[2017] KEHC 2524 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

CIVIL APPEAL NO. 208 OF 2015

JAMES AMARIATI STANLEY............................APPELLANT

VERSUS

DEVKI STEEL MILLS LIMITED......................RESPONDENT

(Appeal from the judgment and decree of Hon. M.W Mutuku (Ms) delivered on 13th March, 2015 in Thika CMCC No. 733 of 2012)

JUDGMENT

The Appellant herein filed a Plaint dated 14th September, 2012 seeking;

(a) General damages;

(b) Special damages ;

(c) Costs of the suit and interest on damages and costs; and

(d) Any further or other relief this Honourable Court may deem fit and just to grant.

In the Plaint, the Appellant averred that on or about the 5th day of January, 2009 he was in lawful course of his employment with the Defendant when he was seriously injured thereby sustaining grave injuries. He averred that the injuries were as a result of the Respondent’s failure to provide him with protective gear and a safe system of work. That as a result of the injury the Appellant suffered cut wound on the left fifth finger and bruises on the left ring finger.

The Respondent who was the defendant in the trial Court denied the claim in total and filed a defence dated 30th October, 2012. The Respondent averred that if the alleged accident occurred, the same was solely caused by or substantially contributed to, by the negligence of the Plaintiff. The particulars of negligence are enumerated in the defence which include failing to follow instructions given on safety at work.

The matter was heard and a judgment was delivered on 13th March 2015 awarding the Appellant General damages of Kshs. 80,000/= and Special damages of Kshs. 10,000/=.

Aggrieved by the trial magistrate’s judgment, the Appellant filed this appeal on the following grounds:-

i. THAT the Honourable Learned Senior Principal Magistrate erred in law when she made an award of Kshs. 80,000/= which award was inordinately low in the circumstances of this case considering the permanent stiff finger.

ii. THAT the Honourable Learned Senior Principal Magistrate gravely erred when she failed to appreciate that expert medical opinion had designated the injuries suffered by the appellant as serious soft tissue injuries of severe harm in nature, occasioning the Appellant 7% disability and consequently the award of Khs. 80,000/= in general damages fell far below the threshold of awards for injuries designated as serious soft tissue injuries with permanent incapacity of 7%.

From the above grounds, this appeal is on quantum of damages and the issue for determination by this Court will be whether the award of Kshs. 80,000/= in general damages was manifestly low in the circumstances.

It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its findings and conclusions and in so doing it will not interfere with the exercise of discretion by a lower court unless the exercise of that discretion was erroneous in law and in principle.

In the case of Mbogo & Another -v- Shah (1968) EA 93 at 96, it was stated that an appellate court will not interfere with the exercise of discretion by a trial court unless the discretion was exercised in a manner that is clearly wrong because the judge misdirected himself or acted on matters which the court should not have acted upon or failed to take into consideration matters which it should have taken into consideration and in so doing, arrived at a wrong conclusion.

During trial, the Plaintiff called two (2) witnesses whereas the defence closed its case without calling witnesses. Dr. Jane Kinya (PW1) examined the Appellant on 30th August, 2012 and found that he has a cut wound on the left fifth finger and bruises on the left ring finger. Her physical examination revealed that there was a healed scar on the left middle finger and stiff distal interpharygeal joint leading to poor grip.

PW2, the Respondent herein adopted his witness statement dated 14th September, 2012. He told the court how he was injured while operating a machine at the defendant’s premises.

The Appeal was canvassed by way of written submissions. The Appellant has sought for Kshs. 900,000 in general damages and submitted that the award of Kshs. 80,000/= was low and has called upon the Court to disturb the Judgment of the lower court, set it aside and in its place make a suitable award on general damages.

The Respondent submitted that in the trial court, it had relied on the case of Moses Ogutu Omwono Vs. Shiloah Investment Ltd (2010) eKLR where the Plaintiff was awarded Kshs. 60,000 and Amalgamated Saw Mills Ltd Vs. Daniel Wairegi Karuri (2006) eKLR where the Plaintiff suffered blunt injury to the chest and the right knee and the Court awarded him Kshs. 50,000/=.

Am alive to the fact that the assessment of damages is an exercise of judicial discretion by the trial magistrate and an appellate court should be slow to reverse the trial court’s award unless the court has acted on wrong principles or awarded excessively high or low damages or had taken into consideration matters it ought not to have considered, or not taken into consideration matters it ought to have considered and, in the result, arrived at a wrong conclusion. These principles have been cited with approval in several cases among them;Butler v Butler[1984] KLR 225, Butt v Khan [1981] KLR 349, Kemfro Africa t/a Meru Express & Another v. A. M. Lubia & Another [1982 – 88] 1 KAR 72 and Mariga v Musila [1984] KLR 257.

This court is guided by the medical examination of PW1 in assessing the damages. In a similar case to this, Timsales Limited V Penina Achieng Omondi [2011] eKLR where the Respondent had sustained a deep cut wound on the left index finger and severe soft tissue injuries to the left index finger this court awarded Kshs. 60,000/= in general damages. In Socfinaf Ltd V. Joshua Ngugi Mwaura NRB HCA 742 of 2003, an award of Kshs.70,000/- was reduced to Kshs.20,000/- where only the right forearm was injured and had completely healed. In that case the Respondent/Plaintiff continued to work after the injury.

Taking into account the extent of the Appellant’s injuries, the rate of inflation on the Kenya shilling in comparison with decided authorities, I allow the appeal and enhance general damages to Kshs. 120,000. The award on special damages shall remain. The costs of the Appeal and that of the lower court are awarded to the Appellant.

It is so ordered.

Dated, Signed and Delivered at Nairobi this6th Day of October, 2017.

…………………………….

L. NJUGUNA

JUDGE

In the Presence of

…………………………. for the Appellant

…………………………. for the Respondent