[2004] KEHC 727 (KLR)

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISII CIVIL APPEAL NO.34 OF 2003

KENYA WOOD FUEL AND AGRO FORESTRY PROGRAMME LTD ………………APPELLANT

VERSUS

FRANCIS ONYAMBU BONYINYO ………………………………………………… RESPONDENT

JUDGMENT

This is an appeal from the judgment of SRM Kisii in Civil Case No.1048 of 1987.

The plaintiff had sued the defendant for damages arose from injuries suffered in a road accident along Keroka – Kisii road when the appellant’s vehicle hit a vehicle he was traveling in. By consent parties agreed on liability at 70% to 30% in favour of the plaintiff. Thereafter parties filed their submissions. Judgment was delivered on 19/2/03 and an award of shs.360, 000/= less 30% given as general damages. There was no award for special damages.

There were six grounds of appeal instead in the memo of appeal. During the hearing they were however condensed into two. The first ground was an attack of the judgment. It was submitted that it offends provisions of Order 20 rule 4 CPR. It was said that it does not contain a concise statement of the case, grounds to be considered and the reasons for the decision. The court did not refer to the submissions of the counsels and did not consider the authorities cited. As such the magistrate reached a bad decision on quantum.

Mr. Nyamorongi for Respondent supported the judgment. He said the only issue to consider was quantum and the court reached a fair decision. He said the damages given were not manifestly excessive.

Provisions of Order 20 Rule 4 CPR clear. It provides:

“Judgments in defended suits shall contain a concise statement of the case, points of determination the decision thereon and the reasons for such decision.”

The magistrate judgment which is at page 56 of record of appeal is one page. It looks bare. Indeed there is no statement of the case or parts consider laid out in the judgment. However one has to realise that liability had been agreed upon and judgment entered by court. No evidence was adduced by any of the parties. The allegations on grounds one and 2 in memo of appeal that the court considered matters which were not in issue or canvassed at the trial are not sustainable. No trial was held as such the allegation that he considered matters not canvassed do not arise. Equally one cannot say that the judgment was against the weight of evidence before the magistrate. No evidence was adduced.

Ground No.3 was that the magistrate failed to appreciate the standard of proof placed on the plaintiff. This was not true as liability was admitted and parties agreed to file submissions.

Grounds No.5 was that the magistrate failed to evaluate the medical report. In her judgment she set out the injuries suffered by the plaintiff. There were injuries tabulated by the doctor who examined her and made a medical report. She may not have said so in many words but the fact that she set out the injuries implies that she took them into account in awarding damages.

The last ground in the memo of appeal was that the general damages were excessive and in the circumstances of the injuries suffered and authorities cited. However the injuries speak for themselves. Respondent suffered fracture of upper left incisor tooth, fracture of right forearm fracture of left radius and ulna bones; but injury to the chest and the neck around the spine and lower back and a cut wound on the left side of the neck. Those were by any standard serious injuries and although the magistrate did not analyse the authorities cited to her I think the award of shs.360,000/= was ever on the lower side.

Mr. Kassamani raised the issue of the severity of the judgment. As I said it is only a one page judgment and it seemed as if the magistrate was in a hurry to write it. However one cannot say that it is not a judgment. It started by stating that judgment on liability had already been agreed. It set out the injuries the respondent suffered. The magistrate must have gone through the submissions of both commands as she acknowledges that two authorities were cited and also what each advocate proposed as damages. She clearly stated that her award of shs.360, 000/= is in the light of the age of the authorities cited and the injuries suffered by the respondent. True the judgment may be short but I don’t think it really totally offends provisions of Order 20 rule 4 CPR.

For the above reasons therefore I find the appeal has no merit. I uphold the magistrate’s judgment and dismiss the appeal with costs.

Dated at Kisii this 18th November 2004.

KABURU BAUNI

JUDGE

18/11/04

Mr. Otieno for Mr. Kassamani for Appellant.