[2023] KEHC 24976 (KLR)

Kato v Mwema (Civil Appeal E237 of 2023) [2023] KEHC 24976 (KLR) (6 November 2023) (Judgment)

Neutral citation: [2023] KEHC 24976 (KLR)

Republic of Kenya

In the High Court at Mombasa

Civil Appeal E237 of 2023

DKN Magare, J

November 6, 2023

Between

Abdinasir Sabro Kato

Appellant

and

Janet Kambua Mwema

Respondent

Judgment

1. The Appeal arises from the Mombasa Small Claims Case No. E043 of 2023 where the adjudicator Gatambia Ndungu made a determination on 31/7/2023. The appeal is said to be on both law and in fact. However, this court will not fall into a trap of dealing with facts and evidence. Under section 38 of the small claims court, only matters of law are appealable it provides as doth: -.“38. Appeals (1) A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law. (2) An appeal from any decision or order referred to in subsection (1) shall be final.

2. This means that the duty of this court is different from the fist appellate court, generally. The appellant, who was a Respondent in the Court below, appealed and set forth the following several grounds of Appeals.: -a.The Learned Trial Magistrate erred and misdirected himself by relying on wrong principles when assessing damages that were awarded to the respondent.b.The Learned Trial Magistrate erred and misdirected himself and failed to apply precedents and tenets/principles of the law applicable in awarding damages.c.The Learned Trial Magistrate erred and misdirected himself in awarding a sum in repast of damages which was inordinately high in the circumstance which was excessive in the circumstances occasioning a miscarriage of justice.d.The Learned Trial Magistrate erred in law in and in fact by failing to apply precedents/ principles of the law applicable in apportioning liability.e.The Learned Trial Magistrate erred in law in and in fact by failing to adequately evaluate the evidence and exhibits and thereby arrived at a decision unsustainable in law.f.The learned trial magistrate erred and misdirected himself by ignoring the defendant’s submissions on record hence arriving a wrong decision in awarding damages

3. These appeals to the High Court are provided for under Order 42 Rule 1, which provides are doth: -1. “1. Form of appeal –(1)Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.(2)The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively.

4. The Court of Appeal had this to say in regard to rule 86 (which is pari mateira with order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

5. Further in Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR, the court of appeal observed that: -“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.”

6. The rest of the issues are ancillary, repetitive, prolixious and a waste of judicial time. The question this court will have to deal with is whether the magistrate’s court had jurisdiction to hear and determine this dispute. This is the only issue addressed in submissions before the court below and before this court.

7. This being an appeal on points of law, this court is not under duty to re-evaluate and assess the evidence, make its own conclusions and keeping in mind at the back of its mind, that on fact that only points of law are raised.

8. Points of facts are discretionally findings. The Appellate court cannot decide the facts unless points of law are affected. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

9. The duty of the appellate Court in a small claims court has not been fully settled. However, the court is bound to accept the findings of fact by the court below.

10. In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

11. As regards general damages, Justice D.S Majanja in Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019) eKLR, held as doth:“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”

12. Generally, the duty of the court regarding damages is settled that the state of the Kenya economy and the people generally and the welfare of the insured and injury public must be at the back of the mind of the trial Court. However, in this case, this court can only interfere with, if the award is irregular. The lower court decision cannot be overturned simply because it is just high. It must amount that is based on no evidence.

13. The nature and extent of injuries are points of fact. In this case the injuries and extent of the same are on record. In the case of Butter v Butter Civil Appeal No 43 of 1983 [1984] KLR where the Court of Appeal held as follows at paragraph 8. “'In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies should be taken into consideration.'

14. Finally, in deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being exercise of discretion the exercise should be done Judiciously conclusively are circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages.

15. The Court of Appeal (Kneller, Nyarangi JJA & Chesoni AG JA), pronounced itself succinctly on these principles in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR as follows: -“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 that 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 Ilanga v Manyoka, [1961] EA 705, 709, 713 (CA-T); Lukenya Ranching and Farming Co-operative Society Ltd v Kavoloto, [1979] EA 414, 418, 419 (CA-K). This Court follows the same principles.”

