IN THE HIGH COURT OF KENYA

AT ELDORET

Civil Appeal 23 of 2004

SAVANA SAW MILLS LTD …………………….……………………... APPELLANT

=VERSUS=

GEORGE MWALE MUDOMO ………………………...…………... RESPONDENT

(Being an appeal against the decision of Mr. Solomon Wamwayi, Esq. Chief Magistrate  in Eldoret CM CC NO. 513 of 2003  dated & delivered on 20/01/04)

JUDGMENT

This  is an appeal from the judgment of Solomon  Wamwayi ; Esq. Chief Magistrate in Eldoret  CM CC No. 513 of 2003 delivered on 20^th January, 2004.  The appeal was filed by Kigen & Company Advocates  on behalf of the appellant  Savana Sawmills Ltd who were the defendants in the subordinate court.   The  memorandum of  appeal listed six grounds of appeal as hereunder:-

1.          The learned trial magistrate erred in law and in fact in ignoring the evidence of  the defendant’s witness.

2.          The learned trial magistrate erred in law and in fact in holding the defendant negligent in the absence of any evidence to the effect.

3.          The learned trial magistrate erred in law and in fact in  ignoring the submissions of  the defence without proper  reasons to do so.

4.          The  learned magistrate erred in law and in fact  in awarding damages which were excessive in the circumstances.

5.          The learned magistrate erred in law and in fact in shifting  the burden of proof to the defendant contrary to law,

6.          Without prejudice to the foregoing and any admission of liability the damages awarded were inordinately  excessive in the  circumstances.

When the appeal came for hearing before me on 12^th July 2005, Mr. Kisia for the appellant  abandoned  grounds  1, 2 and 5 of appeal.  The  grounds  of appeal that  remained  were basically on quantum .  Firstly  that the learned trial magistrate erred in ignoring the submissions of the appellant’s Counsel  on quantum, and secondly that the damages awarded were excessive.

He submitted  that the learned magistrate in the judgment ignored the submissions  that were made on behalf of the appellant on quantum of damages without giving any proper reasons for the same.  He also submitted that the learned magistrate erred in awarding excessive damages  in the circumstances.   In his view, If the  learned magistrate was guided by Dr. Gaya’s report which was produced as exhibit, he would not have arrived at the award of Kshs  120,000\= as general damages The  learned magistrate should have been guided by  applicant’s Counsel  who proposed  figure of Kshs 60,000/=  as general damages and cited  case authority  relied by the appellant in  which the court  awarded an amount  of Kshs 50,000/=.  The injuries  suffered were soft tissue  injuries  and the court’s award was inconsistent with earlier decided cases.

Mr. Katwa for the respondent opposed the appeal.  He  submitted that the appellant did not file submissions on quantum  before the learned magistrate,  though  he was given up to 13/12/2003 to file the same.  The  learned magistrate could therefore not consider submissions which were not before him.   He further  submitted that the learned magistrate did,  in fact, consider the report of Dr. Gaya in his judgment.  The  trial magistrate did not refer to Dr. Aluda’s  report in his  judgment.  He further  submitted that the award of general damages was a discretion of a trial court , and an appellate court could only interfere with it if the trial court acted on wrong principles and warded damages which were excessive.  The court gave reasons for the  award of general damages of Kshs 120,000/=.

I have considered  this appeal,  the submissions of Counsel for both parties, and have also  perused the documents filed and the proceedings.  This  being a first appeal, this court is bound to review the evidence and come to its own conclusions.  The  appeal is on two grounds.  Firstly, that the learned magistrate did not consider the appellant’s  submissions.  Secondly, that he awarded excessive  damages, contrary to the decisions for similar injuries cited to him.

