[2022] KEHC 17139 (KLR)
The appellate court upheld the trial court's finding of 100% liability against the appellant, noting that the respondent's evidence of negligent driving was unchallenged. However, the court found that the award of Kshs 400,000 in general damages was excessive in light of comparable awards and the nature of the...
Source-derived case information.
- Citation
- [2022] KEHC 17139 (KLR)
- Parties
- Appellant: Geoffrey Mariga; Respondent: Dennis Nyaata Maosa
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 112 of 2021
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- Appeal partially allowed; general damages reduced, special damages sustained.
- Judges
- REA Ougo
- Legal Topics
- Road Traffic Accidents, Negligence, Assessment of Damages, Liability, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Geoffrey Mariga
Appellant
Dennis Nyaata Maosa
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court erred in finding the appellant 100% liable for the accident.
- 2 Whether the award of general and special damages was excessive or justified.
Ratio Decidendi
The appellate court upheld the trial court's finding of 100% liability against the appellant, noting that the respondent's evidence of negligent driving was unchallenged. However, the court found that the award of Kshs 400,000 in general damages was excessive in light of comparable awards and the nature of the injuries, and therefore reduced the general damages to Kshs 250,000. The special damages were proven by the respondent and sustained in full. The court applied the principle that appellate interference with damages is only warranted where the award is inordinately high or low or based on wrong principles, which was the case here regarding general damages.
Court Disposition
Appeal partially allowed; general damages reduced, special damages sustained.
Orders
- General damages awarded to the respondent are reduced from Kshs 400,000 to Kshs 250,000.
- Special damages of Kshs 53,000 are sustained as awarded by the trial court.
Full Case Text
Judgment text and source record
31 paragraphs
Mariga v Maosa (Civil Appeal 112 of 2021) [2022] KEHC 17139 (KLR) (25 November 2022) (Judgment)
Neutral citation: [2022] KEHC 17139 (KLR)
Republic of Kenya
In the High Court at Kisii
Civil Appeal 112 of 2021
REA Ougo, J
November 25, 2022
Between
Geoffrey Mariga
Appellant
and
Dennis Nyaata Maosa
Respondent
(Being an appeal from the judgment/decree of the Hon. Nathan Shiundu Lutta (C.M) a delivered on 31st August, 2021 in Kisii CMCC No. 3 of 2019)
Judgment
1. The respondent sued the appellant for general damages and special damages of Kshs 53000/- for injuries sustained in road traffic accident on the July 2, 2018. The plaintiff was a passenger in motor vehicle registration number KAR 947G. the accident happened along Kisii - Oyugis raod at Nyakoe area. It was the respondent’s allegation that the appellant’s driver drove negligently and or carelessly and lost control of the vehicle causing it to veer off its lane and it knocked motor vehicle registration number KAZ 519T and motor vehicle registration number KBW 115H and as result of the collision the respondent sustained injuries.
2. The respondent particularised his injuries as follows; a deep cut wound on the frontal region, 3rd left rib fracture, 4th left rib fracture, bruises on the right hand, bruises on the left hand, degloving injury on the right leg and deep cut wound on the left ankle region.
3. In a judgment dated the August 31, 2021 the trial court found the appellant 100% liable and awarded the respondent general damages of Kshs 400,000/- and special damages of Kshs 53000/-.
4. In his memorandum of appeal dated the September 25, 2021, the appellant has listed 10 grounds of appeal which can be summed as two issues liability and quantum.
5. This being the first appellate court there is need to look at the evidence adduced before the lower court afresh bearing in mind that did not have the benefit of seeing or hearing the witnesses as they testified. (See the case of Selle v Associated Motor Boat Company Ltd [1968] EA 123, 126).
6. Dennis Nyatta Moaosa (PW2) the respondent adopted his written statement. He testified that on the July 2, 2018 he was a lawful passenger in vehicle registration number KAR 947G when the driver who was driving along Kisii-Oyugis road drove negligently and the vehicle lost control veered off its lane and knocked vehicle registration no KAZ 519T and vehicle registration number KBQ 115 on as a result he sustained the following issuesa.Deep cut wound on the frontal regionb.3rd left rib fracturec.4th left rib fractured.Bruises on the right hande.Bruises on the left handf.Degloving injury on the right legg.Deep cut wound on the left ankleThe respondent indicated that he still experiences headaches.
7. Doctor Peter Morebu Momanyi ( PW1) testified that the plaintiff sustained a 3rd left rib fracture, a 4th rib fracture, a deep cut wound on the frontal region of the head and left region of the head, bruises on the left and right hand and degloving injury on the right leg.
8. DWI, Jennipher Kahuthu testified that she examined the treatment notes and x-ray the respondent had and concluded that he had soft tissue injuries. She also produced the report by Doctor Kuoko. Her examination was 8 months after the accident.
9. The appellant has in his submissions attacked the evidence adduced by the respondent
10. On liability I agree with the trail magistrate’s finding that the defendant was 100%. It was the respondent’s evidence that the driver drove negligently and that it veered off the road causing a collusion with 2 other vehicles. This evidence was not challenged hence I see no need to interfere with the finding of the trial court.
11. I now turn to consider whether the damages awarded were excessive. The limitations under which an appellate court will interfere with an award in general damages was stated by the Court of Appeal in Bashir Ahmed Butt vs Uwais Ahmed Khan(1982-88) KAR as follows:"An appellate court will not disturb an award for general 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..."
12. Appellant suggests a sum between 50000/- and 70000/-. Case cited was of a minor not adult. The respondent maintained that the sum of Kshs 400000/- was reasonable.
13. Considering the trends of the courts awards the awarded of 400,000/- is reduced to 250000/-.
14. Respondent proved specials of Kshs 6,500 for doctor Morebu, 500/ for search plus Kshs 48,000/- paid for physio. He proved the claim of special damages and I sustain it.
15. Judgment accordingly.
DATED, SIGNED, AND DELIVERED AT KISII THIS 25TH DAY OF NOVEMBER 2022. R.E. OUGOJUDGE