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JudgmentPATRICK MUNJI KANYONI AND JAMES KARUGU VS PENINA WANJIRU NJOROGE12 min read

PATRICK MUNJI KANYONI AND JAMES KARUGU VS PENINA WANJIRU NJOROGE

High Court at Kiambu High Court · · Andayi W.F.

(Being an Appeal from the judgment and decree of Hon. J. Kituku Principal Magistrate in Kiambu Magistrates Courts Civil Suit No. 116 of 2009 delivered on 2/11/2016)

(Before Andayi W. Francis, J.)

JUDGMENT

  1. The respondent herein Peninah Wanjiru Njoroge sued the appellants Patrick Munyi Kanyoni and James Karugu in a plaint dated 4/2/2009 for damages for injuries arising out of a road traffic accident that occurred on 6/6/2008.  The respondent pleaded that she was a pedestrian walking off the road when the accident occurred. She blamed the accident on the negligent manner in which she claimed that the motor vehicle registration number KUG 153 Daihatsu Station Wagon was driven by the 1st appellant and owned by the 2nd appellant, whereby it lost control and hit her thereby occasioning her severe injuries.
  2. In their joint statement of defence dated 28/3/2012, the appellants denied the claims and, in the alternative, blamed the respondent solely or for having largely contributed to the accident.
  3. After hearing the case the learned trial magistrate entered judgment on liability for the respondent against the appellants on a 90:10 ratio and awarded Kshs.3 million/= general damages for pain, suffering, and loss of amenities and Kshs.18,090/= special damages before contribution, costs, and interests.
  4. The appellants were aggrieved by the said judgment and appealed to this court on 3 grounds as follows: -
    1. That the general damages of KShs 3,000,000/= awarded was inordinately high and not supported by evidence.
    2. The learned magistrate failed to consider the defendants’ submissions and authorities on the issue of the quantum of general damages.
    3. The learned magistrate disregarded the defendant’s evidence and this occasioned an injustice to the defendants.
  5. The appellants therefore pray that this appeal against the judgment of the trial court be allowed in its entirety, the said judgment and decree be varied and/or set aside and the appellants be awarded the costs of the appeal. Finally, the court may grant any other or further relief as it deems fit or just.
  6. The appeal was canvassed by way of written submissions which I have duly considered.
  7. This being a first appeal, the court has to re-evaluate, re-analyze, and re-consider the evidence and draw its conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 and Peters vs. Sunday Post Limited (1968) EA 123. (1956) E.A page 424.
  8. At the trial the respondent (then plaintiff) Peninah Wanjiru Njoroge, PW 4 gave evidence and called three other witnesses to support her case. PW 1, Michael Muchaba Ngumaru, was an eyewitness to the accident.  PW 2, Dr. John Muiru examined the plaintiff on 9/1/2009 and prepared a medical report (Exh. 1). PW 3 George Njoroge Kiarie is the plaintiff’s father.
  9. The facts of the case do not seem to be in dispute and the memorandum of appeal and the submissions of learned counsel for the appellant dwell more on the assessment of general damages and not the apportionment of liability.
  10. The plaintiff who seems to have become substantially disabled in her speech after the accident did not have much to say in her testimony. The trial court observed that she spoke with a slur and had problems with walking and had to be assisted.
  11. PW 1, the eye witness gave evidence that the plaintiff was trying to cross the road when she was knocked down by the defendants’ vehicle which was overtaking another.
  12. In his evidence in defence, the 1st appellant testified that he saw three women who had stopped the vehicle ahead, a matatu which had stopped partly on the road. While he was overtaking the matatu the three ladies boarded it but one lady went ahead of it to cross the road and in the process, his vehicle hit her on the left side of the head.
  13. The 1st appellant was charged in a criminal case and he pleaded guilty to the offence and was convicted and sentenced.
  14. I have considered the grounds of appeal, the evidence adduced before the trial court, and the submissions by counsels for the parties. The issues for determination are liability and quantum of damages.
  15. The facts as narrated by PW 1 and the driver of the accident vehicle, DW 1 are that the respondent wanted to cross the road in front of another vehicle which had stopped apparently to pick up passengers. The 1st appellant who was driving in the same direction as the parked vehicle, in the process of overtaking it knocked down the plaintiff who sustained severe injuries as a result.
  16. The 1st appellant was able to see the vehicle that had stopped ahead of her. He has not indicated what measures he took to ensure that he overtook the parked vehicle safely, especially since there were people around the area and the possibility that some would attempt to cross the road was quite obvious. The 1st appellant ought to have been extra careful. There is no indication that in the circumstances, he reduced the speed of his vehicle or that upon spotting the respondent step on the tarmac, he tried to swerve to avoid hitting her. There is no indication that he was obstructed from taking such an evasive measure by the presence of any obstacle on his right side.
  17. I agree with the High Court holding in a case similar to the present one where of Maoya & 2 others v Mutubachi [2024] KEHC 6388 (KLR) where it said:

“Finally, while both pedestrians and motorists have an obligation to be on the look-out on the road, the greater burden is placed on a motorist, who must always be alive to the fact that unlike a pedestrian, he is in control of a potentially lethal machine.”

  1. In the circumstances, I come to the finding that the 1st appellant was largely to blame for the accident and I have no reason to disturb the findings of the learned trial magistrate on the issue of apportionment of liability in the ratio of 90:10 for the respondent against the appellants. The distinction in the blameworthiness lies in the fact that the 1st appellant as a driver of the motor vehicle had a lethal machine under his control for which he had a greater duty of care than the plaintiff who was a pedestrian.
  2. Assessment of damages is only contested on the issue of general damages awarded of KShs 3,000,000/= for pain suffering and loss of amenities.
  3. On general damages, the appellants’ counsel submitted that the trial court failed to take into account the principles to be relied upon in assessment of damages for bodily injuries. These are that comparable injuries should as far as possible be compensated by comparable awards, keeping in mind the level of awards in similar cases. Learned counsel submits that the trial court was not guided by any precedents in arriving at the manifestly excessive award of Kshs. 3,000,000/= and there was no reference to the parties’ submissions and authorities. Learned counsel further submits that an award of between KShs 470,000/= and KShs 500,000/= in general damages for pain suffering and loss of amenities would be adequate compensation for the respondent’s injuries.
  4. The respondent’s counsel defended the award of Ksh.3,000,000/= in general damages.
  5. The respondent urged this court not to disturb the award of the learned magistrate as it was not issued based on a wrong principle of law or that the amount was extremely high or so very low. He cited the cases of Butt vs. Khan (1977) 1 KAR in support.
  6. The issue for determination on quantum in this appeal is whether the award of Ksh.3,000,000/= general damages was inordinately high.
  7. The law regarding awards on the quantum of general damages is as was explained in the case of Nyambura Kigarari vs. Agrippina Mary Aya (1982-1988) 1 KAR that general damages should be awarded within reasonable bounds and compensation must be fair in line with recent authorities of comparable injuries. See also the case of Rahima Tayah & another vs. Anna Mary Kinaru (1987-88) 1 KAR 90 which buttresses this position.
  8. According to the medical report of Dr. J. N. Muiru, PW 2, the respondent sustained:
    1. Deep cut wound on the scalp.
    2. Head injury/brain hemorrhage and concussion left cortex.
    3. Conjunctival hemorrhage on both eyes
    4. Contusion of the face; and
    5. Hemiparesis on the left side of the body.
  9. At the time of examination by the said doctor, the respondent complained of weakness of the upper and lower limbs left side, slurring of the speech, and attacks of headache. She was in fair general condition and vital signs were stable.
  10. Examination of the Central Nervous System (CNS) showed that she was conscious, oriented to time and place (TPP), had loss of muscle power of the left upper and lower limbs grade 4; walks with a limb; has atrophy of the muscles of the left upper and lower limbs; healed scar right temporal parietal area of the scalp. Other systems were essentially normal.
  11. The doctor’s opinion and prognosis were that the respondent sustained grievous injury to the brain which caused hemiparesis of the left side of the body and slurred speech. She had difficulties walking and needed a lot of medical and family support in life. Headache attacks are due to post-concussions of the brain. There will be permanent residue effects. She will be dependent.
  12. This implies that the respondent sustained a serious trauma on the head though it did not result in a fracture. The injuries suffered by the respondent and the effects thereof are corroborated by the evidence of PW 1 and PW 4 both of who knew her well before the accident as a healthy lady leading a normal life and carrying on the business of selling eggs. She is now physically disabled and unable to walk on her own, her face is contused, has slurred speech, and needs support for the rest of her life. The trial court was able to see and assess her condition when she appeared and testified.
  13. Learned counsel for the appellants relies on the following authorities to support his submission on the proposed award of general damages of KShs 470,000/= to 500,000/=:
    1. Bungoma HCCA No. 123 of 2011 Abbas A Robie & Another v Charles Nyati Waliuba which is cited in the case of GNM v Alex Wachira Waura & another [2022] eKLR. In the Abbas A. Robie case, the Court of Appeal upheld the award by the High Court of Kshs.600,000/- for head concussion, cut wounds on the scalp, chest pain and cut wound, back pains, lacerations on left buttock and painful swollen knee joints.
    2. Gichuki v Njoki another [2004] eKLR, where the plaintiff, a minor aged 2½ years was involved in a road traffic accident and sustained the following injuries:
      1. Close head injuries with brain damage
      2. Convulsions and dysohagia
      3. Right-sided hemiparesis
      4. Regression of milestones
      5. Partial blindness
      6. Generalized hypotonia (walks with support)