In brief the facts of the case are that the respondent  (who was the plaintiff in the subordinate court) was injured on 23/11/2002 while working for the appellant (who was the defendant in the subordinate court).  He was loading some logs on to a lorry when  he fell down and was injured.  He was treated at Moi  Teaching and Referral Hospital.  He was ex-rayed.  The treatment card  was produced as exhibit 1 and x-ray requests were produced as exhibit 2 (a)  and 2(b).  He was later  examined by Dr. Aluda and the report was produced as exhibit 3.  He was still later examined by Dr.  Gaya  and the  report was produced as exhibit 5.  The  receipt for Kshs 2,000/= for the medical  examination by Dr. Aluda  was produced as exhibit 3.

At the hearing before the subordinate court, only  the respondent tendered evidence.  The  appellant did not tender any evidence.  Their  Counsel Mr. Okara  is recorded by the learned trial  magistrate to have stated on  1/12/2003 that he had no evidence to offer.  The learned  trial magistrate consequently delivered  his judgment and awarded general damages of Kshs 120,000/= less  30% contributory negligence resulting  in an amount of  Kshs 94,000/=.  The  liability  of the respondent of 70% in negligence was agreed to by  consent of the parties recorded  in court on 1/12/2003 before  the respondent testified.  Now the appellant  has appealed to this court  on quantum of damages.

The first thrust of Mr. Kisia’s  arguments is that the learned magistrate erred in not considering the submissions of the appellant.

I have perused the record and the  judgment of the learned trial magistrate.  According to the record, when the defence chose not to call evidence on 1/12/2003, the learned magistrate gave the parties time up to 15/12/2003 to file submissions.  The  case was mentioned on 15/12/2003 when  Mrs. Kigen for the appellant/defendant was present and Mr. Kitiwa for the respondent/plaintiff was present.  Judgement  was  set for 20/1/2004.  The  record in the proceedings before the learned magistrate on  15/12/2005 does not show whether  the parties had filed written submissions  by  15/12/2003.  The learned  magistrate proceeded to write the judgment and delivered the same on 20/1/2004.

From  the judgment, it is abundantly clear that the learned magistrate did not consider the submissions of the appellant.  He had this to say  in his judgment  relating to  those submissions:-

“Mrs Kigen  has not handed in her submissions .  I do find  the injuries in the case relied  upon were more severe pain the (sic) injuries  in the instant case”

It is clear from the foregoing  that  the learned magistrate found that the appellant’s counsel  Mrs. Kigen had not filed her submissions as at the time the judgement was written after 15/12/2003, which  was the deadline given to the parties for filing written submissions.  The learned magistrate therefore relied on submissions and authorities cited by the respondent’s Counsel, which were filed and I have seen the same in the file.   Counsel  for the appellant appears to be arguing that appellant’s  submissions on quantum  were filed and should have been considered by the  learned magistrate.  On the other hand Counsel for the respondent argues that no such submissions were filed. 

Obviously, in my view, the learned magistrate was bound to consider the appellant’s submissions if they were filed as at the time  the judgment was being written, even if they were not filed by the deadline of 15/12/2003.   If the submissions of the appellant were not filed, the learned magistrate definitely had nothing to consider, and cannot be blamed for not doing so.  The learned  magistrate stated clearly, in his judgment that such submissions, were not filed.  The question is, were those  submissions filed?

I have perused the court record and documents  filed.  In the record  of appeal filed,  there is a copy of defendant’s appellant’s submissions dated 8^th December,2003.  They were  signed by Kigen and company Advocates .  They  are  stamped as having been received  in the Senior Principal Magistrate’s Court  on  10^th December, 2003.  In the original file of the subordinate  Court, however,  these written submissions  of the appellant are not there.  There are only written submissions of  the plaintiff dated 8^th December, 2003 signed by Kitiwa & Company  Advocates filed in the subordinate court.  These  plaintiff’s / respondent’s written  submissions are stamped as having been received in the Senior Principal  Magistrate’s  Court on 9^th December, 2003.  There is also a receipt  for payment for filing these plaintiff’s /respondent’s submissions for Kshs  75/= also dated  9/12/2003.  There is no such similar receipt for filing the defendant’s  written submissions.

