[2019] KEHC 3939 (KLR)
The court found that the trial court's awards for general damages and diminished earning capacity were within the range of comparable cases and supported by the evidence. The respondent suffered a traumatic amputation resulting in 65% permanent incapacity, and the awards reflected the severity of the injury, the...
Source-derived case information.
- Citation
- [2019] KEHC 3939 (KLR)
- Parties
- Appellant: Joseph M. Nganga; Appellant: Josephine Mucina; Appellant: Simon Chege; Respondent: Lawrence Muriungi Gichunge
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 106 of 2015
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- A Mbogholi-Msagha
- Legal Topics
- Assessment of Damages, Personal Injury, Contributory Negligence, Loss of Earning Capacity
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
More case intelligence is available
Unlock the full research layer for this judgment.
Parties
Joseph M. Nganga
Appellant
Josephine Mucina
Appellant
Simon Chege
Appellant
Lawrence Muriungi Gichunge
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court's award of general damages for pain and suffering was inordinately high.
- 2 Whether the award for diminished earning capacity was justified and properly calculated.
- 3 Whether the appellate court should interfere with the quantum of damages awarded by the trial court.
Ratio Decidendi
The court found that the trial court's awards for general damages and diminished earning capacity were within the range of comparable cases and supported by the evidence. The respondent suffered a traumatic amputation resulting in 65% permanent incapacity, and the awards reflected the severity of the injury, the respondent's age, and his earning capacity. The court held that the multiplier of 30 years was appropriate and that the reduction for contributory negligence was properly applied. There was no basis for appellate interference as the awards were not inordinately high and the correct legal principles were applied. Consequently, the appeal was dismissed and the trial court's judgment...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
- The judgment and awards of the trial court are upheld.
Full Case Text
Judgment text and source record
20 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CIVIL APPEL NO. 106 OF 2015
JOSEPH M. NGANGA
JOSEPHINE MUCINA
SIMON CHEGE.....................................APPELLANTS
VERSUS
LAWRENCE MURIUNGI GICHUNGE ..........RESPONDENT
(Being an Appeal from the Judgment and Decree delivered by the Hon. M.C. Chepseba (Mrs) Senior Principles Magistrate on the 28th October in Nairobi CMCC No. 4526 of 2013 Lawrence Muriungi Gichunge – Vs – Joseph M. Ng’ang’a)
JUDGMENT
The parties to this suit recorded a consent judgment on liability at 90% against the appellant and 10% against the respondent. The suit was then listed for formal proof leading to a judgment in favour of the respondent delivered on 28th October, 2014. In that Judgment the respondent was awarded Kshs. 2,700,000/= general damages for pain and suffering, Kshs. 1,260,000/= for diminished earning capacity,Kshs.180,000/= cost of artificial limb and Kshs.61,640/= special damages.
The appellants were aggrieved by this judgment leading to the present appeal in which concern has been raised relating to the quantum of damages awarded. Both parties have filed submissions in the argument of this appeal. The main concern is on the award of general damages and diminished earning capacity. This court is mandated as the first appellate court to evaluate all the evidence presented before the trial court and arrive at independent conclusions. This I have done.
Both parties are in agreement on the principles upon which the appellate court may interfere with awards made by the trial court. Comparable injuries attract comparable awards, although not two cases are the same. See – Jabane vs. Olenja (1986) KLR 661 and Arrow Car Limited vs. Bimomo & 2 others (2004) 2 KLR 101 and David Kiprugut & Another vs. Peter Okebe Pango (2007) e KLR.
Two medical reports were presented to assist the court in the assessment of damages. These were by Dr. W. Wokabi and Dr. Eva Wainaina. The respondent suffered traumatic amputation of the left forearm which resulted to 65% permanent incapacity. Of the several cited authorities, the following stand out; George Ragoka Ogola vs. Attorney General (2008) e KLR where an award of Kshs. 2,000,000/= was made in November, 2008 terms of general damages for pain suffering and loss of amenities for the amputation of the right forearm below the elbow joint. In the case of Cosmas Kipkoech Sigei vs. Mandrugada Limited & Another (2010) e KLRthe plaintiff suffered a traumatic amputation of the hand at the level of wrist joint where an award of Kshs. 2,000,000/= was made in June 2010.
I have considered the dates when the above awards were made and the fact that the court should bear in mind the depreciation of currency over a period of time.The trial court awarded Kshs. 3,000,000/= which was reduced by 10% contributory negligence on the part of the respondent leaving a balance of Kshs. 2,700,000/= . Taking into consideration all the facts attendant thereto, and the degree of permanent incapacity on the part of the respondent, the award was within the limits of comparable cases and cannot be said to be inordinately high.
The respondent pleaded that he was unable to work as he used to do before, and therefore had suffered loss of earning capacity or diminished capacity to earn and prayed for damages thereunder. He was then 30 years old and was earning Kshs. 400/= per day. The lower court addressed that issue and made an award complained of by the appellants. It will be noted that the award was reduced by a percentage cited by the doctors as being the incapacity sustained by the respondent. Such a claim falls under general damages and proof is on a balance of probability.
The respondent achieved that threshold and, having pleaded the same and having given evidence to that effect, he was entitled to that award. The multiplier of 30 years was not misplaced and damages awarded thereunder cannot be said to be inordinately high. I see no reason to interfere with the said award. There is no challenge in respect of the other awards and I take it that the appellants have not taken any issue with them. It follows therefore that this appeal is dismissed with costs to the respondent.
Dated, signed and delivered at Nairobi this 25th Day of September, 2019.
A. MBOGHOLI MSAGHA
JUDGE