Catherine Wanjiru Karanja v Wycliffe Migiro & 1 other

1. By Memorandum of Appeal dated 10/7/2023, the Appellant faults the trial court’s aforesaid Judgment on the quantum of general and special damages, based on five grounds which the court condenses into 4 as hereunder: 1) THAT the Learned Trial Magistrate erred in law and fact by disregarding her prayer for future medical costs relating to removal of metal plates inserted in her fracture site. 2) THAT the Learned Trial Magistrate erred in failing to take into account her evidence in proof of costs incurred in retaining a Care Giver. 3) THAT Learned Trial Magistrate erred in law and fact by awarding general damages in the sum of Kshs. 700,000/= that is manisfestly low in light of grievous injuries the Appellant suffered. 4) THAT the Learned Trial Magistrate erred in failing to take into account evidence proffered in proof of the Special damages claim of Ksh. 561,065/= and instead erroneously granted Kshs 496,450/=. 2. The Appellant therefore seeks the following orders; a ) THAT the Appeal be allowed with costs. b) THAT the trial court’s judgement on Special damages in the sum of Kshs. 496,450/= be set Page 2

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aside and instead Kshs. 561,065/= be allowed as prayed in the lower court’s suit; c) Future medical costs be awaded to the Appellant as pleaded. 3. The Respondent (“the Cross Appellant’’) filed a CrossAppeal based on the following two Grounds of Appeal dated 30/8/2023; 1) THAT the Learned Trial Magistrate erred in law and fact in awarding Kshs. 700,000/= as general damages which is manifestly excessive, way beyond conventional awards and not commensurate with the injuries suffered the plaintiff therein (sic). 2) THAT the learned Trial Magistrate erred in law and in fact in awarding Kshs 496,450 as special damages which are not proved by way of receipts as by Law required (sic). 4. The Cross Appellant seeks the following reliefs; (a) THAT the Cross Appeal be allowed. (b) THAT the court does re-assess both general and special damages and make appropriate awards. (c) THAT the costs of the Cross Appeal be borne by the Appellant. Background to the Appeal Page 3

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5. Learned Counsel for the parties filed submissions which I have perused together with the trial court’s record. 6. In the impugned judgment, the trial magistrate granted the Appellant, the plaintiff in the suit court, before the lower general damages for pain, suffering and loss of amenities in the sum of Kshs. 700,000/= and Kshs. 496,550/= in special damages. The judgement followed the Appellant’s suit in which he sought general damages, special damages of Kshs. 561,065/=, future medical costs of Ksh. 200,000/=, the costs of the suit and interest on account of injuries she sustained after the Respondents’ motor vehicle registration number KCG 660A hit a motorcycle registration number KMCV 505H on which the Appellant was riding as a pillion passenger, owing to negligent driving of the former vehicle. 7. The Respondents admitted occurrence of the accident but traversed all the other material claims in the suit including their alleged negligence, in their staments of defence. The parties, however, later compromised the issue of liability for the claim in the ratio of 75%:25% in favour of the Page 4

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Appellant. Evidence was subsequently taken for assessment of the quantum of damages, if any, awardable to the Appellant. 8. The parties agreed to adopt their bundles of documents and witness statements as their respective evidence. Based on medical evidence the Appellant presented before the trial court including Dr. Wellington Kiamba’s medical report dated 21/12/2021, the Appellant suffered a segmental fracture of the right femur; head injury and soft tissue injury to the chest.. She was admitted for days in two different Hospitals during which the fracture was fixed with skeletal traction. Open reduction and internal fixation of the fracture of the right femur was done. Permanent disability she suffered was assessed at 20%. The doctor further opined that the metal implants in the fracture site would be removed at a cost of Kshs. 200,000/=. 9. The Respondents’ doctor ( Dr Malik) more or less agreed with the observations and findings of the Appellant’s doctor regarding the nature and extent of the Appellant’s Page 5

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injuries. He, however, opined that removal of the metal implants would cost only Kshs. 50,000/= at a government or mission hospital. 10. The Witness Statement of the Appellant’s Care Giver ( Mary Njoki Thiong’o) shows that she was paid Kshs. 1,000/= per day for a period of 6 months during which she assisted the Appellant. 11. In his Judgment, the learned trial magistrate did not consider and/or assess the claims for future medical expenses and re-imbursement services. He, however, for granted the the Care Giver’s Appellant Kshs. 700,000/= general damages for pain and suffering placing reliance on the case of Muteti vs Peter & 3 Others ( Civil Appeal 41 of 2018) [2022] KEHC 10084 (KLR) (14 July 2022) (Judgment). In the cited case, the lower court noted that the Claimant sustained a segmental fracture and soft tissue injuries like in the instant matter. Analysis and Determination Page 6

