[2022] KEHC 2687 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT HOMA BAY

CIVIL APPEAL NO. 80 OF 2019

BETWEEN

KISUMU MUSLIM ASSOCIATION...........................................................APPELLANT

AND

PETER OOKO OTIENO ORANGO........................................................RESPONDENT

(Being an Appeal from the judgment and decree in Oyugis Principal Magistrate’s PMCC No. 96 of 2017 by Hon. J.P. Nandi –Principal Magistrate).

JUDGMENT

1. Kisumu Muslim Association, the appellant herein, was the defendant in Oyugis Principal Magistrate’s PMCC No. 96 of 2017. This was a claim that arose from a road traffic accident on 15th March, 2016. The accident involved motor vehicle KBT 695E where the respondent was a passenger. The driver of the said motor vehicle lost control and the motor vehicle overturned. The respondent sustained injuries for which he was awarded of Kshs. 600, 000/= general damages.

2. The appellant was dissatisfied with the award and filed this appeal through the firm of Mose, Mose & Milimo & Company Advocates. The following grounds of appeal were raised:

a) The learned trial magistrate erred in law in making a finding of excessive damages against the defendant.

b) The learned trial magistrate erred in law and fact in holding that the defendant was 30% liable for the excessive damages so awarded or at all in the absence of any concrete evidence to demonstrate the same.

c) The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendant to general damages of Kshs600,000/= without concrete documentary evidence.

d) The learned magistrate erred in law and fact in failing to appreciate that there could be no liability without fault.

e)The trial magistrate erred in law and fact in failing to appreciate the long established principle of stare decisis, precedent law thus bringing law into confusion and thereby deriving an erroneous finding/conclusion, in particular relating to damages.

f) The learned magistrate erred in law and fact in failing to appreciate that the plaintiff’s pleadings and the evidence tendered in support thereof was incapable of sustaining the excessive award of damages.

g) The learned magistrate erred in law and fact in entering judgment in favour of the plaintiff against the defendant in spite of the plaintiff’s miserable failure to establish his case.

h) The learned magistrate erred in law and fact in failing to appreciate the legal position to be considered. The court award is unsustainable and baseless in the circumstances.

3. The respondent opposed the appeal through the firm of Kuke & Company Advocates.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. It is good practice to explain why the court has reached a certain conclusion on liability. It is not enough to adopt liability in another case as was done in the instant case where the learned trial magistrate said:

Liability in Civil Case number 68 of 2017 to apply herein.

The appellant did not testify in the case to give own version as to how the accident occurred. The trial court was therefore left with the version by the respondent. The appellant cannot be heard to say that the trial court erred in assessing liability at 30%.

6. Peter Ooko Otieno Orango, the respondent was a passenger. He could not have contributed to the accident but am persuaded to find that he ought to have enjoined the motor cycle rider whom he said the appellant’s driver was avoiding when he lost control. Without any competing evidence on how the accident occurred, I will not interfere with the finding on liability.

7. The discharge summary from Jaramogi Oginga Odinga Teaching and Referral Hospital show that the respondent suffered the following injuries:

a) Head injury;

b) Fracture of right tibia;

c) Fracture of the left lateral epicondyle;

For these injuries she was awarded Kshs.600, 000/= general damages. The appellant has argued that the award was inordinately high.

8. An appellate court will only interfere with an award of the trial court in general damages if certain circumstances are satisfied. In Butt vs. Khan [1981] KLR 349at page 356 Law JA stated:

…an appellate court will not disturb an award of damages unless it is so, 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 a figure which was either inordinately high or low.

9. At the trial court, the appellant had submitted that an award of Kshs. 250,000/= would be adequate compensation. The respondent did not propose any amount. I have perused the authorities that the appellant herein had relied on while urging their case.

10. In the case of Morris Miriti v Nahashon Muriuki & another [2018] eKLR where the appellant had tenderness on the chest was unable to breath well due to trauma and had multiple bruises on the posterior aspect of the chest and had sustained a fracture of the 3rd and 4th right ribs and also a fracture of the right scapula, was awarded Kshs.300, 000/=. The award was made on 31st day of May 2018. In my opinion, these were comparable injuries. Comparable injuries attract comparable damages.

11. I am therefore persuaded to interfere with the award by the learned trial magistrate. I set aside the award of Kshs.600, 000/= general damages and substitute it with an award of Kshs.300, 000/=.

12. Since the appeal has partially succeeded, the appellant will be entitled to half costs in this court.

DELIVERED AND SIGNED AT HOMA BAY THIS 2ND DAY OF FEBRUARY, 2022

KIARIE WAWERU KIARIE

JUDGE