REBECCA MUTETHYA MAKAU VS PETAG IMPORT AND EXPORT CO.LTD AND JACOB KAMUNYA REBECCA MUTETHYA MAKAU VS PETAG IMPORT AND EXPORT CO.LTD AND JACOB KAMUNYA

INTRODUCTION

The Appellant REBECCA MUTETHYA MAKAU being aggrieved by the Judgment of the Honorable Chief Magistrate delivered on 24th March, 2023 in MILLIMANI CHIEF MAGISTRATE'S CIVIL CAUSE 6251 OF 2016 appeals to this Court on quantum on the following grounds:
The learned Magistrate erred in fact and law in failing to appreciate the evidence tendered before it by the Appellant to prove special damages.
The Learned Trial Magistrate erred in Law and in fact in finding that the Appellant was not entitled to special damages pleaded, which special damages were too much on the lower side in view of the injuries suffered by the Appellant, which presented a miscarriage of justice.
The Learned Trial Magistrate erred in Law and in fact by failing to consider the Appellant's submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum.
The Learned Trial Magistrate erred in Law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which is very low.
The Learned Trial Magistrate erred in Law and in fact when making her award by failing to consider the passage of time and incidence of inflation.
The appellant urged this court to consider the grounds alongside their submissions and review the judgment of the lower court with a view to making a finding in her favour on the special damages pleaded and proved as well as review the general damages upwards to take into account the aspect of inflation.
The respondents though served with the appeal did not attend during the hearing of the appeal nor did they file submissions thus this court proceed to hear and determine the appeal on the basis of the submissions filed by the appellant and the record.

APPELLANT'S CASE

The appellant make reference to an amended memorandum of appeal however the record does not contain any such document thus this court has been constrained to determine the appeal on the basis of the memorandum of appeal appearing at pages 1 and 2 of the record of appeal.
The first issue that the appellant has invited this court to consider is whether the Learned Trial Magistrate erred in law and in fact by failing to consider and appreciate the evidence tendered in support of the claim for special damages, and further by finding that the Appellant is not entitled to the special damages pleaded.
The appellant contends that the evidenced tendered in the trial was sufficient to prove the special damages pleaded thus the court erroneously disallowed her claim of special damages.
The appellant submitted that she strictly proved her claim for special damages, and the Learned Trial Magistrate erred in fact and in law by failing to consider and appreciate the fact that, the invoice dated 19th May, 2015 from Nairobi Womens Hospital clearly indicated that the Appellant had fully settled the invoiced sum of Kshs. 400,247.34, and that there was no amount due and owing from the Appellant (see page 23 of the record of appeal).
The appellant therefore went on to submit that, the Learned Trial Magistrate misdirected herself, and erred in law and in fact by dismissing the Appellant's claim for special damages for want of a receipt, yet Nairobi Womens’ Hospital unequivocally acknowledged, by way of an invoice, that they had indeed received a total sum of Kshs. 400,247.34 in full settlement of their invoice.
According to the appellant, with the acknowledgement there was no need of a receipt as the hospital expressly acknowledged receipt of payment of the invoiced amount in the following three (3) clear phrases on the last page of the invoice: "Patient Pay Amount: Kshs. 400,247.34", "Deposit Adjustment: Kshs. 400,247.34", and "Patient Due Amount: 0.00"
This position finds fortification in the case of Guardian Coach Ltd & another v Kiptoo (Civil Appeal 34 of 2020) [2022] KEHC 12397 (KLR) (26 May 2022) Judgment) where the Hon. Lady Justice G. W. Ngenye-Macharia held and rendered herself as follows:

"From the record, the respondent produced various receipts, bills and invoices from various hospitals, health providers and chemist in proof of the cost of medical expenses pleaded. Notably however, it is a well settled principle of law that an invoice is not proof of payment. Special damages can only be proved by producing actual receipts or invoices endorsed with the word "Paid" (See: Total (Kenya) Limited Formally Caltex Oil (Kenya) Limited v Janevams Limited [2015] eKLR.)"

