Lilian Ndunge Muinde v John Kihara Gichuhi

2. The learned magistrate erred in law in dismissing the appellant’s claim for compensation for diminished earning capacity. 3. The learned magistrate erred in law and in fact by not fully considering and/or appreciating all the facts before him. 4. The learned magistrate erred in law and in in fact by not fully considering and/or appreciating all the evidence before him together with the plaintiff’s submissions and medical report provided. 5. In all the circumstances of the case, the finding of the learned magistrate in quantum and the claim for compensation for diminished earning capacity were characterized with misapplication of the law and wrong exercise of discretion. 3. It is clear to me that the appellant is asking this court to enhance the award for general damages for pain and suffering and make an award for damages for diminished earning capacity. This court directed that the appeal be disposed of by way of written submissions. The appellant filed her submissions dated 11-03-2024 while the respondent did not file any submissions despite having been given the opportunity to do so. 4. This is a first appeal. As such, the same should be conducted in manner of a re-hearing where this court is expected to re-evaluate, re-examine and re-analyse the evidence produced before the lower court and come to its own conclusion. However, the court should bear in mind that, it did not have the advantage of taking evidence from the witnesses or observing their demeanour. In Jackson Kaio Kivuva vs Penina Wanjiru Muchene (2019) eKLR it was held that; ‘…a first appeal is by way of retrial and this court as the first appellate court has a duty to re-evaluate, re-analyse and re-consider the evidence and draw its own conclusion, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that.’ 5. In my re-examination of the evidence produced in the trial court, I will concentrate on the portions which speak to the nature, effect and extent of injuries which in case of this nature informs the court’s decision in awarding damages. This is because there is no dispute in the appeal on the trial magistrate’s finding on liability. 6. The appellant testified in the lower court by adopting her statement dated 10-12-2020. In this statement, the appellant told the court that after the accident, she was admitted at Kenyatta National Hospital and discharged for further review. According to the appellant, she was business lady dealing in cereals and groceries but due to the nature and extent of the injuries, she was no longer able to fully resume her business. In cross examination, she said that she was not able to wear shoes after she got injured on all her toes. The witness statement did not itemise the injuries the appellant sustained but the medical report, P3 form and the discharge summary show that she sustained a compound fracture of the left tibia and fibula. the discharge summary shows that the appellant was admitted at Kenyatta National Hospital in 8-11-2019 but the date of discharge is not indicated. Also, the witness statement does not indicate when she was discharged. The same goes for medical report by Dr Cyprianus Okere dated 4-11-2020. The medical report put the appellant’s degree of permanent incapacity at 30%. 7. In her submissions, the appellant has faulted the magistrate for disregarding the medical report by Dr Cyprianus Okere and giving consideration to a report by Dr Kahuthu. I do not think that the trial court disregarded the medical report by Dr Okere. What the court did was to make distinction between https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16817/eng@2024-09-16 2

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the two reports and gave its reasons for believing Dr Kahuthu’s report on the degree of permanent incapacity. The trial court’s holding on that aspect was as follows; ‘I have looked at two medical reports and the findings made by the two medical reports with respect to the injuries sustained are similar. Both of them established the plaintiff sustained fracture of the left tibia and fibula, the only difference is that in the first report, the fracture was established to be compound fracture. Where the two medical reports differ, is the aspect of permanent incapacity, whereas the report by Dr. Okere indicates 30%, the report by Dr. Kahuthu indicates no permanent incapacity sustained. 8. I have perused the medical report by Dr. Okere and there is no rationale or justification, placed in the said report, which persuaded the doctor, that the plaintiff sustained a 30% incapacity. Putting it differently, there is no explanation, how the doctor arrived at the 30% incapacity’ 9. In my view, the trial court was justified to make references and analysis as it did. The appellant appears to suggest that once a doctor produces a medical report, a court has no discretion to analyse the report or question its contents. I hold that the magistrate was entitled to make the observation as he did. Going by the injuries the appellant is said to have sustained which had healed at the time of the trial, the court was right in doubting the degree of incapacity as shown in the medical report by Dr Cyprianus Okere. 10. Even if the court agreed with the 30% incapacity, was the award of Kshs 580,000.00 too low as to amount to an erroneous estimate? In order to justify her clamour for more damages, the appellant has submitted that, it is not disputed that she sustained the following injuries; a. Compound fracture of the left tibia. b. Compound fracture of the left fibula. c. Pain on the lower leg. d. Inability to perform a heavy duty. e. Inability to walk fast or run. f. She walks with a limp. g. Lacerated scars on the left lower leg. h. Surgical scar on the left lower leg. i. Healed fracture sites are palpable and tender on palpation. j. Permanent incapacity is 30%. 11. The appellant seems to assume that the courts are so naive that they cannot differentiate actual injuries from effects of injuries. Separation or splitting of a single injury to appear as many is obviously meant to hoodwink the court that the appellant sustained multiple injuries. The appellant has gone outside the ambit of her own medical report while at the same time faulting the trial court analysing the same medical report. Whether the appellant breaks down the fracture of tibia and fibula to as many purported injuries as he wishes, the fact remains that she sustained a fracture of the tibia/fibula. Her argument that the magistrate failed to appreciate the nature of her injuries holds no water. 12. I have compared the appellant’s case with the following authorities; a. Daneva Heavy Trucks & Another vs Chrispine Otieno (2022) eKLR in which the respondent who had sustained a fracture of the pelvis and features of the left tibia and fibula was awarded https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16817/eng@2024-09-16 3

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a sum of Kshs 800,000.00. I appreciate that there cannot be injuries which are exactly similar to others in accidents or incidents. I also take cognisance of the fact that the cited case involved a fracture of the pelvis which the appellant in the instant case did not sustain. b. 13. The Third Engineering Bureau China Construction Group Limited vs Edwin Kinanga Atuya (2021) eKLR. In this case, the Honourable Justice R.E. Ougo awarded a sum of Kshs 500,000.00 on 22-06-2020 to the respondent who had sustained bruises on the scalp, hands and right leg, compound fracture of left tibia and compound fracture of the left fibula. I am of the view that the appellant’s case is fairly comparable to the above cited cases. It is trite that an appellate court should not interfere with an award of damages made by the trial court unless it is convinced that the trial court considered irrelevant factors or failed to consider a relevant factor or it proceeded on the wrong principles or where the amount is shown to be too low or too high as to amount to an erroneous estimate as compared to other comparable awards. It was held in Ndwiga & Another vs Mulimba (2022) KEHC 11793 (KLR) that; ‘In assessing the award for general damages, the usual approach is that an appellate court will not interfere with an award of damages by the trial court unless the appellant can prove that the trial court applied the wrong principles or misapprehended the evidence and so arrived at a figure that was so inordinately high or low as to represent an erroneous estimate.’ 14. In this matter, I have carefully gone through the record especially the medical evidence. Having done so, I am convinced that the trial court proceeded on the right principles of law and took all the relevant factors into consideration. I decline to interfere with the award of general damages for pain and suffering. The submissions that this court awards Kshs 2,500,000.00 under this head is untenable. 15. The appellant claimed that she was a business lady dealing in cereals and groceries. She did not adduce evidence or produce any documents to prove this fact. She solely relied on the Dr. Okere’s opinion that she suffered a 30% permanent incapacity. Other than that, the doctor did not tell the court that the appellant was not able to work. There were no further medical follow ups after she was discharged from Kenyatta National Hospital. The appellant did not tell the court the nature of business or engagement she was in after the accident. 16. For damages for diminished earning capacity to be justified, the claimant must show that she was unable to undertake the work she used to do before the accident and further that her earning capacity had diminished as a result of the accident. I have read through the appellant’s statement and the medical records and I see nothing that would convince me that the appellant’s earning capacity had been diminished. I agree with the trial magistrate when he states that: ‘Even in absence of the report by Dr. Kahuthu, the prayer for diminished earning capacity would not have been successful since Dr Okere never opined that the plaintiff’s earning capacity had been diminished or reduced as a result of the injury or by a permanent incapacity.’ I likewise dismiss the claim. 17. The upshot of the above is that I find no merit in the appeal and I proceed to dismiss it. Since the respondent did not participate in the appeal, I make no orders as to costs. DATED SIGNED AND DELIVERED AT NAIROBI THIS 16TH DAY OF SEPTEMBER 2024. B.M. MUSYOKI JUDGE OF THE HIGH COURT. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16817/eng@2024-09-16 4

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