[2011] KEHC 3285 (KLR)

REPUBLICOF KENYA

IN THE HIGH COURT

AT EMBU

HIGH COURT CIVIL APPEAL NO. 70 OF 2008

MARTIN WAWERU MUTHIKE:::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: APPELLANT

VERSUS

MAHENDRA SHAH::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::::: RESPONDENT

JUDGMENT

This Appeal arises from SPM Embu Civil Case NO. 149 of 2006 which was a running down matter. The Appellant herein was the plaintiff while the Respondent was the defendant. Both parties agreed on the apportionment of liability before the subordinate court and the matter thereafter proceeded by way of written submissions.

Two medical reports were filed along with the said written submissions of the plaintiff. According to these reports, the Appellant had suffered some cuts and bruises save for a dislocation of the right wrist joint. According to the report by Dr.Renganathan, the Appellant had recovered well without any permanent physical disability save for a few scars over the left shoulder, left forearm and left ankle.

According to Dr. Wambugu’s report however, the Appellant had suffered a permanent disability as the limited movements of the right wrist joint would prevent him from doing certain things like lifting a weight, unscrewing a bottle or playing some games.

The learned trial magistrate noted this discrepancy on the 2 reports and resolved them by making a finding that the Appellant suffered soft tissue injuries with no permanent disability. In doing so, I believe she was informed by the fact that Dr. Renganathan’s report which was prepared approximately 2 months after Dr. Wambugu’s is the one that concluded that the Appellant had no permanent disability.

She therefore considered some authorities that were cited to her and assessed the damages at Kshs.60,000/-

This assessment or quantum of damages is what the Appellant has appealed against. He has preferred 5 grounds of Appeal which I shall nonetheless not repeat here for purposes of this Judgment. The first of the said grounds is that the award of Kshs.60,000 as general damages was inordinately low.

Both counsel filed written submissions which I have carefully considered along with the law applicable.

From the outset, I would like to mention that in assessing the quantum of damages, there are no fixed scales that obligate the trial court to pick one figure as opposed to another. The trial court is guided by the nature of the injuries sustained and also by already decided precedents where similar injuries have been compensated. The assessment is therefore done by the court in exercise of its discretion. An Appellate court will very reluctantly interfere with the exercise of discretion by the subordinate court particularly when dealing with assessment of quantum of damages unless it is clear that in arriving at the award, the trial court acted on the wrong principles, failed to consider some relevant materials or considered some extraneous matters that affected the said assessment. This point was very succinctly expressed by sir clement De Lestang V.P. in Mbogo & Another V Shah (1968) E.A 93 where he said;

“…………I think it is well settled that this court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into account and consideration and in doing so arrived at a wrong conclusion”

In this case, I note that the learned magistrate concluded and rightly so that the Appellant had only suffered superficial injuries and he had recovered well without any permanent physical disability. The relevant authorities that were cited to her for soft tissue injuries by he defendant herein were in the range of Ksh30,000/-. The ones cited by counsel for the plaintiff were in the range of Ksh150,000/-. The learned trial magistrate did consider these authorities at page 10 of her judgment and found them to be for more serious injuries than those sustained by the Appellant herein. She therefore struck a balance between the Kshs.150,000 and Kshs.30,000. She even made a concession for the inflation factor and arrived at the figure of Kshs. 60,000. Having considered the said injuries and the authorities in question, I cannot fault her decision. My finding is that she exercised her discretion judicially and fairly. She did not act on the wrong principles of law. I find no reason to interfere with the said Judgment. I find this Appeal devoid of merit. The same is dismissed with costs to the Respondent.

W. KARANJA

JUDGE

Signed by the above but dated and delivered at Embu this 15th day of March, 2011.

M. WARSAME

JUDGE