.As for the balance of special damages amounting to Kshs. 200,030.66, the Appellant produced, in the trial court, the various receipts showing what the Appellant had spent, in the form of medical expenses and transportation charges.
The appellant maintained that those receipts were not disputed by the Respondent yet the lower court totally disregarded and ignored them hence arriving at an erroneous decision.
The appellant went further to submit that at the request of the trial court, due to illegibility on some of the copies of the receipts caused by effluxion of time, the Appellant furnished the trial court with the original receipts for payments made in respect of the invoice dated 19th May, 2015 from Nairobi Womens Hospital and the various payment made by her as result of the subject accident. These receipts are still in the custody of the trial court and this court can call up for them for verification.
The appellant submitted that the Learned Trial Magistrate misdirected herself on the evidence on record, and further erred in law and in fact by failing to consider and appreciate the evidence tendered in support of the claim for special damages. The appellant maintained that the evidence she tendered was sufficient to establish on a balance of probabilities that she has suffered the special damage pleaded being the sum of of Kshs. 600,278/- as prayed for in the further amended plaint.
The appellant further contended that the trial court failed to consider and appreciate the Appellant's submissions and judicial authorities on quantum, as well as conventional awards for general damages in cases of similar injuries thereby arriving at an erroneous quantum on damages which was inordinately law.
The appellant maintained that the Learned Trial Magistrate erred in law and in fact when making her award by failing to consider the passage of time and incidence of inflation. The plea by the appellant to this court is that the court should exercise its discretion in her favor and review the award in general damages and make a finding on the special damages.
The appellant relied on the case of Kemfro Africa Ltd t/a Meru Express & Another v A.M. Lubia & another (No.21 (1987)) KLR 30 where the Court of Appeal stated 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 were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that 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."

The appellant submitted that this appeal meets the threshold set in the decision of the Court of Appeal highlighted herein above as the Learned Trial Magistrate did not take into account the submissions and judicial authorities on quantum, as well as conventional awards for general damages in cases of similar injuries, thereby arriving at an erroneous quantum on damages which was inordinately low. The appellant thus took the view that, this Honourable Court would be justified in disturbing the quantum of damages awarded by the trial Magistrate, especially considering the fact that the trial Magistrate did not even indicate which medical report she relied on as regards the degree of disability.
The appellant urged this court to consider that in determining general damages, the court has to examine the extent and gravity of the injuries suffered by the Appellant. The Appellant stated that she had suffered the injuries listed in the Further Amended Plaint.
The two Medical Reports produced in court, one by Dr. Cyprianus Okere and the Respondent's Dr. Jennifer Kahuthu arrived at the same conclusion on the injuries sustained by the Appellant as a result of the accident, that is; fracture to the left tibia and fibula, fracture to the left humerus, degloving injury to the left knee, deep cut to the left upper lip and eyebrow and blood loss. The only variation was on the degree of permanent disability. Dr. Okere apportioned 70% disability, whereas Dr. Kahuthu only apportioned 30%.
It is trite law that the general approach in awarding damages for injuries is that comparable injuries should as far as possible be compensated by comparable awards. In this regard, the Appellant relied on the following authorities with respect to the various claims pleaded and particularized at paragraphs 7, 8 and 8A and prayers (a), (c) and (d) of the Further Amended Plaint:
On general damages
Taking into account the nature and extent of injuries and the evidence on record, the Appellant submitted that an award of Kshs 1,800,000/-would suffice to compensate for the pain, suffering and loss of amenities. The appellant relied on the case of Mt. Longonot Medical Services Limited another vs Andason Kitonyo Kinyenze [2017] @KLR where the plaintiff had suffered double fractures of the right tibia and fibula, and facial abrasions, and with a permanent disability assessed at 12%. In that case, the Hon. Lady Justice C. Meoli awarded the Plaintiff Kshs. 1 Million for general damages.
The Appellant also relied on the case of Sophia Wanjiru Njuguna v Kyoga Hauliers Kenya Limited [2020] eKLR where the Plaintiff had suffered similar injuries. The court termed the injuries as serious and awarded the Plaintiff Kshs. 1.2 Million for general damages.
These comparable cases cited above were totally disregarded by the trial Magistrate who did not justify and/or base her inordinately low award of Kshs. 400,000/- on any comparable case. The appellant submitted thaty not even a single case-law was cited in support of her award.
Further the appellant contended that the Learned Trial Magistrate did not even indicate which of the two medical reports she relied on in dealing with the issue of the degree of permanent disability.
The appellant submitted submit that the trial Court award of Kshs. 400,000/- was inordinately low and was contrary to the conventional and general approach in awarding damages for injuries whereby comparable injuries should as far as possible be compensated by comparable awards.
Taking into account the nature and extent of injuries suffered by the Appellant, this court was urged to find that an award of Kshs. 1.8 Million would be sufficient in the circumstances.

b. On future medical expenses
28. On this particular limb of claim, the Appellant relied on the case of Sophia Wanjiru Njuguna v Kyoga Hauliers Kenya Limited (supra) where the Honourable Court awarded the Plaintiff a global sum of Kshs. 200,000/= for future medical expenses.
29. Despite pleading and praying for future medical expenses at paragraphs 8 and (c), the trial Court did not address this issue in its judgment at all.
30. The appellant submitted submit that the learned trial Magistrate erred in law and in fact by totally failing to address and pronounce herself on the claim future medical expenses, and that an award of Kshs. 350,000/- would be sufficient in the circumstances of this case.
c. On diminished earning capacity
31. During trial, the Plaintiff testified that she can no longer carry out the work that she used to do prior to the accident. She further testified that she was terminated on medical grounds as per her former employer's letter dated 31st July, 2015 produced in court. The said testimony was confirmed by the medical report produced by Dr. Okere and also the Defendants doctor, who confirmed that the Plaintiff indeed sustained permanent disability in her report.
32. To this end, the Appellant submitted that she should be awarded Kshs. 700,000/- on this head of claim, and relied on the case of Hussein Sambur Hussein v Shariff A. Abdulla Hussein & 2 others [2022] eKLR where the Hon. Lady Justice D. O. Chepkwony held as follows:
"58. The evidence of Dr. Adede showed that the Appellant suffered a fracture that could still break, he suffered an 18% disability, further, it was stated that the Appellant could not walk for three (3) kilometers nor stand for one (1) hour and will have difficulty conducting his daily activities. I therefore find that there is merit in the Appellant's claim and maintain the award of Kshs.700,000/- awarded by the trial court."
33.This issue was equally pleaded at paragraph 8A and sought at prayer (d) of the further Amended Plaint.
34. The appellant submitted that the learned trial Magistrate erred in law and in fact by totally failing to address and pronounce herself on the claim for diminished earning capacity, and that an award of Kshs. 700,000/- would be sufficient in the circumstances of this case.
35. The appellant has also urged this court to consider that the Learned Trial Magistrate erred in law and in fact when making her award by failing to consider the passage of time and incidence of inflation. The Appellant has thus urged the court to interfere with the decision of the lower court and make a reasonable adjustment to address the aspect of inflation.
36. The appellant submitted that it has been held in multiple cases, that in a claim for general damages, due consideration must be given to passage of time and incidence of inflation:
37.In the case of Pamba v Karuga (Civil Appeal 19 of 2023) [2024] KEHC 682 (KLR) (31 January 2024) (Judgment) the Honourable Judge held as follows:
"The Appellant suffered soft tissue injuries. I have perused the authorities cited by both parties at the trial Court. One such case is Harun Muyoma Boge vs Daniel Agulo (2015) eKLR where the Claimant suffered blunt chest injuries; cut wound right wrist; deep cut wound on the right foot; fracture right tibia and fibula and soft tissue injuries. The high Court set aside the award of Kshs. 150,000/= as general damages and substituted the award with Kshs. 300,000/=. In that case, judgement was rendered in 2015 and in the appeal before me the accident occurred in 2021. Bearing in mind the current inflation, I set aside the award of the learned trial magistrate and substitute it with an award of Kshs.800, 000/= as the same is reasonable in the circumstances.
38. See the case of Michael Wafula Malenya v Matunda (Fruits) Bus Services Limited [2022] eKLR where the High Court took into consideration the inflation factor and found that an award of Kshs. 3,000,000/= was sufficient to compensate the Appellant under pain and suffering.
39. Finally on costs the appellant submitted that it is trite law that costs generally follow the event thus the appellant should have the costs of the appeal.
40. the appellant urged this court to set aside the Judgment of the Honourable L. Njora delivered on 24th March, 2023, award the Special Damages at Kshs. 600,278/ and reassess and award general and special damages at Kshs. 2,850,000/-.
ANALYSIS AND DETERMINATION
41. The duty of an appellate Court was set out in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, as follows: “ This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way.”
42.The appellant has made a very compelling case for the court to review the evidence tendered before the magistrate and determine whether the court arrived at the correct decision in law taking into account the available evidence.
43. At Page 99 and 100 of the record of appeal, there appears copies of pay slips that the plaintiff placed before the court in support of her claim in special damages. However, it was not clear to this court how the appellant intended to have the figures stated in the pay slips treated as special damages yet the presumption is that for her to have been issued with the pays lips the money in issue must have been paid to her as a salary thus the court could not treat that as special damages. The salary could not be treated as a loss.
44. It follows therefore that in computing the special damages the court should have excluded Kshs.421,528 being the cumulative figure reflected in the pay slips. As a consequence, the figure that the trial court ought to have taken into account and awarded as special damages would be the sum of Kshs.200,200 as per the evidence contained in the receipts. It is the finding of this court that amount was proved through the receipts of payment that the appellant produced.
45. This court finds that, that is the amount that was specifically pleaded under paragraph 7 of the amended plaint and proved by way of receipts tendered by the appellant. The trial court therefore erred in failing to award the appellant anything under that head.
46. The appellant also urged this court to consider disturbing the lower court finding on general damages. The court in consideration of that plea by the appellant takes into account that an award of general damages is a matter falling within the discretion of the court that heard the matter thus for this court to interfere the appellant must persuade the court that the learned Honorable magistrate erred in law in the assessment of damages. The appellant must be able to demonstrate that the award by the lower court was inordinately low thus susceptible to review by this court on appeal.
47. In the case of Kemfro Africa Limited t/a 'Meru Express Services [1976]''& Another V. Lubia & Another (No. 2) [1987] KLR, the Court of Appeal held as follows: “ …. The principles to be observed by the appellate Court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held to be that; it must be satisfied that either that 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.''
48. It is important point out that as submitted by the appellant the trial court did note indicate which of the two medical reports tendered before it formed the basis of her assessment of damages. The was important because the two reports indicated that there was a degree of incapacity that each of the doctors arrived at.
49. On the manner of assessing damages, Kneller, JA in the Court of Appeal decision in Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] eKLR laid out the following guidelines:

