[1997] KECA 314 (KLR)
The Court of Appeal held that although the damages awarded to the appellants were low, they were not so inordinately low as to constitute a wholly erroneous estimate that would justify appellate intervention. The trial judge had properly evaluated the medical and oral evidence, correctly concluding that the injuries...
Source-derived case information.
- Citation
- [1997] KECA 314 (KLR)
- Parties
- Appellant: Jedida Alumasa; Appellant: Caleb Mwashi; Appellant: Selina Muduya; Appellant: Samwel Aluda; Respondent: S.S. Kositany
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 35 of 1997
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Legal Topics
- Assessment of Damages, Personal Injury, Soft Tissue Injuries
- Source Language
- en
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Summary, issues, holding and outcome
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Parties
Jedida Alumasa
Appellant
Caleb Mwashi
Appellant
Selina Muduya
Appellant
Samwel Aluda
Appellant
S.S. Kositany
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court misapprehended the evidence in assessing damages for the appellants' injuries.
- 2 Whether the damages awarded were so inordinately low as to warrant appellate intervention.
Ratio Decidendi
The Court of Appeal held that although the damages awarded to the appellants were low, they were not so inordinately low as to constitute a wholly erroneous estimate that would justify appellate intervention. The trial judge had properly evaluated the medical and oral evidence, correctly concluding that the injuries were mainly soft tissue and did not warrant a substantial award. The appellants were found to have exaggerated the degree of their injuries, and the trial judge's assessment was upheld as reasonable and within the proper exercise of judicial discretion.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
33 paragraphs
REPUBLIC OF KENYA
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: OMOLO & LAKHA JJ.A & BOSIRE AG. JA)
CIVIL APPEAL NO.35 of 1997
BETWEEN
JEDIDA ALUMASA
CALEB MWASHI
SELINA MUDUYA.................................APPELLANTS
SAMWEL ALUDA
AND
S.S. KOSITANY..................................RESPONDENT
(Being an appeal from the judgement of the High Court of Kenya at Nairobi (Mr Justice J. Mwera) dated the 3rd December, 1992
in
H.C.C.C. NO.4831 OF 1988)
JUDGEMENT OF THE COURT
The appellants are dismayed by the paucity of damages which were awarded to them on 3rd December, 1992, by Mwera, J. in High Court Civil Case No.4831 of 1988. The learned Judge considered the medical evidence which was tendered before him and the appellants' respective oral evidence but was of the view that the appellants were grossly exaggerating the degree of their respective injuries.
The appellants now complain that the learned trial Judge misapprehended the evidence and thereby arrived at an inordinately low estimate of damages.
It is trite law that this court will not interfere with an award of damages by the trial court unless he has either misapprehended the evidence, or omitted to take into account a relevant factor in assessing damages or took into account irrelevant factors.
We have considered all the evidence which was before the learned Judge as we are supposed to as a first appellate court. In our view, while we think that the damages which were awarded to the respective appellants are low, we do not think that they are so low as to represent a wholly erroneous estimate as will call for our intervention. The learned Judge evaluated all the evidence and in effect agreed with the medical evidence that the appellants' were mainly soft tissue injuries and did not call for a substantial award. Clearly the Judge was right as we also think the appellants were grossly exaggerating the degree of their injuries. They even thought the doctors who medically examined them had underestimated the degree of their injuries.
In the above circumstances this appeal has no merit. It is dismissed with costs to the respondent.
Dated and delivered at Nairobi this 31st day of October, 1997
R.S.C. OMOLO
............................
JUDGE OF APPEAL
A.A. LAKHA
...........................
JUDGE OF APPEAL
S.E.O. BOSIRE
..................................
AG. JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR