united millers limited VS ALEX OSENGO LUHANZO united millers limited VS ALEX OSENGO LUHANZO

INTRODUCTION

The appellant in this matter has moved to this court aggrieved by the decision oif the learned Honorable magistrate in WINAM SPM CC NO. E049 OF 2023 in which the learned Honorable magistrate delivered judgement in favor of the respondent in the sum of Kshs. 883, 080.
The appeal by the appellant is purely on quantum and is premised on the following grounds
The Learned Trial Magistrate erred in Law and fact in making the award of Kshs. 900,000/= 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.
The learned Trial Magistrate erred in law and fact entering judgment for general damages at Kshs. 900,000/= 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 by any authority or precedent.
The learned Trial magistrate erred in law and in fact in failing to correctly appreciate the Plaintiff's injuries and in misapprehending the same and thus arriving at an erroneous award of damages.
The learned Trial magistrate erred in law and in fact in awarding damages for future medical expenses at Kshs. 400,000/= when such damages had neither been pleaded nor proven as required by law.
The learned Trial magistrate failed to take into account all relevant considerations and principles in assessing the quantum of general and special damages.
The Learned Trial Magistrate totally ignored and/or paid lip service to the Appellant's submissions and authorities therein cited.
The learned Trial Magistrate erred in law and fact in awarding general damages under heads not pleaded and/or proved as required by law
The issues that arises from the grounds set out by the appellant is
whether the learned Honorable magistrate erred in entering judgment for general damages at Kshs. 900,000 without considering comparable awards by other courts for similar injuries.
Whether in assessing damages the learned Honorable magistrate applied the appllicable principles of law and took into account all relevant considerations before arriving at his decision
Whether the sums of Kshs. 900,000 awarded in damages was inordinately high or excessive in the circumstances.
The parties to the appeal filed their respective submissions which this court has duly considered. The appellant

APPELLANT’S CASE

The appellant submitted that the award of Kshs.900,000 in general damages was excessive and inordinate and their humble view , the learned Honorable magistrate failed to consider the authorities that they cited before arriving at the award.
According to the appellant a sum of Kshs.400,000 would have been sufficient and in support of that submission the appellant cited the following cases:-
Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR NAIROBI CACA CIVIL APPEAL NO.60 OF 2004
Ram Gopal Gupta v Nairobi Tea Packers Limited & 2 others (2017] eKLR NAIROBI CA CIVIL APPEAL NO. 65 OF 2006
The authorities cited by the appellant restated the principles to be applied by an appellate court in an appeal of this nature.
Notably, in Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR NAIROBI CACA CIVIL APPEAL NO.60 OF 2004 the court of Appeal stated:-

“This Court has in the past propounded on the principles to be applied while considering whether to interfere with damages awarded by the trial Court. In KEMFRO AFRICA LIMITED t/a MERU EXPRESS SERVICE GATHOGO KANINI V. A.M.M LUBIA AND ANOTHER [1982 - 88] 1 KAR 777 at p.730, Kneller, J. A. held:-
"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 [1961] EA 705 709, 713; Lukenya Ranching and Farming Co-operatives Society Lt v. Kavoloto [1970] EA, 414 418, 419."
In its decision in ARROW CAR LIMITED -VS- BIMOMO & 2 OTHERS (2004) 2 KLR 101 this Court cited and applied the KEMFRO AFRICA LTD case (supra) with regard to the principles to be considered before interfering with an award of damages by a trial Judge when it held:
"in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge, an appellate court must be satisfied 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 a wholly erroneous estimate of the damage."

