1.This appeal is brought against the Judgement/ decree of Honourable A. Nyoike (P.M) dated 18th May 2021, where she awarded the Appellant Ksh.400,000/= as General damage, Kshs.150,000/= as future medical expense and Kshs.5,150/= as special damages plus costs and interest.
2.Dissatisfied by this decision, the Appellant filed this Appeal seeking to have the Judgement/decree set aside. The Appeal was founded on the grounds that;i.The learned Trial Magistrate erred in law and in fact by awarding the appellant Kshs 400,000/= in general damages which award was inordinately low compared to the severity of the injuries sustained by the Appellant and the current court awards for similar injuries.ii.The learned Trial Magistrate erred in law and in fact by not putting sufficient weight and consideration to the plaintiff’s evidence, submissions, medical documents and the authorities in support thereof.1.The appellant prayed that this appeal be allowed, the decision of the trial magistrate be set aside and it be substituted with an award which is commensurate with the injuries sustained. The appellant also prayed for costs of this appeal.
A. Brief Facts at Trial
4.The appellant did file a suit and claimed damages arising out of a road traffic accident which occurred on 10th July 2019 at Kaseve Area along Kitui – Machakos road. The Appellant averred that she was a fair paying passenger on motor vehicle KCS 281K Toyota Van (herein after referred to as the 1st suit motor vehicle), which belonged to the Respondents as legal/beneficial owners. The said motor vehicle was carelessly, recklessly and negligently driven and/or controlled and as a consequence thereof, while negotiating a corner at Kaseve area, it violently collided with Motor vehicle KCS 709V (hereinafter referred to as the 2nd suit motor vehicle), thereby causing the Appellant to suffer serious bodily injuries.
5.The Respondents did file their statement of defence wherein they denied that any accident occurred between the two suit motor vehicles and denied all the particulars of negligence set out in the plaint. Further in the alternative the Respondent’s did aver that if an accident did occur it was caused by the carelessness, negligence and recklessness of the appellant and the drive of the 2nd suit motor vehicle. They particularized the alleged negligence.
6.The appellant testified and adopted her witness statement where she stated that she was a fair paying passenger in the 1st suit motor vehicle. At Kaseve area along Kitui -Machakos road, the said motor vehicle was being driven at high speed and the 2nd respondent, who was its driver lost control at a bend/corner and violently collided into the 2nd suit motor vehicle, which was coming from the opposite direction. As a result, the Appellant stated that she sustained severe injuries as particularized in the plaint. She was taken to Machakos level 5 hospital and later transferred to shalom Hospital in Machakos.
7.The Appellant produced all her documents as Exhibits and blamed the Respondents for being careless and causing the said accident. Further she did stated that she needs a sum of Ksh.150,000/= for future medical treatment/surgery. In cross examination the Appellant reiterated that she was a passenger in the 1st suit motor vehicle and had put on her belt when the accident occurred. she blamed the driver of the said motor vehicle as he veered off its lane and crushed into the 2nd suit motor vehicle.
8.The Appellant did not call any other witness and closed her case. The Respondents too opted to close their case without calling any witness.
B. Appellants Submissions
9.The appellants counsel filed his submissions on 18th January 2023 and stated that the appellant suffered serious injuries which were sustained as a result of the said accident. The appellants injuries were;a.Fracture of the pelvis with;-i.Right acetabulum fractureii.Right inferior public ramus fractureiii.Right superior public ramus fractureiv.Left superior public ramus fracture.b.Left Ankle joint dislocationc.Left bimalleolar fracture ( Distal 1/3 fibula fracture and distal tibia fracture.)d.Pain and tenderness on the backe.Wounds on the foreheadf.Loss of consciousnessg.Pain and tenderness on the chest
10.The appellant further submitted that for the injuries suffered the award of Ksh.400,000/= was low and urged the court to interfere with the same as the said award was not reflective of similar awards given for similar injuries. The appellant urged the court to award him Ksh.3,000,000/=. Reliance was placed on Marsabit HCCA No 9 of 2017 Hussain Ali Sharriff alias Hussain Ali vs ALL ( minor suing through FTL), Naivasha HCCA No 42 of 2017 John Mutunga Kamau vs kanini Haraka Enterprises limited.
C. Respondents Submissions
11.The respondents counsel did file their appeal on 24th April 2023. The Respondent submitted that before interfering with a determination on quantum the court ought to consider the following principles;
12.The Respondents urged this court to maintain the award of Kshs 400,000/= as sufficient and adequate compensation. The Respondents relied on shreeji Enterprise (k) ltd v John Kiyeene Wambua & Ano  eklr, Maina Onesmus v Charles Wanjohi Githome  eklr, Inter – Health International INC v Charles Musembi Munyao  eklr and Civicon Limited v Richard Njomo Omwancha & 2 others  eKlr.
13.The respondent’s urged this court to find that this appeal lacks merit, is misconceived, incompetent, bad in law and thus should be dismissed with costs.
C. Analysis and Determination
14.I have considered the pleadings, evidence presented and submissions of the parties in this appeal, this court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions.
15.As held in Selle & Another Vs Associated Motor Boat Co ltd & others (1968) EA 123 where it was stated that;
16.The same position was also appreciated in PetersSunday Post Limited  EA 424:
17.Therefore, this court is under a duty to delve at some length into factual details and revisit the facts as present in the trial court, analyse the same, evaluate it and arrive at its own independent conclusions, but always remembering, and giving allowance for it, that the trial court had the advantage of hearing the parties.