16. The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages: -“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

17. Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.

18. So my duty as the appellate court regarding quantum of damages to ascertain whether the award is too high as to amount to an erroneously assessment of damages or the award is simply not justified from evidence. In other words, it is based on no evidence. To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards.

19. Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the Learned Judge ably pronounced himself as doth regarding disturbing quantum of damages: -“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

20. For the appellate court, to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure.

Quantum 21. The appellant submitted that the damages were erroneous. They take issue with an award of 700,000/=. They rely on the cases of Kisii HCCA No. 19 of 2021, Bolpak Trading Company Limited & another vs Gilbert Onyango Odie (2022) eKLR, where the Court awarded 250,000/= for sustaining fractures of the 7th and 8th ribs. Aslo in Makueni HCCA No. 132 of 2017, Blue Horizon Company Limited vs Kenneth Njoroge (2020) eKLR, the Court in its judgment delivered on February 2020 awarded a sum of 400,000/= as general damages for more severe injuries including rib fractures than the current one herein.

22. The Respondent on the other hand stated that an award of 700,000/= is not an issue. The Plaintiff had 4% disability.

23. In the catholic Diocese of Kisumu vs Sophia Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55, the court of Appeal (Tunoi, O’kubasu & Githinji JJ A) set out the circumstances under which an appellate court can interfere with an award of damages in the following terms: -“is trite law that the assessment of general damages is at the discretion of the trial court and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a difference figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles,As by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate (see Kemro v A M Lubia & Olive Lubia (1982-88) 1 KAR 727 and Kitavi v Coast Bottlers Limited [1985] KLR 470).”

24. The Respondent relied on Joseph Njeru Luke & 3 others v Stellah Muki Kioko [2020] eKLR, where the Court set aside the award of general damages by the subordinate court and substitute it with an award of Kshs. 750,000/- as general damages where the respondent sustained a blunt injury on the scalp, head concussion, blunt injuries on the chest, back and left buttock, bruises on the left knee and fracture of the pelvis, that is, the left superior and inferior pubic rami

25. The submission were on facts. However, I note that the nature of injuries and extent of damage.

26. General damages are issues of fact. However, where the Court enters judgment with no basis then the same is liable to be set as being unlawful.

27. In this case, the Court ignored precedent that was bidding on him.

28. In the case of Bolpak Trading Co Ltd & another v Gilbert Onyango Odie [2022] eKLR, justice Ougo confirmed an award for 250,000/= for fracture of the ribs.

29. Swift Rides Logistics Limited v Ogambo (Civil Appeal E006 of 2021) [2022] KEHC 11727 (KLR) (14 June 2022) (Judgment), Fred A. Ochieng J as he then was awarded 800,000/= for Fractures of the right 3rd, 4th, 5th, 6th, 7th, 8th, 9th posterior and 4th auxillary line ribs.

30. In Makueni HCCA 132 of 2017- blue horizon Co. Ltd. versus Kenneth Njoroge (2020) eKLR, the Court awarded Ksh 400,000/= for similar injuries.

31. In the circumstances on reliance of the cases with more serious injuries, the court erred and awarded damages not commensurate with the injuries suffered. It was based on no evidence.

32. I find the appeal on quantum has merit. In the circumstances, I set aside the award of 700,000/= and in lieu thereof, substitute with an award of 500,000/=. Given that the change is minimal, each party shall bear their costs.

Liability 33. The Appellant abandoned the issue of liability. In any case, this was a question of fact. The appeal on liability is consequently, dismissed.

Determination 34. I make the following orders: -a.The appeal is partially allowed. The damages are reduced from 700,000/= to 500,000/=.b.Each party to bear its costs.

DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 6TH DAY OF NOVEMBER, 2023. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Miss Githinji for the AppellantMiss Wangeci for the RespondentCourt Assistant - Brian