REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CIVIL APPEAL NO. E058 OF 2022
JULIUS MURIITHI NJAGI……………………………………..1ST APPELLANT
HARRISON WAIHENYA MUTHONI………………………..2ND APPELLANT
VERSUS
MARGARET NGINA NYAGA…..………………………………RESPONDENT
(Being an appeal from the judgment and decree of Hon. P.M. Mugure (Ms), Principal Magistrate, in Wanguru Magistrate’s Court Civil Case No. 130 of 2019 delivered on 13/6/2022)
JUDGMENT
Background
1. This appeal through the memorandum dated 6/7/2022 is on both liability and assessment of damages. The appeal seeks to set aside the decree dated 27/6/2023 arising from a judgment of the trial court dated 13/6/2022 where the defendants were found wholly liable for the accident and general damages for pain, suffering and loss of amenities assessed at KShs 700,000/= and special damages assessed at KShs 176,000/= making a total of KShs 876,550/=.
Grounds of appeal
2. The appellant was dissatisfied with the judgment of the trial court and has filed this appeal based on the following grounds:
a. that the trial magistrate erred in law and in fact in holding the appellants 100% liable for the accident despite the weighty evidence tendered before the court by the appellants which clearly established negligence on the part of the respondent and in ignoring the evidence of the defence and the written submissions both on the issues of liability and quantum.
b. that the trial magistrate erred in law and in fact by awarding an inordinately high amount for general damages for pain and suffering, and
c. that the trial magistrate erred in law and in fact by awarding the respondent KShs 171,000/= as future medical expenses whereas the same was never proved.
Submissions
3. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent.
4. Learned counsel for the appellant faults the learned trial magistrate for finding that because the 1st appellant had been convicted and filed for the offences of causing death by dangerous driving and careless driving then on the strength of the conviction liability had been established against the two defendants jointly and severally at 100%.
5. Learned counsel has cited the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) where it was held that despite conviction for careless driving, the issue of contributory negligence may still be alive in a civil case if the facts warrant it.
6. Learned counsel submitted that there were two versions of evidence tendered before the trial court by the plaintiff and the defendant respectively and in that case the trial court should have apportioned liability equally between the parties. To support that submission, he cites the case of Paul Karanja & another v David Maina Mwangi & 6 others [2009] KEHC 3890 (KLR).
7. Learned counsel submits further that there was no evidence that the respondent had taken any steps to mitigate her injuries by wearing a seatbelt and so liability should be apportioned in the ratio of 70:30 for the respondent and the appellants respectively. Here, he has called to his aid the case of Richard Osoro Jindiga v Alex Thangei & another [2013] KEHC 6546 (KLR). The circumstances of that case were very different from the present one. In that case, the deceased passenger was in the same vehicle as the driver who caused the accident and so the driver pleaded that the deceased was not wearing a seat belt. He would have seen and known that as a fact. In the present case, the respondent was in a different vehicle which the appellants’ vehicle hit from behind.
8. On quantum of damages, learned counsel for the appellant submits that the respondent suffered severe soft tissue injuries only with no fractures as pleaded in her plaint and captured in her witness statement and therefore the award of KShs 700,000/= was inordinately high. He submitted that an award of KShs 300,000/= would be adequate compensation for the injuries.
9. On future medical expenses awarded of KShs 171,000/= for repair of dislocated shoulder joint as recommended by Dr. Kale Maina in his medical report dated 9/11/2019, learned counsel submits that the subsequent report by Dr. Wambugu dated 1/12/2020 showed that the respondent had no dislocation of the shoulder joint nor any subluxation of the acromioclavicular joint and she had made adequate recovery with 0% permanent incapacity and no further surgical intervention was envisaged. Learned counsel submitted that the trial court had not considered Dr. Wambugu’s medical report. Further that the respondent informed the court that she had not healed completely but that she had resumed her normal work as a business woman. Learned counsel submits that the medical report of Dr. Wambugu was the most recent medical examination of the respondent and it was not controverted or rebutted or even shaken in cross-examination and therefore it should be used as the basis for the award of damages for pain, suffering and loss of amenities.
10. Learned counsel for the respondent submits that from the evidence tendered the trial court correctly found the appellants to be 100% liable for the accident and the appeal on liability should be dismissed.
11. On quantum, learned counsel submits that the learned trial magistrate considered the severe injuries sustained by the respondent which caused her to become partially disabled and she cannot perform her work as before. The learned magistrate considered the extend of the injuries and past awards for similar injuries and the passage of time and made the correct award which is commensurate to the injuries sustained. That the award was not exorbitant and it was not based on wrong principles and there is no justification to interfere with the same and it should be upheld by this court.
12. Learned counsel submits further the trial court was correct in awarding special damages of KShs 171,000/= for future medical expenses as the same was proved on the basis of the medical report by Dr. Kale Maina.
Duty of the appellate court
13. This is a first appeal. Learned counsels for both parties call upon this court to review the evidence before the trial court. Indeed, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
Case before the trial court
14. Evidence at the trial was given by the respondent as PW 1, and the 1st appellant. They both testified and adopted their respective witness statements filed alongside their pleadings as their evidence in chief.
15. The evidence by both the respondent and the 1st appellant was that the respondent was a passenger in motor vehicle registration number KCC 200F which was stationary as the driver had stopped it to pick passengers. The 1st appellant was driving motor vehicle registration number KCK 673B Mitsubishi Fuso in the same direction when his vehicle rammed into the stationary vehicle.
