[2020] KEHC 8579 (KLR)
The appellate court found that the trial court properly exercised its discretion in assessing general damages for the respondent's injuries. The court considered the nature and extent of the injuries, the medical evidence regarding permanent disability, and the principle that comparable injuries should attract...
Source-derived case information.
- Citation
- [2020] KEHC 8579 (KLR)
- Parties
- Appellant: Manpower Networks Limited; Respondent: Ezekiel Mwalukuku
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Suit 81 of 2018
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- CA Otieno
- Legal Topics
- Personal Injury, Assessment of Damages, Employer Liability
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Manpower Networks Limited
Appellant
Ezekiel Mwalukuku
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court's assessment of general damages for personal injuries was inordinately high or erroneous.
- 2 Whether the appellate court should interfere with the trial court's exercise of discretion in awarding damages.
Ratio Decidendi
The appellate court found that the trial court properly exercised its discretion in assessing general damages for the respondent's injuries. The court considered the nature and extent of the injuries, the medical evidence regarding permanent disability, and the principle that comparable injuries should attract comparable awards. The appellant failed to demonstrate that the award was inordinately high or that the trial court relied on irrelevant factors or excluded relevant considerations. Consequently, there was no justification for appellate interference, and the award of Kshs.800,000 in general damages was upheld.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
- The award of general damages in the sum of Kshs.800,000 is upheld.
Full Case Text
Judgment text and source record
19 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL SUIT NO. 81 OF 2018
MANPOWER NETWORKS LIMITED................................APPELLANT
VERSUS
EZEKIEL MWALUKUKU................................................RESPONDENT
J U D G M E N T
1. The two parties here were engaged in a litigation as defendant and plaintiff respectively. The Appellant was sued by the respondent on the pleaded facts that on the 2/4/2015, while the respondent was engaged in the Appellants employment and while going about his duties as a labourer a stack of sacks collapsed and buried him underneath as a consequence of which the respondent suffered bodily injuries, loss and damage.
2. The injuries pleaded to have been suffered included hairline fracture of the shaft of the left fibula, clip fracture of the left iliac bone, blunt injury to the lower back and reduced back disc space as well as blunt injury to the chest and foot. On account of such injuries the respondent prayed for special damages in the sum of Kshs.2,000 as well as general for pains and suffering together with costs of the suit and interests.
3. The respondent suit was resident by the appellant by the amended defence in which all the allegations pleaded in the plaintiff were denied including injuries suffered it being pleaded without prejudice and in the alternative that the accident was wholly and substantially contributed to by the respondent. It was then prayed that the respondents suit be dismissed with costs. It was additionally pleaded that the appellant not only paid the plaintiff’s hospital bills in the sum of Kshs.86,580 but also Kshs.42,030/= in cash to him.
4. After conclusion of tender of evidence where the respondents side called two witnesses just as the Appellant also did, the court entered judgment for the respondent and apportioned liability at 70%:30% in favour of the respondent and assessed general damages in the sum of Kshs.800,000/=.
5. This appeal only challenges the assessment of damages and does not touch on apportionment of liability. Being limited to assessment of damages only, the principles upon which this court as an appellant court, would interfere with the trial courts assessment of damages are that assessment is an exercise in judicial discretion; is known to be a difficult task and the court should thus be slow to disturb an award unless it be demonstrated that the same was inordinately too high or too low as to amount to an outright error in estimating the intended compensation. It is not enough that another judge would have awarded a different figure. There must be shown that an irrelevant matter went into the assessment or that a relevant matter was excluded from the decision.
6. This court is guided by the principle of law that comparable injuries should attract comparable damages. At trial the respondent’s injuries pleaded and particulars given and evidence led by a doctor on their residual effects said to be a residual 7% permanent disability due to chronic pain and multiple weak bone union that can easily fracture over travial trauma. In cross examination PW 1, DR Ndegwa said that the injury left the respondent with a straightened back rather that curved one and that with reduced disc space there was risk of injury which need more care.
7. Having considered the evidence led on the injuries and their residual effects and the cases cited to him, as said before, the court made an award of general damages and assessed same at Kshs.800,000/=.
8. While the appellant contends that the award was excessive, I have had the benefit of reading the judgment appeal against and the submission offered to the court and authorities relied on and I find that there is no justification to interfere with the award of damages. In fact I do find that the appeal lacks merits and the same is hereby dismissed with cots.
Dated and Delivered at Mombasa this 24th day of January 2020.
P.J.O. OTIENO
JUDGE