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JudgmentYUSUF ABUBAKAR ALI JOHO VS CHRISTINE MULONGO CHIMERA10 min read

YUSUF ABUBAKAR ALI JOHO VS CHRISTINE MULONGO CHIMERA

High Court at Malindi High Court · · M Thande

 

  1. The Appellant challenges the decision of trial court in respect of a suit instituted by the Respondent against him claiming both general and special damages arising from a road traffic accident. In a plaint dated 30.11.2020, the Respondent averred that she was travelling along the Mombasa Kilifi Road near the Bamburi Cement area as a fare paying passenger in motor vehicle registration number KCC 952W, which collided with motor vehicle registration number KG 5100 BQ 549T driven by the Appellant, causing her to sustain serious injuries, pain and loss. .
  2. Following a hearing, the trial Magistrate entered judgment in favour of the Respondent against the Appellant as follows:
    1. Liability       100%
    2. General damages for pain and suffering   Kshs.    900,000/=
    3. General damages for loss of earning capacity Kshs.    350,000/=
    4. Future medical costs    Kshs.    292,000/=
    5. Special damages      Kshs.      12,130/=

Total      Kshs. 1,554,130/=

    1. Costs of the suit and interest.
  1. The Appellant is aggrieved by the award on quantum of damages, preferred the Appeal herein. The summarized grounds of appeal are that the trial Magistrate erred in fact and in law in:
  2. Assessing damages that were manifestly excessive and incomparable with current judicial awards for analogous injuries.
  3. Completely misapprehending the principles governing assessment of damages, thereby arriving at an erroneous decision with regard to general damages.
  4. Failing to take into account relevant factors in evaluating the evidence on record on quantum.
  5. Failing to exercise discretion judiciously in awarding damages.
  6. Acting on the wrong principles of law leading to general damages that were inordinately high that represented an erroneous estimate.
  7. The Appellant prayed that the impugned judgment be reviewed and/or set aside to the extent of the finding on quantum. The Appellant also prayed for costs. 
  8. I have re-examined the entire record and given due consideration to the submissions by the parties’ respective counsel. This being a first appeal, the Court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusion. However the Court must make due allowance with respect to the fact that it has neither seen nor heard the witnesses. These principles were set out in Selle and another –vs- Associated Motor Boat Company Ltd. & Others (1968) EA 123 by Sir Clement De Lestang, V. P. as follows:

An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled.  Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should made due allowance in this respect.  In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif –v- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).

  1. In the 5 grounds of appeal raised, the only issue to be determined is whether the learned Magistrate erred on quantum.

  1. It is the Appellant’s case that the award of damages is excessive given the nature of the injuries sustained by the Respondent. The Appellant argued that Dr. Kiema assessed the Respondent’s partial permanent disability at 25% but recommended reevaluation in 6 months after sufficient healing has occurred. He faulted the trial court for relying on authorities relating to fracture of the tibia fibula in awarding Kshs. 900,000/= yet the Respondent had sustained a fracture of the ulna/radius bone
  2. The Respondent submitted that the trial court rejected her proposal for Kshjs. 1,000,000/= as compensation and found that the injuries in the authorities relied upon were not closely related to those suffered by the Respondent. Her view was that the award by the trial court was sound and reasonable and justified in the circumstances. Further that other than Dr. Salim K. Noorani’s medical report, the Appellant did not submit any other evidence to contradict the Respondent’s evidence on quantum.
  3. The record shows that the injuries suffered by the Respondent as enumerated in the medical report by Dr. Darius W. Kiema dated 17.9.2020 are compound fracture right radius/ulna bones; neurovascular bundle injury right forearm leading to loss of grip right hand; bruises and abrasions both knees. The injuries will lead and dispose the Respondent to post traumatic arthritis and stiffness to adjacent writ and elbow joints. The doctor assessed the Respondent’s partial permanent disability at 25%.  
  4. In arriving at the amount awarded, the trial Magistrate rejected the amount of Kshs. 1,000,000/= proposed by the Respondent but noted that the Kshs. 150,000/= proposed by the Appellant was inordinately low. The court relied on the cases of Joseph Mwangi Thuita v Joyce Mwole [2018] eKLR and EWO (suing as the next friend of a minor COW) v Chairman Board of Governors-Agoro Yombe Secondary School [2018] eKLR where awards of Kshs. 700,000/= and Kshs. 900,000/= respectively had been awarded for fracture of the femur. The trial court stated that it considered the effect of inflation and market forces generally and awarded Kshs. 900,000/=.
  5. The Court of Appeal laid down the guiding principles for the award of damages in Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] eKLR as follows:

The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by this 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.

  1. It is noted that the injuries sustained by the Respondent are compound fracture right radius/ulna bones. The medical report by Dr. Kiema indicated that there was neurovascular bundle injury right forearm leading to loss of grip right hand and that the injuries will lead and dispose the Respondent to post traumatic arthritis and stiffness to adjacent writ and elbow joints. He assessed her partial permanent disability at 25%.
  2. In the case of Joseph Njuguna Gachie v Jacinta Kavuu Kyengo [2019] eKLR, Odunga, J. (as he then was) awarded the sum of Kshs. 600,000/= for a fracture with no physical disability. Considering the time lapse between the time when the said decision was handed down as well as the inflation, it is my view that the award an award of Kshs. 900,000/= is reasonable.  
  3. The Appellant submitted that, the trial Magistrate erred for holding that the award for general damages for loss of earning capacity under this head should attract interest.  With respect, this issue was not a ground in the memorandum of appeal. This is a new issue that has been raised in submissions.
  4. Our courts have time and again pronounced themselves on the issue of raising new matters in submissions. One such case is Republic v Tribunal of Inquiry to Investigate the Conduct of Tom Mbaluto & others Ex-Parte Tom Mbaluto [2018] eKLR, where the Court of Appeal stated:

Rule 104 of the Court of Appeal Rules, among others, prohibits an appellant from arguing, without leave of the Court, grounds of appeal other than those set out in the memorandum of appeal. The appellant did not seek leave of the Court to raise the new ground of appeal but rather belatedly, and literally from the blue, raised it in the written submissions. It needs no emphasis that submissions must be founded on the issues before the court and the evidence on record regarding the issue. A party is not at liberty to change the nature of his case surreptitiously at the submissions stage.

  1. What the Court of Appeal said is that a court cannot entertain grounds of appeal other than those set out in the memorandum of appeal before it. It is quite clear that the Appellant has surreptitiously changed the nature of his case at the submissions stage by raising a new ground, namely interest on the award on loss of earning capacity liability, without leave of the Court. Accordingly, the Court declines to entertain the same.
  2. I now turn to future medical expenses. The Appellant submitted that it is settled that future medical expenses must be specifically pleaded and proved. The Appellant contended that the Respondent did not provide proof that she was taking painkillers or going for physiotherapy. For the Respondent, it was submitted that the sum of Kshs. 292,000/= for future medical costs had been pleaded as informed by the medical report of Dr. Kiema.
  3. A party seeking an award for future medical expenses is required to both plead and prove the same.  In Tracom Limited & another v Hasssan Mohamed Adan [2009] eKLR, relied on by the Appellant, the Court of Appeal stated:

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 thereon 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 the infringement of a person’s legal right should be pleaded.”

  1. In its decision, the trial court found that future medical costs were uncontested and stated:

As for future medical costs, the same was ably proved through Dr. Kiema’s uncontested report. I award Kshs. 292,000/= under this head.

  1. The record shows that in paragraph 10 of the plaint, the Respondent pleaded future medical expenses of Kshs. 292,000/= as per the medical report of Dr. Kiema dated 19.9.2020 and specifically prayed for the same. This is contrary to the contention by the Appellant. As such, the trial court cannot be faulted for awarding the same.
  2. It is trite that the award of damages is discretionary and an appellate court should be slow in interfering with a trial court’s exercise of discretion in this regard. In the case of Butt v. Khan [1981] KLR 349 Law, J.A stated as follows:

An appellate court will not disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on 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 have considered the nature of the injuries sustained by the Respondent. I do not find the amounts awarded to be inordinately high, neither do I find that the trial court proceeded on wrong principles. I am also satisfied that the trial court did fully understand the evidence before her as she arrived at the award. In light of this, I find no reason to disturb the awards.

  1. The Court is also guided by the decision in Catholic Diocese of Kisumu v Tete [2004] eKLR where the Court of Appeal stated:

It is trite law that the assessment of general damages is at the discretion of the trial court and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a difference figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, as by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate (see Kemro v A M Lubia & Olive Lubia (1982-88) 1 KAR 727 and Kitavi v Coast Bottlers Limited [1985]KLR 470).

  1. In the end and in view of the foregoing, I find that the sums awarded are reasonable and are adequate to compensate for the injuries suffered by the Respondent. Accordingly, there is no reason to interfere with the same. The upshot is that the Appeal is devoid of merit and is dismissed with costs to the Respondent.

DATED SIGNED and DELIVERED via MS TEAMS this 7th day of February 2025


    YUSUF ABUBAKAR ALI JOHO VS CHRISTINE MULONGO CHIMERA YUSUF ABUBAKAR ALI JOHO VS CHRISTINE MULONGO CHIMERA