16. According to the respondent she was seated on the back seat of the stationary vehicle when the accident happened at about 8.30 a.m. She said that when their vehicle stopped the driver alighted to pick luggage across the road and when the accident happened he was loading the luggage onto their vehicle at the back. Suddenly, their vehicle was hit from behind by another vehicle which is the Mitsubishi Canter driven by the 1st respondent. She said that the Canter swerved out of the road and hit their vehicle which was thrown almost into the ditch. Their vehicle windows crashed and hit her together with the rear door. She sustained injuries. She moved out of the vehicle but collapsed and lost consciousness when the stepped outside. Good Samaritans assisted her to hospital. She later learned that the driver of their vehicle had passed on from the accident. She blamed the driver of the vehicle that hit theirs for the accident. She said the driver was charged with causing death by dangerous driving and careless driving at Wang’uru Law Courts Traffic Case No. 21 of 2019. She produced various documents to support her case
17. On his part 1st respondent testified that that while driving his vehicle there was a Toyota matatu registration number KCC 200F parked slightly off the road on the pavement while its driver was on the road loading luggage on the roof of the matatu. From the opposite direction, a saloon car was overtaking another vehicle in front of it which in the process encroached into his lane. He slowed down to avoid hitting the oncoming vehicle but his lorry slightly brushed the rear right signal light of the Toyota matatu. He said his vehicle did not veer off the road at all. His vehicle stopped ahead of the Toyota matatu. He blamed the appellant for failing to fasten her safety belt, adhere to traffic rules with regard to safety of passengers and for failing to take adequate protection for her safety.
18. Upon considering the evidence tendered, the submissions and authorities tendered by the parties the learned trial magistrate held that with the evidence that the 1st appellant was convicted and sentenced in Wang’uru Traffic case No. 21 of 2019 for causing death and careless driving as per the police abstract then he could not absolve himself from liability. She proceeded to find the appellants jointly and severally holly liable for the accident.
Analysis
19. I have considered the grounds of appeal filed herein, the submissions by learned counsels for the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the trial court was right in finding the appellants 100% liable for the accident and whether general damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset and whether the learned trial magistrate was correct in awarding the respondent damages for future medical expenses.
a. Liability
20. On liability, it true as submitted by learned counsel for the appellant that the learned trial magistrate did not analyse the evidence of the circumstances of the accident but relied on the fact that conviction of the 1st appellant for dangerous driving and careless driving was sufficient proof of negligence in the civil claim. Unfortunately, that is not the position in law. The position is as stated in the case of Alfred Lumiti Lusiba v Pethad Ranik Shantilal & 2 others [2016] eKLR, where Ngaah, J. opined as follows:
“But even so, the viability of a cause of action in a civil claim does not necessarily stem from the conviction of a defendant in a criminal trial. Further still, the success or failure of a civil suit based on facts similar to those that a criminal prosecution is mounted does not necessarily depend on the conviction or acquittal of the defendant in the criminal trial; the outcome of a civil suit is independent from that of a criminal trial largely because the standard of proof required of a prosecutor in criminal prosecution is higher than that required of a claimant in a civil suit. To sustain a conviction, the prosecution must discharge the burden of proof beyond all reasonable doubt that the accused committed the offence with which he is charged. On the other hand, the claimant in a civil suit will only need to demonstrate on a balance of probability that the defendant is the tortfeasor and as a result of his tortious act or omission, the claimant suffered some sort of loss or damage that would warrant a remedy.”
21. Even though this case was dealing with the applicability of Section 193 A of the Civil Procedure Act it equally addresses the issue of relying on a conviction in a criminal case to find that the civil case is proved.
22. Similarly, in the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) cited by learned counsel for the appellant, Platt, JA dealing with the same issue observed that;
“With respect, it was not for the learned judge to read proceedings in the traffic case as if the evidence recorded there was the final position in the case. Not only is it notorious that different aspects of the evidence emerge during a civil case, while not disturbing a conviction, but it is also well-known that both parties to an accident might have driven carelessly and each could be convicted of careless driving for their respective types of carelessness…
… it was correct for the learned judge to refer to Mr Chemwolo’s conviction because section 47A of the Evidence Act (cap 80) declares that where a final judgment of a competent court in criminal proceedings has declared any person to be guilty of a criminal offence, after the expiry of the time limited for appeal, judgment shall be taken as conclusive evidence that the person so convicted was guilty of that offence. It follows that in the civil proceedings which are contemplated, Mr Chemwolo’s conviction will be conclusive evidence that he was guilty of carelessness. But that does not matter, because it may also be that Mr Kubende was guilty of carelessness, and if were to be so, then the position would be as explained in Queen’s Cleaners and Dyers Ltd. v EA Community and others (supra); and despite Mr Chemwolo’s conviction, the issue of contributory negligence may still be alive if the facts warrant it.”
23. Upon finding the evidence of conviction of the 1st appellant in the traffic case, the learned trial magistrate should therefore have gone ahead to evaluate the evidence tendered in the civil case to determine whether it proved negligence against the appellants on a balance of probability.
24. The evidence on record is that the appellants’ vehicle, the Mitsubishi Canter rammed the vehicle in which the respondent was travelling, the Toyota matatu from behind. There is also undisputed evidence that the respondent was a passenger in the matatu and was seated on the back seat on the right side. That was the side that was rammed by the Canter. The accident happened in broad daylight. According to the respondent the impact of the collision caused the matatu windscreens to be shuttered and the vehicle to be pushed almost into the ditch. The 1st appellant said his vehicle stopped ahead of the matatu after the accident.
