[2017] KEHC 1649 (KLR)
The High Court found that the lower court's award of Kshs. 1,100,000 in general damages for fractures of the left tibia and fibula was inordinately high compared to awards in similar cases. The court held that comparable injuries must attract comparable awards and that the trial court's award did not reflect the...
Source-derived case information.
- Citation
- [2017] KEHC 1649 (KLR)
- Parties
- Appellant: David Kariuki; Appellant: Budget Payless Car Hire & Tours; Respondent: Joshua Wambua Muthama
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 527 of 2014
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_partially_allowed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Assessment of Damages, Personal Injury, Quantum of Damages, Contributory Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
David Kariuki
Appellant
Budget Payless Car Hire & Tours
Appellant
Joshua Wambua Muthama
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the award of general damages by the lower court was excessive in light of the injuries sustained by the respondent.
- 2 Whether the lower court erred in law and fact by failing to consider relevant authorities and evidence in assessing damages.
- 3 Whether the appellate court should interfere with the quantum of damages awarded by the trial court.
Ratio Decidendi
The High Court found that the lower court's award of Kshs. 1,100,000 in general damages for fractures of the left tibia and fibula was inordinately high compared to awards in similar cases. The court held that comparable injuries must attract comparable awards and that the trial court's award did not reflect the limits established by precedent. The appellate court therefore reduced the award to Kshs. 800,000, subject to 25% contributory negligence, resulting in a net award of Kshs. 600,000. The respondent was entitled to costs and interest at court rates on the adjusted sum from the date of the lower court's judgment.
Court Disposition
appeal_partially_allowed
Orders
- The award of general damages is reduced from Kshs. 1,100,000 to Kshs. 800,000, subject to 25% contributory negligence.
- The respondent shall be entitled to costs and interest at court rates based on the adjusted figure from the date of the lower court's judgment.
Full Case Text
Judgment text and source record
23 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CIVIL APPEAL NO. 527 OF 2014
DAVID KARIUKI ………………….….. …………..…...1ST APPELLANT
BUDGET PAYLESS CAR HIRE & TOURS ………… 2ND APPELLANT
VERSUS
JOSHUA WAMBUA MUTHAMA ………………...…… RESPODNENT
(Being an appeal from the judgment on quantum of the Chief Magistrate’s Court at Milimani Civil Case No. 5470 of 2011 delivered on 5/12/2013)
JUDGMENT
This appeal addresses the issue of quantum, liability having been settled by consent at 75% against the appellants and 25% contributory negligence on the part of the respondent. Both parties have filed submissions which I have on record.
The respondent in the amended plaint pleaded that he suffered fracture of the left tibia and fibula and a deep abrasion of the right thigh. The lower court awarded Kshs. 1,100,000/= general damages for the injuries sustained by the respondent.
The appellants were aggrieved by the said award and lodged this appeal. In the memorandum of appeal filed herein the appellants faulted the lower court in awarding excessive general damages, disregarding the submissions made and also that the law relating to award of general damages was not followed. The lower court was also faulted for relying totally on the submissions of the respondent to write the judgment rather than the evidence presented.
There are two medical reports by Dr. Wokabi dated 25th September, 2011 and 6th November, 2012 respectively and one by Dr. R.P. Shah dated 25th January, 2013. The respondent had attained full recovery by August 2012. Comparable injuries should ordinarily attract comparable awards. The appellant cited the case of Florence Njoki Mwangi Vs. Peter Chege Mbitiru (2014) eKLR. The appellant sustained fracture of the right mid shaft femur, fracture of mid left femur where an award of Kshs. 700,000/= was made for those injuries.
In the present case however the injuries related to fracture of the left tibia and fibula. The respondent cited the case of Charles Mwania and another Vs. Batty Hassan (2008) e KLRwhere an award of Kshs. 800,000/= was made for fractures of tibia and fibula.The medical reports of Dr. Wokabi cited above portray the respondent as having gone through several rehabilitative procedures to address his injuries. He must have suffered a lot of pain and there is no evidence that the recommended surgery in the first report was ever undertaken.
Dr. R.P. Shah on the other hand in his report dated 25th January, 2013 observed that the respondent had attained full recovery and his permanent disability does not exceed 5%. There was no stiffness of any joint or significant deformity.
The appellate court may interfere with the award of the lower court if it is shown that it was too high or too low so as to give an erroneous estimate, or that the court took into account irrelevant matters and failed to take into account the relevant ones. Further, interference may be made to address an award which was erroneous, outrageous or clearly wrong. – see Kemfro Africa Limited Vs. A.M. Lubia & Another (1982- 88) 1KLR 727.
I have taken into account the submissions of counsel, cited authorities and the medical reports presented in evidence. I am persuaded that the award made by the lower court was inordinately high so as to reflect an erroneous estimate in the circumstances of this case. It was not within the limits reflected in decided cases of comparable injuries.
Accordingly, there is reason to interfere with the same which I hereby do by reducing the award of general damages from 1,100,000/= to Kshs. 800,000/= which shall be subjected to 25% contributory negligence leaving a balance of Kshs. 600,000/=. To that extent only, this appeal succeeds. The respondent shall be entitled to costs and interest at court rates based on the said figure from the date of the judgment of the lower court.
Orders accordingly.
Dated, signed and delivered at Nairobi this 15th Day of November, 2017
A. MBOGHOLI MSAGHA
JUDGE