[2012] KEHC 1017 (KLR)

REPUBLIC OF KENYA

High Court of Kisii

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JANE WANGUI MURAGE ………………………………………….. APPELLANT

AND

DAKIANGA DISTRIBUTORS LIMITED …………………………. RESPONDENT

(Being an appeal arising from the judgment/Decree of the Honourable Chief Magistrate,

Mr. C.G. Mbogo, delivered in Kisii CMCC No.705 of 2006 dated 17th November 2008)

JUDGMENT

1. On the 11th September 2006, the appellant herein filed suit seeking to be paid special and general damages together with costs and interest in respect of injuries she alleged to have sustained in a road traffic accident which occurred on or about 29th May 2005 involving the appellant and the respondent’s motor vehicle registration number KAP 829 W. The appellant alleged that the respondent’s driver, servant and/or agent was negligent in driving, managing, and/or controlling the said motor vehicle, as he drove it along the Bomet-Narok road and as a result thereof, he lost control and collided with motor vehicle registration number KAM 107G. The appellant averred she sustained a number of injuries namely bruises on the face, cerebral concussion, bruised left arm, crushed injury to the left leg and trauma above knee amputation. Particulars of negligence against the respondent’s driver, servant and or agent are set out in paragraph 4 of the plaint.

2. The respondent entered appearance and filed defence in which it denied the allegations that the appellant was a fare paying passenger in motor vehicle registration number KAM 107G or that the same was driven along the Bomet-Narok road on the 29th May 2005 or at all and that the appellant suffered any of the alleged injuries or at all. In the alternative, the respondent averred that if the alleged accident ever occurred at all, then the same was caused by or substantially contributed to by the negligence of the driver of motor vehicle registration number KAM 107G. The respondent averred that it would take out third party proceedings as a consequence thereof and also set out particulars of negligence in paragraph 4 of the Statement of Defence against the alleged third party.

3. The case was heard before the subordinate court during which the appellant testified as PW1 and Dr. Ajuoga as PW2. The respondent did not adduce any evidence but at the close of the hearing, both parties filed written submissions together with relevant authorities.

4. After carefully analyzing the evidence that was placed before him, the learned trial magistrate entered judgment for the appellant in the sum of Kshs.400,000/= general damages and proved special damages in the sum of Kshs.211,457/=. The appellant was also awarded costs and interest.

5. The appellant was aggrieved by the said judgment and decree and filed this appeal on grounds that:-

1)The trial magistrate erred in law and fact in assessing general damages in the sum of Kshs.400,000/= which was inordinately low as to present a miscarriage of justice.

2)The learned trial magistrate applied wrong principles in law in assessing general damages at Kshs.400,000/= which is inordinately low.

3)The award of kshs.400,000/= as general damages was an erroneous estimate of the damages and injuries suffered by the appellant.

4)The award of Kshs.400,000/= as general damages was inordinately low as to present a miscarriage of justice.

6. The appellant prays that the appeal be allowed with costs herein and judgment on quantum of general damages be set aside and this honourable court does assess general damages to the appellant.

7. By consent of the parties herein, this appeal was canvassed by way of written submissions. The submissions together with relevant authorities were duly filed. I have read through the said submissions together with the authorities. I have also carefully considered and weighed the judgment of the trial court. I have also reconsidered and evaluated the evidence afresh as I am required to do as the first appellate court. SeeSelle & another –vs- Associated Motor Boat Company Ltd. & others [1968] EA 123 and Peters –vs- Sunday Post Co. Ltd. [1958] EA 424.

8. After considering all the above, the only issue that arises for determination is whether the trial court, in awarding the sum of Kshs.400,000/= in general damages acted on wrong principles so as to result in an award that was so inordinately low as to amount to a travesty of justice.

9. It is trite law that an appellate court will not interfere with a trial judge’s finding on assessment of damages unless it is clear to the appellate court that the trial judge applied the wrong principles in assessing the damages, or that the trial judge took into account circumstances that he ought not to have taken into account or that he failed to take into account circumstances which he ought to have taken into account. The appellate court will also interfere with an award of damages if it finds that the award is so inordinately low or so inordinately high as to cause a miscarriage of justice.

10. After carefully considering the evidence that was adduced before the trial court, and the judgment by the trial magistrate, I do not think that the appeal herein has merit. Both parties made detailed submissions in the court below and supported their submissions with relevant authorities. In his judgment, the trial magistrate correctly noted that the authorities relied upon by the parties gave indicative figures of damages awarded ranging between Kshs.250,000/= and 550,000/= for injuries that were similar to those sustained by the appellant in the instant case. It follows that the trial court had a discretion to assess damages depending on what he thought was reasonable in the circumstances, so that unless this court is persuaded that the discretion was not exercised judicially, then it has no reason to interfere.

11. The appellant in this case has cited authorities in which awards in the range of 500,000/= plus were made in respect of injuries that resulted in amputation of legs similar to what happened in this case. The appellant submitted that this court should consider enhancing the award of Kshs.400,000/= in view of the fact that the awards in the authorities relied upon by the appellant, were decided more than 15years ago. See the cases of Peter Mativo Mwani –vs- Michael Wambua Ndambuki & another – Msa HCCC No.86 of 1991 (unreported); Alex Mwangi Mtoka –vs- Kenya Ports Authority – Msa HCCC NO.203 of 1991 (unreported) andAfricanus Wanjala Ouma –vs- Kenya Bus Services Msa Ltd. & Another – Msa HCCC NO.177 of 1989 (unreported).

12. Having considered all the above, I am satisfied that the learned trial magistrate exercised his discretion judiciously and that there is no evidence that he took into account circumstances that he ought not to have taken into account or that he failed to consider other circumstances which he ought to have considered. It does not matter that I could have made a different award if I had heard the case.

13. In the premises and for the reasons above given, this appeal fails. The same is hereby dismissed with no order as to costs.

14. It is so ordered.

Dated and delivered at Kisii this 12th day of September, 2012

RUTH NEKOYE SITATI

JUDGE

In the presence of:

Mr. G.S. Okoth for Ochillo for Appellant

Mr. Oguttu-Mboya for Okongo Omogeni for Respondent

Mr. Bibu - Court Clerk

RUTH NEKOYE SITATI

JUDGE.