18.Guided by the above cases, and having carefully gone through the entire record of appeal, pleadings filed in the primary suit, the decree appealed against and the submissions filed herein I do find that the only issue for determination in this appeal is whether the quantum awarded was sufficient.
19.As regards quantum, in Woodruff v Dupont  EA 404 it was held by the East African court of appeal that:
20.The Court of Appeal in Southern Engineering Company Ltd. v Musingi Mutia  KLR 730 also restated these principles which should guide the court in awarding damages, where it was held that:
21.Similarly, in Jane Chelagat Bor vs Andrew Otieno Oduor  – 92] eKLR 288[1990-1994] EA47 the Court of Appeal held that:-
22.In Mbaka Nguru and Another v James George Rakwar NRB CA Civil Appeal No. 133 of 1998  eKLR, the court of appeal held that that:
23.Since the decision on the quantum of damages is an exercise of discretion, barring the failure to adhere to the foregoing principles the decision whether or not to interfere with an award by the appellate court must necessarily be restricted.
24.The most that can be done is to consider carefully all the circumstances of the case in question, and to consider other reasonably similar cases when assessing the award. It need hardly be emphasized that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before comparison between the awards in the respective cases can fairly or profitably been made. If however it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion.
25.The appellant suffered both superior and inferior fracture to the right acetabulum and rumus area, left bimalleolar fracture (distal 1/3 fibula and distal tibia fracture). She also suffered other soft tissue injuries. These severe injuries were captured in the discharge summary from Machakos level 5 hospital, discharge summary from shalom hospital, P3 form and medical report dated 2nd July 2020, by Dr.Muoki Kames K, an orthopedic and trauma surgeon who confirmed that the appellant had sustained a fracture of her pelvic bone, leg and left ankle and could not walk without support. She also needed further surgery to remove the implants.
26.For similar injuries the award of the trial court was manifestly low and such awards were given over twenty years ago;(a)In Nakuru HCCC No. 780 of 1991: Mwangi Gachanjwa vs. Luka Kibet & Another, the Plaintiff, a minor, had sustained slightly more serious injuries in the form of bilateral fracture of the acetabulum of both hip joints along with head injury. The injuries healed with post-traumatic arthritis in both hip joints, especially on flexion and abduction. The Plaintiff also suffered severe mental impairment due to brain concussion. As a result, he was unable to remember past events. He was awarded Kshs. 500,000/= on 7thMay 1998 for pain suffering and loss of amenities.(b)In Mombasa HCCC No. 534 of 1996: Kisemei Mutua v Lucy Muhugo & 2 Others, the plaintiff therein sustained a fracture of the right pelvic ramus and acetabulum as well as whip-lash injury to the neck with fractures of the spine. His urethra was also affected and he had to undergo 2 operations. He was awarded Kshs. 700,000/= on 14 December 2000 for his pain suffering and loss of amenities.(c)In Nairobi HCCA No. 134 of 1998: Texcal House Service Station Ltd & Another vs. Timo Kalevi Jappinen & Another, the Plaintiff was awarded Kshs. 1,750,000 by the High Court for dislocation of the right hip joint, with comminuted fractures of the posterior rim of the acetabulum, compound comminuted fracture of the lower left tibia and fibula with bruises over the right side of the forehead. He had undergone five operations under general anaesthesia and was severely affected psychologically. The Court of Appeal reduced the award to Kshs. 750,000/= on 23 April 1999.
27.More resent awards for similar injuries range from Ksh. 2,500,000/= to Ksh.3,500,000/=. In Warano Tosha & Ano v DMK 2021] eKLR , Justice S Chitembwe (As he was then ) reduced an award of Ksh.3,200,000/= to Ksh.2,500,000/=, while in Milicent Atieno v Katola Richard  eKLR, Justice Onyancha awarded the Appellant Ksh.2,000,000/= for similar injuries. The awards in the two-citation relied upon by the appellant are also in a similar range. see Marsabit HCCA No 9 of 2017 Hussain Ali Sharriff alias Hussain Ali vs ALL ( minor suing through FTL), Naivasha HCCA No 42 of 2017 John Mutunga Kamau vs kanini Haraka Enterprises limited.
28.The Appellant not only suffered severe fracture and extensive injury to the pelvic bones she also sustained fracture on her distal 1/3 fibula fracture and distal tibia fracture. She did also dislocate her left ankle joint and had soft tissue injuries too. The award of Ksh.400,000/= was manifestly too low compared to similar awards and similar injuries. The magistrate thus acted on the wrong principles and arrived at an entirely erroneous estimate of the damages the Appellant was entitled too and the same warrants an interference by this court.
29.This appeal thus has merit. The Judgment of Hon A. Nyoike (P.M) dated 18th May 2021 and delivered din Machakos CMCC NO 86 of 2021 with respect to General damages awarded of Ksh.400,000/= is thus set aside and the same is increased to Ksh.2,500,000/=. The other aspects of the same judgment shall remain as awarded by the trial Magistrate.
30.The costs of this appeal is hereby assessed at Ksh.300,000/= all inclusive.
31.It is so ordered.