[2015] KEHC 4143 (KLR)
The High Court found that the trial magistrate properly exercised discretion in awarding Kshs. 700,000 in general damages for the respondent's injuries, which included a compound fracture of the left tibia, fractured pelvis, and other contusions, supported by medical evidence. The court noted that the award was...
Source-derived case information.
- Citation
- [2015] KEHC 4143 (KLR)
- Parties
- Appellant: Maurice Onyango Okull; Respondent: Pheobe Odhiambo Ombori
- Court
- High Court
- Court Station
- High Court at Kisii
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 108 of 2012
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed; lower court judgment upheld
- Legal Topics
- Assessment of Damages, Personal Injury, Contributory Negligence, Quantum of Damages
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maurice Onyango Okull
Appellant
Pheobe Odhiambo Ombori
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in awarding inordinately high general damages to the respondent.
- 2 Whether the trial magistrate applied the correct legal principles in assessing damages.
- 3 Whether the trial magistrate failed to consider the appellant's submissions and material facts.
Ratio Decidendi
The High Court found that the trial magistrate properly exercised discretion in awarding Kshs. 700,000 in general damages for the respondent's injuries, which included a compound fracture of the left tibia, fractured pelvis, and other contusions, supported by medical evidence. The court noted that the award was consistent with comparable precedents and not so high as to represent an erroneous estimate. The appellate court, acting within its mandate, re-evaluated the evidence and found no basis to interfere with the trial court's assessment of damages, especially since the trial magistrate had the advantage of seeing and hearing the witnesses. The court also upheld the apportionment of...
Court Disposition
appeal dismissed; lower court judgment upheld
Orders
- The appeal is dismissed.
- The judgment/order/decree of the trial magistrate is upheld.
Full Case Text
Judgment text and source record
36 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVILA APPEAL NO. 108 OF 2012
MAURICE ONYANGO OKULL……………..APPELLANT
VERSUS
PHEOBE ODHIAMBO OMBORI………………RESPONDENT
JUDGMENT
This is an appeal by Maurice Onyango Okull against Phoebe Odhiambo Ombori from the judgment and/or decree of Honourable Mr. D.K. Kemei Senior Principal magistrate in Migori in case No. 110 of 2009 delivered on 4th July, 2012. In his MEMO OF APPEAL he sets out the following grounds of appeal:-
That the learned trial magistrate erred in making a finding and arriving at an award of damages which is inordinately too high as to represent on erroneous estimate of damages payable.
That the learned trial magistrate erred in applying wrong principles and failing to take into account material facts in arriving at an erroneous award.
That the learned trial magistrates erred in law and in fact in disregarding the appellant’s submissions and erred on all points of fact and law in as far as the award of damages is concerned.
That the learned trial magistrate erred in law and infact in only considering the respondent’s submissions.
This case began as a plaint by the plaintiff/appellant. The plaintiff stated that on or about the 14th January, 2009 she was lawfully walking off the verge of the road along Migori-Muhuru road when motor vehicle registration number KAZ 424Z was so negligently driven and/or managed by the Defendant his agent and/or servant that it lost control and violently knocked the plaintiff down, hence causing him sustain severe bodily injuries.
During the proceedings the plaintiff gave her testimony reiterating what is in para.4 of the plaint as PW1. The defendant gave a list of 3 witnesses but called none. The parties hereto recorded a consent on liability at the ratio of 30%: 70% in favour of the plaintiff.
The trial court was then left with the determination of Quantum of general damages. The medical report, exhibit 4 was tendered in evidence. Dr. Idagiza A Akidiva itemized he injuries as herebelow:
Blunt trauma on the neck.
Contused lumbar sacral region
Chest contusion(marked on the left)
Contused knee
Compound fracture left tibia
Fractured pelvis.
He put the injuries at 15% of her body.
In assessing quantum, the plaintiff relied on the case of KTDA vs. James Ateka, Kisii HCCC. NO. 113 OF 2005 ……..the court was more persuaded by the above case where the court in that case awarded kshs. 650,000 in general damages. The trial magistrate increased this figure to kshs. 700,000 which what he awarded. The appellant was aggrieved by the said judgment and preferred an appeal to this court. The defendant was gunning for kshs. 30,000 by relying on the case of Elias Munioki vs. Said Juma Chiti, Mombasa, HCCC. NO. 53 OF 1990. This court took into account what the court said in the case of Kipkebe Limited vs. Moses Kauni Masaki, Civil Appeal No. 127 of 2004, D. Musinga said: that is:
“It is trite law that award of general damages is an exercise of discretion by a trial court and the award depends on the peculiar facts of each case. The award must, however, be reasonable and either extravagant or oppressive. The trial court has to be guided by such factors as previous awards for similar injuries and such other relevant factors”.
This court, is further being conscious of its role as the firs appellate court as stated in Selle vs Associated Motor Boat Co. Ltd 1968 E.A. 123,
“has to re-evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions. The court must, however, bear in mind that it neither saw nor heard the witnesses and hence make due allowance for that”.
This court finds that the trial magistrate in awarding the figure of kshs. 700,000 was exercising his discretion having see both the plaintiff and heard the doctor testify, and this court will not interfere with this find. The final figure is kshs. 700,000 in general damage, plus kshs. 90,050 for special damages, totaling to kshs. 720,050, less 30% contribution, it comes to kshs. 574,015/-.
Accordingly, this appeal must but fail. The judgment/order/Decree of the learned trial magistrate be and is hereby upheld.
It is so ordered.
Dated and delivered at KISII this 23rd day of January, 2015
C.B. NAGILLAH,
JUDGE.
In the presence of:-
No appearance of O.M. Otieno for the appellant.
Bunde holding brief for Abisai for the respondent
Edwin Mongare Court Clerk.