25. Whether the Canter merely brushed the matatu as contended by the 1st appellant in evidence or rammed into it as per the evidence of the respondent, the fact is that it hit the stationary matatu from behind in broad daylight. The 1st appellant said in evidence that he could see ahead a distance of 200 metres. He saw that there was a stationary vehicle ahead and his lane was occupied by an oncoming car. The reasonable thing to do in those circumstances was to stop his vehicle at a safe distance, leave the oncoming vehicle to pass or the matatu to clear his way and then proceed on. The matatu was not going to clear the way immediately because he had seen the driver was loading luggage on it. What one can surmise happened is that the 1st appellant was driving fast in the circumstances. He could not stop his Canter but again miscalculated the space he had to pass the matatu safely and in his bid to proceed, his Canter hit it from behind.
26. The respondent was a passenger in the matatu. The 1st appellant could not tell whether she had worn her safety belt or not. He said in evidence that he did not see the respondent and in cross-examination that he was thinking that she was not in a seat belt. Clearly, there is no evidence that the respondent was, first, not wearing a seat belt and second to blame for the accident in any way even on the degree of the injuries sustained, because there was no evidence that she was not wearing a seat belt.
27. Consequently, I find the submission that she should be made to bear 30% liability to be without basis and the same is dismissed. I affirm, for different reasons, the trial magistrate’s finding that the 1st appellant was holly to blame for the accident and therefore the appellants bear 100% liability for the same.
b. Quantum of damages
28. On the issue of quantum of damages, the first issue to determine is what injuries were sustained by the respondent.
29. The injuries pleaded in the amended plaint were:
a. Thorax and abdomen – dislocation of the right shoulder joint.
b. Upper limbs – painful right hand.
c. Lower limbs – pain on the hip joint.
30. These were as per the P3 form dated 29/7/2019 from Kimbimbi Sub-County hospital about two and a half weeks after the accident. There was a subsequent medical report prepared by Dr. Kane Maina of AKM Health Centre dated 9/11/2019 which indicates the injuries as:
a. right shoulder joint dislocation.
b. fracture of right scapular blunt right hip injury.
c. right thigh pain.
d. raised BP 151/107
31. The doctor then assessed the cost of repair of the dislocating right shoulder joint at KShs 171,000/=.
32. On the basis of this report the plaint was amended on 5/3/2020 to include the claim for future medical expenses of KShs 171,000/=. However, it is apparent that the plaint was not amended to include the injury of fracture of right scapular blunt right hip injury as captured by Dr. Kane Maina in his report. All the same, the fracture was not one of the injuries considered by the learned trial magistrate in her assessment of damages and therefore the learned counsel for the appellant’s submissions on the same are not material.
33. At the trial the appellants proposed as general damages for pain suffering and loss of amenities an award of KShs 120,000/= based on the cases of Morris Miriti v Nahashon Muriuki & another [2018] KEHC 6552 (KLR), Gogni Rajope Construction Company Limited v Francis Ojuok Olewe [2015] KEHC 8459 (KLR) and Mwavita Jonathan v Silivia Onunga [2017] KEHC 2176 (KLR). The later case has since been reviewed by the Court of Appeal in Onunga v Jonathan [2024] KECA 46 (KLR). Learned counsel submitted that the injuries involved in these cases were far more serious than those in the present case.
34. The respondent on her part proposed KShs 900,000/= as general damages for pain, suffering and loss of amenities and relied on the case of Board of Trustees Anglican Church of Kenya Diocese of Marsabit v Adano Isacko [2019] KEHC 4185 (KLR) where an award of KShs.700,000/= was upheld on appeal for fracture of the clavicle.
35. Even though she did not state so, it would appear that the learned trial magistrate relied on the case of Adano Isacko in arriving at the quantum of damages awarded to the respondent. The respondent in this case did not sustain a fracture of the clavicle and therefore the injuries in the Adano Isacko case are not comparable and the case was not an appropriate guide.
36. On the other hand, the decisions cited by the appellants were also not of comparable injuries at all even as learned counsel submitted that they were more serious than in the present case.
37. Now, on the injuries which were pleaded and the learned magistrate considered in the assessment of damages, the appellants contended that the most recent report by Dr. P.M. Wambugu, which was produced by consent of the parties, it showed that the respondent had not sustained any dislocation of the right shoulder joint and so the injury should be excluded from the assessment of damages. Secondly, that the respondent had made adequate recovery and so no further surgical intervention was envisaged. For this reason, the award made by the learned trial magistrate should not include the claim for future medical attention of KShs 171,000/=.
38. It is apparent that there is a variance between the medical report presented by Dr. Kane Maina and that by Dr. P.M. Wambugu on whether or not the respondent sustained a dislocation to the right shoulder joint.
39. Dr. Kale Maina noted in line with the findings in the P3 form that the X-rays review showed right shoulder joint has posterior dislocation of humeral head and instability aggravated by sub-laxation of right acromioclavicular joint. His examination of the respondent showed right shoulder joint tenderness on movement, lumber spine tenderness on movement and right hip tenderness on movement. His diagnosis was soft-tissue, skeletal tissues and joint tissues injuries, right shoulder joint osteoarthritis, lumbar spine spondylosis and right hip joint osteoarthritis. He then assessed various degrees of permanent incapacity on each of the injuries.
40. Dr. Wambugu findings were that x-rays right shoulder joint reveals non-displaced scapula fracture. No dislocation of the shoulder joint noted. Further that the respondent who is predominantly right-handed complained of occasional pains right shoulder joint worse on exertion His prognosis was that the respondent sustained skeletal and soft-tissue injuries. The availed x-rays did not reveal any dislocation of the shoulder joint nor subluxation of the acromioclavicular joint. She had made adequate recovery and no further surgical intervention was envisaged and no permanent incapacitation occurred and the high blood pressure disease was unrelated to the accident occasioning the injuries. He was also categorical that there was not any degree of permanent incapacity from those injuries.