The High Court awarded Kshs. 500,000/= as general damages for pain, suffering and loss of amenities in 2004.

    1. Francis Ochieng & another v Alice Kajimba [2015] eKLR. The respondent sustained a cerebral contusion with loss of consciousness for 2 hours, massive hematoma on the right parietal head, subconjunctival hematoma of the right eye, peri-orbital hematoma, peri-orbital ecchymosis, nuckial stiffness, cut wound on the right hand and the right knee.  On appeal Justice D. S. Majanja in considering these injuries substituted the trial court award of KShs 500,000/= with an award of Kshs. 350,000/= in general damages in 2015.
  1. For the respondent herein learned counsel has cited the case of Euphamia Awino Odego v Martin Ingudi Osodo [2009] eKLR where the High Court found that the plaintiff sustained very severe injuries when she was admitted to hospital initially for close to 6 months and has continued since to attend out-patient clinics. The injuries sustained are likely to result in post-traumatic epilepsy, poor memory, severe & permanent injury to the brain, cerebral dysfunction and loss of teeth. The Plaintiff will require future medical treatment, operation and a corrective surgery.
  2. The injuries sustained by the plaintiff in the Euphamia case also involved fractures which is not the case herein.
  3.  I have considered the authorities submitted by the appellants and the respondent. The authority relied upon by the respondent involved far more serious injuries than in the present case. I find the case of Gichuki v Njoki another [2004] eKLR submitted by learned counsel for the appellants to bear more comparable injuries to those sustained by the respondent herein even though the same involved a minor and is now twenty years old.
  4. 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.”

  1. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself 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 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.”

  1. I am accordingly guided by these decisions.
  2. I agree with learned counsel for the appellants that in failing to indicate how he arrived at the award of KShs 3 million, the trial court fell in error.
  3. In assessing damages, the general approach should be that comparable injuries should as far as possible be compensated by comparable award but recalling that no two cases are exactly alike as the Court of Appeal observed in the case of Stanley Maore –vs- Geoffrey Mwenda, NYR CA Civil Appeal No.147 of 2002 [2004] eKLR that:

“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

  1. Accordingly, I am persuaded that this is a suitable case for this Court to exercise its discretion and interfere with the trial court’s finding on general damages for the reason that the quantum that was awarded was so manifestly high so as to warrant such interference.  In my view, and considering the rate of inflation, the appeal is allowed to the extent that the award of Kshs.3,000,000/- is set aside and substituted with an award of Kshs.1, 700,000/- as general damages for pain, suffering and loss of amenities. The same is subject to 10% less contribution which makes the award KShs 1,530,000/=.
  2. For clarity the special damages shall remain as awarded KShs 18,090/= and since the same had also been subjected the contribution, they are reduced to KShs 16,281/=.
  3. The total award to the respondent is therefore KShs 1,546,000/=.
  4. Considering the extent to which the appellants have succeeded in the appeal and the long period this matter has remained in the court system, I order that each party shall bear his or costs of the appeal.

Delivered, dated and signed at Kiambu on the Virtual Platform, Teams this 12th day of June, 2024.

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    PATRICK MUNJI KANYONI AND JAMES KARUGU VS PENINA WANJIRU NJOROGE PATRICK MUNJI KANYONI AND JAMES KARUGU VS PENINA WANJIRU NJOROGE