[2023] KEHC 24924 (KLR)

Coast Bus (Mombasa Limited) v Wafukwa (Civil Appeal 18 of 2021) [2023] KEHC 24924 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24924 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 18 of 2021

SM Githinji, J

November 6, 2023

Between

Coast Bus (Mombasa Limited)

Appellant

and

Fedlam Mzae Wafukwa

Respondent

(Being an Appeal against the Judgment delivered by the Honourable N.C.Adalo – SRM delivered on 9th March, 2021 in Mariakani PMCC No.109 of 2018)

Judgment

1. This appeal arises from the judgment and decree of Honourable N.C Adalo (S.RM) delivered on 9th March 2021 in Mariakani CMCC No. 109 of 2018 wherein judgment was entered in favour of the respondent herein where she was awarded a sum of Kshs. 302,000 as damages arising out of a RTA with liability apportioned at 40 % against the respondent and 60% against the appellant.

2. Dissatisfied with the decision, the appellant instituted the instant appeal on the following grounds;a.The learned trial magistrate erred and misdirected herself by proceeding on wrong principles when assessing damages to be awarded to the respondent if any and failed to apply the tenets of the law applicable.b.The learned trial magistrate erred and misdirected herself by awarding a sum in respect of damages which was inordinately high in the circumstance occasioning a miscarriage of justice.c.The learned magistrate erred in law and fact by failing to adequately evaluate the evidence and exhibits and thereby arrived at a decision unsustainable in law.

Evidence at Trial 3. Pw1 Number xxxx PC Ann Wambui told the court that the plaintiff had been involved in a road traffic accident on 2/09/2017 at Mazeras along Mombasa-Nairobi road while he was a pedestrian.

4. Pw2 Fedlam Mzae Wafukwa, the plaintiff, adopted his witness statement dated 5/4/2018. He added that he had been involved in an accident on 2/9/2017 after being hit by motor vehicle Registration No. xxxx after which he lost consciousness and sustained injuries on the elbows, shoulders, back and knee.

5. The defendant did not testify nor call any witnesses.

Analysis and Determination 6. The appeal was canvassed by way of written submissions. I have considered this appeal, submissions by parties and the authorities relied on. I have also perused the trial court’s record and the impugned judgment. This being a first appeal, it is by way of a “retrial”, where parties are entitled to this court’s reconsideration, reevaluation and reanalysis of the evidence on record in order to reach at its own independent conclusion. The court need however to bear in mind that the trial court had the advantage of seeing the witnesses testify and give due allowance for that.

7. In Williamson Diamonds Ltd and another v Brown [1970] EA 1, the court held that:“The appellate court when hearing an appeal by way of a retrial, is not bound necessarily to accept the findings of fact by the trial court below, but must reconsider the evidence and make its own evaluation and draw its own conclusion.”

8. The issue for determination here is whether the award of general damages of Kshs. 300,000/= in light of the injuries stated above is inordinately high to warrant this court interfere with it. The Court of Appeal in Odinga Jacktone OumavMoureen Achieng Odera (2016) eKLR stated that “comparable injuries should attract comparable awards”.

9. To begin, the injuries suffered by the appellant were listed in the treatment notes, the P3 form and the medical report by Dr. Ajoni Adede as:a.Blunt object injury to the neck, right shoulder and both elbowsb.Multiple bruises on the head

10. On the issue of quantum, I do rely on the Court of Appeal’s decision in the case of Gitobu Imanyara & 2 Others v Attorney General (2016) eKLR, where the Court of Appeal held that –“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v Khan [1981] KLR 349 when it held as per Law, J.A that:‘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 at a figure which was either inordinately high or low.”

11. I have considered the medical report prepared by Doctor Ajoni Adede where he opined that the respondent suffered multiple soft tissue injuries with no permanent disability anticipated.

12. An award of general damages is always at the discretion of the trial court. That discretion must however be exercised judiciously, in accordance with the law. The mandate of an appellate Court to interfere with damages awarded by a trial court is not unlimited and must be confined to certain circumstances.

13. I have had an opportunity to go through the authorities availed by both parties to the trial Court supporting their respective proposals on quantum. I note that the injuries sustained by the Respondent though soft tissue were of severe nature going by the medical report by the doctor. I further note that learned trial magistrate in her judgment clearly indicated that he had considered the submissions made by the defendant but plaintiff’s submissions were not on record at the time of writing her judgment. She weighed the nature of the injuries sustained and cost of inflation in awarding Kshs. 300,000/= as sufficient compensation for the injuries sustained.

14. Given the evidence on record, I find no fault in the learned trial magistrate’s award for general damages, considering the injuries that were suffered by the Respondent in the instant case. I am of the considered view that the finding of the Learned Magistrate is well within the acceptable limits, informed by the nature and gravity of the injuries suffered by the Respondent. The appeal is therefore in want of merit and is hereby dismissed with costs to the Respondent.

JUDGMENT READ, SIGNED AND DELIVERED VIRTUALLY AT MALINDI THIS 6TH DAY OF NOVEMBER, 2023. ...................................S.M. GITHINJIJUDGEIn the Presence of; -1. Mr Njuguna for the Appellant2. Mr Opalo for the RespondentMr Njuguna;-I pray for 30 days stay.Court ; - 30 days stay is granted..................S.M. GITHINJIJUDGE6/11/2023