41. In her judgment, the learned trial magistrate did not consider the medical reports side-by-side. Most notably she made no mention of Dr. Wambugu’s report despite learned counsel for the appellant’s making extensive submissions on the report.
42. Both Dr. Kale Maina and Dr. Wambugu’s reports were in agreement that the respondent sustained an injury to the shoulder and which even from Dr. Wambugu’s evidence had not fully healed. They both noted that there was fracture of the right scapula. However this was not captured in the respondent’s pleadings. What is in the pleadings is dislocation of the right shoulder joint which Dr. Kale Maina’s report supports but Dr. Wambugu’s report discounts strongly.
43. I note that the report by Dr. Wambugu was produced without any challenge by the respondent and it is later in time and represents the respondent’s current condition. That does not however mean that the respondent was not injured on the right shoulder. There is evidence both in the medical report by Dr. Kane Maina which was attached to the plaint and even in the later report prepared by the appellants’ Dr. Wambugu that the respondent sustained a fracture of the right scapula. Therefore, there is no dispute that she indeed was injured in this manner only that the injury was not well captured in her pleadings.
44. The issue of right shoulder joint dislocation captured by Dr. Kane Maina was also captured in the P3 form completed shortly after the accident.
45. I am persuaded to consider what the learned judge said in the case of Ndung’u Dennis –vs- Ann Wangari Ndirangu & Anor (2018) eKLR where it was held as follows;
“It might be fair to say that the learned trial Magistrate based his finding on quantum on his report by Dr. Mwaura. I however, find the report less reliable than the treatment notes, the discharge card and P3 form which are all consistent. The treatment notes were filled immediately after the accident by treating the medical practitioner without any interests in the case.”
46. It is not clear whether Dr. Wambugu was referring to the same x-ray films as those referred to by Dr. Kane Maina and the medical practitioner who completed the P3 form because where necessary, it is not uncommon for a patient to be referred for x-ray taking at almost every facility she visits for medical attention. All the same, I do not think much turns on the issue of the respondent having been injured on the right shoulder joint by way of dislocation because she was injured there anyway by way of fracture as captured by both doctors in their respective reports. I am therefore prepared to find that she had no dislocation but a fracture of the right shoulder joint which shall be considered as one and not separate injuries. In any case, assessment of general damages is not based on individual injuries where the court engages in a mathematical calculation of how much to award for each, rather on the cumulative effect of the injuries upon the party.
47. In spite of the appellants’ own doctor confirming that the respondent sustained a fracture of the right shoulder joint, they do not want her to claim on the same on grounds that she did not plead it as such. The issue is, do the appellants suffer any prejudice if the respondent’s injury to the right shoulder joint is captured as a fracture rather than a dislocation? I do not think so. Consequently, I find that the fracture of the right shoulder joint/scapula is among the injuries to be considered in the assessment of general damages for pain, suffering and loss of amenities by the respondent.
48. It is true that parties are bound by their pleadings as extensively submitted by learned counsel for the appellants both in the trial court and this court. He has cited the Malawian case of Malawi Railways Ltd v Nyasulu (MSCA Civil Appeal 13 of 1992) [1998] MWSC 3 (10 November 1998) which is found on MalawiLII, the equivalent of Kenyalaw. It has been held under such circumstances that the test is that:
“Where the evidence at the trial establishes facts different from those pleaded, e.g. by the plaintiff as constituting negligence, which are not just a variation, modification or development of what has been alleged but which constitute a radical departure from the case as pleaded, the action will be dismissed (Waghorn v. George Wimpey & Co. Ltd. [1969] 1 W.L.R. 1764; [1970] 1 All E.R. 474).
49. This is referred to as the “Waghorn test” in pleadings. I do not find the issue of the respondent sustain a fracture of the scapula to be a new, separate and distinct issue unknown to the appellants from the beginning and constituting a radical departure from the case as pleaded, so as to occasion them prejudice as to which case they were facing, but merely a technicality in pleading. This is because, the appellants have provided a report from Dr. Wambugu which by and large captures the same injuries sustained by the respondent as those noted by Dr. Kane Maina. Both of them agree that the injuries were:
a. fracture of the right scapula for both doctors.
b. blunt right hip injury for Dr. Kane Maina and blunt trauma to the pelvis right side for Dr. Wambugu.
c. right thigh pain for Dr. Kane Maina and blunt trauma right thigh for Dr. Wambugu.
50. Going by both medical reports I am satisfied and find that the respondent sustained a serious injury by way of a fracture to the right shoulder joint, blunt trauma to the pelvis right side and blunt trauma right thigh. She had however made adequate but not full recovery and going by Dr. Wambugu’s report which was the latest evaluation of the injury, no further surgical intervention was required.
51. From the foregoing, it follows that the award of KShs 171,000/= damages for future medical attention to cure the right shoulder dislocation was without basis and the same is hereby set aside.
Appellate court’s duty on assessment of damages
52. The final issue is whether the award of KShs 700,000/= was inordinately high as submitted by learned counsel for the appellants.
53. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR where the court pronounced itself on the issue as follows:
“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 was either inordinately high or low.”
54. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
55. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award.
56. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
57. In the case of Michael Maina Gitonga v. Serah Njuguna [2012] eKLR, Ouko, J (as he then was) reiterated the principles to be borne in mind when assessing damages in personal injury claims as follows:
a. Assessment of damages is a matter of opinion and discreti
[...truncated]
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CIVIL APPEAL NO. E058 OF 2022
JULIUS MURIITHI NJAGI……………………………………..1ST APPELLANT
HARRISON WAIHENYA MUTHONI………………………..2ND APPELLANT
VERSUS
MARGARET NGINA NYAGA…..………………………………RESPONDENT
(Being an appeal from the judgment and decree of Hon. P.M. Mugure (Ms), Principal Magistrate, in Wanguru Magistrate’s Court Civil Case No. 130 of 2019 delivered on 13/6/2022)
JUDGMENT
Background
1. This appeal through the memorandum dated 6/7/2022 is on both liability and assessment of damages. The appeal seeks to set aside the decree dated 27/6/2023 arising from a judgment of the trial court dated 13/6/2022 where the defendants were found wholly liable for the accident and general damages for pain, suffering and loss of amenities assessed at KShs 700,000/= and special damages assessed at KShs 176,000/= making a total of KShs 876,550/=.
Grounds of appeal
2. The appellant was dissatisfied with the judgment of the trial court and has filed this appeal based on the following grounds:
a. that the trial magistrate erred in law and in fact in holding the appellants 100% liable for the accident despite the weighty evidence tendered before the court by the appellants which clearly established negligence on the part of the respondent and in ignoring the evidence of the defence and the written submissions both on the issues of liability and quantum.
b. that the trial magistrate erred in law and in fact by awarding an inordinately high amount for general damages for pain and suffering, and
c. that the trial magistrate erred in law and in fact by awarding the respondent KShs 171,000/= as future medical expenses whereas the same was never proved.
Submissions
3. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent.
4. Learned counsel for the appellant faults the learned trial magistrate for finding that because the 1st appellant had been convicted and filed for the offences of causing death by dangerous driving and careless driving then on the strength of the conviction liability had been established against the two defendants jointly and severally at 100%.
5. Learned counsel has cited the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) where it was held that despite conviction for careless driving, the issue of contributory negligence may still be alive in a civil case if the facts warrant it.
6. Learned counsel submitted that there were two versions of evidence tendered before the trial court by the plaintiff and the defendant respectively and in that case the trial court should have apportioned liability equally between the parties. To support that submission, he cites the case of Paul Karanja & another v David Maina Mwangi & 6 others [2009] KEHC 3890 (KLR).
7. Learned counsel submits further that there was no evidence that the respondent had taken any steps to mitigate her injuries by wearing a seatbelt and so liability should be apportioned in the ratio of 70:30 for the respondent and the appellants respectively. Here, he has called to his aid the case of Richard Osoro Jindiga v Alex Thangei & another [2013] KEHC 6546 (KLR). The circumstances of that case were very different from the present one. In that case, the deceased passenger was in the same vehicle as the driver who caused the accident and so the driver pleaded that the deceased was not wearing a seat belt. He would have seen and known that as a fact. In the present case, the respondent was in a different vehicle which the appellants’ vehicle hit from behind.
8. On quantum of damages, learned counsel for the appellant submits that the respondent suffered severe soft tissue injuries only with no fractures as pleaded in her plaint and captured in her witness statement and therefore the award of KShs 700,000/= was inordinately high. He submitted that an award of KShs 300,000/= would be adequate compensation for the injuries.
9. On future medical expenses awarded of KShs 171,000/= for repair of dislocated shoulder joint as recommended by Dr. Kale Maina in his medical report dated 9/11/2019, learned counsel submits that the subsequent report by Dr. Wambugu dated 1/12/2020 showed that the respondent had no dislocation of the shoulder joint nor any subluxation of the acromioclavicular joint and she had made adequate recovery with 0% permanent incapacity and no further surgical intervention was envisaged. Learned counsel submitted that the trial court had not considered Dr. Wambugu’s medical report. Further that the respondent informed the court that she had not healed completely but that she had resumed her normal work as a business woman. Learned counsel submits that the medical report of Dr. Wambugu was the most recent medical examination of the respondent and it was not controverted or rebutted or even shaken in cross-examination and therefore it should be used as the basis for the award of damages for pain, suffering and loss of amenities.
10. Learned counsel for the respondent submits that from the evidence tendered the trial court correctly found the appellants to be 100% liable for the accident and the appeal on liability should be dismissed.
11. On quantum, learned counsel submits that the learned trial magistrate considered the severe injuries sustained by the respondent which caused her to become partially disabled and she cannot perform her work as before. The learned magistrate considered the extend of the injuries and past awards for similar injuries and the passage of time and made the correct award which is commensurate to the injuries sustained. That the award was not exorbitant and it was not based on wrong principles and there is no justification to interfere with the same and it should be upheld by this court.
12. Learned counsel submits further the trial court was correct in awarding special damages of KShs 171,000/= for future medical expenses as the same was proved on the basis of the medical report by Dr. Kale Maina.
Duty of the appellate court
13. This is a first appeal. Learned counsels for both parties call upon this court to review the evidence before the trial court. Indeed, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
Case before the trial court
14. Evidence at the trial was given by the respondent as PW 1, and the 1st appellant. They both testified and adopted their respective witness statements filed alongside their pleadings as their evidence in chief.
15. The evidence by both the respondent and the 1st appellant was that the respondent was a passenger in motor vehicle registration number KCC 200F which was stationary as the driver had stopped it to pick passengers. The 1st appellant was driving motor vehicle registration number KCK 673B Mitsubishi Fuso in the same direction when his vehicle rammed into the stationary vehicle.
