[2022] KEHC 10242 (KLR)

Manji v Khasiani (Civil Appeal 114 of 2018) [2022] KEHC 10242 (KLR) (18 May 2022) (Judgment)

Neutral citation: [2022] KEHC 10242 (KLR)

Republic of Kenya

In the High Court at Eldoret

Civil Appeal 114 of 2018

RN Nyakundi, J

May 18, 2022

Between

Dhiraj Manji

Appellant

and

Fatin Khasiani alias Tifany Khasiani

Respondent

(Appeal from the Judgment of the Chief Magistrate’s Court at Eldoret (Hon C. Obulusta, CM) delivered on 21st September, 2018 in CMCC No. 701 of 2017)

Judgment

1. The Appellant was the original Defendant and the Respondent the original Plaintiff in the original trial in Eldoret Chief Magistrate’s Court Civil Case No. 701 of 2017. The Appellant instituted the said suit in the trial Court for general damages and special damages, arising from injuries sustained from a road accident involving motor vehicle registration number KBW 580M being driven by the Appellant’s employee and motorcycle registration number KMDG 585M where the Appellant was a pillion passenger. 2. During the hearing, the parties conceded on liability at the ratio of 80:20 in favour of the Respondent against the Appellant. The trial magistrate, Chief Magistrate C. Obulusta, in a judgment delivered on 21st September, 2018 apportioned liability at the ratio of 80:20 against the Appellant and awarded the Respondent general damages of Ksh.700,000/- and special damages amounting to Kshs.12,000 /- as well as costs of the suit.

3. The Appellant being dissatisfied with the above decision, lodged instant appeal and set out 10 grounds namely:

Appellant’s Submissions 4. Counsel for the Appellant, Ms. Odwa, took issue with the award of Kshs. 700,000/- as general damages. He contends that the said awarded was unjustifiable, manifestly excessive and does not reflect the actual loss suffered by the Respondent herein. The Appellant contends that the trial court acted or premised its judgment on a wrong principle of law hence arrived at an erroneous judgment.

5. Counsel for the Appellant submitted that, the Respondent claimed that as a result of the said accident she suffered the following injuries;a)deep cut wound on the forehead,b)blunt injury to the mouth with traumatic avulsion of the two 1st upper incisor teethc)cut wound on the upper lipd)blunt injury to the necke)blunt injury to the chestf)blunt injury to both arms andg)bruises and blunt injury to the left knee.

6. Further, Counsel for the Appellant submitted that PW2 Dr. Joseph C. Sokobe had testified that he had treated the Respondent herein and had classified the said injuries as soft tissue injuries which healed at the time of the hearing without any deformity and or disability. The Appellant’s contention is that such injuries would not attract damages as the ones awarded by the trial court. The Appellant maintains the position that the court should have awarded Kshs.150,000/- in the circumstances and not more.

7. Counsel for the Appellant urged court to interfere with the quantum of damages awarded by the trial court. Counsel for the Appellant cited the following cases Bashir Ahmed Butt Vs. Uwais Ahmed Khan [1982-88] KAR 5; Kemfro Africa Limited T/A Meru Express Services & Another Vs. Lubia & Another [1976] eKLR; In Channan Agricultural Contractors Ltd Vs. Fred Barasa Mutayo [2013] eKLR and George Kinyanjui T/A Climax Coaches and Another Vs. Hussein Mahad Kuyale [2016] eKLR to buttress her submissions.

8. Counsel for the Appellant faulted the trial magistrate for failing to comply with the provisions of Order 21 Rule 4 of the Civil Procedure Rules, 2010 which provides that minimum contents of a judgment to include; “a concise statement of the case, the points for determination the decision arrived and the reasons for such decision.” The Appellant maintains that the trial magistrate did not review the evidence adduced by the parties so as to make a sound and well-reasoned determination on the matter. Counsel for the Appellant contends that the trial magistrate made no attempt to come up with concise statements of the matter, points for determination thereby failed to comply with the law. Counsel for the Appellant relied on the case of Jameson Siika Vs. Andrew Naranga Ongeri [2016] eKLR to buttress her submission.

9. Counsel for the Appellant also faulted the trail magistrate for contradicting himself in his judgment on the award of damages citing that the trial court had found that the proposed award of Kshs. 300,000/- on general damages was on the higher.

10. Counsel for the Appellant urged court to allow the appeal as prayed and set aside the learned trial magistrate’s judgment delivered on 21st September, 2018 and substitute the same with a reasonable award.

The Respondent’s submissions 11. Counsel for the Respondent, Mr. Mwinamo, maintains the position that this court should not interfere with the decision of the trial court as the same was supported by evidence.

12. On the issue of quantum on damages the Respondent Counsel, maintains that in view off the injuries sustained, the award of Kshs. 700,000/- awarded as general damages was adequate. The Respondent’s contention is that the award was reasonable considering the inflation and effluxion of time. Counsel for Respondent placed reliance on the case of George Mathenge Muhingu Vs. Patel.

