[2023] KEHC 25345 (KLR)

Butala v Kianga (Civil Appeal E008 of 2022) [2023] KEHC 25345 (KLR) (16 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25345 (KLR)

Republic of Kenya

In the High Court at Kitale

Civil Appeal E008 of 2022

AC Mrima, J

November 16, 2023

Between

Humphrey Kwaya Butala

Appellant

and

Nelson Kianga

Respondent

(Being an appeal arising out of the judgment and decree of Hon. S.K Mutai (Principal Magistrate) in Kitale Chief Magistrate’s Court Civil Case No. 301 of 2021 delivered on 21st March, 2022)

Judgment

1. The appeal subject of this judgment is only against the quantum of damages. It arose from the judgment and decree in Kitale Chief Magistrate’s Court Civil Case No. 301 of 2021 Nelson Kianga vs. Humphrey Kwaya Butala (hereinafter referred to as ‘the suit’) which was delivered on 21st March, 2022.

2. Liability was decreed wholly against the Appellant herein, Humphrey Kwaya Butala, who was the Defendant in the suit.

3. Various exhibits were admitted by the consent of the parties and written submissions were subsequently filed.

4. The trial Court in its judgment rendered itself on quantum as follows:a.General damages are awarded at Kshs. 1,000, 000/=;b.Special damages awarded at Kshs. 1247, 770/=c.The Plaintiff has the cost of the suit and interest at court rates.

5. Being dissatisfied with the decision, the Appellant herein preferred an appeal vide a Memorandum of Appeal filed on 29th March, 2022.

6. The Appellant contended that the trial Court erred in adopting wrong principles and failing to consider the evidence adduced. As a result, it opined that the trial Court arrived and a grossly excessive award in general damages.

7. It prayed that this Court sets aside the award on general damages and to re-assess the general damages downwards and in any event between the sum of Kshs. 300,000/= to Kshs. 500,000/=. It also sought for the costs of the appeal.

8. Parties canvassed the appeal by way of written submissions.

9. The Appellant submitted that the award on general damages was manifestly excessive considering the injuries that the Respondent had sustained.

10. It was further submitted that the trial Court failed to have any regard to the submissions tendered by the Appellant and thereby arrived at an onerous decision.

11. The Appellant urged this Court to be guided by various decisions it cited in proposing a reduction of award on quantum.

12. The Respondent filed his submissions in opposition to the appeal. He urged this Court to uphold the trial Court’s findings and relied on various decisions as well to justify that the damages awarded in the sum of Kshs. 1,000,000/= was reasonable.

13. As the appeal is on quantum of damages, this Court reiterates that assessment of damages is generally a difficult task. A Court is supposed to give a reasonable award which is neither extravagant nor oppressive while being guided by factors including previous awards for similar injuries and the principles as developed by the Courts. However, what constitutes a reasonable award is an exercise of discretion and will depend on the peculiar facts of each case and an appellate Court must be slow to interfere with such an exercise of discretion. (See Butler vs. Butler (1982) KLR 277. )

14. The Court of Appeal in Kemfro Africa Ltd v A. M. Lubia & Another (1988)1 KAR 727 discussed the principles to be observed when an appellate Court is dealing with an appeal on assessment of damages. The Court expressed itself clearly thus: -The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.

15. This position was restated by the Court of Appeal in Arrow Car Limited -vs- Bimomo & 2 others (2004) 2 KLR 101 and also in Denshire Muteti Wambua -vs- Kenya Power & Lighting Co. Ltd (2013) eKLR.

16. This Court has carefully read and understood the gist of the appeal, the pleadings, the proceedings, the impugned judgment, the submissions and the judicial authorities referred to by the parties.

17. The main and only issue for consideration in this appeal is whether the award of Kshs. 1,000,000/= as general damages were reasonable going by the injuries sustained by the Respondent.

18. The injuries sustained by the Respondent were agreed in the two medical reports, each produced by the parties, as well as in the P3 Form. The injuries were as follows: -a.Compound fracture lower right tibia and fibulab.Soft tissue injury of the right hand with bruisesc.Soft tissue injury of the chest.

19. The Respondent sustained the above injuries on 25th March 2021. He was admitted at Cherangany Nursing Home for around one week. He underwent an open reduction surgery where a metal implant was placed and was still in situ at trial. He was put in POP for two months, immobilized on crutches and at the time of testifying before the trial Court, he was still undergoing physiotherapy. He also complained of inability to walk fast and swelling on the affected right leg. The Respondent was also off work for a couple of months.

20. According to the report by Dr. Z. Gaya, a Consultant Surgeon dated 12th October 2021, the metal implant would cost the sum of Kshs. 150,000/= to remove later. Further, the Respondent will develop very early post traumatic osteoarthritis of the right ankle joint as a result of the fracture. Permanent disability was assessed at 5%.

21. The P3 Form classified the injuries sustained as grievous harm.

22. Those are the injuries which the trial Court was satisfied were to be reasonable compensated at Kshs. 1,000,000/=.

23. This Court has considered the authorities referred to by the parties in support of their rival submissions both at the trial Court and before this Court. The decisions cited by the Appellant were particularly not very helpful since they referred to more severe injuries including fatal injuries.

24. The trial Court considered the decisions before it especially Teresiah Ngugi & Another vs. Michael Masia Kimende (2018) eKLR where the Learned Judge referred to several other decisions in deciding on a fair compensation in a matter where the claimant had sustained fairly similar injuries to the ones sustained by the Respondent herein. In that case, the Learned Judge awarded the sum of Kshs. 1,500,000/= as compensation. It is, however, to be noted that the claimant in the said case suffered a 7% permanent disability unlike the Respondent in this case whose permanent disability was assessed at 5%.

25. The Respondent in this case is still undergoing treatment and it will cost him at least Kshs. 150,000/= to undergo a surgical operation to removal the metal implant in his leg. (See the Court of Appeal in Tracom Limited & another vs. Hassan Mohamed Adan [2009] eKLR).

26. This Court has considered the nature and extent of injuries suffered, the nature and gravity of the resulting physical disability, the pain and suffering endured, the loss of amenities and the extent to which claimant’s pecuniary prospects were affected.

27. In view of the foregoing, the award of Kshs. 1,000,000/= made by the trial Court cannot be regarded as excessive.

28. Having found as such, the appeal is rendered unsuccessful and the following final orders do hereby issue: -

a. The appeal is hereby dismissed.b. The Appellant shall bear the costs of the appeal.Orders accordingly.

DELIVERED, DATED AND SIGNED AT KITALE THIS 16TH DAY OF NOVEMBER, 2023. A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Miss. Tuwei, Learned Counsel for the Appellant.Mr. Mukhabane, Learned Counsel for the Respondent.Chemosop/Duke – Court Assistants.