It is against this background that the appellant has invited this court to consider that the nature of injuries sustained by the respondent and determine whether the learned Honorable magistrate properly applied his mind to all the authorities cited by both parties in arriving at the award of Kshs.900,000 in general damages.
The injuries sustained by the Respondent included;
Swollen forehead
Tenderness of the right side of thee chest and the right lumbar region
Swollen left leg and tender left knee
Swollen and tender left ankle joint
Fracture of mid shaft tibia and medial malleolus of right leg
In the appellant’s submissions those injuries should not have attracted a sum in excess of Kshs.400,000 in damages.
The appellant contends that all the authorities cited by the respondent involved injuries that were more serious compared to the injuries suffered by the respondent. The appellant invited this court to consider the following authorities in exercising the power of this court to review damages:-

i. Simon Kimote v Agro Solutions Limited [2021] eKLR MACHAKOS
HCCA NO. 90 OF 2016( see the authority at page 184-187 of the record of appeal).The appellant suffered right femoral fracture lower 1/3, tibia plateau fracture, blunt head injury and blunt neck injury. The High Court upheld an award of Kshs 350,000/= general damages in 2021.
ii. DG (Minor suing through her next friend MOR v Richard Otieno Onvisi [2021] eKLR KISII HCCA NO. 117 OF 2019( see the authority at page 188-191 of the record of appeal).The Appellant suffered chest contusion, left tibia fracture, bruises on the left foot and bruises on the left leg. The High Court made award of Kshs 400,000.00 general damages in 2021.
iii. Ndwiga & another v Mukimba (Civil Appeal E006 of 2022) [2022]
KEHC 11793 (KLR) (13 July 2022) (Judgment) Neutral citation [2022] KEHC 11793 (KLR) (see the authority at page 192-196 of the record of appeal). The respondent therein sustained tenderness and swelling of the left leg and a fracture of tibia and fibula left leg. The High Court set aside the award by the trial court of Kshs 1,200,000/-on general damages and substituted it with an award of Kshs 500,000/in July 2022.
iv. Koyi v Obanga & 2 others (Civil Appeal 73 of 2017) [2022] KEHC 9772 (KLR) (21 July 2022) (Judgment) Neutral citation: [2022] KEHC 9772 (KLR).( see the authority at page 197-200 of the record of appeal) The Appellant are displaced fracture of the left tibia, fracture of the left femur, laceration of the left leg and soft tissue injuries on the chest with a 40% permanent disability. The High Court on appeal upheld an award of Kshs 400,000 in July 2022.

Munene v Mbarire (Civil Appeal 488 of 2015) [2023] KEHC 18417 (KLR) (Civ) (19 May 2023) (Judgment) Neutral citation: [2023] KEHC 18417 (KLR)( see the authority at page 201-206 of the record of appeal). The Respondent sustained some bruises and fractures of the right tibia and fibula bones. The implants were still in situ one year after the accident. The High Court made an award of Kshs 450,000.00 in May 2023.
The appellant has urged this court to set aside the learned Honorable magistrates to award the sum of Kshs.400,000 as costs for future medical expenses for the reason that the figure was not pleaded by the appellant thus the court could not award the same

RESPONDENT’S CASE

The respondent has opposed the appeal but apparently it would appear that the respondent did not realize that there was an error apparent on the face of the record in the final award granted by the trial court.
As pointed by the appellant in the body of the judgment the learned Honorable magistrate arrived at a decision of Kshs. 900,000 in general damages but in the final calculations indicated general damages as amounting to Kshs.700,000.
However, the respondent maintains that the figure awarded by the learned honorable magistrate was inordinately low and pleaded for a review of the award upwards to Kshs. 1.4 Million. The respondent further urged this court to set aside the trial court’s dismissing the claim for loss of earning capacity and substitute with the sum of Kshs. 700,000 for loss of earning capacity.
The respondent further urged this court to uphold the lower court’s award of Kshs.400,000 as costs for future medical expenses and proceed to uphold the learned Magistrate’s decision of costs being in favor of the respondent.
The respondent relies on the following cases in support of his claim for the sum of Kshs. 1.4 Million in damages for the injuries sustained:-

a. Mwangi v Siloma & another (Civil Appeal E102 of 2022) [2023] KEHC 26140 (KLR) (27 November 2023) (Interim Judgment) where the plaintiff suffered fracture of tibia, fibula and malleolus and was awarded Kshs 1,200,000/= for pain and suffering by Justice Majanja.
b. Brookside Dairy Limited v Peter Butata Wanjohi [2018] eKLR, where the plaintiff suffered fracture of the tibia and fibula and malleolus and was
awarded Kshs 1,000,000/=.
c. Ochieng v Ogwang (Civil Appeal E151 of 2023) (2024) KEHC 3526 (KL (21 March 2024) (Judgment) where the plaintiff suffered Sub-condylar ti fracture and laceration injuries without an additional injury of fracture of t malleolus like it is in the present appeal, and Justice Aburili awarded general damages for pain and suffering of Kshs 700,000/=,

