[2019] KEHC 4731 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NUMBER 15 OF 2013

BILDAD MANTHI STEPHEN....................................................APPELLANT

VERSUS

JOSEPH NDUNGU.............................................................1ST RESPONDENT

JAMES KUNGU NJUGUNA............................................2ND RESPONDENT

(Being an appeal from the Judgment of the Honourable F W Andayi (SPM) at Nairobi on 21st December, 2012 in Milimani CMCC No. 511 of 2011. )

J U D G M E N T

In this appeal the Appellant challenges the judgment by the trial court on the assessment of damages which is impugned as being too low to amount to an erroneous exercise of discretion on the task of assessment of damages.

In the judgment appeal against the trial court is coming to its decision remarked and held: -

“Counsel for P submits for an award of Ksh.600,000/- in general damages for pain suffering and loss of amenities while counsel for D proposes ksh.100,000/-. The following decisions have been cited for my guidance.

1. Yunis Malid Vd Eliud Muriithi & another, Nakuru HCCC No. 354 of 2000.

2. Francis Mwangi Muchine Vs Francis Kimani Mbugua, Nairobi HCCC No 2637 of 1994.

I have considered each of these decisions and the awards made for the respective injuries and I find the most relevant ones to the current case to those of Francis Mwangi Muchine. The injuries sustained compare quite well with those sustained by P in the present case. They were fracture of the left humerus and fracture of the left tibia and fibular. The award there was Kshs.100,000/- by Ang’awa J in 2001. Taking into account the P’s injuries sustained herein, the effluxion of time and the incident of inflation, I do find that an award of Ksh.120,000/- would be adequate compensation for the P’s pain, suffering and loss of amenities. I award him that sum. Specials damages of Ksh.9,705/- for the medical expenses, copy of records and medical report were pleaded and proved. These are awarded. The claim for Ksh.200/- for the police abstract was not proved as no receipt for payment was produced and this is rejected.

In the result, judgment is entered for the P against the D1 and D 2 jointly and severally in the sum of Ksh.129,705/- together with costs and interest.”

That decision followed from the analysis of the injuries suffered which was accepted to have been fracture of the 3rd of Right tibia and fibula and soft tissue of the surrounding areas. As a result of the injuries, the doctor, in his evidence and the medical report produced said that the appellant was left with ‘chronic disabling pain on the affected areas resulting in permanent weakness of the right leg.’

Now that judgment is being faulted by the appellant for having made an award that was too low as to amount to all erroneous estimate of damages. In effect the Appellant contends that the award does not meet the purpose of award of damages in a personal injury claims which is to compensate the injured without necessarily enriches him and never to punish the tortfeasor.[1]

I proceed from the stand point that it is not open for an appellate court to freely and in a Willy willy manner interfere with the discretion of

In this appeal, the only question I have to pose and provide an answer is whether or not the damages assessed by the trial court was just in the circumstances of the case. That the court is duty bound by law to re-examine the evidence let at the trial in full so that it executes it’s mandate to proceed by way of a re-trial. I have executed that mandate and I note that the trial court was cited to binding decisions of the High Court by both sides. In its determination the trial court considered, as it was its right to do, and preferred to be guided by a decision in one of the five case cited while making no referred to three others cited by the Respondents. While I remind myself that the task of assessment of damages is a difficult one and invokes the discretion of the court, I am also if the learning that the days of mean and low awards are long gone by.[2]

Looking at the injures of the Appellant and their residual effect, even with the dates of the decisions, the trial court relied upon, I do find that the assessed damages were too low and cannot escape being termed too mean as to be unable to serve the purpose of award of general damages in personal injury claims. I find that this is case for the court to interfere, not because it would have made a different assessment held it sat at trial, but because the award is deemed and adjudged too low as to demonstrate a wholly erroneous approach to the task and duty of assessment of damages.

Being of such view, I do set aside the award of Ksh.120,000/- and in its pace substitute an award of Ksh.200,000/- being damages for pain suffering and loss of amenities.

The appeal having succeeded, I do award the costs, thereof to the Appellant.

Dated, signed and delivered at Nairobi this 1st day of July, 2019.

P J OTIENO

JUDGE

[1] Cuossens Vs Attorney General [1999] IEA 40

[2] Mohamed Juma Vs Kibiya Glass CA Cr 1 of 1986