[2022] KEHC 13900 (KLR)

Masasu v Wanjala (Civil Appeal 63 of 2021) [2022] KEHC 13900 (KLR) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13900 (KLR)

Republic of Kenya

In the High Court at Bungoma

Civil Appeal 63 of 2021

SN Riechi, J

October 7, 2022

Between

Amadalo Maurice Masasu

Appellant

and

David Walucho Wanjala

Respondent

(Being an appeal from the judgement and decree of Hon. S. O Mogute P.M in Bungoma CMCC 222 of 2018 delivered on 7/7/2021)

Judgment

1. By a plaint dated March 26, 2018, the respondent herein sued the appellant seeking to recover damages for injuries sustained due to a road accident involving a motor cycle the respondent was riding on as a pillion passenger and the appellant’s motor vehicle. The respondent attributed the accident to the appellant’s negligence and or that of his agent in the manner in which the motor vehicle was managed and or controlled.

2. The parties by consent settled the issue of liability and filed submissions on quantum without calling any witness and after considering the evidence on record, the trial magistrate awarded Kshs 220,000/= in general damages and Kshs 18,000/- special damages. The appellant was aggrieved thus the instant appeal grounded on the following;1. The honourable magistrate erred in fact and law in failing to take into account injuries suffered in awarding general damages which were excessive in the circumstances considering the nature of the respondent’s injuries.2. That the honourable magistrate applied wrong principles in arriving at a decision to award general damages to a sum of Kshs 220,000/- as compensation to the respondent.3. That the honourable magistrate misapprehended the applicable law in the matter thereby arriving at an excessive award to the respondent.4. The honourable magistrate erred in law and fact by taking into account irrelevant and extraneous factors leading to an excessive award.5. The honoutable magistrate erred in fact and law by proceeding to pronounce judgement in favour of the respondent in total disregard of the appellant’s submissions.6. The honourable magistrate erred in fact by failing to take into account the authorities cited on behalf of the appellant with regard to damages awarded to the respondent.7. The honourable magistrate erred in fact and law in disregarding the appellant’s submissions on quantum and applied the wrong principles of law, that is, by failing to consider the pertinent issues raised in the appellant’s submissions.

3. By directions of the court, the appeal was canvased by way of written submissions. Both parties complied. The appellant submits on the principles that guide courts in the assessment and the final award of damages by relying on the authority in Boniface Waiti & another v Michael Kariuki Kamau(2007) eKLR that damages ought not be inordinately high or low, should be commensurate to the injuries, should not be aimed at enriching the victim and that past decisions are merely guides since each case depends on its own peculiar facts.

4. Counsel in his submissions argued grounds 1 and 3 of the memorandum of appeal. On the first ground it is submitted that 2 medical reports were authored and adopted in evidence in the trial court where both doctors concurred that the respondent suffered soft tissue injuries with no possibility of future medical treatment. That since the injuries were soft tissue in nature, the damages awarded by the trial court was not commensurate with the injuries.

5. The following cases have been cited in support; George Mugo & another v A K M (minor suing through next friend and mother of A N K )(2018)eKLR where Kshs 90,000/= was awarded for soft tissue injury. InGeorge kinyanjui t/a climax coaches and another v Hussein mahad kuyala (2016) eKLR, Kshs 109, 890/- was awarded while in Ndungu Dennis v Ann Wangari Ndirangu & another(2018)eKLR, Kshs 100,000/- was awarded.

6. Based on the above authorities, counsel therefore urges this court to award the sum of Kshs 120,000/= in the circumstances of the injuries suffered herein.

7. On the third ground, counsel submits that the trial magistrate failed to consider that the respondent sustained mere soft tissue injuries that had since healed and had no permanent disability to warrant the award of such excessive sums of money.

8. The respondent on their part submits on whether the trial magistrate was right in awarding the sum of Kshs 220,000/= that the medical report produced as Pexh 7(a) showed that the respondent required a major surgery that would cost approximately Kshs 300,000/= based on the decisions in Kitale Hauliers Ltd v Winston Wanyonyi Lugulu Bungoma HCA 106 of 2011 where Kshs 300,000/= was awarded and Gatete Muthee David v Joseph Charo Ndaa(2021)eKLR where the sum of Kshs 500,000/= was awarded.

9. On whether the trial magistrate applied the right principles, counsel submits cites the authorities in Millicent Atieno v Katola Richard (2015)eKLR andH West & Son v Shepherd (1964) AC 326 for the proposition similar injuries attracts similar award.

10. In sum total counsel submits that the appeal lacks in merit.

11. This is a first appeal and as such the court is guided by the decision in Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates (2013) eKLR, where the duty was stated thus;This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.

12. This being the case, and having scrutinized the record, the submissions by both parties, the issue for determination in this appeal is whether the trial magistrate applied the right principles when assessing damages.

13. From the record, the parties herein recorded a consent dated April 14, 2021 whose effect was to adopt the respondent’s written statement already filed and liability agreed at the ration of 70:30 in favour of the respondent against the appellant. The parties closed their respective cases and the court proceeded to write its judgment based on the material on record.

14. The main contention in this appeal is the award of Kshs 220,000/= in general damages. The respondent pleaded that he sustained the following injuries;Lower back painChest painsLacerations on the base of left big fingerLaceration over right elbow jointBleeding painful swollen right leg.Laceration scars on the left hand base of the thumb and right elbowSwollen tender bandaged right legRight knee effusion with either blood or synovial fluid.

15. Two medical reports were produced, one by one Dr Mulianga Wekesa who opined that the respondent suffered soft tissue injury, complex injury to the knee joint and psychological trauma. He stated that he would need between Kshs 300,000/- and 500,000/- to stabilize the knee ligaments. The second report was prepared by Dr Lodhia who opined that there was no post injury functional deficit in affected parts and there was no permanent disability.

16. The two doctors concur that the respondent sustained soft tissue injury with no permanent disability. It is now trite law that comparable injuries attract comparable awards noting that no two cases are similar in facts.

17. In Francis K Righa v Mary Njeri (Suing as the legal representative of the estate of James Kariuki Nganga [2021] eKLR….. Assessment of damages in cases related to road traffic accidents is a discretional matter based on trial court’s finding and guided by past decisions in respect to victims with similar injuries. It is usually difficult to get two cases with exactly the same injuries. What is important is to check generally the kind or nature of injuries with a view to ensuring some degree of uniformity of awards are made.

18. The court in Butler v Butler (1984) eKLR 225 provided guidelines on the role of the court in assessment and reassessment of damages when it observed as follows: -...that assessment of damages is more like an exercise of discretion by the trial court and that an appellate court should be slow to reverse the trial judge’s findings unless he has either acted on wrong principles or alternatively the award arrived at is so inordinately high or low that no reasonable court would have arrived at such an award or he has taken into consideration matters he ought not to have considered, or not taken into consideration matters he ought to have considered and in the result arrived at a wrong decision...

19. Besides the above, in Abdi Werdi Abdulahi v James Royo Mungatia & Anor [2019] eKLR the court observed;-But money cannot renew a physical frame that has been battered and shattered. All the courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavor to secure some uniformity in the method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said and done, it still must be that amounts which are awarded are to a reasonable extent conventional.

20. In the circumstances of the instant appeal, the court will strive to establish whether the trial magistrate adhered to the above principles, alternatively, whether the trial court in arriving at its conclusion acted on the correct principles or acted on no principles at all.

21. The court has looked up to establish and or find cases with comparable injuries. In Michael Okello v Priscilla Atieno (2021) eKLR decided in 2021, the court awarded Kshs 250,000/- in a case of soft tissue injuries. Similarly inLake Naivasha Growers v Muigai Thuka (2020) eKLR, Kshs 250,000/= was awarded in 2020 where the injuries were soft tissue in nature. I find these awards to accord well with the injuries sustained in this case and are of good guidance.

22In the circumstances of this appeal and having reviewed the authorities by both the appellant and the respondent, I am inclined to find that the trial magistrate’s award was within limits and is hereby affirmed.

23. This appeal is without merit and is hereby dismissed with costs to the respondent.

DATED AT BUNGOMA THIS 7TH DAY OF OCTOBER, 2022S.N. RIECHIJUDGE