QUORUM VENTURES LTD VS CHARLES ONGONDO AND SALIM NYAKUNDI OGENCHE MASEA QUORUM VENTURES LTD VS CHARLES ONGONDO AND SALIM NYAKUNDI OGENCHE MASEA

The 1^st respondent filed suit against the appellant in Millimani Small Claims Court No SCCC/E2930 of 2023 seeking general and special damages against the appellant following injuries suffered in a road traffic accident on 18/4/2023 involving Motor vehicle No. KBK 100X/ZC5577.
The court entered judgment on 29/20/2023 as per the judgement of Honorable. V. Mochache Resident magistrate finding that the appellant was the owner of the suit motor vehicle and that the plaintiff had proved his case against the defendant .The court apportioned liability and awarded damages as follows:
Liability- 100%
General Damages - Ksh 550,000/=
Future Medical Expenses- Ksh 30,000/=
Special Damages- Ksh 5550/=

TOTAL : Ksh 563,550/=

Costs and interest from the date of judgment.

Aggrieved by the decision the appellant filed the instant appeal raising the following grounds;-

The learned magistrate erred in law and misdirected herself when she failed to consider the appellant’s submissions.
The decision was unjust and was based on misguided points of fact and wrong principles of law thereby occasioning a miscarriage of justice
The magistrate failed to consider the provisions of the Insurance Motor vehicle Third Party Risks Amendment Act of 2013 in arriving at his decision.
That the court erred in finding the appellant 100% liable when the respondent had not proved his case against the appellant
The magistrate erred in awarding the respondent Ksh 550, 000/= for general damages hence arriving the wrong finding on the nature of injuries sustained by the plaintiff.
The award was inordinately too high in the circumstances of the case
That the court failed to consider conventional awards in cases of similar nature
The court failed to find that the appellant was not in control of the vehicle and that he had sold the vehicle to the 2^nd respondent/ Third party
The court erred when it failed to consider in her judgment the duly executed agreement between the appellant and the 3^rd party.
The parities to the appeal agreed to have it disposed of through written submissions.
The appellant filed submissions dated 12/6/2024 through the firm of Chebiego & Associates Advocates and enjoins this court to reassess the trial court’s award on general damages.
The appellant frames issues for determination as whether the award was inordinately high and thus excessive.
The appellant submits that the injuries suffered were not as severe as injuries suffered in cases relied on by the court .That the doctor’s report did not indicate any percentage of disability but the court relied on a case where plaintiff suffered a fracture of the right humerus with 20% disability .
The appellant relied on the case of Maina Onesmus -Vs- Charles Wanjohi Githome (2019) eklr where the injuries concerned fracture of the mid shaft humerus conyles and fragment fracture of the shoulder girdle. The high court set aside the court award 600,000/= and awarded the respondent Ksh 350,000/=.
He further cited the case of Said Abdullahi & Another -Vs- Alice Wanjira (2016) eklr, injuries related to fracture of the right humerus bone and spinal fracture, the High court awarded the respondent Ksh 306,100/= where the trial court had awarded Ksh 600,000/ for general damages=.
In Luke Osoro & Another Vs Daniel K Cheruiyot (2008) eklr the court awarded 250,000/= fracture of the right humerus and soft injuries .The case of Fast Choice Co. Ltd & Another -Vs- Hellen Nungari Ngure (2011) eklr where the High court awarded Ksh 180,000/= for soft tissue injuries .
The appellant submits that the doctor categorized the injuries as harm and that functional permanent incapacity was not assessed and the court could not consider it in awarding damages.
The respondent on his part filed submissions dated 16/7/2024. It was submitted that appellant’s submissions are limited to the court findings on quantum and that the other grounds appear to have been abandoned thus the respondents in answer to the appellants submissions specifically dealt with the issue of quantum.
According to the respondent the Issues for determination are whether the award on general damages was manifestly excessive and whether this court should reassess the same.
The respondent maintained that the award was commensurate with the injuries and was also consistent with other awards arrived at in similar cases. The respondent referred this court to the case of Nguku Joseph & Another –Vs- Gerald Kihiu Mauba 2020 eklr where the high court reassessed damages from Ksh 2.5 M to Ksh 500,000/= where the plaintiff suffered fracture of the right humerus and minor injuries and Ksh 500,000/=.
According to the respondent the appellant did not challenge the nature of injuries suffered and proved by way of the P3, treatment notes and the medical report. The respondent therefore urged the court in determining this appeal to do so on the basis of the injuries pleaded and proved by the respondent. The respondent went on to submit that should the court give a critical consideration of the medical evidence, the court would certainly arrive at the same conclusion as the court below.
On whether the court should reassess the award on damages, the respondent contends that there is no ground in the memorandum of appeal petitioning for reassessment of damages thus the appellant cannot raise the same by way of submissions since submission are not pleadings as ably stated in the case of David Sankale Ole Tukai -Vs- Francis Arap Muge & 2 Others (2014)eklr.

