KENNEDY KWEYU SHIKUKU VS JOSEPHAT JOHNNY LUMBASO

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL APPEAL NO. E052 OF 2023

KENNEDY KWEYU SHIKUKU…………….………..……….……...………….APPELLANT

VERSUS

JOSEPHAT JOHNNY LUMBASIO……..……………..……..……………..RESPONDENT

(Being an appeal from the Judgment and Decree of Hon. Dolphina Alego (SPM) in Kakamega CMCC No. 140 OF 2019 delivered on 20^th March, 2023)

JUDGMENT

Background of the Appeal

1. By way of a plaint dated 11^th June, 2019, the respondent moved the trial court claiming to have been tortiously injured by the appellant and sought general damages for pain and suffering, loss of earning, future medical expenses, as well as special damages of Kshs. 165,418/=, costs of the suit and interests on damages and costs.
2. The respondent pleaded his case to be that on or about the 25^th day of March, 2019, he was a lawful pillion passenger aboard motor cycle registration number KMDR 881R when on reaching state house road at Kari area, motor vehicle registration number KCJ 136R was recklessly driven that it knocked him occasioning serious bodily injuries. 
3. The plaint set out the particulars of negligence, particulars of injuries as well as those of special damages.
4. The appellant filed a statement of defence dated 5^th July 2019 denied the claim by the respondent including the occurrence of the accident and averred that if at all the accident occurred, then it was occasioned by the sole or contributory negligence of the appellant.
5. In a judgment of the trial court delivered on 20^th March, 2023, it was the finding of the court that the appellant was 100% to blame for the accident and awarded the respondent damages as follows;
6. General damages for pain, suffering and loss of amenities; Kshs. 3,000,000/-;
7. Cost of artificial limb; Kshs. 500,000/-;
8. Future expenses on the mattress and cream as per the doctor’s report Kshs. 153,000/-;
9. Loss of future earnings Kshs. 1,000,000/-;
10. Special damages of Kshs. 155,418 
11. Interest at court rates from today after the reading of the judgment.
12. Aggrieved by the decision of the trial court, the appellant lodged a memorandum of appeal dated 12^th April, 2023 seeking orders to have the decision of the trial court set aside and that this court makes a finding on liability and quantum as well as award the appellant the costs of the appeal. The appeal is premised on the following grounds;
13. The Learned Trial Magistrate erred in law and fact in making the award of general damages in the said judgment that was manifestly excessive in the circumstances as to amount to an erroneous estimate of the loss suffered by the respondent.
14. The Learned Trial Magistrate erred in law and in fact entering judgement for general damages without considering the applicable principles as established by precedent that comparable injuries ought to attract comparable damages and by so doing reached a figure of damages that is inordinately high, arbitrary and totally unsupportable.
15. The Learned Trial Magistrate grossly misdirected herself and erred in law and in fact in awarding damages of Kshs. 4,308,418/- without considering and without any regard to precedents and relevant case law put before her in total disregard to established and applicable principles of assessment of damages.
16. The Learned Trial Magistrate erred in law and in fact in awarding damages of Kshs. 4,308,418/- without laying any basis, therefore.
17. The Learned Trial Magistrate totally ignored and/or paid lip service to the appellant’s submissions and authorities therein cited and heavily relied on the respondent’s submission and ignored the appellant’s submissions, thus grossly misdirecting herself and ignored the principles applicable and relevant authorities on quantum cited in the written submissions presented and filed by the appellants and consequently coming to a wrong conclusion on the same.
18. The Learned Trial Magistrate failed to take into account all relevant considerations and principles in assessing the quantum of genera damages.
19. The Learned Trial Magistrate erred in fact and law by failing to take into account relevant factors and as a result ended up with a wrong decision on the award of damages.
20. The Learned Magistrate misapprehended the evidence on record the consequence of which he reached a wrong decision on the award of damages.
21. The Learned Trial Magistrate misapprehended the evidence on record, the consequence of which he reached a wrong decision on liability.
22. The Learned Trial Magistrate erred in fact and law by arriving at conclusions on liability based on assumptions as opposed to evidence and the law.  
23. Even when fragmented into ten grounds, the appeal in reality raises two grounds; that the finding on liability was against the weight of evidence, and, that the awards made were contrary to the evidence and principles applicable and resulted in exorbitant awards that are manifestly excessive and demonstrate an error in assessment of damages.
24. The appeal has been canvassed by way of written submission which the court has taken into account and duly appreciated in this decision. Without reproducing the texts of the submissions here, the court only sets out the summary of such submissions.

