[2002] KEHC 966 (KLR)
The court found that the learned magistrate erred in dismissing the expert medical opinion regarding the potential long-term effects of the occipital fracture without any contrary expert evidence. The court held that the award of Kshs.30,000 in general damages was manifestly inadequate considering the nature of the...
Source-derived case information.
- Citation
- [2002] KEHC 966 (KLR)
- Parties
- Appellant: James Agwenyi Simon; Respondent: Anthony Kioo; Respondent: Cecilia Njoki Mbugua
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 614 of ??
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed in part
- Legal Topics
- Personal Injury, Quantum of Damages, Road Traffic Accident
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
James Agwenyi Simon
Appellant
Anthony Kioo
Respondent
Cecilia Njoki Mbugua
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the general damages awarded by the lower court for personal injuries were manifestly inadequate.
- 2 Whether the learned magistrate erred in dismissing the expert medical opinion regarding the long-term effects of the occipital fracture.
Ratio Decidendi
The court found that the learned magistrate erred in dismissing the expert medical opinion regarding the potential long-term effects of the occipital fracture without any contrary expert evidence. The court held that the award of Kshs.30,000 in general damages was manifestly inadequate considering the nature of the injuries, the expert's opinion, and the inflationary trends. The court also noted that the respondents had themselves offered a higher sum in their submissions. Consequently, the court increased the award to Kshs.100,000 in general damages and allowed the appeal to that extent, with costs to the appellant.
Court Disposition
appeal allowed in part
Orders
- The award of general damages is increased to Kshs.100,000.
- The appellant is awarded costs of the appeal.
Full Case Text
Judgment text and source record
21 paragraphs
REPUBLIC OF KENYA
INTHE HIGH COURT OF KENYA AT NAIROBI CIVIL APPEAL NO. 614 OF 2000
JAMES AGWENYI SIMON …………………………….APPELLATE
VERSUS
ANTHONY KIOO
CECILIA NJOKI MBUGUA ………………………….RESPONDENT
J U D G M E N T
This appeal is really against quantum of damages awarded to the appellant by the respondent in the lower court.
The appellant had sued the respondent to seek special and general damages from them arising from a road traffic accident which occurred on 1. 10. 97.
Judgment on liability was entered by consent against the respondents on 100% basis and the task of the learned magistrate was to assess damages.
The learned magistrate based her assessment of general damages on the medical report of Dr. Njuguna J.M. of Thika Nursing Home in which it was stated that the appellant had suffered a bruise on the left front region, right shoulder and a blunt fracture of occipital bone.
According to the doctor, the appellant was seen on same day of accident and was observed at the Nursing Home until 4th October 1997 when he was discharged.
The learned magistrate part of the judgment which said that the appellant was seen by the doctor on the same day of the accident, treated and discharged “hence the injuries were not serious ” was not supported by evidence on the medical report.
The doctor had also opined that though the occipital fracture would heal it could be a site of headache on and off.
The learned magistrate dismissed this finding as farfetched as it was too soon for the doctor to make such finding.
But the doctor’s was an expert’s opinion and without another doctor being called to challenge this opinion there was no basis for the magistrate to dismiss it as farfetched.
Given all this facts and the effect of fractures, however small, on the future of the victims, my considered view is that an award of Kshs.30,000/= in general damages was manifestly inadequate for pain suffering and loss of amenities and in particular considering the inflationary trend in the country and that the respondents had infact offered a sum of Kshs.120,000/= during their written submissions on quantum, Rashid Abed (suing through his father Abed Rashid as next friend) Vs Omar Mohamed & Another [1982-88] 1 KAR 322.
I feel this award should be and is hereby increased to Kshs.100,000/= and the appeal allowed to this extent with costs.
Delivered and dated this 25th July, 2002.
D.K.S. AGANYANYA
JUDGE