It is trite that a document filed  in court can only be deemed to be so filed if  relevant court fees has been paid.  This  must be the import of section 96 of  the Civil Procedure Act (cap 21) which provides:-

“Where  the whole or part of any fees prescribed for any document by the law for the time being  is force relating to court fees has not been paid, the court may, in its discretion at any stage, allow the person by whom such  is payable to pay the whole or part, as the case may be of the fee, and upon such payment the document in respect  of which such  fee is payable shall have same force and effect as if such fees had been paid in the first instance”. 

It is clear to me from the above  provisions of law,  that a document for  which no payment of court fees  has been made is  not validly filed.  The written submissions of the appellant were not paid for.  The  appellant’s  Counsel  has  not said  that he paid  for filing  fees for  the said written submissions.  The  said  written submissions are not in the original case file of the subordinate court, either.  They  cannot  surface in the record of appeal. The record of appeal is a record of documents in the original file.  One cannot validly introduce strange  documents and claim that they were part of the original  filed documents.  In any event, even if the written submissions were actually in the original file, they could not be taken to have been filed as they were not paid for.  I come to the conclusion that the learned magistrate was correct in finding that the appellant did not file written submissions.  Therefore there were  no submissions of the appellant for the learned magistrate to consider.  Counsel  for the appellant cannot be correct to  expect the learned magistrate to consider  submissions which were not filed.

The second limb of argument for appeal on quantum  was that the learned magistrate erred in not finding that the respondent only suffered minor  injuries,  and also  that  the magistrate  awarded excessive damages.  I  must state from the outset  that the award of general damages is a discretion of a trial court and an appellate court will be slow to interfere with such discretion unless  that discretion is exercised  on wrong principles of law.   There are several case authorities  on this position.  It  will suffice if I  cite  what was stated by the Court of Appeal  in the case of Catholic Diocess of Kisumu –vs- Sophia Achieng Tete – Kisumu Civil Appeal  No. 284 of 2001 in which the Court of Appeal  reiterated what it had earlier held in the case of  Kemro  =vs= Lubia (1982-88) that:-

“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 different 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 represent an entirely erroneous estimate”.

Coming  now to our present case, the evidence of the respondent was uncontroverted.  The appellant did not call any evidence in rebuttal.  The injuries suffered were  highlighted  in the report of Dr. Gaya dated 20/6/2003 and the report of Dr. S.I Aluda dated 27/11/2002.

The report by Dr. Aluda was done on a date closer to the accident, about 4 days from the date of the accident.   He  observed that the x-ray  of wrist showed a dislocation of the left wrist joint and reduction was done and a pop was applied.  He  found tenderness in the left forearm as well as  swelling  of the left forearm.  Though  he found  the injuries sustained to be severe, they were continuing to heal with treatment.   This was  four days after the accident. 

The  report from Dr. Gaya  was on the other hand  done on 20/6/2003, which was more than 6 months  after the accident.  Dr. Gaya  found healed  soft tissue injuries in the left upper  limb with normal range of movement in the left  wrist  joint.  There was normal power  and grasp  functions  of the left hand.  The x-ray  showed no fracture of  left radius or ulna.  No dislocation of the left  wrist joint or fracture of the carpal bones of the left hand was found.  Though respondent  suffered multiple soft tissue injuries on duty, there was no permanent loss in terms of  the Workmen’s  Compensation Act.

In the judgment, the learned magistrate had this to say  on the injuries suffered:-

“According to Dr. Aluda  the plaintiff sustained a dislocation of the left wrist joint.  According to Mr. Gaya, the plaintiff  only sustained soft tissue injuries on the left  forearm, wrist and hand.  Mr. Gaya  found that the plaintiff did not sustain a dislocation of the left wrist joint or fracture of the carpal bone of the left hand.  Mr. Gaya found that plaintiff multiple (sic) soft tissue injuries have healed without permanent loss in terms of Workmen’s Compensation Act.  Since  Mr. Gaya  is a surgeon,  I prefer the report of Mr. Aluda”.