16. According to the respondent she was seated on the back seat of the stationary vehicle when the accident happened at about 8.30 a.m. She said that when their vehicle stopped the driver alighted to pick luggage across the road and when the accident happened he was loading the luggage onto their vehicle at the back. Suddenly, their vehicle was hit from behind by another vehicle which is the Mitsubishi Canter driven by the 1st respondent. She said that the Canter swerved out of the road and hit their vehicle which was thrown almost into the ditch. Their vehicle windows crashed and hit her together with the rear door. She sustained injuries. She moved out of the vehicle but collapsed and lost consciousness when the stepped outside. Good Samaritans assisted her to hospital. She later learned that the driver of their vehicle had passed on from the accident. She blamed the driver of the vehicle that hit theirs for the accident. She said the driver was charged with causing death by dangerous driving and careless driving at Wang’uru Law Courts Traffic Case No. 21 of 2019. She produced various documents to support her case
17. On his part 1st respondent testified that that while driving his vehicle there was a Toyota matatu registration number KCC 200F parked slightly off the road on the pavement while its driver was on the road loading luggage on the roof of the matatu. From the opposite direction, a saloon car was overtaking another vehicle in front of it which in the process encroached into his lane. He slowed down to avoid hitting the oncoming vehicle but his lorry slightly brushed the rear right signal light of the Toyota matatu. He said his vehicle did not veer off the road at all. His vehicle stopped ahead of the Toyota matatu. He blamed the appellant for failing to fasten her safety belt, adhere to traffic rules with regard to safety of passengers and for failing to take adequate protection for her safety.
18. Upon considering the evidence tendered, the submissions and authorities tendered by the parties the learned trial magistrate held that with the evidence that the 1st appellant was convicted and sentenced in Wang’uru Traffic case No. 21 of 2019 for causing death and careless driving as per the police abstract then he could not absolve himself from liability. She proceeded to find the appellants jointly and severally holly liable for the accident.
Analysis
19. I have considered the grounds of appeal filed herein, the submissions by learned counsels for the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the trial court was right in finding the appellants 100% liable for the accident and whether general damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset and whether the learned trial magistrate was correct in awarding the respondent damages for future medical expenses.
a. Liability
20. On liability, it true as submitted by learned counsel for the appellant that the learned trial magistrate did not analyse the evidence of the circumstances of the accident but relied on the fact that conviction of the 1st appellant for dangerous driving and careless driving was sufficient proof of negligence in the civil claim. Unfortunately, that is not the position in law. The position is as stated in the case of Alfred Lumiti Lusiba v Pethad Ranik Shantilal & 2 others [2016] eKLR, where Ngaah, J. opined as follows:
“But even so, the viability of a cause of action in a civil claim does not necessarily stem from the conviction of a defendant in a criminal trial. Further still, the success or failure of a civil suit based on facts similar to those that a criminal prosecution is mounted does not necessarily depend on the conviction or acquittal of the defendant in the criminal trial; the outcome of a civil suit is independent from that of a criminal trial largely because the standard of proof required of a prosecutor in criminal prosecution is higher than that required of a claimant in a civil suit. To sustain a conviction, the prosecution must discharge the burden of proof beyond all reasonable doubt that the accused committed the offence with which he is charged. On the other hand, the claimant in a civil suit will only need to demonstrate on a balance of probability that the defendant is the tortfeasor and as a result of his tortious act or omission, the claimant suffered some sort of loss or damage that would warrant a remedy.”
21. Even though this case was dealing with the applicability of Section 193 A of the Civil Procedure Act it equally addresses the issue of relying on a conviction in a criminal case to find that the civil case is proved.
22. Similarly, in the case of Philip Keipto Chemwolo & another v Augustine Kubende [1986] KECA 87 (KLR) cited by learned counsel for the appellant, Platt, JA dealing with the same issue observed that;
“With respect, it was not for the learned judge to read proceedings in the traffic case as if the evidence recorded there was the final position in the case. Not only is it notorious that different aspects of the evidence emerge during a civil case, while not disturbing a conviction, but it is also well-known that both parties to an accident might have driven carelessly and each could be convicted of careless driving for their respective types of carelessness…
… it was correct for the learned judge to refer to Mr Chemwolo’s conviction because section 47A of the Evidence Act (cap 80) declares that where a final judgment of a competent court in criminal proceedings has declared any person to be guilty of a criminal offence, after the expiry of the time limited for appeal, judgment shall be taken as conclusive evidence that the person so convicted was guilty of that offence. It follows that in the civil proceedings which are contemplated, Mr Chemwolo’s conviction will be conclusive evidence that he was guilty of carelessness. But that does not matter, because it may also be that Mr Kubende was guilty of carelessness, and if were to be so, then the position would be as explained in Queen’s Cleaners and Dyers Ltd. v EA Community and others (supra); and despite Mr Chemwolo’s conviction, the issue of contributory negligence may still be alive if the facts warrant it.”
23. Upon finding the evidence of conviction of the 1st appellant in the traffic case, the learned trial magistrate should therefore have gone ahead to evaluate the evidence tendered in the civil case to determine whether it proved negligence against the appellants on a balance of probability.
24. The evidence on record is that the appellants’ vehicle, the Mitsubishi Canter rammed the vehicle in which the respondent was travelling, the Toyota matatu from behind. There is also undisputed evidence that the respondent was a passenger in the matatu and was seated on the back seat on the right side. That was the side that was rammed by the Canter. The accident happened in broad daylight. According to the respondent the impact of the collision caused the matatu windscreens to be shuttered and the vehicle to be pushed almost into the ditch. The 1st appellant said his vehicle stopped ahead of the matatu after the accident.
