[2022] KEHC 1801 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NYAMIRA

CIVIL APPEAL NO. E046 OF 2021

ANTHONY NYAMWAYA..........................APPELLANT

- VERSUS -

JACKLINE MORAA NYANDEMO.......RESPONDENT

{Being an appeal against the Judgement of Hon. M. C. Nyigei - PM Nyamira dated and delivered on the 26th day of May 2021 in the original Nyamira Chief Magistrate’s Court Civil Case No. 174 of 2016}

JUDGEMENT

1. The appeal before me is on the quantum of damages which the Learned trial Magistrate awarded to the plaintiff. It was the contention of the appellant that the award of Kshs. 250,000/- as general damages, was excessive in the circumstances of the case.

2. The appellant was of the view that the trial court had failed to pay regard to the authorities he had cited. As a result, the appellant believes that the trial court did not benefit from relevant authorities which could have provided guidance in determining the appropriate quantum of damages.

3. In her judgement the Learned trial Magistrate made reference to the authorities cited by both parties. The trial court then stated as follows: -

“I have had the opportunity to read the decisions relied on by the parties. The two deal with soft tissue injuries but the severity and intensity of the injuries differ, as the case relied upon by the plaintiff presents more severe injuries, whereas that of the defence has moderate injuries. I shall be guided by the case ofHassan Farid & another v Sataiya Ene Mepokari & 6 others [2018] eKLR, and award the plaintiff Kshs. 250,000. 00 in General Damages subject to 30% contribution, giving a sum of Kshs. 175,000. 00. ”

4. In a nutshell, I find that it was incorrect to accuse the trial court of failure to give any consideration to the submissions made by the appellant. My said finding is not just based on the fact that the Learned trial Magistrate had stated on the record, that she had given consideration to the submissions, including the authorities cited: I find that the findings by the trial court definitely reflects due consideration that was accorded by the trial court, to the submissions made before it.

5. It is well settled that when an appellate court was called upon to set aside an award on quantum, the court must be slow to substitute its own view for that of the trial court.

6. An appellate court ought to set aside an award if it is satisfied that the trial court had acted on wrong principles when assessing the compensation. When the appellant demonstrated to the appellate court that the award was either so low or so high that it can only have been based upon wrong principles, then the decision of the trial court would be set aside.

7. Whenever a court was called upon to determine the appropriate quantum of compensation, the court must take into account the awards in other cases which are comparable to the case before it.

8. The trial court must refrain from taking into account any irrelevant factors; and it must take into account all the relevant factors.

9. In this case the respondent sustained the following injuries:-

a. Rugged cut wounds on the temporal region of the head.

b. Tenderness on the neck.

c. Tenderness on the anterior chest.

d. Tenderness on the lower back.

e. Tenderness on the shoulders.

f. Swelling and tenderness on the right hand.

g. Bruises on right index finger.

h. Swelling, tenderness and bruises on both legs.

10. Based upon those injuries, the appellant invited the trial court to award Kshs. 90,000/- as general damages. In support of its submissions, the appellant cited the case of Godwin Ireri v Franklin Gitonga [2018] eKLR. In that case, the plaintiff had sustained the following injuries: -

i. Contusion on the neck, posteriorly

ii. Blunt trauma to both shoulders and lower back.

iii. Bruises on the left arm and hand.

iv. Contusion on the chest.

v. Bruises on the right knee, posteriorly.

vi. Contusion on left midleg; and

vii. Sublaxation of left ankle.

11. When awarding compensation, the Learned trial Magistrate noted that the authority cited by “defence has moderate injuries.”

12. I do share the said views of the trial court. Therefore, the decision ought to have been an appropriate guide in assessing the compensation.

13. In Kenya Power & Lighting Co. Ltd v Mary Akinyi, HCCA No. 72 of 2007, Korir J upheld the award of Kshs. 350,000/- as general damages for the following injuries: -

a. Deep cut wound on the calf muscles of the left leg;

b. Laceration on the right knee and right shoulder;

c. Contusion on the chest.

14. In that case the doctor concluded that the plaintiff had suffered 20% permanent disability. To my mind, the degree of permanent disability in that case, makes it distinguishable from the case before me.

15. Meanwhile in the case of Poa Link Services Co. Ltd & Another v Sindano Boaz Bonzemo, HCCA NO. 17 OF 2019, Riechi J upheld the general damages of Kshs. 350,000/- for the plaintiff, who had sustained the following injuries: -

a. Blunt injury to the chest.

b. Bruises to lower abdomen.

c. Bruises of the right hip joint.

d. Bruises of the thigh; and

e. Bruises on the knee.

16. Those injuries were largely comparable to those sustained by the respondent in this case.

17. I have now given due consideration to the authorities cited. In my considered opinion, the trial court struck a very reasonable balance between the competing authorities. Therefore, I find no reason to warrant an interference with the award of Kshs. 250,000/- as general damages.

18. In the result, the appeal fails, and is dismissed.

19. Costs of the appeal shall be paid by the appellant, to the respondent.

DATED, SIGNED AND DELIVERED AT NYAMIRA THIS 3RD DAY OF MARCH, 2022

FRED A. OCHIENG

JUDGE