[2023] KEHC 25221 (KLR)

Maina & another v Musee (Civil Appeal 93 of 2018) [2023] KEHC 25221 (KLR) (Civ) (10 November 2023) (Judgment)

Neutral citation: [2023] KEHC 25221 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal 93 of 2018

AN Ongeri, J

November 10, 2023

Between

Christopher Maina

1st Appellant

Wilson Ngige

2nd Appellant

and

Mary Musee

Respondent

(Being an appeal from the judgment and decree of Hon. E. K. Usui (SPM) in Milimani CMCC no. 5532 of 2016 delivered on 2/2/2018)

Judgment

1. The respondent was the appellant in Milimani CMCC no. 5532 of 2016 where she sued the appellants seeking general damages, special damages and costs and interest in respect of serious injuries she sustained on 27/2/2016 at the Haile Selassie-Uhuru highway round-about while she was a passenger in motor vehicle registration no. KAW 857L belonging to the 1st appellant while being driven by the 2nd appellant when it rammed into motor vehicle registration no. KBV 946V.

2. The respondent in her testimony to court said that she was a passenger in motor vehicle registration no. KAW 857L at the material time. She said motor vehicle registration no. KAW 857L was driven carelessly when it rammed into motor vehicle registration KBV 946V and she sustained a fracture of the left tibia. Dr. Cyprianus Okoth assessed the degree of injury as grievous harm and permanent incapacity of 20%.

3. The appellant did not adduce evidence. The trial court found the appellants 100% liable in negligence and assessed general damages at kshs.800,00 and special damages at ksh.12,165/=.

4. The appellants have appealed against both liability and quantum of damages on the following grounds;i.The learned trial magistrate erred in law and misdirected herself when she failed to consider appellants submissions on both points of law and facts.ii.That the learned trial magistrate’s judgment was unjust against the weight of evidence and was based on misguided points of act and wrong principles of law and has occasioned miscarriage of justice.iii.That the learned trial magistrate failed to make a finding on the submissions by the defence in her judgment and in particular on award on quantum.iv.The learned trial magistrate erred in law and fact in awarding the respondent a sum of ksh.800,000/= in general damages which award is inordinately excessive considering the injuries sustained by the respondent.v.The learned trial magistrate erred in fact in failing to consider that the injuries sustained by the respondent was a single fracture that had fully united with no disability and thereby arrived at an award that is inordinately excessive.vi.That the judgment of the learned trial magistrate is against the law and weight of the evidence on record.

5. The parties filed written submission as follows;

Appellants Submissionsi.The appellant submitted that the award of ksh.800,000 as general damages is inordinately high and the same ought to be disturbed.ii.The appellant further submitted assessment of quantum of damages is a discretionary exercise but the law has set dimensions for the exercise of discretion. The same must be exercised judicially with wise dimensions and upon some legal principles.iii.The appellant also submitted the discretion of the trial court can be disturbed if the trial court took into account irrelevant factors and test out relevant ones and if the amount awarded is so inordinately low or inordinately high that it must be a wholly erroneous estimate of the damages.iv.The appellant submitted that it is trite law that awards must be within consistent limits and the court should take into account comparable injuries or similar awards. The appellant relied on the case of Denshire Muteti Wambua v KPLC Ltd [2013] eKLR where the court said that the general method of approach for assessing damages in that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases.v.The appellant urged the court to disturb the award on the basis that the plaintiff sustained a single fracture of the left tibias and soft tissue injuries.vi.The appellant referred to the following casesa.Harun Muyom Boge v Daniel Otieno Agulo Migori HCCA no. 86 of 2012 where the plaintiff sustained multiple injuries and fracture of the right tibia and fibula and the appellate court set aside an award of ksh.150,000 and substituted it with one of 300,000. b.Naomi Momanyi v G4S Security Services (K) Ltd [2018] eKLR where the appellant sustained a fracture of the left right condylar tibia and blunt injuries and the back and multiple bruises and he was awarded kshs.300,000. vii.The appellant also referred to other cases where more serious injuries were sustained than in the current case and kshs.400,000 was awarded as general damages for pain and suffering.viii.The appellant also asked to be awarded costs of this appeal.

6. - The respondent’s submissions:i.The respondents submitted that the award of damages was reasonable.ii.The respondent relied on the following casesa.Charles Mania & Another v Batty Hassasn [2008] eKLR where Justice Lenaola awarded kshs.800,000 for similar injuries.b.Joseph Kitheka v stephen Muthuka Pius [2000] eKLR where Justice Kasanga Mutua also awarded 300,000 for similar injuries.iii.The respondent submitted that for an award to be comparable, the other awards must have been made close or at the time the claimant suffered injuries.iv.The respondent also submitted that for an appellate court to interfere with an award it must be shown that there is a clear and demonstrable error or it must be shown that the trial court took into account irrelevant factors.v.The respondent relied on the following casesa.Mutua Kaluku v Mithini Kuluto [2018] Civil Appeal no. 180 of 2008 where the court said that to be comparable, the previous cases must have been made close or at the same time.b.Peter Namu Njeru v Philemone Mwagoti [2016] eKLR where the court said that for an appellate court to interfere with an exercise of discretion by the trial court is assessing damages, it must be demonstrated that the award was inordinately too high or too low as to present an entirety erroneous estimate of compensation to which the respondent is entitled.vi.The respondent urged the court to dismiss the appeal. 7. This being a first appeal, the duty of the first appellate court is to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether or not to support the findings of the trial court while bearing in mind that the trial court had the opportunity to see the witnesses.

8. The issues for determination in this appeal are as follows;i.Whether the respondent proved her case to the required standard.ii.Whether the award of damages was inordinately high to present on entirely erroneous estimate of compensation.

9. On the issue as to whether the respondent proved her case, I find that the appellant did not challenge the testimony of the respondent who was the only eye witness in this case.

10. I find that the respondent was right in holding that the appellants were 100% liable in negligence.

11. On the issue as to whether the award of damages were erroneous, I find that the authorities relied upon by the respondents were comparable.

12. The trial court relied on the following authorities;Charles Mwania & Another v Battiny Hassan [2008] eKLR where ksh.300,000 was awarded for similar damages.Joseph Kitheka v Stephen Mathuka Pius [2006] eKLR where kshs.700,000 was awarded for similar injury.

13. The appellants relied on the following casesSimon Mutisya Kavii v Simon Kigutu Mwangi [2013] eKLR and Isaac Mwenda Micheni v Mutegi Mrango where ksh.200,000 and 100,000 were awarded.

14. I find that it is trite law that an appellate court cannot interfere with an award of the trial court unless the trial court relied on wrong principles and arrived at an erroneous award or unless the award of damages is inordinately high or low as to present and entirely wrong estimate and to warrant interference by the appellate court.

15. In the case of Hellen Waruguru Waweru v Kiarie Shoe Stores Limited (NYR) Civil Appeal No. 22 of 2015, the court held as follows;“As a general principle, assessment of damages lies in the discretion of the trial court and 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 at a figure which was either inordinately high or low. The Court 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 damages. See Kemfro Africa Ltd t/a Meru Express & Another v A. M. Lubia and Another [1982-88] 1 KAR 727, Peter M. Kariuki v Attorney General CA Civil Appeal No. 79 of 2012 [2014] eKLR and Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5. ”

16. In the current case the trial court was guided by the authorities relied on by the respondent.

17. I find that the appeal herein lacks merit and I dismiss it with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 10TH DAY OF NOVEMBER, 2023. A. N. ONGERIJUDGEIn the presence of:............................. for the 1st Appellant............................. for the 2nd Appellant............................. for the Respondent