On the cost of future medical expense the respondent has submitted that the claim for future medical expense is a demand for money not yet spend and therefore it falls in the category of general damages thus upon production of a medical report indicating the need for future medical attention the court should be minded to aloe the claim. The respondent contends that the medical report produced in this case indicated the need for future medical attention thus the learned Honorable magistrate was justified in making the award for Kshs.400,000 as per doctor Anthony Abuya’s medical report dated 2^nd of June 2023.
In support of that submission the respondent cited the case of Tracom Limited & Another-vs-Hasssan Mohamed Adan [2009] eKLR (P. K. TUNOI, J.W. ONYANGO OTIENO, P. N. WAKI JA) where the court of appeal stated that:

"...We readily agree that the claim for future medical expenses is
a special claim though within general damages, and needs to be
specifically pleaded and proved before a court of law can award it. In
the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this
Court, stated: -
“And as regards future medication (physiotherapy), the law is also well
established that although an award of damages to meet the cost thereof
is made under the rubric of general damages, the need for future
medical care is itself special damage and is a fact that must be pleaded
if evidence thereof is to be led and the court is to make an award in
respect thereof. That follows from the general principle that all losses
other than those which the law does contemplate as arising naturally
from infringement of a person's legal right should be pleaded."
We understand that to mean that once the Respondent pleads that
there would be need for further medication and hence future medical
expenses will be necessary, the Respondent may not need to specially
state what amount it will be as indeed the exact amount of that future
expenses will depend on several other matters such as the place where
the treatment will be undertaken, and if overseas, the strength of the
currency particularly Kenya currency at the time treatment is
undertaken and of course the turn that the injury will have taken at the
time of the treatment. We think all that will be necessary to plead (if it
has to be pleaded at all) is the approximate sum of money that the
future medical expenses will require..."

On the claim for loss of future earning capacity the respondent submitted that a party seeking under this head need not produce any document to support an award of loss of earning capacity. According to the respondent by virtue of the injuries sustained, he lost capacity to earn and on that basis alone the court should have proceeded to allow his claim for loss of earning capacity.
In support of that submission the respondent cited the case of Jasan Nyoike Kariuki vs Simon Cheruiyot Ng'eno & another [2006] eKLR., when it stated that:

A person's loss of earning capacity occurs where as a result of injury, his chances in the future of any work in the labor market or work, as well paid as before the accident are lessened by the injury............
The factors to be taken into account in considering damages
under the head of loss of earning capacity will vary with the
circumstances of the case, and they include such factors as age.
The qualifications of the claimant, his remaining length of
working life, his disabilities and previous service.

The respondent has urged the court to consider awarding Kshs.700,000 for loss of earning capacity since the learned Honorable magistrate dismissed that limb of his claim.

ANALYSIS AND DETERMINATION

The law on the duty of a first Appellate Court in considering an appeal against an award of damages is quite settled. As stated in (AUTHORITY NO 1) Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR NAIROBI CACA CIVIL APPEAL NO.60 OF 2004, following the Court of Appeal decision in Kemfro Africa Ltd vs. Lubia [1987] KLR 27, an appellate court must be satisfied that the trial court in assessing the damages took an irrelevant factor or left out into account a relevant one or that the amount is inordinately low or high to be an erroneous estimate. The Court of appeal confirmed the approach in Kemfro vs Lubia, and stated:

"This Court has in the past propounded on the principles to be applied while considering whether to interfere with damages awarded by the trial Court. In KEMFRO AFRICA LIMITED t/a MERU EXPRESS SERVICE GATHOGO KANINI V. A.M.M LUBIA AND ANOTHER [1982-8811 KAR 777 at p. 730, Kneller, J. A. held: -
"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 [1961] EA 705 709, 713; Lukenya Ranching and Farming Co-operatives Society Lt v. Kavoloto [1970] EA, 414 418, 419."

