[2022] KEHC 14283 (KLR)

Kimori v Mangare (Civil Appeal E004 of 2021) [2022] KEHC 14283 (KLR) (11 February 2022) (Judgment)

Neutral citation: [2022] KEHC 14283 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E004 of 2021

JN Njagi, J

February 11, 2022

Between

Samuel Nyakundi Kimori

Appellant

and

Justus Mangare

Respondent

(Being an appeal from the judgment and decree of Hon.W.C.Waswa, RM, in Nyamira CMCC No. 7 of 2020 delivered on 18th December 2020)

Judgment

1. The appellant has filed this appeal challenging the award of general damages to the respondent to the sum of Ksh.230,000/= in compensation for injuries sustained by the respondent in a road traffic accident while travelling in a motor vehicle owned by the appellant. The grounds of appeal are that:1. That the learned trial magistrate grossly misdirected himself in treating the evidence and the submissions on quantum before him and consequently coming to a wrong conclusion on the same.2. That the learned trial magistrate proceeded on wrong principles when assessing damages to be awarded to the respondent if any and failed to apply precedents and tenets of the law applicable.3. The learned trial magistrate decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.4. The learned trial magistrate erred in law and fact in relying on extraneous circumstances which were not supported by the evidence on record, hence arriving at a wrong finding as regards the nature of the plaintiff’s injuries.5. The learned trial magistrate erred in fact and in law by basing his judgement on the testimony of the plaintiff only having ruled to close of the defense case without witnesses.6. The learned trial magistrate erred in fact and in law by awarding the plaintiff inordinately high quantum as damages in the circumstance of this case.7. The learned trial magistrate erred in assessing an award, hereunder, which was inordinately high and wholly erroneous estimate of the loss and damages suffered by plaintiff.8. The learned trial magistrate erred in awarding an excessive sum for the injuries suffered in the face of the evidence adduced which was not sufficient to warrant the amount.9. The learned trial magistrate erred in fact and in law in awarding damages to a claimant/plaintiff for injuries not pleaded by the respondents herein.10. That the learned trial magistrate failed to adequately evaluate the evidence and exhibits and thereby arrived at a decision unsustainable in law.

2. The appeal was canvassed by way of written submissions of the respective advocates for the parties. The firm of Kimondo Gachoka & Co. Advocates appeared for the appellant while the firm of Ben K. Gichana & Co. Advocates appeared for the respondent.

3. The appeal being one on quantum of damages, the principles which ought to guide the court in determining whether to disturb the award are as was set out by the Court of Appeal in Butt v Khan (1977) 1KLR that:“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

4. In Kemfro Africa Limitedt/aMeru Express Services & Gathongo Kaninivs 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.”

5. According to both the P3 form and the medical report of Dr. Morebu, the respondent had sustained-Deep cut wounds on the left legChest contusionBlunt trauma to the right leg, andBlunt trauma to the neck

6. In awarding a sum of Ksh.230,000/= the trial magistrate relied on the case of Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi (2005)eKLR where the plaintiffs had sustained multiple soft tissue injuries and were awarded between Ksh.300,000-350,000/=.

7. The advocates for the appellant submitted that the award of Ksh.230,000/= for the kind of injuries sustained by the respondent was disproportionate, unfair and unjustified. They urged the court to reduce the award to Ksh.90,000/=. They supported this proposition with the following authorities:a.In HB (Minor suing through mother & next friend DKM)vJasper Nchonga Magari & Another(2021)eKLR where Nyakundi J. upheld the lower court`s award of Kshs. 60,000/- for blunt object injury to the head and neck, thorax, abdomen and limbs.b.In Ephraim Wagura Muthui & 2 others v Toyota Kenya Limited & 2 others (2019)eKLR where Majanja J. set aside the lower court`s award of Kshs. 55,000/- for cut wound on the parietal area of the head, contusion on the neck, blunt trauma to the chest, cut wound on the left leg and blunt trauma to the back and substituted it with an award of Kshs. 100,000/-.c.In Nyambati Nyaswabu Erick v Toyota Kenya Limited & 2 Others(2019)eKLR where Majanja J set aside the lower court`s award of Kshs. 55,000/= for a deep cut on the scalp extending to the maxillary area, blunt injury to the left side of the chest, contusion on the back and contusion on both legs and substituted with an award of Kshs. 90,000/-.

8. The advocates for the respondent on the other hand submitted that the amount awarded by the trial court was not only a just and fair compensation for the injuries sustained by the respondent but also consistent with other awards made in similar cases. That the injuries involved in the case of Catherine Wanjiru Kingori (supra) that the trial court relied on to make the award were similar to the injuries sustained in this case. The advocates further supported the award with the following authorities:-Anas Baraza v Jesca Olala Kanani & Another, Bungoma HCCA No.62 of 2008, where the first plaintiff had sustained painful shoulder joint, painful neck, pain on the chest and right foot and the award was on appeal reduced from Ksh380,000/= to Ksh.250,000/=.-Wairimu Njui v Baker & Another, Nrb HCCC No. 2116 of 1990 where the plaintiff sustained head injury and soft tissue injuries to the trunk and right foot and was awarded a sum of Ksh.220,000/=.

9. I have considered the nature of injuries suffered by the respondent vis-a-vis the submissions by the advocates for the parties. The respondent suffered soft tissue injuries in form of cuts and blunt trauma. The trial magistrate awarded Ksh230,000/=. In my view, the awards in the case the magistrate relied on to settle on the award in this case were high for soft tissue injuries. The award in this matter was therefore inordinately high.

10. I have considered the authorities cited by the respondent in this appeal on quantum. I find the injuries in the cited cases to have been more serious than those sustained by the respondent in this case. The authorities cited by the appellant were far more relevant.

11. I have considered comparative awards in other cases where general damages for soft tissue injuries were made. In Maimuna Kilungwa vs Motrex Transporters Ltd [2019] eKLR Makueni Civil Appeal No. 11 of 2017, the court awarded Kshs. 125,000/= for injuries to the neck, left ear and left shoulder.

12. In Jyoti Structures Limited & another v Truphena Chepkoech Too & Another [2020] eKLR, the 1st respondent had sustained blunt injury to the head, neck, chest, back, both thighs while the 2nd respondent had sustained bruises on the parietal scalp, blunt injury to chest, deep cut wound on right forearm and right hand. The awards were reduced on appeal from Kshs. 250,000 to Kshs.125,000/= each.

13. In Ndungu Dennis –vs- Ann Wangari Ndirangu & Another (2018) eKLR, the award was reduced from Ksh. 300,000/= to Ksh. 100,000/= where the respondent had sustained soft tissue injuries to the lower leg and soft tissue injuries to the back.

14. In Simon Muchemi Atako & Another vs Gordon Osore (2013) eKLR the Court of Appeal awarded the 1st appellant a sum of Kshs. 120,000/= for injury to the nose with nose bleeding, blunt injury to the chest, blunt injury to the right hip, cut wound on the base of the left thumb with partial loss of the nail and bruise wound on the right knee.

15. Considering that the respondent had sustained some deep cut wounds on the left leg, chest contusion and trauma to the right leg and neck, I am of the considered view that a sum of Ksh.130,000/= is adequate compensation for the injuries sustained. In the premises the award of the trial court is set aside and substituted with an award of Ksh.130,000/=.The appellant to have the costs of the appeal.Orders accordingly.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF FEBRUARY 2022. J. N. NJAGIJUDGEIn the presence of:N/A for the Appellant – VirtuallyN/A for the Respondent – Virtually30 days R/A.