[1997] KECA 48 (KLR)
The Court of Appeal found that the evidence supported the respondent's claim of having suffered a concussion and a sprained ankle, as indicated by the medical report and the respondent's testimony. The appellate court reiterated that it can only interfere with the trial court's assessment of damages if there is...
Source-derived case information.
- Citation
- [1997] KECA 48 (KLR)
- Parties
- Appellant: Joel Kyalo Mwei; Respondent: Paul Ngei Nzioka
- Court
- Court of Appeal
- Court Station
- Court of Appeal at Nairobi
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 33 of 1996
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- JE Gicheru, GS Pall
- Legal Topics
- Personal Injury, Assessment of Damages, Appeals on Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joel Kyalo Mwei
Appellant
Paul Ngei Nzioka
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the respondent suffered the injuries alleged in the plaint.
- 2 Whether the trial Judge erred in the assessment of damages awarded to the respondent.
Ratio Decidendi
The Court of Appeal found that the evidence supported the respondent's claim of having suffered a concussion and a sprained ankle, as indicated by the medical report and the respondent's testimony. The appellate court reiterated that it can only interfere with the trial court's assessment of damages if there is evidence of consideration of irrelevant matters, omission of relevant matters, or if the award is manifestly excessive or inadequate. Finding none of these errors, the Court held that the trial Judge's assessment of damages was proper and justified. The appeal was therefore dismissed, and the award of damages to the respondent was upheld.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
27 paragraphs
IN THE COURT OF APPEAL
AT NAIROBI
(CORAM: GICHERU, OMOLO & PALL, JJ.A.)
CIVIL APPEAL NO. 33 OF 1996)
BETWEEN
JOEL KYALO MWEI………...........….….……..APPELLANT
AND
PAUL NGEI NZIOKA..........…………...…..…RESPONDENT
(Appeal from the judgment of the High Court of Kenya at Machakos (Hon. Justice J. L. A. Osiemo) dated the 22nd day of November, 1995
IN
H. C. C. C. NO. 21 OF 1994)
************************
JUDGMENT OF THE COURT
On the material which was placed before the learned trial Judge and which is now before us, we are satisfied, on our own independent consideration of that material that the respondent suffered the injuries; he alleged in his plaint. The medical report showed the respondent suffered head injuries through the nature of the head injuries was not specified, the respondent himself said he lost consciousness for three hours. He had persistent headaches. These were facts from which the learned Judge was entitled to infer that the respondent had suffered a concussion. The same must go for the sprained ankle. The medical report which was produced before the Judge, and produced without any context, showed that the respondent had a painful left leg especially after walking for a long distance. We think there is no merit in any of the contentions made by Mr. Itonga for the appellant regarding the nature of the injuries sustained by the respondent.
On damages, we can only interfere with the award of the Judge if it be shown to us that in arriving at the figure he awarded, the learned Judge took into account an irrelevant matter which he ought not to have considered, or that he failed to take into account a relevant matter which he ought to have taken into account or short of these two, that the award is so inordinately high or low that it represents a wholly erroneous estimate of the damages. We are not satisfied that the learned Judge committed any of these sins. We fail to see how a concussion with resultant persistent head-aches can be called “mere soft tissue” injury; nor in our view can sprained ankle be so described. We see no basis upon which we can interfere with the learned Judge’s assessment of damages and that being our view of the matter, this appeal fails, and we order that it be and is hereby dismissed with costs to the respondent.
Dated and delivered at Nairobi this 17th day of March, 1997.
J. E. GICHERU
…………………..
JUDGE OF APPEAL
R. S. C. OMOLO
…………………………
JUDGE OF APPEAL
G. S. PALL
………………………..
JUDGE OF APPEAL
I certify that this is a true copy of the original.
DEPUTY REGISTRAR