In exercising the power of appeal the court must remain alive to the duty to respect for the lawful exercise discretionary power of the trial court and avoid intervening in cases where there is no evidence of improper exercise of discretion.
In this case the issue of quantum was raised by the appellant and notably there was no cross-appeal filed by the respondent thus thios court will confine itself to the grounds raised by the appellant in his memorandum of appeal.
This court has noted that the respondent in his submissions has moved this court to consider reversing the lower court’s decision dismissing his claim for loss of earning capacity. The respondent must be reminded that if he intended to appeal against that decision by the trial court, he should have lodged a cross appeal. Having failed to do so he is excluded from doing so by way of submissions. This court cannot therefore reverse the trial courts decision on that aspect of the claim on the strength of the respondent’s submissions only.
The appellant’s appeal is basically that the figure awarded in general damager was inordinately high and that the learned honorable magistrate erred in awarding damages for future medical expenses.
The court has carefully considered the authorities cited by both parties and reproduced elsewhere in this judgment. It is the view of this court that considering the injuries sustained by the respondent the sum of Ksh. 900,000 in general damages was within comparable range more so considering that the respondent suffered fractures in addition to soft tissue injuries.
The authorities cited by the appellant are in the opinion of this court not awards that are comparable in the circumstances of this case.
In Mwangi v Siloma & another (Civil Appeal E102 of 2022) [2023] KEHC 26140 (KLR) (27 November 2023) (Interim Judgment) where the plaintiff suffered fracture of tibia, fibula and malleolus and was awarded Kshs 1,200,000/= for pain and suffering by Justice Majanja. The respondent suffered a fracture of the tibia and malleolus. In this courts view a sum of Ksh 900,000 is therefore a comparable award.
The appeal on the general damages limp must therefore fail. It is important to point out that the trial out in its final calculations worked with a figure of Ksh 700,000 in general damages whereas in the body of the judgment the court had clearly indicated that a figure of Ksh 900,000 was the award it had arrived at. In exercise of the inherent power of this court, that error which is apparent on the face of the record calls for correction by this court.
The supreme court has provided guidance on the application of the slip rule which I hereby invoke in the case of Fredrick Outa vs Jared Odongo Okello & 3 Others, SC Petition No 6 of 2014; [2017] KESC 25 (KLR) where the Supreme court had this to say about section 21(4) of the Supreme Court Act:
85. This section as quoted, embodies what is ordinarily referred to as the “Slip Rule”. By its nature, the Slip Rule permits a court of law to correct errors that are apparent on the face of the Judgment, Ruling, or order of the court. Such errors must be so obvious that their correction cannot generate any controversy, regarding the Judgment or decision of the court. By the same token, such errors must be of such nature that their correction would not change the substance of the Judgment or alter the clear intention of the court. In other words, the Slip Rule does not confer upon a court, any jurisdiction or powers to sit on appeal over its own Judgment, or, to extensively review such Judgment as to substantially alter it. Indeed, as our comparative analysis of the approaches by other Superior Courts demonstrates, this is the true import of the Slip Rule.
The court having so determines declares that the general damages awarded by the lower court are upheld in the figure of Ksh 900,000.
On the cost of future medical expenses, I find and hold that the respondent was entitled to the same as general damages for a sum not yet spent but which would be spent in future medical care as per the doctor’s report.
The respondent had pleaded that he would continue to incur expense and great loss as a result of the injuries under paragraph 10 of the plaint. The doctor in his report clearly assessed the cost of future medical expense at Ksh 400, 000 thus relying on the pleadings and the evidence the learned honorable magistrate did not her in his finding on that limb.
As a result, this court find that the appeal by the appellant has no merit and the same is hereby dismissed with costs.
In the end this court orders that the respondent shall receive compensation as tabulated hereunder;

Liability: 80:20 in favour of the plaintiff

General Damages – Kshs.900,000
Future medical expenses – Kshs. 400,000
Special Damages –Kshs. 3,850

Total - Kshs. 1,303,850
Less 20% liability Kshs. 260,770
Award - Kshs. 1,043,080

Cost of the suit and this appeal with interest at court rates until payment in full.

It is so ordered.