Appellant’s Submissions

1. It is the appellant’s submission that the sum of Kshs. 3,000,000/- awarded by the trial court as general damages for pain and suffering and loss of amenities was inordinately high and that it did not align with awards where a plaintiff suffered similar injuries. In support thereto, the appellant cites a number of authorities including the case of Pyramid Packaging Limited v Humphrey W. Wanjala (2013) eKLR where the plaintiff suffered a swollen and tender left hand with bruises, traumatic amputation of the left index finger, traumatic amputation of the middle finger and traumatic amputation of the left ring finger and that the degree of permanent disability was assessed at 25% and the court of appeal awarded the plaintiff a sum of Kshs. 650,000/- as adequate compensation for pain, suffering and loss of amenities.
2. The appellant also refers the court to the case of Stephen Kamau Wanderi & another v Gladys Wanjiku Kungu (2006) eKLR where the respondent was awarded a sum of Kshs. 600,000/- for a compound fracture of the left tibia and fibula with permanent disability assessed at 20% and another case of SJ v Fransesco Di Nello where a 15-year-old who suffered 100% permanent disability was awarded a sum of Kshs. 1,500,000/- by the court of appeal in 2015.
3. The appellant submits that Dr. Lamba on cross examination confirmed that the sacral bed sores had since healed and the second medical report by Dr.James Obondi confirms the fracture of the femur, tibia/fibula and motegia fracture of the left upper limb had since healed and assessed permanent disability at 16%. The appellant therefore proposes general damages for pain and suffering and loss of amenities in the sum of Kshs. 1,500,000/-.
4. On the award of loss of future earnings, the appellant argues that the respondent failed to tender proof to show that he worked as a carpenter earning an income of Kshs. 30,000/- and that he was also employed as a shop keeper earning a sum of Kshs. 9,000/-. He adds that the loss of earnings is a special damage claim and it is trite law that special damages must be pleaded and proved and where there is no evidence regarding special damages, he asserts that the court will not act in a vacuum and cites the case of Douglas Kalafa Ombeva v David Ngama (2013) eKLR in that regard.
5. On the award of the cost of artificial limb for Kshs. 500,000/- and future expenses for a mattress and cream for Kshs. 153,000/-, the respondent argues that these two are special claims which ought to have been specifically pleaded and proved and cites the case of Peter Kamau Gathori v David Waweru Nganga (2020) eKLR.
6. The appellant further argues that though Dr. Lamba testified that the respondent was on crutches and issued an opinion that the respondent could also use a prosthesis limb, the doctor’s advice is not binding as it does not indicate how the respondent’s failure to have a prosthesis limb would in any way inhibit the respondent from leading a normal life.
7. On the pneumatic mattress, the appellant explains that it is generally used to offer patients a level of pain relief against sores and stops pressure build ups from happening. He points out that the respondent was released from hospital on 4/6/2019 and Dr. Lamba observed that the bed sores had healed hence he prays to the court that the award for pneumatic mattress be declined.
8. On the award of kshs. 3,000/- for the mebo cream, he proclaims that mebo cream is a skin and wound healing ointment used to treat burns, pressure sores and all types of surgical and traumatic wounds and it is his contention that the open wounds have since healed and the respondent no longer suffers from pressure sores to warrant the award.
9. On liability, the appellant faults the trial court’s finding that he was 100% to blame for the accident and contends that it was the testimony of DW1 that the cyclist encroached onto the plaintiff’s motor vehicle’s thus hitting the vehicle which did not leave its left lane even after the accident and that the motor cyclist did not have a valid driving license and thus not authorized to be riding on the road. 

