Kumuyu v Khaemba & 2 others (Civil Appeal 393 of 2019)  KECA 227 (KLR) (3 March 2023) (Judgment)
Neutral citation:  KECA 227 (KLR)
Republic of Kenya
Civil Appeal 393 of 2019
DK Musinga, KI Laibuta & PM Gachoka, JJA
March 3, 2023
Rassangyllo Muli Kumuyu
Michael Aeka Khaemba
Lazarus Kinyanjui Karanja
(Being an appeal from the judgment and decree of the High Court of Kenya at Nairobi (L. Njuguna, J.) delivered on 19th March 2018inHigh Court Civil Appeal No. 555 of 2015 Civil Appeal 555 of 2015 )
1.In order to put this appeal into context, it is necessary to give a brief background. On September 1, 2012, the appellant had parked his motor vehicle registration number KBL 075 X at Githurai 45 along Thika road. The 1st respondent, who was employed by the 2nd and 3rd respondents, lost control of motor vehicle registration number KBH 589 Y and hit the appellant causing him bodily injuries. The appellant filed CMCC No 4594 of 2013 in the Chief Magistrates’ Court at Kiambu against the respondents.
2.Upon hearing the parties, the trial magistrate, (Hon L Kassan, Senior Principal Magistrate), delivered judgment on October 23, 2015 finding the respondents fully liable for the accident, and awarded damages as follows:
3.Aggrieved by the judgment of the trial magistrate, the respondents filed an appeal in the High Court. The memorandum of appeal dated November 19, 2015 raised six (6) grounds of appeal. The appeal was canvassed by way of written submissions. Upon consideration of the pleadings, the learned judge (L Njuguna, J) noted that the appeal was on quantum only. The issues, according to the court, were: whether the award of Kshs 1,217,000/- was excessive for the injuries suffered; whether the appellant ought to have been awarded damages for loss of earning; and whether the award for future medical expenses was excessive.
4.The learned Judge overturned the ruling of the trial magistrate and held as follows:
5.On loss of earning capacity, the learned judge held as follows:
6.On future medical costs, the court awarded Kshs 200,000/- and held:
7.In the end, the appeal partially succeeded, and judgment was entered for the respondent as hereunder:
8.Aggrieved by the judgment of the High Court, the appellant filed the appeal before us citing three (3) grounds as set out in its memorandum of appeal dated August 16, 2019. It is not necessary for us to recite the said grounds verbatim. We take the liberty to summarize them as follows: that the learned Judge erred in the assessment of the quantum of damages, thus making an inordinately low award on general damages; and that the learned Judge disregarded the medical evidence adduced at trial hence making an erroneous estimate of the damages suffered by the respondent and disregarded the award on loss of earning and earning capacity.
9.The appellant has filed submissions dated November 21, 2022, which Mr Mwangi, counsel for the appellant, adopted at the hearing. In summary, the appellant submits that, in the instant appeal, the injuries suffered by the appellant are substantially undisputed; that the learned Judge referred to the medical report of PW 1 (the appellant's doctor) in analyzing the injuries; that, in his judgment, the trial Court made reference to the injuries suffered by the appellant and further considered the authorities cited by both the appellant and the respondent in support of the awards proposed; that had the learned Judge interrogated the authority provided to the trial magistrate by the appellant, he would have come to a different conclusion on the issue of quantum, but that she failed to do so.
10.The respondents did not file submissions, but made oral submissions at the hearing. In their submissions, the respondents supported the judgment of the learned Judge.
11.We have carefully considered the record of appeal, the written submissions, and the authorities. The appellant prays that this Court allows the appeal, varies the judgment of the High Court dated March 19, 2018 and/ or set aside, and that the same be substituted with a higher award on general damages and loss of earning and earning capacity, and grant the appellant costs of the appeal.
12.In Kenya Charles Kipkoech Leting v Express (K) Ltd & another  eKLR, the Court held, inter-alia:
13.In Kenya Breweries Ltd v Godfrey Odoyo  eKLR, Onyango Otieno, JA expressed himself as follows:
14.On the issue of damages, the court has pronounced itself in the case of Butt v Khan  eKLR as follows:
15.In Kemfro Africa Limited t/a “Meru Express Services ” & another v Lubia & another (No 2)  eKLR, Kneller, JA stated:
16.We have considered the grounds raised by the appellant and form the view that the issue for determination is whether the sum awarded by the trial Judge for damages was so inordinately high or low, as to represent an entirely erroneous estimate.
17.We have carefully scrutinized the judgment of the learned Judge and note that she properly directed her mind to the relevant legal principles to wit that the appeal before the court was a first appeal, and that the court had to re-evaluate the evidence and render its independent findings.
18.The issue that we have to determine is whether the damages awarded by the learned Judge were so inordinately low or inordinately high, so as to constitute a wholly erroneous estimate. We have carefully read the judgment of the learned Judge. As already indicated, she addressed her mind to the relevant legal principles that a first appellate court should apply. We are satisfied by the findings of the learned Judge in as far as the award for future medical expenses, loss of earning capacity and the special damages are concerned. However, as far as the reduced award of Kshs 200,000/- is concerned, this requires further examination by this court to determine whether it is inordinately low.
19.The medical report and the P3 form that were produced in the magistrate court showed that the appellant suffered a serious fracture of the femur that required future medical care. The learned Judge appreciated as much, and that is why she maintained the award of future medical expenses, albeit at a lower figure. Looking at the authorities that the appellant has submitted to wit Stanley Gicheru Njogo v Kijara Joseph Kagu & another and Agnes Kamene Mulyali v Harvest Limited, it is our finding that, considering the medical report and the authorities, the sum of Kshs 200, 000/- is inordinately low in the circumstances. We will therefore interfere with the award in respect of this head of claim only and increase the general damages to Kshs 400,000/.
20.In the result, we find that this appeal partially succeeds on the claim for general damages only, and that this claim is enhanced from the sum of Kshs 200,000/- which was the award by the learned judge to Kshs 400,000/-. In the end and for avoidance of doubt, The judgment and decree of the High Court (L Njuguna, J) dated March 19, 2018 is hereby varied in the following terms:
21.Regarding costs, we note that the appellant has partially succeeded, and we award him 50% costs of this appeal and costs in the High Court.
DATED AND DELIVERED AT NAIROBI THIS 3RD DAY OF MARCH, 2023.D. K. MUSINGA, (P)............................................JUDGE OF APPEALDR. K. I. LAIBUTA...........................................JUDGE OF APPEALM. GACHOKA, CIArb, FCIArb...........................................JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR