[2022] KEHC 1766 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT ELDORET

CIVIL APPEAL NO. 32 OF 2017

JYOTI STRUCTURES LIMITED......................................................................1ST APPELLANT

MICHAEL KIPCHIRCHIR................................................................................2ND APPELLANT

-VERSUS-

CHARLES OGADA OCHOLA...............................................................................RESPONDENT

Coram:Hon. Justice R. Nyakundi

M/S Murimi, Ndumia, Mbago & Muchela Advocates for the appellants

Mwinamo Lugonzo & CO. Advocates for the respondent

J U D G M E N T

1. What is before this court is an appeal against the damages awarded by the court in Kapsabet SPMCC No. 129 of 2016. The respondent herein instituted a suit against the Appellants seeking an award for damages for injuries sustained as a result of an accident that occurred on 16th May 2016 where the Plaintiff was a passenger in motor vehicle registration KBL 743F and the 2nd appellant was a driver. The parties entered into consent on liability and the same was apportioned at 80:20% in favour of the respondent.

2. The injuries sustained by the respondent were a blunt injury to the neck, head, chest and right shoulder. The trial court awarded general damages of kshs. 300,000/- to the respondent.

3. The appellants instituted the appeal vide a memorandum of appeal wherein they appealed against the decision of the trial court based on the grounds that the trial court erred in its assessment of damages. Further, that the trial court failed to analyse the appellant’s submissions and hence arrived at a wrong determination. The appellant also based the appeal on the ground that the trial magistrate erred in making excess awards on general damages and failed to apply the principles applicable in the award of damages.

4. The appellant’s case is that the respondent herein only suffered only soft tissue injuries as a result of the accident which have since healed. The award of general damages was excessive and should be substituted for a lower amount of kshs. 80,000/-. They urged the court to consider the cases of Jyoti Structures Ltd & Anor vs Joash Abongo Owuor Eldoret HCCA No. 29 of 2017 where the high court reduced an award of kshs 300,000/- to 150,000. They also cited the cases of George Kinyanjui T/A Climax Coaches & Another vs Hussein Mahad Kuyale (2016) eKLR, Purity Wambui Muriithi vs Highlands Mineral Water Co. Ltd (2015) Eklr, Ndungu Dennis v Ann Wangari Ndirangu & Another (2018) eKLR, Philip Musyoka Mutua v Mercy Ngina Svovo [2018] eKLR amongst various other authorities the gist of which was that the trial court should reduce the damages awarded to the respondent to a reasonable amount of kshs. 80,000.

5. The respondent’s case is that in view of the injuries sustained an award of kshs. 450,000 would have sufficed. He cited the cases of Catherine W. King’ori vs Gibson T Gichubi – Nyeri HCCC No. 320 of 1998, Margaret Chege & Anor vs Beth Wanyeri – Eldoret HCCA No. 50 of 2005 and submitted that the award is not so inordinately high so as to present an erroneous estimate.

6. Upon perusal of the record of appeal and the submissions of the parties herein I identified that the issue for determination is; whether the trial court’s award for damages was erroneously high.

7. In Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:

“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”

WHETHER THE TRIAL COURT’S AWARD FOR DAMAGES WAS ERRONEOUSLY HIGH

8. It is trite law that when awarding damages courts are to be guided by comparable awards in similar cases. In Michael Okello v Priscilla Atieno [2021] eKLR the respondent had sustained similar soft tissue injuries and the court substituted the award of kshs. 500,000/- for one of kshs. 250,000/-

9. In Lake Naivasha Growers v Muigai Thuka [2020] eKLRthe court upheld the award of kshs. 250,000/- awarded by the trial court for severe soft tissue injuries of the left thigh and soft tissue injuries of the left leg.

10. In Nkaruarau Lejumurt v Vegpro (K) Limited t/a Kantara Farm [2018] eKLRthe Appellant suffered the Appellant suffered traumatic injury to the right leg, blunt trauma to the right hand, a deep cut in the right upper limb, a traumatic mild head injury and multiple soft tissue injuries. The appellate Court awarded a sum of Kshs. 200,000/= on account of general Damages. These injuries were slightly more severe than those in the present case.

11. In the premises I agree with the trial magistrate’s award and dismiss the appeal with costs to the respondent.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 8th DAY OF MARCH, 2022.

..........................

R. NYAKUNDI

JUDGE

(nkr@mmmnlaw.org, mwinamoadvocates@yahoo.com)