KEN KITHINJI MWIRIGI VS STEPHEN NYAMWEYA AND WATU NOMINEES COMPANY LIMITED KEN KITHINJI MWIRIGI VS STEPHEN NYAMWEYA AND WATU NOMINEES COMPANY LIMITED

INTRODUCTION.

The appellant in this matter is aggrieved by the learned Honorable magistrate decision awarding in the sum of Ksh. 300,000 in general damages for:-
A fractured left distal fibula bone lateral malleolus.
Blunt injuries left ankle joint with swelling.
By way of his memorandum of appeal dated 15^th December 2023 the appellant has raised the following grounds:-
THAT the Learned Trial Magistrate erred in law and in fact in awarding the appellant Kshs. 300,000 as general damages which award was inordinately low, in view of the injuries sustained by the appellant and the current inflation rate.
THAT the Learned Trial Magistrate erred in law and fact by awarding the appellant Kshs. 3,550 as special damages contrary to the documentary evidence adduced.
THAT learned Trial Magistrate erred in law and fact by disregarding the appellant's submissions on quantum and authorities cited by the appellant thereby awarding the appellant general and special damages that were inordinately low.
THAT learned Trial Magistrate erred in law and fact by considering irrelevant submissions and irrelevant factors while leaving out relevant submissions for the Appellant and relevant factors thereby awarding the appellant general and special damages that were inordinately low.
THAT the Learned Trial Magistrate's judgment was arrived at in a cursory and perfunctory manner without properly analyzing evidence presented in the suit on quantum and the entire award of general damages and special damages to the appellant is inordinately low.
The appellant has moved this court to re-assess the quantum of damages with a view to determine whether indeed the sum of Kshs.300,000 was justifiable in the circumstances and could pass for a comparable sum of damages for similar injuries awarded by other courts.

APPELLANT'S SUBMISSIONS

The appellant submitted that the appeal herein is mainly on the issue of general damages awarded to the appellant by the trial Court. The appellant went ahead to consolidate the grounds of appeal into one;- the issue of quantum
The appellant submitted that the injuries sustained by the appellant were well documented in the radiology report from Royal Care Diagnostic Centre, the P.3 Form and the medical report by Dr. Titus Ndeti and on the face of those documents the appellant sustained the following injuries;

1. A fractured left distal fibula bone lateral malleolus
2. Blunt injuries left ankle joint with swelling

According to the appellant, these were severe and debilitating injuries. The trial court awarded the appellant Kshs. 300,000 as general damages for Pain and suffering which award the appellant submits was inordinately low in light of the injuries sustained and proved by the appellant and the current rate of inflation coupled with the current high cost of living.
The appellant contended that in making this inordinately low award, the trial court documented in its judgment completely different injuries from what the plaintiff captured in his pleadings and submissions.
The appellant went on to submit that from an analysis of the trial Court's judgment, the trial Magistrate appears to have been issued with the wrong submissions at the point of writing her Judgment compared to the submissions that the Plaintiff filed on the online portal. The trial Court captured the Plaintiff's injuries as follows at paragraph 10 of its judgment;

1. Blunt injuries to the forehead, right hand, anterior chest wall and the back and multiple bruises on both knees.

The appellant maintained that those were not the injuries suffered by the appellant are not the injuries the appellant pleaded and submitted on.
The appellant also took issue with the court’s decision in which at paragraph 11 of the judgment that the Plaintiff was quoted as having submitted for an award of Kshs. 350,000 while the defendant submitted for Kshs. 70,000. The appellant submitted that that was not the case. According to him, the record as indicated on the online portal, the Plaintiff submitted for Kshs. 1,500,000 as general damages while the defendant did not file any submissions.
It is on the basis of those glaring errors that the appellant pleaded with the court to reconsider the matter on the issue of damages as assessed by the magistrate.
According to the appellant the errors pointed out led the the trial court to make an erroneous award which was manifestly low calling for a review upwards. In his view the award was actually based on soft tissue injuries while the Plaintiff sustained both soft tissue and serious skeletal injuries.
The appellant has urged this court to consider the authorities cited in the lower court and find that even though they remain largely persuasive, this court considers making a comparable award.

The authorities include;-

Daniel Oduor Shieuda v Christopher Wambugu (2021)Sklr. In that case, the trial Court awarded the Plaintiff Kshs.450, 000 as general damages. The High court presided by S.J Chitembwe J as he then was enhanced the award to Kshs. 800,000 as it stated as follows;

'It is evident that the courts have been awarding damages ranging between Kshs.450,000 to Kshs.1,300,000 for fractures of tibia and fibular bones. It all depends on the specific case and other injuries suffered by the same claimant in the accident. Considering the injuries suffered by the appellant, I do find that the award of Kshs.450, 000 is inordinately low."
(ii) Clement Gitau v G K K [2016] eKLR. The trail court in this case awarded the Plaintiff Kshs. 600,000 as general damages for having sustained a fracture of the left tibia- mid shaft and bruises on the neck. That was according to a medical report by Dr. Miana Ruga which appeared to be conflicting with that of the Plaintiff's Dr. Theophilus Wangata which had provided that the Plaintiff had sustained comminuted fracture of the left distal tibia and fibula, bruises on the neck, blood loss, physical and psychological pains. The defendant appealed the award of Kshs. 600,000 and the High Court dismissed the appeal and upheld the award of the trial Court on grounds that that even if the Plaintiff had sustained the injuries stated in the medical report by Dr. Ruga which were a fracture of the left tibia-mid shaft and bruises on the neck, the award of Kshs. 600,000 was still reasonable considering the High rate of inflation then which was the year 2016.

