[2023] KEHC 26001 (KLR)

Godhana v JMN (Minor Suing Through Next Friend JKK) (Civil Appeal E002 of 2021) [2023] KEHC 26001 (KLR) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 26001 (KLR)

Republic of Kenya

In the High Court at Garissa

Civil Appeal E002 of 2021

JN Onyiego, J

November 10, 2023

Between

Osman Godhana Wario alias Osman Godhana

Appellant

and

JMN (Minor Suing Through Next Friend JKK)

Respondent

Judgment

1. Vide a plaint dated 19. 06. 2019, the plaintiff (respondent) herein averred that on or about the 06. 11. 2018 at around 03. 30 p.m., he was a lawful fare paying passenger in motor vehicle registration number KAV 502D at Madogo area near Total Petrol station, when the respondent and/or his employee, servant, agent and /or authorized driver so carelessly and negligently drove, managed and/or controlled motor vehicle registration number KAV 502D whereof he caused and/or permitted the same to lose control and violently overturned consequences whereof the respondent sustained severe injuries.

2. The particulars of generalized negligence were stated as follows; driving at an excessive speed in the circumstances; failure to keep proper look out while driving; failure to exercise reasonable due care and attention as a driver in the circumstances; failure to brake in time so as to avoid the accident; failure to swerve or take any evasive action to avoid the accident; driving a defective motor vehicle;

3. Particulars of injuries sustained were listed as follows; severe tenderness and multiple bruise wounds over the left elbow region; visible deformity of the left elbow joint; not to move left arm and left elbow joint dislocation. Consequently, he claimed KES 5,000 as special damages and KESA 500 as the cost for obtaining copy of records.

4. The respondent entered appearance and further filed a defence dated 15. 08. 2019 wherein he denied the occurrence of the accident on the material day and that the respondent sustained injuries as pleaded in the plaint. He also denied the particulars of special damages as pleaded by the respondent. Further, he denied every allegation attributed to him and thus put the appellant to strict proof thereof.

5. The trial magistrate after considering the facts and evidence adduced before him, reached a determination awarding the respondent an amount of Kes. 400,000/= in general damages, special damages of Kes. 5,500 and the costs of the suit.

6. Dissatisfied with the said judgment; the appellant listed seven (7) grounds of appeal in the memorandum of appeal dated 05. 03. 2021 which I will summarize as follows; the learned magistrate erred both in law and fact by not considering the appellant’s submissions; the trial court erred by finding the appellant 100% liable; learned magistrate erred in law and fact by awarding the sum of KES 400, 000 as general damages and KES 5,500 special damages; the trial court failed to consider the appellant’s submissions on quantum; the trial court unduly disregarded the appellant’s authorities while relying on the respondent’s irrelevant submissions; the trial court erred by misdirecting itsel on the nature of the injuries suffered;

7. Directions were given that the appeal be disposed off by way of written submissions. On their part, the appellant filed his submissions on 19th June 2023 through the firm of Kimondo Gachoka Advocates while the respondent filed his on 22nd September 2023 through the firm S.N.Ngare and company advocates.

8. The appellant submitted that the assessment of quantum of damages in a claim for general damages is discretionary and that the law has set dimensions for the exercise of discretion. That such discretion should be exercised judiciously with guidance upon some legal principles. The appellant argued that the general damages as awarded by the trial court was high given that the respondent suffered soft tissue injuries. To that end, support was placed in the case of Michael Okello v Priscilla Atieno [2021] eKLR to buttress the position that a court of law can set aside the award of damages which is erroneously awarded. That when compared with the quoted cases, an amount of Kes. 80,000/- would be sufficient in the circumstances herein.

9. The court was further referred to the holding in the case of Godfrey Wamalwa Wamba & another v Kyalo Wambua 2018) e KLR where it was stated that damages must be within the limits set out by decided cases and within the limits which the Kenyan economy can afford. Further reference was placed in the case of George Mugo & another v AKM (minor suing through next friend and mother of A.N.K(2018) where Kiemei J awarded kshs 90,000 for soft tissue injuries.

10. Learned Counsel further made reference to the case of Godwin Ireri vs franklin Gitonga (2018) e KLR where the accident victim was awarded KES 300,000 by the trial court but reduced to KES 90,000 by the court of appeal in respect to injuries related to a cut on the scalp and forehead, swelling on the dorsum of the left foot and a bruise on the left knee.

11. In reference to costs, it was urged that the same follows the event and as such, reliance was placed on Section 27 of the Civil Procedure Act. The appellant urged this court to find in his favour and thereafter award him costs of the appeal.

