[2015] KEHC 406 (KLR)
The appellate court found that the trial court's award of general damages was manifestly excessive when compared to similar cases and after taking into account the incidence of inflation. The court reassessed the evidence, including medical reports detailing the respondent's injuries and permanent incapacity, and...
Source-derived case information.
- Citation
- [2015] KEHC 406 (KLR)
- Parties
- Appellant: John Wachira Gathagu; Appellant: Agricultural Finance Co-operation; Respondent: Benjamin Muriuki Kithumbu
- Court
- High Court
- Court Station
- High Court at Embu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 19 of 2013
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal allowed in part; award of damages reduced
- Legal Topics
- Assessment of Damages, Personal Injury, Contributory Negligence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
John Wachira Gathagu
Appellant
Agricultural Finance Co-operation
Appellant
Benjamin Muriuki Kithumbu
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the award of general damages by the trial court was manifestly excessive in light of the injuries sustained.
- 2 Whether the trial magistrate failed to consider the appellant's evidence and submissions.
- 3 Whether the comparable authorities and inflation were properly considered in the assessment of damages.
Ratio Decidendi
The appellate court found that the trial court's award of general damages was manifestly excessive when compared to similar cases and after taking into account the incidence of inflation. The court reassessed the evidence, including medical reports detailing the respondent's injuries and permanent incapacity, and determined that a reasonable award for general damages should be Kshs 500,000/-, subject to a 20% reduction for contributory negligence. The net award to the respondent was thus reduced to Kshs 400,000/-, with an additional Kshs 3,000/- for general damages. The appeal was allowed, and the costs of the appeal were awarded to the appellants.
Court Disposition
appeal allowed in part; award of damages reduced
Orders
- The award of general damages is reduced to Kshs 500,000/- less 20% contributory negligence, resulting in a net award of Kshs 400,000/- to the respondent.
- An additional Kshs 3,000/- is awarded as general damages.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT EMBU
CIVIL APPEAL NO. 19 OF 2013
JOHN WACHIRA GATHAGU
AGRICULTURAL FINANCE CO-OPERATION.........................PETITIONERS
VERSUS
BENJAMIN MURIUKI KITHUMBU.....................................RESPONDENT
JUDGEMENT
This is an appeal against an award of damages in the sum of Kshs 523,000/- against the judgement of the court of the Senior Principal Magistrate at Embu dated 25th March, 2013. The award is in respect of the injuries sustained by the plaintiff which consisted of a fracture of the tibia around and involving the knee of the respondent. The issue of liability was settled at trial by consent and does not therefore fall for resolution in this court.
The appellants have listed three grounds of appeal in their memorandum to this court. These are:
That the learned trial magistrate erred in law in awarding judgement of Kshs 650,000/- on general damages for injuries that do not deserve such a high award.
That the learned trial magistrate erred in law and fact in failing to consider sufficiently or at all the appellant's evidence and submissions as to facts and the law placed before him.
That the learned trial magistrate erred in law and fact in awarding the plaintiff a sum that was manifestly excessive in the circumstances.
Furthermore, counsel for the appellants has put in written submissions supported by authorities. In short, they are urging the court to reduce the award on the ground that it is manifestly excessive to warrant interference by way of reducing it.
The respondent has supported the award made in his favour by the trial court. His counsel has also put in written submissions to which are annexed authorities in support of the award made by the trial court.
The evidence upon which the awards were made was that the respondent was a passenger on a motorcycle which was driven along Embu-Siakago road. It is in the course of the driving that the motor vehicle of the appellants was driven in a negligent manner and as a result it hit the respondent causing a fracture of his tibia around the knee area.
During trial, the trial court accepted the authorities cited in that court in particular the case of Ali Abdallah Mbarak v. Jagdish Udani Mombasa HCCC No 3 of 2002 in which an award of Kshs 450,000/- was made for similar injuries. The court also relied on the case of Edward Nyaga v. Mombasa Liners Machakos HCCC No. 197 of 1999 in which an award of Kshs 400,000/- was made in favour of the plaintiff for similar injuries. The trial court then proceeded to take into account the incidence of inflation and then ended awarding the sum of Kshs 650,000/- as general damages. It is from this award from which 20% contribution of negligence was reduced with the result that the plaintiff being awarded Kshs 520,000/- and a sum of Kshs 3,000/- was added to the award totaling Kshs 523,000/-. The trial court also awarded costs and interests in favour of the plaintiff.
This is a first appeal. According to the case of Selle v. Associated Motor Boat Company (1968) EA 123, I am required to re-assess the evidence that was tendered at the trial and come to my own conclusions and findings. There were two medical reports that were tendered as evidence in support of the injuries sustained by the respondent. One such report was prepared by Dr John Macharia. According to this doctor, the respondent sustained a fracture of his right tibia around and involving the knee. He also found that healing had occurred but with mal-alignment and gross osteo-arthritis, which the doctor found to be a permanent incapacity. The second report was prepared by Dr Richard Gichohi. According to him, the respondent sustained fractures of the right proximal tibia and fibula involving the articular surfaces. The doctor found that there was delayed union of the fracture and the healing was mal-aligned. He also found that the respondent had developed post-traumatic osteo-arthritis with limited and painful mobility at the right knee. Because of this development, the respondent has now to use a crutch, crepe bandage and analgesics. He concluded that the respondent requires long term orthopedic follow up for the right knee.
I have on my own re-assessed the injuries sustained by the respondent and the other evidence that was produced in the trial court. I have also considered the award of general damages made in favour of the respondent. Upon my own assessment of the general damages awarded and taking into account the incidence of inflation and after taking into account the comparable awards, I find that the award by the trial court was manifestly excessive. I therefore reduce the award of general damages to Kshs 500,000/- less 20% contributory negligence. The net result is that the plaintiff is hereby awarded Kshs 400,000/- I do hereby add to this the sum of Kshs 3,000/- being general damages. The appellant's appeal succeeds as indicated.
As regards costs, I take into account that the appellants' appeal has succeeded. They will therefore have the costs of this appeal.
RULING DATED, SIGNEDand DELIVERED in open court at EMBU this..27th .. day of OCTOBER .2015
In the................................................................................................
….........................................................................................
Court clerk R. Njue
J. M. BWONWONGA
JUDGE
27. 10. 15.