[2022] KEHC 15065 (KLR)

Mash East Africa & another v Kyalo (Civil Appeal E002 of 2021) [2022] KEHC 15065 (KLR) (10 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15065 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal E002 of 2021

GMA Dulu, J

November 10, 2022

Between

Mash East Africa

1st Appellant

Khamis Abdulrahim Mohammed

2nd Appellant

and

Stephen Kyalo

Respondent

(Being an appeal from the Judgment and decree delivered by Hon. C.A Mayamba Principal Magistrate Kilungu Civil Case No. 154 of 2019 delivered on the 18th day of December, 2020)

Judgment

1. In a judgment delivered on 18th December 2020, the magistrate’s court at Kilungu entered judgment for the plaintiff, the respondent herein, concluding as follows –“I do make the following ordersa.Liability 85:15%b.General damages Kshs.180,000/=c.Special damages Kshs. 3,550/=d.Less 15% (27533) Kshs.156,000/=e.Costs and interest”

2. Dissatisfied with the judgment, the appellants who were the defendants have come to this court on appeal on quantum of damages through counsel Wambua Kilonzo & Company, on the following grounds –1. That the learned trial magistrate grossly misdirected himself in treating the evidence and the submissions on quantum before him superficially and consequently coming to a wrong conclusion by awarding general damages that were manifestly high for the minor injuries incurred.2. That the learned trial magistrate grossly misdirected himself in ignoring the principles applicable and relevant authorities on quantum cited in the written submissions presented and filed by the appellants.3. That the learned trial magistrate proceeded on wrong principles when assessing damages to be awarded to the respondent if any and failed to apply precedents and tenets of the law applicable.4. That the learned trial magistrate erred in awarding a sum in respect of damages which was inordinately high in the circumstances, excessive and not commensurate to the injuries in the circumstances occasioning (sic) into an erroneous estimate and miscarriage of justice to the appellant.5. That the learned trial magistrate failed to adequately evaluate the evidence on record hence arriving at a wrong conclusion.6. That the learned trial magistrate erred in law and in fact by evaluating the evidence wrongly and did not take into account relevant factors.

3. The appeal was canvassed through filing written submissions. In this regard, I have perused and considered the submissions filed by Wambua Kilonzo & Company advocates for the appellants and those filed by Waiganjo Wachira & Company for the respondent.

4. This is an appeal on quantum of damages awarded, as liability was recorded by consent at 85%:15%. As acknowledged by both counsel on record, the award of damages is an exercise of discretion by a trial court and an appellate court will interfere with the award only where it is based on a wrong principle or where the award is so inordinately high or so inordinately low that it reflects a wrong or unfair award. These principles have been repeatedly stated in several cases including Butt –vs- Khan (1981) KLR 349,Kenfro –vs- Lubia(1982 – 88) I KLR72.

5. It is also trite that there is need for a degree of uniformity in the award of damages for similar injuries – see Odinga Jacktone Ouma –vs- Moureen Achieng Odera (2016) eKLR in which the court emphasized that comparable injuries should attract similar awards.

6. Coming to our present case, it is agreed herein that the respondent suffered superficial injuries which were described by the trial court as “bruises on the chest and back” which were treated and healed.

7. The appellants’ counsel has argued on appeal that the award of general damages herein should be between Kshs.50,000/= and Kshs.100,000/= and that the trial court’s award of Kshs.180,000/= was excessive and exaggerated. The respondent’s counsel on the other hand, has argued that the award of the trial court was reasonable and should be retained.

8. I note that the respondent’s counsel has relied on the cases of John Chege Nganga –vs- Benchmark Distributors Ltd (2012) e KLR where the court awarded Kshs.300,000/= for soft tissue injuries and the case of Francis Ochieng & Another –vs- Alice Kajimba (2015) eKLR where the court awarded Kshs.350,000/= for multiple soft injuries.

9. On the other hand, the appellants’ counsel relied on the case of JK (minor suing through mother and next friend NKM & JDK & Anor (2020) eKLR for wrist and leg injuries where an amount of Kshs.30,000/= was upheld on appeal, the case of Kipkere Ltd –vs- Peterson Ondieki Tai (2016) eKLR where soft tissue injuries were suffered to the leg, chest and left shoulder and High Court on appeal awarded 30,000/= and the case FM, (minor) eKLR wherein the High Court substituted an award of Kshs.60,000/= with an award of Kshs.100,000/=.

10. It is of note that the trial magistrate did not make any specific findings in the judgment on the injuries suffered. The magistrate went by the injuries pleaded in the plaint, which were not disputed. These were bruises on the chest wall right side and bruises on the lower back.

11. In assessing damages, the magistrate noted that the plaintiff’s counsel had asked for an award of Kshs.400,000/= while the defendant’s counsel had asked for a figure of Kshs.40,000/=.

12. In my view, the cases cited by the plaintiff’s counsel before the trial court related to much more serious injuries suffered than in the present case. In the present case the injuries were minor and there was complete healing. The injuries suffered being very minor and there being complete healing, I find that an amount of Kshs.100,000/= as general damages would be adequate compensation for the soft tissue injuries suffered, instead of the amount of Kshs.180,000/= awarded which I find to be excessive.

13. I thus allow the appeal on quantum of damages, set aside the award of Ksh.180,000/= and substitute it with an award of Kshs. 100,000/=.

14. The final award will thus be as follows –a.Liability 85%:15%b.General Damages Kshs.100,000/=c.Special Damages Kshs.3,550/=d.Less 15% (15,533) Kshs.88,017/=

15. Parties will each bear their respective costs of the appeal, and the appellant will bear the costs of the proceedings in the trial court. Interest will accrue till payment in full.

DELIVERED, SIGNED & DATED THIS 10TH DAY OF NOVEMBER, 2022, VIRTUALLY AT MAKUENI...............................GEORGE DULUJUDGE