12. On his part, the respondent opposed the appeal thus stating that the appeal is devoid of merit. Learned counsel made reference to several authorities to buttress the point that the award made by the learned magistrate was reasonable hence no need to interfere with it. To support the position that the damages awarded were reasonable in the circumstances, the court was referred to the holding in the case of Jeremiah Masake Kinyumu & another vs Onesmus Musyoka Muatha (2013) e KLR where the high court affirmed an award of Kes 600, 000 for soft tissue injuries and dislocation of the left shoulder. Unfortunately, counsel did not attach any of his authorities hence the court did not have the opportunity to peruse them.

13. I have considered the grounds of appeal herein and submissions thereof. As already stated in this judgment, the appellant’s appeal is basically anchored on the trial court’s finding on quantum only. The only issue which stands out for determination is whether the award of damages was reasonable.

14. This being a first appeal, this court is duty bound to re-evaluate, re-assess and re-consider the evidence tendered before the trial court so as to arrive at its own independent determination without losing sight of the fact that the trial court had the advantage of seeing and listening to the witnesses so as to be able to assess their general demeanour. See Abok James Odera T/A Odera &Associates vs John Patrick Machira T/A Machira & Co.Advocates(2013) e KLR.

15. The crux of the appeal is the award of damages which the appellant is claiming to be excessive. It then follows that the duty to prove that allegation squarely lie with him. Section 107 (1) of the Evidence Act does provide that:“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”

16. Section 108 further provides that:“The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”

17. The appellants have challenged the quantum awarded by the trial court. It is trite that the power to award damages is purely discretionary. Circumstances under which an appellate court can interfere with a trial court’s discretionary powers were set out by the court of appeal in the case of Mbogo & Another v Shah [1968] EA where it was held that:“...that this court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

18. Similarly, Madan JA (as he then was) in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E.A held that;“The Court of Appeal will not interfere with a discretionary decision of the Judge appealed from simply on the ground that its members, if sitting at first instance, would or might have given different weight to that given by the Judge to the various factors in the case. The Court of Appeal is only entitled to interfere if one or more of the following matters are established: first, that the Judge misdirected himself in law; secondly, that he misapprehended the facts; thirdly, that he took account of considerations of which he should not have taken account; fourthly, that he failed to take account of considerations of which he should have taken account, or fifthly, that his decision, albeit a discretionary one, is plainly wrong.”

19. From the plaint, it was noted that the respondent suffered severe tenderness and multiple bruise wounds over the left elbow region, visible deformity of the left elbow joint and not able to move left forearm, left elbow joint dislocation and present pain over the left elbow joint.

20. In the case of Peter Njuguna v Francis Njuguna Njoroge [2015] eKLR the court awarded a sum of Kshs. 230,000/= for injuries sustained as follows: -bruises on the occipital region of the scalp; deep cut on the forehead; bruises on the chest and lower back; bruises on the right elbow; bruises on both hands; tender left knee joint; broken tooth.

21. In the case of Veronicah Mkanjala Mnyapara v Charles Kinanga Babu [2021] eKLR the plaintiff sustained the following injuries: dislocation of the left ankle joint, dislocation of the left wrist joint, deep cut wound on the forehead, chest contusion as well as bruises on the face, hands and ankle joints. The court awarded Kes. 250,000/-

22. In Fanny Esilako v Dorothy Muchere HCC 642/1991, cited by the Respondents in the authority of Gabriel Owe Okello V Ujenzi Quarries Ltd Kisumu HCCA 62/63 of 2015, the Court awarded Kshs. 150,000/= for cuts over the left upper arm, multiple cuts on the wrist, cuts on left knee, cuts on right arm, sprained ankle and blunt head injury with swelling.

23. In the case of Ndungu Dennis v Ann Wangari Ndirangu & Another Civil Appeal No. 54 of 2016[2018] eKLR the court reduced an award of Kshs. 300,000/= to Kshs. 100,000/= for soft tissue injuries to the lower right leg and the back.

24. Taking into account the nature of the injuries sustained, rate of inflation and the general comparative case law quoted herein, I do find the amount somehow on the higher side hence do substitute general damages from KES 400,000 to Kshs 300,000.

25. On special damages, the same was not controverted and therefore remains as awarded by the trial court. However, using my discretionary powers, I am inclined to order that each party shall bear own costs in respect of this appeal. Accordingly, the appeal herein partially succeeds to the extent that;i.General damages of Kes. 400,00/- is hereby substituted with a sum of Kes 300,000/.ii.Special damages awarded by the lower court at Kes 5,550 shall remain in forceiii.Each party to bear own costs in respect of this appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY AT GARISSA THIS 10TH DAY OF NOVEMBER 2023J.N. ONYIEGOJUDGE