[2004] KEHC 2264 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CIVIL APPEAL NO 395 OF 2001

MARGARET T. NYAGA …………………..………………APPELLANT

VERSUS

VICTORIA WAMBUA KIOKO ……………..………… RESPONDENT

JUDGMENT

This is an appeal from the Judgment of Hon. C. O. Kanyangi, Senior Principal Magistrate, Nairobi, delivered on July 3, 2001 in which he awarded General damages of Kshs.450,000/= and specials of Kshs.28,300/= for personal injury sustained by the Respondent in a motor vehicle accident.

Liability was not in issue, the parties having agreed that the Respondent (Plaintiff in the lower court) was liable to 35% contribution, while the Appellant would assume 65%.

This appeal is only on quantum, and although there are nine grounds of appeal listed, there are three relatively simple points of dispute: 1) quantum of general damages which the Appellant says is excessive; 2) special damages of Kshs.28,300/= which the Appellant says were wrongly awarded; and 3) whether the contribution of 35% on liability should be applied to special damages.

Mr Mwangi, Counsel for the Appellant, argued that based on the medical evidence before the Court, the award for general damages (Kshs.450,000/=) was inordinately excessive. He cited the following six cases to demonstrate how the lower court had applied the wrong principles in arriving at the quantum:Tahir Sheikh Said vs Charles Mugabo(C. A. 273 of 1998, Nakuru); Mbaka Nguru vs James G. Rakwar(C. A. 133 of 1998, Nairobi); Joseph Kirugi vs Mwangi Gatete (HCCC 4196 of 1991, Nairobi); George Gachie vs Pelican Hanlage (HCCC 37 of 1997, Machakos);Peter Kirumba Munyingi vs Wynack Enterprises (HCCC 26 of 2001);Kenya Bus Services vs Samuel W Njoroge(C. A 133 of 2001, Nairobi).

In a brief, less than one page typed Judgment, the lower court awarded Kshs.450,000/= based on what the Senior Principal Magistrate believed was “major injuries.” This is what the Senior Principal Magistrate said:

“The Court has perused the medical evidence add uced. It appears unanimous that the plaintiff sustained major injuries.The defence counsel has offered Kshs.150,000/= to the plaintiff as general damages before contribution. The plaintiff’s counsel however has requested for Kshs.500,000/= as general d amages. Each counsel has adduced authorities to support their submissions. I award the plaintiff Kshs.450,000/= as general damages (before contributions) Kshs.28,300/= as special damages, costs of the suit and interest on the amount awarded at court rate s with effect from today till payment in full.”

The medical evidence before the Court indicated that the Respondent had suffered ruptured urinary bladder; fracture of the right fibula and superficial injuries on the right axle, left hand and both knee joints. Both the doctors concluded that there were no residual disabilities, and no long term complication was expected. It was in this light that the Senior Principal Magistrate should have assessed the quantum. Unfortunately, he provided no analysis of the facts, and no reasoning for his award. Having read all the authorities submitted by both the Counsels, I am satisfied that the award for general damages was excessive.

In theKenya Bus case (supra) the Court of Appeal reduced the award of Kshs.1. 2 million given by the High Court to Kshs.500,000/= for injuries to the right shoulder and hip and the right leg which was amputated below the knee, and where an artificial leg was given. These injuries were far more serious than the injuries in the case before this Court.

The Court of Appeal outlined the principles on which an appellate court would interfere with the award of damages of the trial Court as follows:

“What then are the principles on which an appellate court will interfere with a trial judge’ s assessment of damages? These are now well settled in Kenya. Kneller, J.A, as he then was, put it thus in Robert Msioki Kitavi vs Coastal Bottlers Ltd(1985) 1 KAR 891 at 895:

“The Court of Appeal in Kenya, then, should, as its fore - runners did, only di sturb an award of damages when the trial judge has taken into account a factor he ought not to have taken into account or failed to take into account something he ought to have taken into account or the award is so high or so low that it amounts to an erro neous estimate.”

Hancox, J.A. as he then was, stated the test thus (at 683) in Idi Ayub Shabani and Yusufu Juma vs City Council of Nairobi and Another(1985) 1 KAR 681:

“The test as to when an appellate court may interfere with an award of damages was stat ed by Law, J.A. inButt vs Khan(1977) 1 KAR 1 (a case referred to in another context by the learned judge) as follows:

“An appellate court will not disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous est imate. 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.”

These principles apply to the present case. I am satisfied that this is a proper case where the appellate court should interfere with the award made by the lower court. Based on the authorities cited, I believe that an award of Kshs.300,000/= for general damages would be reasonable and fair.

The second ground of appeal relates to the special damages of Kshs.28,300/= which the Appellant says were not proved. The Respondent’s Counsel agrees that only Kshs.2,900/= worth of specials were actually proved, and accordingly this court will reduce the said award to Kshs.2,900/=. Finally, I agree with the Counsel for the Appellant that the Respondent’s contribution of 35% should apply to both General as well as Special damages. I see no basis, and no logical reason for not applying the contribution to the special damages, and no reasons nor authorities were provided to this Court to persuade it otherwise.

Accordingly, I allow this appeal, set aside the award of damages made in the decree herein, and substitute therefor the following

: 1. General damages Kshs.300,000

2. Special damages Kshs. 2,900

Total Kshs.302,900

Less 35% contribution Kshs.106,015

Kshs.196,885

As the Appellant has substantially succeeded in this Appeal, I award it onehalf the costs of this appeal. However, the Appellant shall pay the Respondent the costs in the lower court.

Dated and delivered at Nairobi this 21st day of April, 2004.

ALNASHIR VISRAM

JUDGE