The appellant has further urged this court to find that the award by the trial court was based on the wrong documentation that was presented her administratively at the point of writing the judgement. The plaintiff submitted for an award of Kshs. 1,500,000 which submission was very reasonable due to the current vagaries and vicissitudes of life coupled with the High rate of inflation.
The appellant has strongly urged this court to consider an award of Kshs, 1,500,000 general damages as he had correctly submitted before the trial court
The respondents submit that the sum awarded by the learned Honorable magistrate in the circumstances and this court should not be inclined to interfere with the same.

ANALYSIS AND DETREMINATION

The duty of an appellate court in an appeal on a matter of exercise of discretion is settled in the case of Mbogo Vs Shah [1968] EA page 93 in which the court of appeal De Lestang VP (as he then was) observed at page 94:

“I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion."

The appellant in this appeal has urged the court to find that the learned Honorable magistrate relied on the wrong document in arriving at the assessment of damages at Ksh.300,000 thus the award should be reviewed. The appellant went as far as suggesting that the trial court may have been presented with the wrong submissions while writing the judgment.
The court has however noted that that could as well be a possibility but there was no evidence available to support the suggestion thus in the court’s view the trial magistrate was simply mistaken on the nature of injuries sustained by the appellant for some unspecified reason.
As the first appellate court this court is duty bound to review the evidence before the Lower court, re-analyze and re-appreciate the same with a view to determine whether the decision by the learned Honorable magistrate was supported by the evidence on record and whether the learned Honorable magistrate took into consideration irrelevant matters or failed to take into consideration relevant matters in arriving at his decision. See Selle & Another vs Associated Motor Boat Co. Ltd $ Others (1968) E.A 123
The appellant at paragraph 6 of the plaint stated the nature if injuries he suffered and particularized them as;-
Blunt injuries to the left ankle with joint swelling.
Fractured left distal fibula bone lateral malleolus
The appellant by way of a P3 form dated 5^th 0ctober 2022 issued by DTO Buruburu proved that he had suffered injury to the left lower limp, tibia fibula shaft fracture. The same injuries were captured in the medical report by Dr. Titus Ndeti Nzina dated 23^rd November 2022.
It is clear from the evidence that the learned Honorable magistrate at paragraph 10 of the judgment considered injuries that were not brought out by the appellant either by way of the plaint or the medical documents tendered in support of the injuries. The failure by the learned Honorable magistrate to capture the injuries by the appellant correctly invites the court to interfere with the discretion of the magistrate in assessing the damage.
The erroneous description of the injuries was a clear misdirection rendering the decision susceptible to review. The magistrates act appears to have been out of a mistake or might have arisen out of confusion considering the voluminous nature of a matters a single judicial officer handles with a given period. It is also possible that the magistrate considered the wrong submissions while writing the judgment.
The mistake cannot therefore be ignored by this court in the face of the medical evidence tendered by the appellant in support of his claim.
In Belinda Murai & 9 Others Vs Amos Wainaina [1979] eKLR Madan J.A had this to say :-

A mistake is a mistake. It is no less a mistake because it is an unfortunate slip. It is no less pardonable because it is committed by senior counsel though in the case of a junior counsel the court might feel compassionate more readily. A blunder on a point of law can be a mistake. The door of justice is not closed because a mistake has been made by a person of experience who ought to have known better. The court may not forgive or condone it but it ought certainly to do whatever is necessary to rectify it if the interests of justice so dictate. It is known that courts of justice themselves make mistakes which is politely referred to as erring in their interpretation of laws and adoption of a legal point of view which courts of appeal sometimes overrule. It is also not unknown for a final court of appeal to reverse itself when wisdom accumulated over the course of the years since the decision was delivered so requires. It is all done in the interests of justice. A static system of justice cannot be efficient. Benjamin Disraeli said change is inevitable. In a progressive country change is constant. Justice is a living, moving force. The role of the judiciary is to keep the law marching in time with the trumpets of progress ( emphasis mine)

In the instant appeal I have no hesitation in stating that the magistrate erred in her judgment by relying on injuries that were not the subject of the appellant’s case to determine the award in damages. The slip by the court cannot be allowed to stand or be overlooked by this court. This must be the what Madan JA had in his mind when he observed that courts too can at times make mistakes. The mistakes can be costly and may lead to erroneous awards thus the need for appellate courts to intervene on appeal in appropriate cases.
The sum of Kshs.300,000 in damages awarded in the circumstances of this case was inordinately low. The injuries suffered by the appellant were serious and no doubt from a reading of the medical report the appellant suffered pain, prolonged morbidity and suffering. The injuries also interfered with his routine duties for a period of 6 months and the doctor assessed functional permanent incapacity of the left lower limp at 5 %. It follows therefore that during the six months period of incapacity as per the doctor’s findings the appellant could not meaningfully engage in productive activity.
Taking into account the seriousness of the injuries and upon reviewing the authorities cited by the appellant, I am inclined to review the figure of Kshs. 300,000 in general damages and substitute the same with an award in the sum of Kshs. 1,000,000 following the reasoning in Daniel Oduor Shieuda v Christopher Wambugu (2021)eklr
The award of Kshs.1,000,000 is arrived at considering the current economic situation that the appellant and every other Kenyan find themselves in today.
This court has also taken into account the fact that the appellant filed the suit way back on 22^nd November 2022 and has to date stood at the door of justice waiting for tortious act committed against him by the respondents to be remedied. The agony of waiting for close to 2 years cannot be ignored.
In conclusion therefore, the appellant is hereby awarded Kshs. 1,000,000 in general damages and costs of this appeal assessed at Kshs. 50,000.
It is so ordered.

KEN KITHINJI MWIRIGI VS STEPHEN NYAMWEYA AND WATU NOMINEES COMPANY LIMITED

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