ANALYSIS AND DETERMINATION

This being a first appeal, the court’s mandated is to analyze and reappraise the evidence in order to come up with its own independent conclusions on the evidence. The court is warned that unlike the trial court, it did not see nor hear the witnesses and due allowance must be made for this .See the case of Peters -Vs Sunday Post Limited [1958] E.A 424, Selle v Associated Motor Boat Company Ltd [1968] EA 123, Williamson Diamonds Ltd v Brown [1970] EA 1.
The appellate court is further cautioned against interfering with the exercise of discretion of the lower court unless it can be established that the court whose decision is appealed against, improperly exercised its discretion or in exercizing the discretion misapplied the law and or took into account irrelevant or extraneous matters or failed to take into account relevant matters thus arriving at a wrong finding in law. See Mbogo Vs Shah (1968) E.A 93.
In the case of Khambi and Another -Vs- Mahithi and Another [1968] EA 70, the court held that :-

“It is well settled that where a trial Judge has apportioned liability according to the fault of the parties his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”
The court in this case apportioned liability and there is no basis for this court to interfere with the decision on the issue of liability considering that the appellant did not also submit on the issue other than taking it up in the submissions.
This court has analyzed the evidence on record and there is absolutely no reason for the court to interfere with the finding of the lower court on liability.
The motor vehicle having veered of the road and having rammed onto the respondent the liability would lie 100% on the appellant. The purported transfer was denied by the third party thus the appellant could not escape liability in the circumstance.