“ 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. comparable injuries should attract comparable awards. 4. inflation should be taken into account; and 5. unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone.” 42. From the above, it is clear that in awarding damages, some degree of uniformity must be sought depending on the facts and the best guide would be to consider recent awards on comparable injuries. Indeed, the Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that “

as observed above, the appeal is against quantum of damages only. The guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent and comparable awards. This position finds support in the case of Stanley Maore v. Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004]eKLR where the Court of Appeal held: “ 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.”
50. It is the view of this court that an ward of Ksh. 400 000 in general damages was inordinately low. The comparable awards as per the authorities cited by the appellant were way above that figure. It is this court’s finding that since the appellant suffered fracture of the tibia and humerus and a host of other soft tissue injuries, a sum of ksh. 800 000 in damages would be a comparable and reasonable sum. The court also notes that in the report by Dr Okere the appellant was recommended for analgesics and physiotherapy. The doctor also assessed permanent incapacity at 40% for the hand and 30% for the left leg. It would be reasonable therefore for this court to interfere with the learned Honorable magistrate’s decision and make a provision for future medical expenses in the sum of KSh. 100 000.
The cumulative figure would therefore be ksh. 1, 100,200 for special damages (KSh.200,200, cost of future medical attention (ksh. 100, 000 and general damages (Ksh. 800 000).
51.In the end the appeal is allowed the judgment of the lower court on assessment of damages is set aside and in substitution therefore the court orders the respondent to pay the appellant the total sum of KSH. 1.100,200 plus costs and interests.
It is so ordered.