card and Medical Report and accompanying Receipt from Dr. Ombati who examined her and concluded that she sustained multiple injuries with an open fracture of the left tibia/fibula that was aligned with Exofix. Dr. Ombati assessed permanent disability at 15%.

P3 form was also produced where the Respondent’s injuries were assessed as grievous harm.

Police Abstract was also produced confirming that motor vehicle Reg. No KAC 306 G registered in the name of John Kahwai Kabucho as per Motor Vehicle Copy of Record was involved in the RTA in question.

The Plaintiff also produced a bundle of receipts for expenses incurred during her treatment following injuries suffered in the accident.

The Respondent testified that grafting was done to correct the parts of the body that were injured and metal implant fixed. She said she was still being seen by a doctor.

PW2 CPL Agnetta Shalola of Nyanchwa Police Station Produced Police Abstract in relation to the accident. She said she was not the Investigating Officer in the matter and according to the OB the matter was still pending under investigation.

PW3 Daniel Nyameino, Clinical Officer at Kisii TRH produced Clinic Appointment Card and Discharge Summary for the Plaintiff. He said there was need for an operation to remove the implants.

PW4 Dr.Ombati also testified and produced P3 form and Medical Report. He said future medical expenses were assessed at Kshs. 200,000/= and disability assessed at 15%.

The Appellant’s 2nd Medical Report prepared by Dr. Kahuthu dated 28th November 2022 was produced by consent of the Advocates on record for parties. The said Report indicated that at the time the Respondent was being examined she was walking with the aid of 1 crutch and she presented with pain on the lower limb which was markedly swollen and deformed with hyperpigmentation. That there was healed grafting scar on the left thigh with normal range of motion of both knee and ankle joints. Dr. Kahuthu confirmed that the Respondent suffered fracture of the left tibia fibula and she assessed permanent disability at 10%. It is indicated that the Respondent was initially managed by exofix which had been removed by the time of 2nd medical examination and the Respondent had healed with deformity of the left lower limb. It was also indicated the Respondent suffered severe soft tissue injuries.

The trial Magistrate considered the evidence on record and apportioned liability in the ratio of 80:20 in favour of the Plaintiff against the Defendant. The Trial Magistrate also entered judgement for General Damages at Kshs. 700,000/= and Kshs. 200,000/= for future medical expenses. Costs of the suit and interest were also awarded.

The Appellant was aggrieved by the judgment of the trial court and brought the appeal herein vide the Memorandum of Appeal dated 30h April 2024 on the following grounds: -

  1. THAT the Learned Trial Magistrate erred in law and fact in the assessment of quantum by awarding Kshs. 700,000/= for general damages an award which was excessive and an erroneous estimate of the damages awardable compared to the injuries sustained by the Plaintiff.
  2. THAT the Learned Trial Magistrate erred in law and fact in the assessment of quantum by awarding future medical expenses of Kshs. 200,000/= despite Respondent not proving the said amount.
  3. THAT the Learned Trial Magistrate erred in law and fact in awarding special damages of Kshs. 54,629/= despite not being specifically pleaded and proved.
  4. THAT the Learned Trial Magistrate erred in law and fact in failing to pay regard to the authorities in the Appellant’s submissions that were guiding in assessment of quantum that is appropriate and applicable in similar casesas the case he was deciding.
  5. THAT the Learned Trial Magistrate’s exercise of discretion in assessment of quantum was unjustifiable. 
  6. THAT the Learned Trial Magistrate erred in law and fact in failing to consider the Appellant’s submissions on quantum by completely disregarding the submissions and authority of the Appellant and as a result arrived in unjustified decision on quantum.

Reasons wherefore the Appellant prayed for the following orders;

  1. That the appeal be allowed and judgment and decree of the trial magistrate delivered on 8/04/2024 be set aside.
  2. That the court re-evaluates the evidence of the parties and dismiss the Plaintiff’s suit with costs to the Appellant.
  3. That in the alternative the court do re-assess the evidence on record and of the subordinate court on quantum and award with its own decision.
  4. That the Appellant be awarded the costs of the appeal and the lower court.

This appeal was canvassed by way of written submissions.  

The Appellants counsel filed submissions dated 24th December 2024 and contended that principles to be applied when considering whether to interfere with the damages awarded by the trial court were settled in Kemfro East Africa Limited t/a Meru Express Service Gathogo Kanini V A. M. M Lubia and Another [1982-88] 1 KAR 777 at pg 730 where Kneller J.A held:

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 that 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. See Ilanga v Manyoka, [1961] EA 705, 709, 713 (CA-T); Lukenya Ranching and Farming Co-operative Society Ltd v Kavoloto, [1979] EA 414, 418, 419 (CA-K). This Court follows the same principles.

The Appellant cited the decision in Arrow Car Limited V Bimomo and 2 Others (2004) 2KLR 101 and Simon Taveta V Mercy Mutitu Njeru [2014] Eklr where it was held:

“that comparable injuries should as far as possible be compensated by comparable awards and that the awards have to make sense and have regard to the context in which they are made(see Denshire Mteti Wambua V KPLC Civil Appeal No 60 of 2004)”

The Appellant invited the court to be guided by the above authorities in considering whether to interfere with the exercise of the Trial Magistrate’s discretion.

The Appellant submitted that the Appellate court will interfere with the exercise of the trial courts discretion if in assessing general damages it takes into account irrelevant factors, leaves out relevant factors or, the award made is so inordinately low or so high that it must be wholly erroneous estimate of the damages.

The Appellant submitted that upon examination the Respondent was found to have sustained open tibia fibula injuries and that the extra injuries allegedly sustained by the Respondent in the Plaint and in Dr. Ombati’s Medical Report have no basis as they are not captured in the initial Treatment Notes.

The Appellant submitted that Dr. Ombati in cross examination admitted that he was sure the Respondent still had implants that would require removal for which an expense of 200,000/= would be paid. It was submitted that according to Dr. Kahuthu the Respondent who suffered fractures to the right tibia fibula had recovered with 10% permanent disability and that at the time the Respondent was being re-examined the implant had been removed and the Respondent would not require future medical expenses. That the need and award for future medical expenses was not substantiated and the same should not have been awarded.

On general damages the Appellant submitted it was inordinately high in the circumstances and an award of Kshs 400,000/= should be sufficient and adequate compensation. The Appellant relied on the case of Kenya Power and Lighting Limited and Another V Zakayo Saitoti Naingola and Another (2008) Eklr where principles for interfering with award of general damages were enunciated.

The Appellant also cited the authority in Harun Myoma Bog V Dr. Daniel Agulo [2015] Eklr where the award of Kshs 150,000/= was enhanced to Kshs 300,000/= where the Appellant had sustained compound fracture to the tibia fibula and Tarbo Transporters Limited V Absalom Dova Lumbasi [2012]Eklr where the Appellant was awarded Kshs. 400,000/= for sustaining several injuries including fracture to the right tibia fibula

The Appellant was of the view that an award of Kshs. 400,000/= would be sufficient to compensate the Respondent for the injuries suffered.

The Appellant’s submission on costs was that same be awarded pursuant to Section 27(1) of the Civil Procedure Act.

The Respondents submissions are dated 8th January 2025. The Respondent cited the case of Butt Vs Khan [1977] 1 KLR where the Court of Appeal stated:

“An Appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which as either inordinately high or low.”

The Respondent lodged a cross appeal in which she faulted the Trial Magistrate for finding that she contributed to the accident and yet she was a mere pillion passenger and did not have control of the motor cycle or the accident motor vehicle and did not contribute in any manner to the accident in which she was injured. That the Police Officer who testified confirmed that the Appellant’s motor vehicle is the one that was on the wrong for joining the road without due care to other road users.

It was submitted that the Appellant did not call any witness to controvert the evidence that the accident occurred when the motor vehicle belonging to the Appellant joined the main road from a feeder road without any indication and proceeded to hit the motor cycle violently.

The Respondent further submitted that injuries she sustained were confirmed by evidence and the Appellant did not adduce evidence to discount the said injuries and the award given was inordinately low and manifestly inconsistent with precedent awards in similar cases and therefore an erroneous estimate of the loss and damage suffered by the Respondent.

It is trite law that the assessment of general damages is at the discretion of the trial court and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a difference figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles,

The Respondent’ Counsel cited the holding in Catholic Diocese of Kisumu V Sophia Achieng Tete (2004) 2 KLR 55where the Court of Appeal observed as follows:

The authority of the Court of Appeal in Jane Chelagat Bor V Andrew Otieno Onduu[1988-92] 2 KAR 288; [1990-1914] E. A 47 was also cited where it was held that:

“In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”

The Respondent urged the court to take into account the severity of the injuries sustained by her and set aside the award of the Trial Court as the authority relied on to make the award had less severe injuries as compared by the ones suffered by the Respondent.

It was further submitted that the Trial court failed to take into account inflation when making the award as was held in Naomi Momanyi V G4S Security Services Kenya Limited & Another [2018]eKLR

‘’In addition the current value of the shilling and the economy have to be taken into account and although astronomical awards must be avoided, the court must ensure that the awards make sense and result in fair compensation (see Ugenya Bus Service V Gachoki NKU CA Civil Appeal No. 66 of 1981[1982] Eklr and Jabane V Olenja [1986] KLR 661.’’

The Respondent relied on the case of Sophia Wanjiru Njuguna  V Kyoga Hauliers Ltd [2020]Eklr and Mwaura Muiruri Vs Suera Flowers Ltd [2014] [2020] Eklr where Kshs1,200,000/= and 1,450,000/= were awarded for fractures of the right tibia fibula and multiple lacerations on the face and soft tissue injuries and fracture of the tibia fibula bones.

The Respondent urged the court to review the trial courts judgment and set aside the same and allow the cross appeal and dismiss the Appellant’s appeal.

ANALYSIS AND DETERMINATION

This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:

"...this court is not bound necessarily to accept the findings of fact by the  court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that 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..."

Having considered the grounds of appeal and rival submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are:-

  1. Whether the Learned Trial Magistrate erred in law and fact in the assessment of quantum by awarding Kshs. 700,000/= for general damages an award which was excessive and an erroneous estimate of the damages awardable compared to the injuries sustained by the Plaintiff.
  2. Whether the Learned Trial Magistrate erred in law and fact in the assessment of quantum by awarding future medical expenses of Kshs. 200,000/= despite Respondent not proving the said amount.
  3. Whether the Learned Trial Magistrate erred in law and fact in awarding special damages of Kshs. 54,629/= despite not being specifically pleaded and proved.
  4. Whether Learned Trial Magistrate failed to pay regard to the authorities in the Appellant’s submissions that were guiding in assessment of quantum that is appropriate and applicable in similar cases as the case he was deciding.
  5. Whether the Learned Trial Magistrate’s exercise of discretion in assessment of quantum was unjustifiable. 
  6. Whether the Learned Trial Magistrate failed to consider the Appellant’s submissions on quantum by completely disregarding the submissions and authority of the Appellant and as a result arrived in unjustified decision on quantum.

The Appellant urge the court to award Kshs. 400,000/= and  relied  on the authority of Harun Myoma Boge vs Dr. Danel Otieno Agulo 2015 in which the accident happened August 2010 and an award of Kshs. 150,000/= was made on 8/6/2011 and enhanced to Kshs.300,000/= on Appeal 13/4/2015.

They also relied on the case of Tarbo Transporters vs. Absalom Dova Lumbasi 2012 the claim was first made in Webuye Civil Case No. 162 of 2009 and judgment delivered on 16/5/2009 where the trial court awarded Kshs. 500,000/= in damages and on Appeal the award was reduce to 400,000/= on 3/3/2015.

On the other hand the Respondent urged the court to be guide by the  authority in   Sophia Wanjiru vs. Kyoga Hauliers Limited where   injuries suffered were on the  head injury with loss of consciousness  for 3 weeks, blunt injuries to the left eye,  fracture to right humerus, facture of the right and left femur and multiple cut wounds on  both lower limbs.  In the said case the trial magistrate had awarded Kshs. 1,800,000/= on 25/6/21 for general damages and on appeal the award was substituted by 1,200,000/= on 30/6/2022.  The Respondent also invited the court to consider the authority of Mwaura  Muiruri vs. Suera Flowers Ltd 2014 where the accident occurred on 22/2/2008 and the plaintiff suffered multiple lacerations on the face, soft tissue injuries on the chest , commented fractures of the right humerus of the upper and lower third of the tibia and compound double fracture of the right leg upper and lower third fibula and court awarded, Kshs. 1,450,000/= as compensation of the injuries suffered.

This court has considered the nature of injuries suffered by the Respondent and find that there is not much varies between the assessment of Dr. Ombati and Kahuthu in terms of injuries sustained and permanent disability as examination were conducted at different times with Dr. Kahuthu conducting the examination two years down the line after the accident.  I have also considered the authorities relied upon by the Appellant and as shown the accidents therein and the awards occurred several years and therefore there was need to factor in inflation. 

The Respondent also invited the court to rely on the authorities cited but which injuries are quite severe and not comparable to those of The Respondent herein and the said awards unless affected by inflation cannot be made in the circumstances.

The trial Magistrate relied on the case Dennis Matagaro vs, NKO 2021 EKLR where the Respondent suffered mild head injury, tenderness of the neck, dislocation of the left shoulder, tenderness on the back and deep lacerated cut wounds on the forearm and fracture of the left tabia and fibula and where general damages were awarded at Kshs. 700,000/=as the most recent and relevant and made similar award to the Respondent.

In the said case the accident occurred on 8/2/2016 and Kshs.  700,000/=was awarded on 17/5/2019 in the trial court and the said award was upheld by the High Court on 22/4/2021.  In the current case the accident happened on 14/4/2020 over four years after the accident in the above authority and the award cannot under any circumstances remain the same in consideration of inflationary factors.

Based on the above considerations this court finds that the award by the trial Magistrate was inordinately low in the circumstances and substitutes it thereof with an award of Kshs. 850,000/= as general damages for pain and suffering.

The Appellant also faulted the Trial Magistrate for awarding damages for future medical expenses for reasons Dr. Kahuthu confirmed that the implant had already been removed. I have looked at the Plaint dated 3rd December 2020 and filed on 20th December 2020 and there is no pleading for future Medical Expenses and the Trial Magistrate was therefore wrong to make the award as parties are bound by their pleadings.

The appeal herein therefore succeeds partially and each party will bear their own costs of the appeal..

Delivered dated and signed at Migori this 27th day of March, 2025

    JOYCE ONGERA VS LINET BOSIBORI NYARANGA JOYCE ONGERA VS LINET BOSIBORI NYARANGA