[2022] KEHC 1353 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL APPEAL NO. 76 OF 2020(E 22/2020)

ANTHONY NYAMWEYA.............................................................................................APPELLANT

VERSUS

DORCA GESARE MOUNDE.....................................................................................RESPONDENT

(Being an appeal from the judgment written by Honourable S.K Onjoro, SRM

deliveredon 13th December2019 in Kisii CMCC No 619 of 2016)

JUDGMENT

1. This is an appeal against the assessment of quantum in a personal injury claim filed by the respondent. The appellant has raised the following grounds challenging the finding of the subordinate court:

1. The learned trial magistrate erred in law and in fact by failing to consider and appreciate the applicable principles in assessment of damages and thereby arrived at an excessive and unjustified award.

2. The learned trial magistrate erred in law and in fact in awarding Kshs. 750,000/ = as general damages for pain and suffering which amount was high, unjustified and contrary to the evidence on record.

3. The trial magistrate erred in law and in fact by failing to consider the appellant’s evidence on quantum specifically that there was no loss of teeth thereby arriving at an excessive award.

4. The learned trial magistrate erred in fact and in law in relying on extraneous circumstances not supported by the evidence on record.

2. According to the plaint filed before the lower court, the respondent was a passenger travelling along Kisii- Nyamira road in motor vehicle KAS 981N driven by the appellant on 3rd June 2016 when the vehicle collided with motor vehicle registration No. KAX 971V.

3. The respondent claimed that the accident was caused the negligence of the appellant and as a result of the accident, she sustained the following injuries:

a) Swollen knee joint tender on palpation

b) Loss of 3 upper teeth

c) Loss of 3 lower teeth

d) Bruises on the left neck.

4. The trial magistrate after conducting a full trial found that appellant was 50% liable for the accident. He proceeded to award the plaintiff Kshs. 750,000/- as general damages.

5. At the hearing of the appeal the court directed that the appeal be disposed of by way written submissions. The court further directed the parties to file their respective submissions and both parties complied.

6. The only issue raised in this the appeal is on quantum as the appellant argues that general damages awarded by the subordinate court were high, unjustified and contrary to the evidence on record.

7. I am alive to the well-known principle that for an appellate court to interfere with an award of damages, it must be shown that the trial court, in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that a wrong principle of law was applied (see Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5).

8. The injuries sustained by the respondent were not disputed. According to the plaint, the respondent had a swollen knee that was tender on palpation, and had lost 6 teeth.

9. The appellant submitted that the respondent sustained soft tissue injuries and an award of Kshs 100,000/- was sufficient. He relied on the cases of George Kinyanjui t/a Climax Coaches & Another v Hassan Musa Agoi [2016] eKLR; James Nganga Kimani & Another v Giachagi Njoroge & 2 Others [2019] eKLR; George Mugo & Another v AKM (minor suing through next friend and mother of ANK [2018] eKLR; and Michael Okello v Pricilla Atieno [2021] where the plaintiffs sustained various soft tissue injuries and awards on general damages were ranging between Kshs. 90,000 to 250,000/-.

10. The respondent cited the case ofPatrick Kamuya & Another v Asaph Gatundu Wanjiku [2016] eKLR. In that case the plaintiff suffered a closed fracture; he lost the 1st and 2nd incisor teeth on the lower right jaw; he also broke the 1st and 2nd incisor teeth on the lower left jaw; and finally, he sustained a blunt injury to the 1st and 2nd incisor teeth on the upper right jaw. The plaintiff was awarded Kshs. 500,000/- as general damages.

11. The cases cited by the appellant are of plaintiffs with less severe injuries to those sustained by the appellant herein. The respondent on the other hand relied on a case where the injuries sustained were more serious when compared to her injuries noting that she did not have any fracture.

12. In the case of BK Suing Thro’ His Mother and Next friend EM v Wilson Gitari Mburugu [2020] eKLR the plaintiff who was a minor aged 5 ½ years sustained soft tissue injury to the thorax, abdomen as well as on his upper and lower limbs; severe injuries to the maxilla and mandible resulting to loss of five (5) teeth with cut on the lip.

13. The court upheld the award of Kshs 400,000/- for general damages. In this case the respondent at the time of accident was 55 years old and lost 6 teeth and sustained soft tissue injuries. The plaintiff in BK Suing Thro’ His Mother and Next friend EM v Wilson Gitari Mburugu was of tender years and the probability of the lost teeth growing back was high unlike in this case where the respondent has suffered permanent disability. I therefore find that an award of Kshs 600,000/- would be sufficient.

14. I therefore set aside the award of general damages and substitute the same with an award of Kshs. 600,000/- as general damages. Special damages of Kshs 17,670/- was proved and not contested in this appeal. The general damages shall accrue interest at court rates from the date of judgment in the lower court, while interest on special damages will accrue from the date of filing suit at court rates till payment in full.

15. The appellant shall have costs of this appeal.

DATED, SIGNED AND DELIVERED AT KISII THIS 10TH DAY OF MARCH 2022.

R. E. OUGO

JUDGE

In the presence of:

Mr. Ng’ang’a For the Appellant

Respondent Absent

Kevin Court Assistant