Turning on to the issue of quantum, the injuries suffered by the respondent as a result of the accident were noted as: - “injuries to the left upper limb, facture on the left humerus bone and blunt injuries on the left shoulder with bruises.” The respondent was also admitted at Kisii Teaching & Referral Hospital where he was treated.
The respondent / claimant sustained soft tissue injuries and fractured bone .The injuries were alleged to have interfered with his daily routine for 6 months but the degree of incapacitation could not be addressed since he was undergoing treatment.
Future medical assessment was estimated at Ksh 30,000/= which covered clinic consultation physiotherapy and medicine.
The p 3 Form was also produced indicating that the claimant suffered injuries on the chest, right upper arm bruises on the knee joint .These were categorized as grievous harm.
The respondent produced the police abstract records and a copy of records from the registrar of motor vehicle as proof of ownership of the subject vehicle with vested on the appellant.
The 3^rd party contested the case and denied purchasing or owning such a vehicle. He stated that he did not sign the agreement or having forwarded the ID details to the appellant. The third party having denied ever purchasing the motor vehicle and considering that the transfer had not been effected, the appellant was the person responsible to meet the damages suffered by the respondent as a result of the accident. The evidence adduced left no doubt on the ownership of the motor vehicle.
On Whether the trial courts award should be set aside, the appellant took the view that the injuries sustained were less serious. The appellant referred this court to the P3 form which categorized the injuries as harm and case law which found damages for soft tissue injuries.
However, the medical evidence tendered proved that the respondent sustained blunt injuries and a fracture on the left humerus bone. The respondent / claimant proposed Ksh 800,000/= and relied on the cases of Nguku Joseph & Another -Vs- Gerald Kihiu Maina (2020)eklr and Bernard Muinde Kilonzo -Vs Andrea M Maiko Mogi & another (2021) eklr.
The respondent / 3^rd party preferred an award of Ksh 400,000/= and reffered court to cases where the plaintiff sustained fractures.
The trial court was guided by the case of Bernard Muinde Kilonzo -Vs -Andrea M Maiko Mogi & Another (2021) eklr where the plaintiff suffered fracture on the right humerus with 20% disability.
The law is that discretion must be exercised within the law and must not be whimsical or capricious. The appeal court has power to interfere with such discretion to interfere with the exercise of discretion in appropriate cases. The court sitting on appeal must however remain faithful to the principles espoused in Mbogo Vs Shah (1968) E.A 93.
The appellate court must never intervene on the issue of assessment of damages unless the sum awarded is proved to have been inordinately low or high depending on the evidence tendered before the trial court.
The purpose of awarding damages in tort law is to attempt to restitute the victim to his state prior to the tortfeasors act or omission although that may not be practically achievable. The law however recognizes that there should never be a wrong committed to a man without remedy however cosmetic the remedy may be. See the dictum of Lord Morris Borth-y Gest in H. West & Son Ltd. v. Shepherd (1964) AC 326, 345 cited in Crown Bus Services Ltd & 2 others v BM (Minor suing through his mother & Next Friend) SMA) [2020] eKLR where the court held that : “...But money cannot renew a physical frame that has been battered and shattered. All the courts can do is to award sums which must be regarded as giving reasonable compensation. See the case of Angela Katunge Musau vs China Wu Yi Limited & another Civil Appeal 23 of 2018:
In Simon Taveta -Vs- Mercy Mutitu Njeru (2014) eklr the court observed that: “… the context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”
In Southern Engineering Company Ltd –Vs- Muisngi Mutia (1985) KLR 730 the court of appeal held that: “It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and to prior decisions which are relevant to the case in question.”
The court in assessing damages should not only be guided by the injuries and comparable awards in similar cases. It must also consider inflation from the time the authorities relied on were made as well as the present economic realities. I venture to add that the court must take judicial notice of the cost of medicare at the time of making the decision more so on the issue of future medical expenses. The court must never lose sight of the fact that market forces are more dynamic now than ever before and litigants have to contend with the challenge of securing treatment in a totally different landscape.
In Mohamed Mahmoud Jabane -Vs- Highstone Butty Tongoi Olenja (2016 )eklr where the court stated interalia that : - “The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his court to an award of damages by a trial judge.

1. Each case depends on its own facts;
2. awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics)
3. ……………”

It must however be acknowledged a court should remain as objective as possible in determining the amount a litigant should be awarded based on the injuries suffered.
The injuries suffered by the respondent comprised of a fracture and not soft tissue injuries as submitted by the appellant.
The respondent was not subjected to a second medical report during trial. The doctor did not determine the percentage of incapacitation. The court could therefore not determine that but common sense tells this court that a man who suffers a fracture and as opined by the doctor in this case is unable to engage fully in his daily activities for 6 months certainly suffers some degree of disability that a court cannot ignore in the assessment of damages.
In Jackson Mbaluka Mwangangi -Vs- Onesmus Nzioka & another [2021] eKLR Odunga J dealt with a fracture of the femur, and stated: “In this case the Appellant sustained blunt injury to the right shoulder and fracture of the left femur. The femur or the thigh bone is the large upper leg bone that connects the lower leg bones (knee joint) to the pelvic bone (hip joint). It is the longest, heaviest, and strongest bone in the human body. There, the court awarded Kshs 600,000/- in general damages.”
In my view, taking into account the injuries suffered by the respondent, this court finds that the award by the lower court was reasonable in the circumstances and I find no reason to interfere with the same.
The upshot of the above is that this appeal has no merit and the same is hereby dismissed with costs.
It is so ordered.