[2023] KEHC 25216 (KLR)

AA of Kenya & another v Nyinsenga (Civil Appeal E111 of 2023) [2023] KEHC 25216 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25216 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E111 of 2023

MS Shariff, J

November 10, 2023

Between

AA of Kenya

1st Appellant

Lawrence Muthini Musyimi

2nd Appellant

and

Salomon Nyinsenga

Respondent

Judgment

A. Case background 1. This appeal challenges an award of general damages of Kshs.600,000 made by the adjudication of small claims in Kisumu small Claims Court Claim No. e091 of 2023 in favour of the Respondent herein.

B. Appeal: 2. This appeal is premised on the following grounds that:a.The learned trial Magistrate/Adjudicator erred both in law and fact by failing to analyze all the relevant evidence availed at the trial on the award of general damages;b.The learned trial Magistrate/Adjudicator erred in law and in fact by failing to consider comparable awards of general damages in cases of similar injuries and awarded inordinately high general damages;c.The learned trial Magistrate/Adjudicator erred in law and fact by failing to apply the correct legal principles when awarding general damages which sum was inordinately high;d.The learned trial Magistrate/Adjudicator erred in law and fact by failing to consider the Appellants submissions and judicial authorities on general damages thereby arriving at an erroneous figure of quantum;e.The learned trial Magistrate/Adjudicator erred in law and in fact by failing to take into account the pertinent issues raised in the Appellants submissions;f.The learned trial Magistrate/Adjudicator erred in law and in fact by failing to appreciate the Appellants contentions and arguments;g.The learned trial Magistrate/Adjudicator erred in law and in fact by disregarding the evidence on record thus arriving at an erroneous decision;h.The learned trial Magistrate/Adjudicator erred in law and in fact by failing to take into consideration the nature of injuries the Claimant sustained thus arrived at an erroneous decision;i.The learned trial Magistrate/Adjudicator misdirected herself by considering erroneous facts, evidence and judicial authorities hence reached a wrong conclusion of law and general damages;

C. Submissions: 3. By the directions of this court parties filed written submissions.

Ci Appellant’s Submissions: 4. The Appellants have framed 2 issues for determination:The Appellants generally submit that the award of general damages was excessive and was not commensurate to the injuries suffered by the Respondent as the injuries were only soft tissue injuries and loss of 3 teeth.

5. The Appellant submits that it is a trite principle of law that in assessing general damages, comparable injuries ought to attract comparable awards. The case of Joseph Kamau Gathaga & Anor vs. Dickson Ndungu Njoroge (2019) eKLR has been cited in this regard. It is further submitted that precedents are mere guidelines and that each case has to be decided on its own peculiar circumstances. Reliance has been placed on the case of Kenya Power Lighting Co. Ltd –vs- Zakayo Saitori Naingola & Another (2008)eKLR.

6. Whereas the Appellants assessment of damages is at the discretion of the trial court they submit that exercise of discretion has to be judicious and not capricious. The cases of Kimani Maina vs Bonface Onyango Aliwa (2021) eKLR and Souther Engineering Co. Ltd –vs- Musungi Mutia (1985) KLR 730 have been cited.

7. The Appellants submit that the adjudicator acted in error by placing reliance on the case of Anthony Nyamweya vs Dorca Gesare Mounde (2022)eKLR as the injuries suffered by the Respondent therein were more severe as compared to the ones sustained by the Respondent herein.

8. The Appellant has cited several authorities to support a reassessment of the general damages from Kshs.650,000 to 300,000.

Cii Respondent’s Submissions: 9. The Respondent has outlined two issues for determination by this court: Whether the award of the trial court was excessive and whether it should be interfered with.

10. The Respondent submits that this court ought to be guided by the case of Kemfro Africa Ltd vs Lubia & Another (1987) KLR 30; where Kheller JA rendered himself on the instances where an appellate court can interfere with an award of quantum by a trial court; the court must satisfy itself that in the assessment of quantum the trial court into account an irrelevant fact or left out account a relevant one or the amount is so ordinately low or high that it must be wholly an erroneous estimate of the damages. Reference has also been made to the case of Bashir Ahmed Butt vs Uwais Ahmed Khan (1982-88) KAR 5.

11. The Respondent submits that the Appellant has failed to demonstrate that the award of Kshs.600,000 was inordinately high wherefore the Appellant has failed to lay a basis for reassessment of the general damages.

D. Analysis and determination: 12. The duty of a first appellate court as stated in Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, is;“This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”

13. The appeal herein is only on quantum.

14. This court has re-evaluated the medical report of Dr. James Obuodi Otieno which describes the injuries suffered by the Respondent as bruised scar right elbow prosterio aspect 2x3 cm and loss of 3 lower incisors teeth with a resultant permanent disability of 2%.

15. I have noted that the injuries of the Respondent in the case of Anthony Nyalweya –vs- Dorcas Gesare Mounde (2022)eKLR which the adjudicator relied on were described as swollen knee joint tender on palpation, loss of 3 upper teeth, loss of 3 lower teeth and bruises on the neck. These were more severe injuries than the ones sustained by the Respondent herein.

16. In the case of Ng’anga John & Another vs David Ogot Ogola (2021)eKLR Justice Sergon reduced an award of Kshs.600,000 to Kshs.350,000 in a case that had comparable injuries to the ones sustained by the Respondent herein.

17. Premised upon the analysis made hereinabove I am persuaded that the award made by the Adjudicator was excessive and therefore ought to be disturbed.

18. On the balance I do find that this appeal is meritorious and I therefore set aside the award on general damages of the sum of Kshs.600,000 and I substitute it with a sum of Kshs.400,000.

19. Each party shall bear its own costs.

DELIVERED, SIGNED AND DATED AT KISUMU THIS 10TH DAY OF NOVEMBER, 2023. MWANAISHA S. SHARIFFJUDGE