25. Whether the Canter merely brushed the matatu as contended by the 1st appellant in evidence or rammed into it as per the evidence of the respondent, the fact is that it hit the stationary matatu from behind in broad daylight. The 1st appellant said in evidence that he could see ahead a distance of 200 metres. He saw that there was a stationary vehicle ahead and his lane was occupied by an oncoming car. The reasonable thing to do in those circumstances was to stop his vehicle at a safe distance, leave the oncoming vehicle to pass or the matatu to clear his way and then proceed on. The matatu was not going to clear the way immediately because he had seen the driver was loading luggage on it. What one can surmise happened is that the 1st appellant was driving fast in the circumstances. He could not stop his Canter but again miscalculated the space he had to pass the matatu safely and in his bid to proceed, his Canter hit it from behind.
26. The respondent was a passenger in the matatu. The 1st appellant could not tell whether she had worn her safety belt or not. He said in evidence that he did not see the respondent and in cross-examination that he was thinking that she was not in a seat belt. Clearly, there is no evidence that the respondent was, first, not wearing a seat belt and second to blame for the accident in any way even on the degree of the injuries sustained, because there was no evidence that she was not wearing a seat belt.
27. Consequently, I find the submission that she should be made to bear 30% liability to be without basis and the same is dismissed. I affirm, for different reasons, the trial magistrate’s finding that the 1st appellant was holly to blame for the accident and therefore the appellants bear 100% liability for the same.
b. Quantum of damages
28. On the issue of quantum of damages, the first issue to determine is what injuries were sustained by the respondent.
29. The injuries pleaded in the amended plaint were:
a. Thorax and abdomen – dislocation of the right shoulder joint.
b. Upper limbs – painful right hand.
c. Lower limbs – pain on the hip joint.
30. These were as per the P3 form dated 29/7/2019 from Kimbimbi Sub-County hospital about two and a half weeks after the accident. There was a subsequent medical report prepared by Dr. Kane Maina of AKM Health Centre dated 9/11/2019 which indicates the injuries as:
a. right shoulder joint dislocation.
b. fracture of right scapular blunt right hip injury.
c. right thigh pain.
d. raised BP 151/107
31. The doctor then assessed the cost of repair of the dislocating right shoulder joint at KShs 171,000/=.
32. On the basis of this report the plaint was amended on 5/3/2020 to include the claim for future medical expenses of KShs 171,000/=. However, it is apparent that the plaint was not amended to include the injury of fracture of right scapular blunt right hip injury as captured by Dr. Kane Maina in his report. All the same, the fracture was not one of the injuries considered by the learned trial magistrate in her assessment of damages and therefore the learned counsel for the appellant’s submissions on the same are not material.
33. At the trial the appellants proposed as general damages for pain suffering and loss of amenities an award of KShs 120,000/= based on the cases of Morris Miriti v Nahashon Muriuki & another [2018] KEHC 6552 (KLR), Gogni Rajope Construction Company Limited v Francis Ojuok Olewe [2015] KEHC 8459 (KLR) and Mwavita Jonathan v Silivia Onunga [2017] KEHC 2176 (KLR). The later case has since been reviewed by the Court of Appeal in Onunga v Jonathan [2024] KECA 46 (KLR). Learned counsel submitted that the injuries involved in these cases were far more serious than those in the present case.
34. The respondent on her part proposed KShs 900,000/= as general damages for pain, suffering and loss of amenities and relied on the case of Board of Trustees Anglican Church of Kenya Diocese of Marsabit v Adano Isacko [2019] KEHC 4185 (KLR) where an award of KShs.700,000/= was upheld on appeal for fracture of the clavicle.
35. Even though she did not state so, it would appear that the learned trial magistrate relied on the case of Adano Isacko in arriving at the quantum of damages awarded to the respondent. The respondent in this case did not sustain a fracture of the clavicle and therefore the injuries in the Adano Isacko case are not comparable and the case was not an appropriate guide.
36. On the other hand, the decisions cited by the appellants were also not of comparable injuries at all even as learned counsel submitted that they were more serious than in the present case.
37. Now, on the injuries which were pleaded and the learned magistrate considered in the assessment of damages, the appellants contended that the most recent report by Dr. P.M. Wambugu, which was produced by consent of the parties, it showed that the respondent had not sustained any dislocation of the right shoulder joint and so the injury should be excluded from the assessment of damages. Secondly, that the respondent had made adequate recovery and so no further surgical intervention was envisaged. For this reason, the award made by the learned trial magistrate should not include the claim for future medical attention of KShs 171,000/=.
38. It is apparent that there is a variance between the medical report presented by Dr. Kane Maina and that by Dr. P.M. Wambugu on whether or not the respondent sustained a dislocation to the right shoulder joint.
39. Dr. Kale Maina noted in line with the findings in the P3 form that the X-rays review showed right shoulder joint has posterior dislocation of humeral head and instability aggravated by sub-laxation of right acromioclavicular joint. His examination of the respondent showed right shoulder joint tenderness on movement, lumber spine tenderness on movement and right hip tenderness on movement. His diagnosis was soft-tissue, skeletal tissues and joint tissues injuries, right shoulder joint osteoarthritis, lumbar spine spondylosis and right hip joint osteoarthritis. He then assessed various degrees of permanent incapacity on each of the injuries.
40. Dr. Wambugu findings were that x-rays right shoulder joint reveals non-displaced scapula fracture. No dislocation of the shoulder joint noted. Further that the respondent who is predominantly right-handed complained of occasional pains right shoulder joint worse on exertion His prognosis was that the respondent sustained skeletal and soft-tissue injuries. The availed x-rays did not reveal any dislocation of the shoulder joint nor subluxation of the acromioclavicular joint. She had made adequate recovery and no further surgical intervention was envisaged and no permanent incapacitation occurred and the high blood pressure disease was unrelated to the accident occasioning the injuries. He was also categorical that there was not any degree of permanent incapacity from those injuries.
