[2016] KEHC 1505 (KLR)
The court found that the trial court's award of KShs 500,000 in general damages, less 30% contribution, was not manifestly excessive or an erroneous estimate given the injuries suffered by the respondent. The appellate court emphasized that its role is not to substitute its own assessment unless the award is clearly...
Source-derived case information.
- Citation
- [2016] KEHC 1505 (KLR)
- Parties
- Appellant: Henry Mbogo Gitau; Respondent: Edwin Irungu Mukera
- Court
- High Court
- Court Station
- High Court at Murang'a
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 179 of 2013
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- DW Mbuteti
- Legal Topics
- Personal Injury, Assessment of Damages, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Henry Mbogo Gitau
Appellant
Edwin Irungu Mukera
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court's award of general damages was excessive and not commensurate with the injuries sustained by the respondent.
- 2 Whether the trial court ignored relevant medical reports and submissions in assessing damages.
- 3 Whether the absence of residual disability was properly considered in the award of damages.
Ratio Decidendi
The court found that the trial court's award of KShs 500,000 in general damages, less 30% contribution, was not manifestly excessive or an erroneous estimate given the injuries suffered by the respondent. The appellate court emphasized that its role is not to substitute its own assessment unless the award is clearly excessive or inadequate. The injuries sustained by the respondent, including deep cut wounds, lacerations, loss of teeth, and other oral injuries, justified the amount awarded. The court also noted the passage of time since the comparable case cited by the appellant, which warranted a higher award. Consequently, the appeal lacked merit and was dismissed with costs to the...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
38 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MURANG’A
CIVIL APPEAL NO 179 OF 2013
(APPEAL FROM DECREE (QUANTUM OF GENERAL DAMAGES ONLY) PASSED
ON 29/04/2013 IN MURANG’A SPMCC NO 215 OF 2012 – J J MASIGA, SRM)
HENRY MBOGO GITAU..............................................APPELLANT
VERSUS
EDWIN IRUNGU MUKERA......................................RESPONDENT
J U D G M E N T
1. The Respondent herein (plaintiff in the trial court) claimed against the Appellant (defendant) damages for personal injuries sustained in a traffic accident. Liability was agreed at 70% to 30% in favour of the Respondent. The trial court awarded him KShs 500,000/00 general damages, less contribution of 30%. This appeal is against that award only.
2. The grounds of appeal appearing in the memorandum are –
(i) That the award was “excessive and not commensurate with the…injuries sustained by the Respondent’.
(ii) That the trial court ignored the medical reports presented.
(iii) That the trial court erred in not taking into account the fact that the Respondent did not suffer any “residual disability”.
(iv) That the trial court ignored submissions made and authorities tendered.
3. This appeal was canvassed by way of written submissions. The Appellant’s submissions were filed on 01/02/2016 while those of the Respondent were filed on 12/04/2016. I have considered those submissions, including the cases cited here and in the court below. I have also perused the trial court’s record.
4. The trial court noted that the Respondent sustained the following injuries –
(i) Deep cut wounds and lacerations on upper and lower lips.
(ii) Multiple lacerations of the gum and mouth.
(iii) Lower incisors and molars lost.
(iv) Loose upper and lower incisors 22, 31 &32.
(v) Deep cut wounds on the gums.
(vi) Swollen and tender palm.
5. Learned counsel for the Appellant has submitted that an award of KShs 200,000/00 general damages should have been adequate and has cited the case of Samuel Kinyanjui Thuo –vs- Francis Kuria Gathuka, Nyeri HCCC No 18 of 2003(unreported) where Okwengu, J awarded general damages of KShs 250,000/00 where the injuries were –
Concussion
Cuts on the forehead, left hand and upper lip
Loss of upper left incisor and canine, and lower left canine teeth
Residual scars on the left frontal region of the face, on the upper and lower lips and on both forearms.
It is to be noted that the decision of Okwengu, J was given on 22/04/2005 while in the present case the award was made on 29/04/2013, some eight (8) years later.
6. As for the submissions of the Respondent’s learned counsel, it is merely stated that the award of general damages of KShs 500,000/00 was “very fair to the Appellant…considering the nature of the injuries…”.
7. An appellate court will interfere with an award of damages for personal injuries where the same was so manifestly excessive or low as to be an entirely erroneous estimate given the circumstances of the case or injuries suffered.
8. The complaint in this appeal is that the award was excessive and not commensurate with the injuries sustained. It is not enough that the appellate court, had it been the one trying the case, might have awarded a little, or somewhat less, than, or not as much as, was awarded by the trial court. The award that is challenged must be manifestly excessive and clearly not a proper and just compensation for the injuries suffered.
9. That is not the case here. I find no merit in this appeal. The same is dismissed with costs to the Respondent. It is so ordered.
DATED, SIGNED AT MURANG’A THIS 26TH DAY OF MAY 2016
H P G WAWERU
JUDGE
DELIVERED AT MURANG’A THIS 27TH DAY OF MAY 2016