[2017] KEHC 1201 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MERU

CIVIL APPEAL NO. 28 OF 2015

FRIDAH NGUGI KINOTI ………..... APPELLANT

VERSUS

L K P ….……….……….....… 1ST RESPONDENT

R R M(minor suing thro’ mother and next friend)

L K P ……….………..……… 2ND RESPONDENT

(An Appeal from the Judgment and decree of the Hon. E. W. Wambugu, RM Delivered on 5th May, 2015 in Meru CMCC No. 70 of 2011)

JUDGMENT

1. The respondents were plaintiffs in Meru CMCC No. 70 of2011 L F P & Another v. Fridah NgugiKinoti. In a plaint lodged in that court, the respondents accused the appellant of having assaulted them on the 6th October, 2009 as a result of which they sustained injuries for which they suffered damages. They alleged that the appellant had been charged and convicted for the said assault. They therefore claimed special damages of Kshs. 21,200/- and general damages for pain, suffering and loss of amenities. In her defence, the appellant denied the claim by the respondents and put them to strict proof.

2. After trial, the trial court found for the respondents and entered Judgment for Kshs. 150,000/- and Kshs.70,000/- in favour of the 1st and 2nd respondents, respectively. Special damages of Kshs. 6,860/- were also ordered to be paid by the appellant. It is against that judgment that the appellant has appealed to this court raising four grounds which can be collapsed into three; namely, that the trial court erred in delving into matters that were not subject to the criminal case which was the cause of action; the trial court erred in relying on irrelevant authorities and that the damages awarded were excessive in the circumstances if this case.

3. In accordance with the principles in Selle v. Motor Boat Co. [1968] EA 123 this court is duty bound to re-evaluate the evidence and make its own deductions and conclusions however bearing in mind that the trial court had the advantage of seeing the witnesses and their demenour and therefore was in a better position to evaluate the veracity of their testimonies.

4. The respondent’s case before the trial court was that, on 6th October, 2009, the appellant invited her to her house to discuss about harvesting sorghum. That the appellant borrowed her phone and after scrolling, she entered her house and came out with a club with which she assaulted her and the child whom she was carrying at her back. The respondent accused her of having had a child with her husband. As a result of the assault, the 1st respondent sustained injuries on her forehead, left hand, right knee joint and the left temporal region while the 2nd respondent sustained injuries on the hand, eye and forehead. Pw2 was Dr. Mutuka Catherine who produced Dr. Macharia’s medical report which confirmed the injuries sustained by the respondents. The appellant did not call any evidence.

5. Mr. Kaumbi, learned Counsel for the appellant only submitted on the third ground. He submitted that the court should be guided by the seriousness and/or remoteness of the injuries suffered by a claimant in assessing monetary compensation to restitute the claimant; that the injuries suffered by the respondents were superficial; that they were treated with only pain killers; that they had healed within 48 hours; that the panel of elders had awarded the respondents only KShs.12,000/-. That in the circumstances, the awards of Khs.150,000/- and Kshs.70,000/- made in favour of the respondents were excessive. That the awards should have been KShs.10,000/-.

6. For the respondents, it was submitted that it had not been established that the awards made by the trial court were excessive; that the decision of the panel of elders was immaterial and that the respondents’ case was never challenged.

7. The first ground was that the trial court erred in delving into matters that were not subject of the criminal case which was the cause of action of the suit before it. This ground was not argued by Mr. Kaumbi. Be that as it may, this court has examined the trial courts judgment. After examining the evidence before it, the court found that the respondent had proved their case. That under section 47A of Evidence Act Cap. 80 of the Laws of Kenya,the appellant having been convicted of the offence of assault in the criminal case, she was liable to the respondents. The appellant did not specify which parts of the trial court’s judgment dealt with irrelevancies. This court on its part finds that the trial court did not deal with any irrelevant material in its consideration of the case before it.

8. As regards the second ground that the awards were manifestly excessive, this court reminds itself the parameters of its jurisdiction in such matters as set in Butt v. Khan [1981]KLR 349where the Court of Appeal held:-

“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”.

9. In Kenya Bus Services Ltd v. Gituma [2004] 1 EALR 91,the Court of Appeal held:-

“In this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or for any other reasons the award was so inordinately high or low as to represent a wholly erroneous estimate of the damages…”.

10. According to PExh 4(a) and (b) which were medical reports dated 6th June, 2011 by Dr. I. M. Macharia, the 1st respondent suffered bruises on the right side of the face, forehead, right hand and knee joint while the 2nd respondent suffered tenderness on the left temporal region and injury on the left eye. The injuries were treated and fully healed without any permanent incapacitation. In this appeal, the appellant did not show how the awards were either excessive or erroneous. It was also not demonstrated that the cases the trial court relied on were so misplaced as to arrive at a wrong assessment of damages.

11. In Kenya Bus Services Ltd v. Mary Olando [2013 eKLR the plaintiff sustained soft tissue injuries on the left shoulder joint, left forehead and on her left hip joint. An award of Kshs.140,000/- was made. In Munza Investment CompanyLtd v. Makau Mwonewa [2012] Eklr,the plaintiff sustained blunt injuries on the neck, shoulder, left leg, left hand and right hip joint. An award of Kshs.160,000/- was made. The injuries in these cases were more or less similar to the ones in the case before the trial court. The awards of Kshs.150,000/- and Kshs.70,000/- in this regard cannot be said to be manifestly excessive.

12. Accordingly, I find the appeal to be without merit and dismiss the same with costs.

DATEDand DELIVERED at Meru this 7th day of December, 2017.

MABEYA

JUDGE