Having perused the two medical reports, I come to the same conclusion that the learned  magistrate came to, that the report of Dr. Aluda  was more  reliable.  This  is not so much because Dr. Gaya  is a surgeon as found by the learned  magistrate.  Both doctors agreed that there was no fracture sustained.  As  at the time  Dr. Gaya  examined the respondent, healing  had obviously taken place and there was no permanent incapacity for Workmen’s  Compensation.   This was more than 6 months after  the accident However, workmen’s compensation  is different from common law  compensation.  It can only  be deducted from the common law compensation .  My reason for coming to the conclusion  that Dr. Aluda’s report  is  more reliable is  that it was  done only four days after the accident.  The injuries must have been fresh.  The findings on dislocation were from an x-ray report.  Obviously after six months and  after treatment, the dislocation must have been corrected  through treatment though it was initially suffered.  Dr. Gaya’s report was made after healing had taken place.  I  find no error in the findings of the learned magistrate on the injuries suffered and on his reliance on the report of Dr. Aluda.

The next issue is whether  the magistrate relied on cases which were for more serious injuries.  In his judgment the learned magistrate clearly stated that the relied on the case of Peter Mburu  Kibera –vs-  Kamau Waweru – Nairobi  HCCC No. 4465 of  1987 (unreported) in which  Justice Mbogholi Msagha awarded  general damages  of Kshs 300,000/= on 19/9/1991.  The plaintiff had sustained dislocation of the cervical  spine (neck),  contusion to chest, lower back and knees and had lost 30% of total body function.  The learned magistrate considered  the case of Peter Mburu above and came to the conclusion that the injuries suffered in that case were more severe .  Therefore he awarded the plaintiff Kshs  120,000/=  as general damages, less 30% contribution which came to Kshs 94,000/=.  Counsel  for the appellant has  now submitted before  me that the learned magistrate should have awarded general damages of Kshs 60,000/= as proposed by the appellant’s Counsel before the learned magistrate.

First of all, I have  to say that there was no such proposition of an award of Kshs 60,000/=  before the learned magistrate,  since I have already found that the appellant’s Counsel  did not file any submissions on quantum  of damages.  Secondly , learned Counsel  for the appellant has not even hinted at the actual error that the learned magistrate committed in awarding the general damages.  I  have already  found that the learned magistrate was correct in relying on the more  current  medical report of Dr. Aluda on the injuries suffered.  Learned Counsel for the appellant has not pointed to me what relevant factor that the learned magistrate failed to take account of nor what irrelevant factor which he took into account, which resulted in an inordinately excessive award of general damages.  Merely stating that they proposed an award of Kshs  60,000/= as general damages without relating  it to the nature of injuries suffered, and the time or date of the award,  does not help the appellant’s appeal. 

In arriving at the figure of general damages awarded the learned magistrate stated in relation to the case of Peter Mburu above :-

“ On 19/9/01 (it should be 19/9/1991) the High Court  awarded the plaintiff Kshs 300,000/= as general damages for pain suffering and loss of amenities  ………………..  I do  find the injuries in the case  relied upon were more severe pain the (sic) injuries in the instant case.  Doing the best  I can  I do award the plaintiff Kshs 120,000/= as general damages for pain and suffering less 30% contribution which comes to Kshs 94,000/=”.

It is quite clear from the above  that the learned magistrate was very conscious of the fact that the injuries suffered in the present case were less severe than in the case of Peter Mburu. The  case of Peter Mburu  was  decided  more than 12 years earlier.  The learned magistrate  awarded less than half of the damages awarded in the previous case.  I find no misdirection on the part of the learned magistrate.  I also find that the award of general damages was not excessive.  It was justified considering the injuries suffered.

For the above reasons, I dismiss this appeal  and uphold the decision of the learned magistrate.  I award costs of appeal  to the responded.

Dated and delivered at Eldoret this  19^th  day of  December, 2005.

George Dulu,

Ag. Judge.

In the presence of:-