[2003] KEHC 790 (KLR)
The court found that the trial magistrate erred by failing to consider medical reports that had been admitted without objection from the respondent. This omission led to an inadequate assessment of the appellant's injuries and an inordinately low award of damages. The High Court held that the reports should have...
Source-derived case information.
- Citation
- [2003] KEHC 790 (KLR)
- Parties
- Appellant: Lucy Wanjiru Gachiri; Respondent: Kiambu General Transport Agency Ltd Karume Investment
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Commercial Courts)
- Jurisdiction
- Kenya
- Case Number
- ? 288 of 1999
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal allowed; lower court award set aside and substituted with higher damages.
- Judges
- PJ Ransley
- Legal Topics
- Personal Injury, Road Traffic Accident, Assessment of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Lucy Wanjiru Gachiri
Appellant
Kiambu General Transport Agency Ltd Karume Investment
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in failing to admit and consider medical evidence presented by the appellant.
- 2 Whether the damages awarded by the trial magistrate were inordinately low given the extent of the appellant's injuries.
Ratio Decidendi
The court found that the trial magistrate erred by failing to consider medical reports that had been admitted without objection from the respondent. This omission led to an inadequate assessment of the appellant's injuries and an inordinately low award of damages. The High Court held that the reports should have been considered as evidence of the appellant's injuries, which included a compression fracture of the thoracic spine, contusion of the thoraco-lumbar spine, and a sprain to the right shoulder, as well as subsequent pain and localized lumbar spondylosis. Taking into account the medical evidence and submissions, the High Court set aside the lower court's award and substituted it...
Court Disposition
Appeal allowed; lower court award set aside and substituted with higher damages.
Orders
- The award of Kshs.40,000 by the magistrate is set aside.
- The appellant is awarded Kshs.200,000 in general damages, to be reduced by 20%.
Full Case Text
Judgment text and source record
18 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
H.C. CIVIL APPEAL NO. 288 OF 1999
LUCY WANJIRU GACHIRI ……………………………….. APPELLANT
VERSUS
KIAMBU GENERAL TRANSPORT
AGENCY LTD KARUME INVESTMENT ………………..DEFENDANT
JUDGMENT
The appellant appeals against the judgment of Mr. Mukabwa Resident Magistrate, Githunguri in Civil Case No. 151 of 1998 Githunguri given on the 23. 6.1999 on the grounds that the Magistrate failed to admit medical evidence and that the amount he awarded was inordinately low. The parties appeared before me and relied on their written submission by underlining the same. The claim in the lower court arose out of a traffic accident in which the appellant suffered injuries after being hit by the respondent’s motor vehicle whilst walking along the Banana/Ndenderu road.
The appellant’s advocate attached the decision by the Magistrate for not admitting two medical reports that were put in as their makers were not present to give evidence in court. From the record it appears that two medical reports were put in evidence marked Ex.4 and Ex.6. In the absence of any objection by the defendant/respondent to those reports they must be deemed to have been admitted by consent. The Magistrate was wrong therefore not to have taken them into account. Had the Magistrate required the medical reports to be proved he should have not admitted them into evidence that had them marked for identification to be admitted when the witness appeared in person.
As a result the Magistrate failed to take into account the plaintiff/appellant injuries in their full extent. The injuries she sustained were as follows:-
1. Compression fracture of the thoracic spine
2. Contusion of the thoraco-lumar spine
3. Sprain right shoulder Page 15 of the report.
This is confirmed by Dr. Wokabi on page 17 of the record, but who is ordering an X-ray found that the appellant had no fracture actually occasioned. However he found that she suffered severe pain and had already developed localized lumbar spondylosis. He also found that she was depressed with a lot of self pity. I have considered the submissions of counsel and cases relied on. I am of the view that the sum of Kshs.40,000/= awarded by Magistrate is inordinately low. I therefore set aside this award and bearing in mind the submissions of both advocates and on the medical reports award the plaintiff a sum of Kshs.200,000/= by way of general damages. This is to be reduced by 20%. The appellant will have the costs of this appeal.
Dated and delivered at Nairobi this 17th day of September 2003.
P.J. RANSLEY
JUDGE