41. In her judgment, the learned trial magistrate did not consider the medical reports side-by-side. Most notably she made no mention of Dr. Wambugu’s report despite learned counsel for the appellant’s making extensive submissions on the report.
42. Both Dr. Kale Maina and Dr. Wambugu’s reports were in agreement that the respondent sustained an injury to the shoulder and which even from Dr. Wambugu’s evidence had not fully healed. They both noted that there was fracture of the right scapula. However this was not captured in the respondent’s pleadings. What is in the pleadings is dislocation of the right shoulder joint which Dr. Kale Maina’s report supports but Dr. Wambugu’s report discounts strongly.
43. I note that the report by Dr. Wambugu was produced without any challenge by the respondent and it is later in time and represents the respondent’s current condition. That does not however mean that the respondent was not injured on the right shoulder. There is evidence both in the medical report by Dr. Kane Maina which was attached to the plaint and even in the later report prepared by the appellants’ Dr. Wambugu that the respondent sustained a fracture of the right scapula. Therefore, there is no dispute that she indeed was injured in this manner only that the injury was not well captured in her pleadings.
44. The issue of right shoulder joint dislocation captured by Dr. Kane Maina was also captured in the P3 form completed shortly after the accident.
45. I am persuaded to consider what the learned judge said in the case of Ndung’u Dennis –vs- Ann Wangari Ndirangu & Anor (2018) eKLR where it was held as follows;
“It might be fair to say that the learned trial Magistrate based his finding on quantum on his report by Dr. Mwaura. I however, find the report less reliable than the treatment notes, the discharge card and P3 form which are all consistent. The treatment notes were filled immediately after the accident by treating the medical practitioner without any interests in the case.”
46. It is not clear whether Dr. Wambugu was referring to the same x-ray films as those referred to by Dr. Kane Maina and the medical practitioner who completed the P3 form because where necessary, it is not uncommon for a patient to be referred for x-ray taking at almost every facility she visits for medical attention. All the same, I do not think much turns on the issue of the respondent having been injured on the right shoulder joint by way of dislocation because she was injured there anyway by way of fracture as captured by both doctors in their respective reports. I am therefore prepared to find that she had no dislocation but a fracture of the right shoulder joint which shall be considered as one and not separate injuries. In any case, assessment of general damages is not based on individual injuries where the court engages in a mathematical calculation of how much to award for each, rather on the cumulative effect of the injuries upon the party.
47. In spite of the appellants’ own doctor confirming that the respondent sustained a fracture of the right shoulder joint, they do not want her to claim on the same on grounds that she did not plead it as such. The issue is, do the appellants suffer any prejudice if the respondent’s injury to the right shoulder joint is captured as a fracture rather than a dislocation? I do not think so. Consequently, I find that the fracture of the right shoulder joint/scapula is among the injuries to be considered in the assessment of general damages for pain, suffering and loss of amenities by the respondent.
48. It is true that parties are bound by their pleadings as extensively submitted by learned counsel for the appellants both in the trial court and this court. He has cited the Malawian case of Malawi Railways Ltd v Nyasulu (MSCA Civil Appeal 13 of 1992) [1998] MWSC 3 (10 November 1998) which is found on MalawiLII, the equivalent of Kenyalaw. It has been held under such circumstances that the test is that:
“Where the evidence at the trial establishes facts different from those pleaded, e.g. by the plaintiff as constituting negligence, which are not just a variation, modification or development of what has been alleged but which constitute a radical departure from the case as pleaded, the action will be dismissed (Waghorn v. George Wimpey & Co. Ltd. [1969] 1 W.L.R. 1764; [1970] 1 All E.R. 474).
49. This is referred to as the “Waghorn test” in pleadings. I do not find the issue of the respondent sustain a fracture of the scapula to be a new, separate and distinct issue unknown to the appellants from the beginning and constituting a radical departure from the case as pleaded, so as to occasion them prejudice as to which case they were facing, but merely a technicality in pleading. This is because, the appellants have provided a report from Dr. Wambugu which by and large captures the same injuries sustained by the respondent as those noted by Dr. Kane Maina. Both of them agree that the injuries were:
a. fracture of the right scapula for both doctors.
b. blunt right hip injury for Dr. Kane Maina and blunt trauma to the pelvis right side for Dr. Wambugu.
c. right thigh pain for Dr. Kane Maina and blunt trauma right thigh for Dr. Wambugu.
50. Going by both medical reports I am satisfied and find that the respondent sustained a serious injury by way of a fracture to the right shoulder joint, blunt trauma to the pelvis right side and blunt trauma right thigh. She had however made adequate but not full recovery and going by Dr. Wambugu’s report which was the latest evaluation of the injury, no further surgical intervention was required.
51. From the foregoing, it follows that the award of KShs 171,000/= damages for future medical attention to cure the right shoulder dislocation was without basis and the same is hereby set aside.
Appellate court’s duty on assessment of damages
52. The final issue is whether the award of KShs 700,000/= was inordinately high as submitted by learned counsel for the appellants.
53. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR where the court pronounced itself on the issue as follows:
“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 was either inordinately high or low.”
54. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
55. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award.
56. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
57. In the case of Michael Maina Gitonga v. Serah Njuguna [2012] eKLR, Ouko, J (as he then was) reiterated the principles to be borne in mind when assessing damages in personal injury claims as follows:
a. Assessment of damages is a matter of opinion and discreti
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