[2022] KEHC 27057 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT HOMA BAY

CIVIL APPEAL NO.42 OF 2019

BETWEEN

CALEB OMONDI AJOWI..........................................................................APPELLANT

AND

DICKENS ODHIAMBO OCHAR............................................................RESPONDENT

(Being an Appeal from the judgment in Homa Bay Chief Magistrate’s

CMCC No. 127 of 2016 by Hon. S. Ndegwa– Principal Magistrate).

JUDGMENT

1. Caleb Omondi Ajowi, the appellant herein, was the defendant in Homa Bay Chief Magistrate’s CMCC No. 127 of 2016. This was a claim that arose from a road traffic accident involving motor vehicle registration number KBN 805s owned by the appellant and a motor cycle registration number KMDP 626V in which the respondent was a pillion passenger. The learned trial magistrate delivered judgment dated 10th May, 2019. She made an award of Kshs. 1,000,000. 00 in general damages in favour of the respondent.

2. The appellant was aggrieved by the said judgment and filed this appeal. He was represented by the firm of Mose, Mose & Milimo & Company Advocates. He raised four grounds of appeal as follows:

a) The learned magistrate erred in law in making a finding of excessive damages against the defendant.

b) The learned trial magistrate erred in law and fact in holding that the defendant was 20% liable for the excessive damages so awarded or at all in the absence of any concrete evidence to demonstrate the same.

c) The learned trial magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendant to general damages of Kshs.1, 000,000/- without concrete documentary evidence.

d) The learned trial magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant thereby arriving at a wrong and erroneous conclusion condemning the defendant to net damages of Kshs.1,000,000/-.

e) The learned trial magistrate erred in law and fact in failing to appreciate the long established principle of stare decisis, precedent law thus bringing law into confusion and thereby deriving an erroneous finding/conclusion, in particular relating to damages.

f) The learned trial magistrate erred in law and fact in failing to appreciate that the plaintiff’s pleadings and the evidence tendered in support thereof was incapable of sustaining the excessive award of damages

g) The learned trial magistrate erred in law and fact in entering judgment in favour of the plaintiff against the defendant in spite of the plaintiff’s miserable failure to establish his case more especially on quantum.

h) The learned trail magistrate erred in law and fact in failing to appreciate the legal position to be considered. The court award is unsustainable and baseless in the circumstances.

3. The appeal was opposed by the respondent through the firm of Gembe Capis Omollo & Company Advocates. It was argued that the appeal was incompetent for failure to comply with the mandatory provisions of the law.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. On 8th September 2020 the appellant filed a supplementary record of appeal that contained the decree. By then, the appeal had not been admitted. It was admitted on 15th September, 2020. The appellant did not therefore, need to apply for leave to file the supplementary record of appeal. The appeal is therefore properly before court.

6. The parties herein entered consent on liability on 30th July, 2018. The consent was recorded at the ratio of 80:20 in favour of the respondent. The appellant cannot be allowed to turn around and attribute the same to the trial court.

7. Parties having agreed on liability and recorded a consent on the same, the trial court had only one task; assessing the quantum of damages. It is trite law that an appellate court will only interfere with an award of the trial court if certain circumstances are satisfied. In Butt vs. Khan [1981] KLR 349at page 356 Law JA stated:

…an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived a figure which was either inordinately high or low.

8. The respondent as a result of the complained of accident sustained the following injuries:

a) Brain concussion, lost conscious for more than 1 hour.

b) Contusion on the forehead leading to hematoma and hyper-pigmentation.

c) Cut wound on the parietal area.

d) Contusion on the occipital area.

e) Contusion on the right pelvic area.

f) Blunt trauma to the right shoulder joint/girdle.

g) Multiple lacerations and cuts on the right elbow area.

h) Sub location of the right elbow joint.

i) Multiple lacerations on both hands and fingers.

j) Lacerations on both knees.

k) Friction burn on the right mid-3rd leg.

l) Contusion on the right ankle joint.

9. In the trial court, the appellant made a proposal of Kshs. 100, 000. 00 while the respondent made a proposal of Kshs.1, 000,000. 00. Each party cited decided cases to support their proposal.

10. Dr. Ogando Zoga who examined the respondent opined as follows:

Following the road traffic accident Dickens sustained a head injury which is likely to complicate with post traumatic epilepsy.

Also sustained multiple severe soft tissue injuries which are likely to heal with permanent disfiguring scars.

This prognosis coupled with the injuries sustained informed the trial court in assessing damages. I have had the advantage of perusing the cited cases. My opinion is that I have not been persuaded to interfere with the award by the trial court.

11. The appeal is therefore dismissed with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 1ST DAY OF MARCH, 2022

KIARIE WAWERU KIARIE

JUDGE