[2018] KEHC 1620 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT KAKAMEGA

CIVIL APPEAL NO. 41 OF 2017

DAVID ABDALLA TIEGO.............................................................1ST APPELLANT

KISAKA JOHN GEDION T/A PRINCE BUS SERVICES.........2ND APPELLANT

NATIONAL INDUSTRIAL CREDIT LIMITED.........................3RD APPELLANT

VERSUS

IRENE TAGO MARANDA................................................................RESPONDENT

(An appeal arising from the judgment and decree of the Hon. B. Ochieng, Chief Magistrate in Kakamega CMCCC No. 134 of 2015 of 15th March 2017)

JUDGMENT

1. The appellant lodged herein a memorandum of appeal dated 7th April 2017, in which it was averred that the trial court had treated the evidence and submissions on quantum superficially and thereby came to the wrong conclusions thereon, had failed to analyse the authorities submitted as against the injuries suffered by the respondent, had not considered the evidence tendered in totality, had proceeded on the wrong principles when assessing the awards of damages to be made and had made an award that was inordinately high in the circumstances. It is sought that the said decision of the lower court be aside and substituted with an award that is appropriate.

2. This is a first appeal and I am conscious of the requirement pronounced in Selle vs. Associated Motor Boat Company Limited (1968) EA 123, that in a first appeal the court is obliged to reconsider the evidence, assess it and make appropriate conclusions about it, remembering that it has not seen or heard the witnesses and making due allowance for that.

3. The respondent’s injuries, as recorded in her plaint dated 8th April 2015, were cut wound, loss of right 2nd premolar tooth in the lower jaw, blunt injury on the head, blunt injury to the chest and blunt injury on the right ankle. At the hearing on 24th August 2016, the respondent did not recite the injuries that she suffered, instead she had referred to her treatment notes and the medico-legal report prepared by her doctor. The medical treatment notes from Provincial General Hospital –Kakamega, dated 3rd May 2012, described her injuries as being to the soft tissues around the right eye. The medico-legal report by Dr. Charles M. Andai of Lubinu Medical Clinic, dated 18th October 2012, records that she had a cut wound on the face, blunt injury to the head, loss of right 2nd premolar tooth of the lower jaw, and blunt injury to the chest. She was admitted in hospital for three days. The doctor opined that the respondent had suffered serious dental and soft tissue injuries. His prognosis was that she would recover fully with no resultant incapacity.

4. The trial court made an award of Kshs. 300, 000. 00 general damages for pain and loss of amenities. The court did not cite any authorities to justify the award. I note though that the respondent had proposed an award of Kshs. 600, 000. 00 but did not cite any authority. The appellants had cited the decision in Wambaira and 47 others vs. Kiogora and 2 others (2001) eKLR, where the court had awarded figures ranging from Kshs. 50, 000. 00 to Kshs. 100, 000. 00, where the case involved eighteen (18) plaintiffs. The said decision of the Court of Appeal had been made on 17th December 2004, and Mokaya Mochama vs. Julius Momanyi Nyokwoyo(2013) eKLR decided in 2013, where an award of Kshs 70, 000, was made for soft tissue injuries which included loss of consciousness and a cut wound.

5. The parties have urged the appeal by way of written submissions. I have perused through them, together with the attached authorities, and noted the arguments made therein.

6. I have looked at the record before me. I have noted that the injuries sustained by the respondent were strictly soft tissue. The medico-legal report refers to loss of a tooth, but the treatment notes are silent on that. The prognosis by the doctor says that there would be full recovery with no permanent incapacity, yet loss of a tooth by an adult is a permanent incapacity as there is no prospect that the tooth would regrow. I note though that the injuries were serious enough to necessitate admission in hospital for three days.

7. In view of the foregoing, I find that the appellants have demonstrated that the trial court did fall into error in making the award of damages that it did make in the case before it. I shall accordingly set aside the award of general damages of Kshs. 300, 000. 00 and substitute the same with an award of Kshs. 150, 000. I shall allow the appeal to that extent. There shall be no order on the costs of the appeal. As well of the suit below. The parties have a right of appeal to the Court of Appeal, within the next twenty-eight (28) days of date of delivery of this judgment, should they be aggrieved by the same.

DATED, SIGNED and DELIVERED at KAKAMEGA this 3RD DAY OF DECEMBER, 2018

W. MUSYOKA

JUDGE