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12. It is trite that the appellate court has the duty of reassessing the evidence and reaching its own conclusions on matters of fact and law. The court will only interfere with the trial court’s findings if relevant factors were not taken into account or irrelevant factors were considered or the trial court otherwise misdirected itself. (see case law in Selle vs Associated Boat Company [1968] EA 123 and Ocean Freight Shipping Co. Ltd vs. Oakdale Commodities Ltd (1997) eKLR. The Court of Appeal for East Africa in Peters vs Sunday Post Limited [1958] EA 424 underscored the same principles delivering itself thus: “i. First, on first appeal, the Court is under a duty to evidence reconsider and re-evaluate the on and draw its own re-evaluating the record conclusions; ii. In reconsidering and evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing before her; and Page 7 the witnesses testify

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iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.” 13. In Tayab vs Kinanu (1983) KLR 114 it was observed that money cannot renew a shuttered or battered physical frame and therefore courts only make reasonable awards assessed with comparable moderation injuries should taking as into far as account that possible be compensated by comparable awards. In Sheikh Mustaq Hassan vs Nathan Mwangi Kamau Transporters & 5 Others (1986) KLR 457, it was observed that awards may only be increased if they are inordinately low as to represent an entirely erroneous estimate, or where wrong principles are applied, or evidence was misapprehended in some material respects. 14. It should be noted that general damages are damages at large and no case is exactly the same as the other. The general method of approach in assessing general damages ought to be “that comparable injuries should, as far as Page 8

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possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases (see Kemro Africa Ltd & Another the often cited case of Lubia & Another (1982-88) KLR). 15. I have sampled some other cases I think are relevant in assessing general damages herein. In Kensilver Express Limited vs Nzangu ( Civil Appeal E039 of 2021) (2022) KEHC 1033 (KLR) rendered in July 2022, the claimant sustained a cut wound to the right ear; two rib fractures and severe chest pain. He healed well with no permanent disability. The court assessed general damages in the sum of Kshs. 500,000/=. In Nguku Joseph & Another vs Gerald Kihiu Maina (2020) eKLR the claimant sustained a fracture of the right humerus and a host of soft tissue injuries. Kshs. 500,000/= general damages were assessed. For a pelvic fracture and soft tissue right injuries to the thigh and chest, Kshs. 500,000/= general damages were also assessed in the case Page 9

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of Peter Gakere Ndiangui vs Sarah Wangari Maina (2021) eKLR. Determination 16. The trial court did not materially misdirect itself in making its award on general damages. The award of Kshs. 700,000/= is within the range of previous comparable awards as shown in the cases referred to by the court, also taking into account the incidence of inflation. I will not disturb the award merely because I could have reached a different finding if I had heard the case in the first instance. The appeal on quantum of damages thus fails. 17. Regarding the claim for future medical costs in the sum of Kshs. 200,000/=, the appellant pleaded the same in the suit. In the opinion of Dr Kiamba who examined the Appellant for a medico-legal report, it will cost this amount to remove metal implants inserted in the appellant’s fracture site. Dr Malik advised that in a public or mission it would cost Kshs. 50,000/= to remove the implants. 18. Given the apparently conflicting medical reports, I would grant the Appellant Kshs. 100,000/= on this head. The Page 10

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learned trial magistrate wrongly failed to consider and grant this claim yet it is pleaded. 19. The trial court also wrongly omitted to consider the Appellant’s claim for her Care Giver’s expenses. The Care Giver testified and confirmed receiving Kshs. 150,000/= for her services, which claim has not been rebutted. This sum is awarded to the Appellant too. 20. Turning to the Appeal as it relates to special damages, some receipts tendered in proof of this claim in the sum of Kshs. 561,065/= are not legible. In particular, receipts appearing at pages 87, 88 and 99 of the Record of Appeal are not clearly discernible. An invoice at page 81 purporting to show payment in respect of a motor vehicle search is not evidence of actual payment of the amount stated therein. 21. In the circumstances, the court finds no basis on which to fault the trial court’s award of Kshs. 496, 550/= in special damages. 22. Regarding the Cross Appeal, the court has already pronounced itself on the general and special damages Page 11

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awards. Thre is nothing showing that the lower court considered irrelevant factors or failed to take into account relevant factors in assessing the damages. This Appeal fails in its entirety. Determination. 23. In the result, the Appellant’s Appeal on general and special damages claim is dismissed but Kshs. 100,000/= and Kshs. 150,000/= in future medical costs and Care Giver’s costs respectively are allowed. These ammounts shall be subject to the agreed contribution ratio. The parties will bear their own costs of the Main Appeal. 24. The Cross-Appeal is dismissed in its entirety, with the parties bearing their own costs thereof. J.M NANG’EA , JUDGE. Judgment delivered virtually this 21st day of July 2026 In the presence of: The Appellant’s Advocate, Ms Kimotho. Page 12

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The Respondent’s / Cross Appellant’s Advocate, Ms Mwashi for Mr Githiru. The Court Assistant, Jeniffer. J.M NANG’EA , JUDGE. Page 13

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