13. Counsel for the Respondent urged court to uphold the award on general damages and prayed that the appeal be dismissed with costs.

Determination 14. It is now settled law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its findings and conclusions see Court of Appeal for East Africa in Peters –vs- Sunday Post Limited[1958] EA 424. The appropriate standard of review established in cases of appeal can be stated in three complementary principles:i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

15. From the record it is not dispute that on or about the 10th of June, 2017 the Respondent was lawfully travelling as pillion passenger on motorcycle registration number KMDG 585M along Eldoret-Kitale Road when the Appellant’s driver negligently drove motor vehicle registration number KBW 580R causing the aforesaid motor vehicle to knock down the motor cycle and as a result of which the Plaintiff sustained injuries. By consent of the parties and their respective advocates liability was agreed at the ratio of 80:20 in favour of the Respondent/Plaintiff.

16. In the present appeal the only issue for determination is whether the award of general damages of Kshs. 7000,000/= in light of the injuries stated above is inordinately high to persuade this court to interfere with it. The Court of Appeal inOdinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”.

17. The injuries suffered by the Appellant were listed in the treatment notes, the P3 form and the medical report by Dr. Joseph C. Sokobe as:a)cut wound on the foreheadb)avulsion of the two 1st upper incisor teethc)cut wound on the upper lipd)blunt injury to the necke)blunt injury to the chestf)blunt injury to both arms andg)bruises and blunt injury to the left knee.

18. I have considered the Appellant’s submissions on the quantum of damages, the authorities cited by Counsel in their submissions for this appeal. The other critical point of convergence for the court is to bear in mind that the award of general damages is an exercise of discretion by the trial court based on the evidence and impressions on demeanor of witnesses made by the Learned trial Magistrate which advantage an appeal court by its mode of delivery lacks. (See Simon Tavera v Mercy Mutitu Njeru {2014} eKLR). It must be noted that injuries will never be fully comparable to other person’s injuries. What a court is to consider is that as far as possible comparable” to the other person’s injuries, and the after effects.

19. From the evidence before court, it is clear that the, Respondent had suffered soft tissue injuries with permanent disability assessed at 5% due to loss of her teeth.

20. On the issue of quantum, I shall rely on the Court of Appeal’s decision in the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR, where the Court of Appeal held that –“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that:‘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.” (Emphasis my own).

21. From my re-evaluation of the evidence, I find that the learned trial magistrate made reference to the relevant evidence on record. That said, it is for me to determine whether the award was consistent with comparable awards made. Upon studying the cited authorities relied upon by the Appellant, I note that although the injuries therein were more severe in nature than in the current case the learned trial magistrate chose to award damages that were higher than in the said cases.

22. In the case ofSavanna Saw Mills Ltdvs Gorge Mwale Mudomo (2005) eKLR the court stated as follows: -“It is the law that the assessment of damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court simply because it would have awarded a different figure if it had tried the case at the first instance …”

23. It is worth noting assessing compensatory damages, the Law seeks at most to indemnify the victim for the loss suffered, not to mulct the tortfeasor for the injury he has caused see the case of Lim v Camden HA {1980} AC 174. There is a distinct difference between the pain and suffering experienced by a victim of an accident with serious multiple skeletal injuries in contrast with that of low-level soft tissue injuries.

24. In the case of Purity Wambui Muriithi v Highlands Mineral Water Company Ltd [2015] eKLR: The award of Kshs.700,000/= was reduced to Kshs.150,000/= for injuries to the left elbow, pubic region, lower back and right ankle. In the case of Dickson Ndungu Kirembe v Theresia Atieno & 4 Others [2014] eKLR the High Court reviewed downwards an award of Kshs. 255,000/= to Kshs. 127,500= for soft tissue injuries which produced no complications

25. In view of the foregoing, I am persuaded that the award made by the learned trial magistrate fell on the lower side in comparison to comparable awards, hence there is need for interference. However, I am not persuaded that the sum suggested by the Appellant is reasonable and fair in light of the injuries suffered.

26. Upon considering the damages awarded in the authorities I have just cited; I find an award of Kshs.300,000/= to be reasonable and adequate to compensate for the injuries suffered in this case.

27. Accordingly, I allow this appeal on quantum, set aside the award of Kshs. 700,000/= general damages awarded to the Plaintiff/Respondent by the trial court and substitute it with an award of Kshs. 300,000/= less 20% contributions leaving a balance of Kshs. 240,000/= plus special damages as proved and not challenged on appeal in the sum of Kshs. 12,000. Kshs. 240,000 + 12,000= 252,000/=

28. Costs are in the discretion of the court and in any event, to a party who is successful. However, in this case, I order that each party do bear their own costs as the appeal was only on quantum and the fact that the Respondent’s costs as awarded in the trial court are considerably reduced in view of the reduction of the general damages by half in this appeal.

29. It is so ordered.

DATED, SIGNED AND DELIVERED VIA EMAIL AT ELDORET THIS 18TH DAY OF MAY, 2022. .................................R. NYAKUNDIJUDGE