Respondent’s Submissions

1. In response to the appellant’s submissions that the award of general damages was inordinately high, the respondent submits that the award was deserving based on the injuries the respondent sustained and which were recorded in the medical report of Dr. Lamba who examined him on 10/6/2019, 3 months after accident to be; loss of consciousness for an unknown period time, fracture of the distal femur, fracture of midshaft tibia, fracture of midshaft fibula, comminuted fracture of the proximal ulna and elbow dislocation, sacral bedsores, above knee amputation of the right limb and phantom pain on the amputated right lower limb and the degree of disablement was diagnosed at 60% for the loss of leg below hip with stump exceeding 18 centimeters and 35% ankylosis of the left elbow. He argues that in the authorities cited by the appellant, the injuries mentioned therein are not similar to the injuries the respondent sustained.
2. In support of the award of Kshs. 3,000,000/- by the trial court, the respondent cites the case of Crown Bus Services Ltd & 2 others v BM (minor suing through his mother & next friend SMA (2020) eKLR whereby a minor plaintiff aged 5 years at the time of accident sustained above the knee amputation and was awarded a sum of Kshs. 3,000,000/- as general damages which award was reduced to Kshs. 2,500,000/- in the year 2020.
3. The respondent also refers the court to the case of John Kipkemboi & another v Morris Kedolo(2019)eKLR in which the court reduced an award of Kshs. 3,000,000/= to Kshs. 2,500,000/-for amputation of the leg below the knee with 40% permanent incapacity and the injuries were less severe as those compared to the respondent’s injuries herein.
4. On the issue of lack of evidence to demonstrate that the respondent worked as a carpenter and that he earned Kshs. 30,000/- per month, the respondent refers the court to the case of Mary Wanjiru Mugwe v Peter Gatoto Ng’ang’a & another [2019] eKLR where it was held as follows;

 “There was more than sufficient material from which the learned Judge could draw the conclusion that the deceased was a carpenter, and that his monthly earnings were Kshs.4000/- per month.  We do not subscribe to the view that the only way to prove the professions of a person must be by production of certificates, and that the only way of proving earnings is equally the production of documents.  That kind of stand would do a lot of injustice to very many Kenyans who are even illiterate, keep no records and yet earn their livelihoods in various ways.  If documentary evidence is available that is well and good.  But we reject any contention that only documentary evidence can prove these things.  In this case the evidence of the respondent, and the widow...”

1. On the issue of the need for a prosthesis limb, the respondent submits that Dr. Lamba recommended that it would serve him well considering his upper limb is also incapacitated and that the appellant did no offer alternative price range for an artificial limb and neither did their doctor who did the 2^nd examination thereby making the claim unopposed. On the cost of the limb, he agrees with the award by the trial court and refers this court to the case of Abuga v Northern Rangeland Trust (Civil Appeal No. E104 of 2022) (2023) KEHC 23656 (KLR) where an award of Kshs. 3,000,000/=for the prosthesis limb was upheld by the court as recommended by the doctor.
2. On the need for pneumatic mattress, the respondent submits that Dr. Lamba stated in his report that the plaintiff had developed sacral pressure sores and recommended a pneumatic mattress at kshs. 150,000/-.
3. On the mebo cream, the respondent submits that the plaintiff testified that he had not healed.
4. On who is to blame for the accident, the respondent submits that it was the testimony of PW2 that the driver of the subject motor vehicle was heading towards state house and on reaching the accident site he lost control and went to the right where he collided with an oncoming motor cycle which was carrying the plaintiff and that this evidence was corroborated by PW1. The respondent adds that PW2 produced a sketch map which revealed that the driver of the subject motor vehicle was to blame for the accident and further argued that if at all the motor cyclist was to blame for the accident as stated by DW1, he ought to have produced an inspection report to support his claim that the motor cyclist lost control and knocked his car on the right wing.

Issues For Determination

1. This court has considered the grounds of appeal, the proceedings of the lower court and the submissions by the parties and discerns the issues for determination to be;
2. Who is to blame for the accident and to what extent
3. Whether the general damages awarded by the trial court were inordinately high

Analysis

Who is liable for the accident and to what extent

1. To determine who between two or more defendants or drivers of motor vehicles caused or contributed to the collision of the vehicles is a very difficult task, with no logical or scientific theories on causation. The court thus determines such questions by applying common sense to the fact of each particular case. The common-sense test goes back to the test of a reasonable man. Thus, in Stapley –v- Gypsum Mines Limited (2) (1953) A.C 663 at P. 681,  the court said: -

One may find that a matter of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly cause the accident. I doubt whether any test can apply generally.” (emphasis provided)

1. The respondent who testified as PW1 blamed the driver of the suit motor vehicle for the accident. He adopted his witness statement in which he recounted that they were on the lawful side of the road, when at a corner, the driver of the suit motor vehicle left his lane and came into their lane thus knocking them down. He faults the driver for overtaking on a corner. He further added that the driver was charged for careless driving but the matter was pending trial.
2. PW2, a traffic police officer, testified that she was not the investigating officer but had with her the investigation diary which from the proceedings it appears it was not produced as an exhibit and the same is also not part of the plaintiff’s list of documents. She also confirmed that the motor vehicle driver was charged with careless driving.
3. The respondent submitted that PW2 produced a sketch map which revealed that the driver of the subject motor vehicle was to blame for the accident. I have not come across the production or presence of a sketch map in the proceedings and the judgment of the trial court does not mention one.
4. The driver of the suit motor vehicle testified as DW1 and adopted his witness statement wherein he stated that while approaching a bend near KALRI offices, he saw a motor cyclist approaching from the opposite direction and the cyclist appeared startled as he immediately rode in a zig zag manner while encroaching on his lane. He added that he swerved towards the left in a bid to avoid colliding with the oncoming motor cycle though it was too late and the motor cyclist hit the right wing of the motor vehicle damaging it and crashing into a ditch.
5. The trial court after receiving and analyzing the evidence of the witnesses observed as follows;

