Ephantus Njuguna Maina v China Road& Bridge Corporation Kenya

2. Liability was settled by consent on 21st December 2022 at 75% in favour of the Appellant and 25% against the Respondent. The only issue left for determination by the trial court was assessment of quantum of damages. After considering written submissions from both sides, the learned trial magistrate (Hon. C. Mburu, SPM) delivered a judgment on 29th March 2023, awarding the Appellant Kshs.500,000/- in general damages for pain, suffering, and loss of amenities, and Kshs.124,295/- in special damages (subject to liability). 3. The Appellant is dissatisfied with the amount awarded by the trial court as general damages, which he contends is inordinately low and hence this appeal. 4. The Memorandum of Appeal, dated 19th April 2023, raises seven (7) grounds, which can be summarized into two main issues for this court’s determination: a) Whether the learned trial magistrate erred in failing to properly appreciate the seriousness of the Appellant’s injuries, particularly the assessed 5% permanent disability by Dr. Wokabi. And b) Whether the award of Kshs. 500,000/- for compound fractures of the tibia and 2|Page

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fibula is inordinately low and amounts to an erroneous estimate of damages. 5. The Appellant prays that the award of general damages be set aside and substituted with an award of Kshs.1,800,000/-. The Respondent opposes the appeal and argues that the award was reasonable and within the range of comparable authorities. 6. It is not in dispute that the Appellant sustained compound (open) fractures of the left tibia and left fibula. 7. Two medical reports were admitted by consent: a) One by Dr. W.M. Wokabi report dated 14th October 2021 which confirmed the fractures. He noted that the Appellant underwent surgery with application of an external metal fixator, walked with crutches, and had weakness in the leg. He assessed permanent disability at 5%, with maximum rehabilitation taking 15 to 18 months. b) The other is by Dr. Muhanda dated 28th February 2022 which also confirmed the fractures and observed that the injuries had completely healed and the Appellant had maintained functionality with no limitation on normal 3|Page

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activities. However, he noted that the Appellant still suffered pain during cold periods and when running. 8. The trial magistrate placed greater weight on Dr. Muhanda’s report, concluding that the permanent disability had “ceased since the plaintiff has fully healed.” 9.The principles upon which an appellate court can interfere with an award of general damages are well settled. In Kemfro Africa Ltd t/a Meru Express Services (1976) v Lubia & Another (No. 2) [1985] eKLR, the Court of Appeal held that an appellate court will not disturb an award of damages unless it is satisfied that the trial judge: a) Took into account an irrelevant factor; or b) Left out of account a relevant factor; or c) That the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. 10. The Appellant’s contention is that the trial court’s award is manifestly low compared to recent awards for similar injuries. In assessing damages, the court is guided by comparable awards for comparable injuries, while 4|Page

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accounting for inflation and the changing economic trends 11. The learned trial magistrate was guided by two cases: a) Amritlal S. Shah Wholesalers Ltd & Another v Joshua Ekeno [2012] eKLR – where Kshs. 350,000/was upheld for compound fractures of the right tibia and fibula. b) James Gathirwa Ngunji v Multiple Hauliers (EA) Limited & Another [2016] eKLR – where the court substituted an award with Kshs.400,000/- for similar fractures. 12. Based on the above authorities the trial court then awarded Kshs.500,000/- “while factoring the rate of inflation and life vicissitude.”. 13. The Appellant’s authorities cited in Counsel his relied submissions on to following this court: a) Francis Ndungu Wambuii & 2 Others v VK (a minor) [2019] eKLR, where the court upheld an award of Kshs. 1,000,000/- for a compound fracture of the distal b) Robert 5|Page tibia/fibula. Mwaniki Ndwiga v Agatha Kaugi

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Riungu [2018] eKLR, where the court set aside an award of Ksh.500,000/- and substituted it with Kshs.1,050,000/- for a fracture of the right tibia and medial malleolus. c) The Respondent’s Counsel cited the case of, Ndiwiga & another v Mukimba [2022] eKLR, where the High Court reduced an award from Kshs. 1,200,000/- to Kshs.500,000/- for a fracture of the tibia and fibula. I note that in that case, the court reduced the award because it found the original award of 1.2 million to be inordinately high, setting a ceiling for such injuries at around Kshs.500,000/- in July 2022. 14. Taking into account the above authorities the prevailing economic trend, I find that for a compound (open) fracture of both the tibia and fibula, which required surgical fixation with an external metal device I find that the current range of awards (as of 2021-2024) is above Kshs.700,000/- depending on the specific injuries sustained. The trial court’s award of Kshs.500,000/- falls below the lower end of this range. While the court was correct to not grant the Kshs.1,800,000/- which I Appellant’s find excessive prayer for based on comparable authorities, the award was nonetheless 6|Page

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inordinately low and represents an erroneous estimate. It failed to adequately account for the open nature of the fractures, the surgical intervention with external fixators, the period of immobility, the residual pain and the admitted 5% permanent disability. In Karanja & another v Mwachala [2024] KEHC 7171 (KLR), the Respondent suffered compound open fractures of the left tibia and fibula and was examined by the same Dr. W.M. Wokabi, who assessed 10% permanent disability. The High Court (REA Ougo, J.) reduced an award of Kshs. 900,000 to Kshs. 700,000, finding that the award of Kshs. 650,000 in Nahson Nyabaro Nyandega v Peter Nyakweba Omboga [2021] eKLR was a more useful guide. 15. Taking into account the compound/open nature of the fractures, the surgical intervention with external metal fixator, the 5% permanent disability assessment, the period of immobility and rehabilitation (15-18 months) the need for consistency with recent authorities, this court finds that a reasonable award for general damages is Kshs.750,000/= would be reasonable to compensate the Appellant. 7|Page

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DISPOSITION 16.Consequently, I make the following orders: a) The appeal on quantum is partially allowed. b) The trial court’s award of Kshs.500,000/- in general damages for pain, suffering, and loss of amenities is set aside. and substituted thereof with an award of the Kshs.750,000/=. d) The award of Kshs.124,295/- in special damages is upheld as it was not contested. e) The above amounts (general damages + special damages) shall be subject to the agreed contributory negligence of 25% as per the consent recorded on 21st December 2022. G. FINAL ORDERS Judgment is entered for the Appellant against the Respondent as follows: a) Liability 75%:25% 8|Page

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b) General damages: Kshs.750,000.00 c) Special damages: Kshs.124,295.00 d) Subtotal: Kshs.874,295.00 Less 25% contribution: Kshs.218,573.75 e)Final Award: Kshs.655,721.25 e) The award in (b) above shall attract interest at court rates from the date of the lower court’s judgment (29th March 2023) until full payment. Special damages will attract interest from the date of filing of the lower court matter f) As the appeal has partially succeeded, parties shall bear own costs of this appeal. DATED, SIGNED, AND DELIVERED VIRTUALLY AT NAIROBI THIS 12TH DAY OF JUNE 2026, THROUGH THE MICROSOFT TEAMS KENNEDY KANDET JUDGE 9|Page PLATFORM

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IN THE PRESENCE OF: NO APPEARANCE FOR THE APPELLANT MR OCHIENG FOR THE RESPONDENT COURT ASSISTANT:JACKLINE KURUI 10 | P a g e

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