[2004] KEHC 1400 (KLR)
The High Court found that the trial magistrate erred by considering written submissions and authorities filed by the respondent without notice to the appellant, thereby breaching procedural fairness. Furthermore, upon reviewing the injuries sustained by the respondent and comparing them to those in cited...
Source-derived case information.
- Citation
- [2004] KEHC 1400 (KLR)
- Parties
- Appellant: Kimatu Mbuvi; Respondent: Joshua Muinde Kilonzo
- Court
- High Court
- Court Station
- High Court at Machakos
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 150 of 1998
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed_in_part
- Legal Topics
- Personal Injury, Assessment of Damages, Road Traffic Accidents
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kimatu Mbuvi
Appellant
Joshua Muinde Kilonzo
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in considering written submissions and authorities filed by the respondent without notice to the appellant.
- 2 Whether the award of general damages was manifestly excessive in the circumstances.
Ratio Decidendi
The High Court found that the trial magistrate erred by considering written submissions and authorities filed by the respondent without notice to the appellant, thereby breaching procedural fairness. Furthermore, upon reviewing the injuries sustained by the respondent and comparing them to those in cited authorities, the court determined that the award of Kshs. 130,000 as general damages was excessive given the nature of the injuries and the awards in comparable cases. The court held that an appropriate award for general damages should be Kshs. 90,000, reflecting the seriousness of the injuries and the passage of time since the earlier cited cases. The special damages awarded by the lower...
Court Disposition
appeal_allowed_in_part
Orders
- The award of Kshs. 130,000 as general damages is set aside and substituted with an award of Kshs. 90,000 as general damages.
- Special damages as awarded by the lower court are confirmed.
Full Case Text
Judgment text and source record
16 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. 150 OF 1998
KIMATU MBUVI ......................................................... APPELLANT
VERSUS
JOSHUA MUINDE KILONZO .................................. RESPONDENT
J U D G E M E N T
The appellant was the defendant in Kangundo SMCC 281/98 where he had been sued by the Respondent who was the plaintiff, for damages for injuries which the respondent had sustained as a result of a road traffic accident involving motor vehicle KAC 520 C which belonged to the appellant. The respondent was a fare paying passenger in the vehicle at that time of the accident.
After the pleadings closed, the case came up for hearing inter partes on 12. 11. 1998. Only the plaintiff testified. The defence had no evidence to offer. Submissions were reserved for 20 11. 1998. Mr. Masika submitted orally. Mr. Wambua for plaintiff did not make any submissions on quantum on that day. On perusal of the file however I do note that Mr. Wambua filed written submissions on quantum on 17. 11. 1998, accompanied by some authorities. The magistrate considered submissions of both counsels, the authorities cited and made an award of Kshs. 130,000/- as general damages. The appellant has no dispute with the issue of liability but appeals against the award on grounds that it was manifestly .excessive and was not supported by comparable authorities.
In opposing the appeal counsel for the respondent cited the case of KENYA BUS SERVICES & ANOTHER V. FREDRICK MAYENDE CA 34/90 in which it was held that the appellate court will interfere with the trial judge’s assessment of damages only where an error of principle by the trial judge is shown or where the damages awarded are so high or low that they must be a wholly erroneous estimate and an error of principle.
I have carefully scanned the record of the lower court and I do agree with appellant that at no time was it ever agreed that the respondent was to file written submissions. Mr. Wambua for the respondent was present when a date was reserved for taking of submissions by the court and on that date Mr. Wambua was present and made none. The court has no idea whether the appellant was aware of the submissions which were filled by the respondent and which the court also took into consideration in making its award. It was wrong for the court to rely on these written submissions and authorities which the appellant was not aware of. There is no evidence that appellant was served with these submissions. The court should only have considered the authorities submitted by the appellant but not the respondent.
The authority cited by the respondent refers to appeals from the High Court to the Court of Appeal. And even if the same principles were to apply to the present case, the court did err by considering authorities that were improperly on record and which the other party had no notice of.
The question is whether the award was excessive in the circumstances. From the medical reports produced in evidence, the respondent suffered soft tissue injury to the nasal bridge which got swollen, blunt injury to right shoulder, mid back, cut wound on lateral aspect with left finger and cut wound anterior aspect left leg 6 cm. long. He was left with some scars, but generally healed well. The appellant had suggested an award of Ksh. 70,000/- and relied on the cases of ONYANGO OGUTU V. JOHN MIGUI HCC 346/90 in which the plaintiff suffered lacerations on the scalp and contusions to the chest, was admitted for 5 days and left with post traumatic headaches fatigue, forgetfulness and the case ofGEORGE ONYANGO V. MINERAL MINING COMPANY HCC 146/89 in which the plaintiff sustained lacerations on the left parietal region of the head, multiple abrasions over right knee, and lumbar region, was unconscious for 8 hours and suffered celebral concussions. In both cases an award of Ksh. 120,000/- was made in 1993 and 1992 respectively. The injuries sustained in the cases cited were more serious but the award had been made several years earlier. In my assessment I would have made an award of Kshs. 90,000/- as general damages, special damages are not interfered with .
I accordingly set aside the award of Ksh. 130,000/- as general damages and instead make an award of Ksh. 90,000/- as general damages. Special damages confirmed and costs to the appeal to the appellants.
Dated, read and delivered at Machakos on 30th day of September 2004.
R. V. WENDOH
JUDGE