“In analysis with the evidence adduced in either side, this seemingly was a head of collision at a blind corner and seemingly the speed was massive by the defendant to occasion the impact and injuries sustained by the plaintiff herein.”

1. The rare and exceptional Instances when an appellate court may interfere with a trial court’s finding on liability, which is an exercise on the evaluation of the factual evidence, is that it is only permissible where there is some error in principle or the apportionment is manifestly erroneous. An appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge. See Khambi and Another v Mahithi and Another [1968] EA 70.
2. A holistic reading of the proceedings and judgment does not give a clear depiction of how the accident occurred.  Several questions such as the terrain of road and the side of the road the driver of the suit motor vehicle and that of the motor cycle were expected to be on were left unanswered. Here there was an opportunity to assist the court with the sketch plan but it is not captured as produced nor is a copy in the file.
3. Since the driver of the suit motor vehicle and the respondent blamed each other for the accident, a sketch map of the scene would have been necessary to give a better understanding and appreciation of how the accident occurred.
4. That the driver of the motor vehicle was charged with the offence of careless driving by itself does not deter the court from apportioning liability against the cyclist. In his determination, the trial court appears to place the whole blame on DW1 because of the impact and injuries sustained by the plaintiff. That is never evidence of causation. The proper way to determine causation in the circumstances of the case was to weigh the evidence of PW1 against that by DW1 and come to a conclusion of who between them was more believable and reliable. Where that is not possible, the law is that the liability is shared equally between the two. The court takes guidance from the decision of the court of Appeal in Hussein Omar Farah Versus Lento Agencies [2006] eKLR where it was held: -

“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.”

1. In the circumstances, the court finds that the trial court failed to properly comprehend the evidence led and apply the law applicable where the is no clear evidence on causation. The court finds a befitting case to interfere with the findings of facts by the master of the facts. The court thus sets aside the finding on liability and substitutes a finding that the plaintiff and the defendant were equally to blame. Liability is thus apportioned at 50:50 between them. 

Whether the general damages awarded by the trial court were inordinately high

1. Since the decision of the Court of Appeal in Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini –vs- A M Lubia & Olive Lubia [1982-88] KLR 727 the law has been trite that 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 is that it must be satisfied that the trial Judge in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, and  short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.
2. The injuries sustained by the respondent as per the medical report of Dr. Lamba Christian were pleaded to be; loss of consciousness, fracture of the right fibula, fracture of the right femur, fracture of the left una, dislocated left ulna, sacral bed sores, phantom pain on the amputated right lower limb and above knee amputation of the right lower limb.
3. In awarding general damages for pain, suffering and loss of amenities in the sum of Kshs. 3,000,000/-, the trial court placed reliance in a number of authorities including the case of Damaris Wamucii Kagechu v Joseph Kirui & another (2019) eKLR where the plaintiff sustained fractures on both legs which led to inconvenience in movement associated with pain and was awarded damages of Kshs. 1,500,000/- and the case of Sammy Mugo Kinyanjui & another v Kiro Thuo (2017) eKLR where the plaintiff suffered fractures of the tibia and fibula bones of both legs and was awarded damages of Kshs. 600,000/- on appeal. The court observes that the injuries sustained by the respondent herein appear to be more severe than those referred to by the court.
4. I have looked at the decisions cited by the parties particularly those referred to by the respondent that is; i) Crown Bus Services Ltd & 2 others v BM (minor suing through his mother & next friend SMA (2020) eKLR whereby a minor plaintiff aged 5 years at the time of accident sustained above the knee amputation and was awarded a sum of Kshs. 3,000,000/- as general damages which award was reduced to Kshs. 2,500,000/- in the year 2020 and; ii) the case of John Kipkemboi & another v Morris Kedolo(2019)eKLR in which the court reduced an award of Kshs. 3,000,000/= to Kshs. 2,500,000/- for amputation of the left leg below the knee, chest injury, bruises on the shoulder, back injury and crush injury for amputation of the leg below the knee with 40% permanent incapacity and the injuries were less severe as those compared to the respondent’s injuries herein.
5. The injuries sustained by the respondent are comparable to the injuries sustained by the plaintiffs in the decisions cited above and therefore, considering the passage of time since the awards and based on the depreciation of the Kenya shilling over the years, even if the award may appear a little high, it is not manifestly excessive. The court thus upholds the award under this heading
6. On the award of future medical expenses in relation to the cost of artificial limb, pneumatic mattress and mebo (moist exposed burn ointment) cream, the appellant contends that this is a special damage claim that ought to be specifically pleaded and proved.
7. The court has discerned from the pleadings that the respondent specifically pleaded special damages at paragraph 8 of the plaint. The court finds the pleadings to have been sufficiently specific as demanded by the law. However, there was evidence that the respondent had healed and was mobile and not immobilized in bed. The court takes judicial notice that pneumatic mattress is a therapy bedding for the immobile and designed to help avoid skin breakdown by promoting blood flow and stimulating circulation in the body through regular body positioning. For that reason, the award of Kshs 150,000 was improperly made.it is set aside.
8. On the same reason, the award for Mebo (moist exposed burn ointment) cream must be upset. It is upset because while it was in the medical report compiled while the respondent was still in hospital, there was no evidence that as at the date of giving evidence he still has moist exposed wounds. More importantly, no attempt was made to prove what it would cost to buy the two items. In summary, the award for Kshs 153,000 is set aside in whole.
9. On the second element of proving the damages, the respondent produced an invoice from Gateway Prosthetics and Orthotics Limited which shows that the artificial limb costs Kshs. 489,000/- and I find this item to have therefore been specifically pleaded and proved. The trial court however awarded a sum of kshs. 500,000/- factoring in the cost of transport. Since the cost of transport had not been proved, the award of kshs. 500,000/- is hereby reduced to kshs. 489,000/-.in coming to this conclusion the court takes the view that a prosthesis has the benefit of near natural limb, by aesthetics, over crutches. It is thus not reasonable to argue as the appellant has done that the doctor ought to have stated that failure to use the prothesis would deter the respondent from leading a normal life.
10. The other head of damages awarded and which the appellant has a complaint about is the damages go loss of future earnings. In making a determination on the loss of future earning, the court is guided by the court of appeal decision in S J v Fransisco Di Nello & another (2015) eKLR where it was held as follows;

“Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved.”

1. The respondent’s claim and award was in relation to loss of future earnings. The respondent in his plaint pleaded that he was no longer able to earn as a carpenter or shop keeper as a result of the said injuries. The disability suffered by the respondent was on his left leg and left elbow.
2. In the judgment appealed against, the trial court proceeded as if the claim was for general damages for loss of earning capacity. In doing so the court made an error on the character of the claim for loss of future earnings. It is never a damage at large but a special one to be pleaded with particularity and proved with specificity. It was not enough, for a claim of loss of future earnings to demonstrate disability by amputation without more. The court finds that the award of Kshs 1,000,000 for loss of future earning was made in error and avails itself for setting a side. It is so set aside.
3. In conclusion and based on the reasons set out above, this appeal partially succeeds and it is ordered as follows;
4. The finding on liability at 100% is set aside and in its place substituted a finding apportioning liability at 50:50 between the appellant and the respondent.
5. The award of Kshs 500,000 for prothesis is set aside and substituted with a sum of kshs. 489,000/-
6. The award of Kshs 1,000,000 for loss of future earning is set aside in whole.
7. The award of Kshs 153,000 for pneumatic mattress and mebo are set aside in whole.
8. The court upholds the award for general damages for pains and suffering in the sum of Kshs 3,000,000. Kshs 489,000/- for prosthesis and special damages in the sum of Kshs 155,418.
9. The aggregate award therefore calculates as follows
   1. Pains and suffering      Kshs   3,000,000
   2. Cost of prosthesis          Kshs    489,000.
   3. Special damages         Kshs    155,418

Gross total                    Kshs  3,644.418

Less 50% contribution Kshs  1,822,209

1. That sum and the sum on costs before the trial court shall attract interest at the prevailing court rates from the date of the judgment before the trial court till payment in full.
2. On cost, the appeal partially succeeds in a manner that leaves the respondent with a measure of success as well. For that reason, the court makes an order that each party shall bear own costs.

Dated, signed and delivered at Virtually this 14^th day of February, 2025

</><>><>>