[2022] KEHC 9780 (KLR)

Momanyi v Kibet (Civil Appeal E014 of 2021) [2022] KEHC 9780 (KLR) (19 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9780 (KLR)

Republic of Kenya

In the High Court at Homa Bay

Civil Appeal E014 of 2021

KW Kiarie, J

July 19, 2022

Between

Evans Momanyi

Appellant

and

Evans Kemboi Kibet

Respondent

(Being an Appeal from the judgment in Oyugis Principal Magistrate’s PMCC No. 125 of 2017 by Hon. Celesa Okore–Senior Resident Magistrate.)

Judgment

1. Evans Momanyi, the appellant herein, was the defendant in Oyugis Principal Magistrate’s PMCC No. 125 of 2017. This was a claim that arose from a road traffic accident involving motor vehicle registration number KBX 495N and motor vehicle registration number KCC 097E. As a result of the said accident the respondent sustained injuries and filed the suit. The learned trial magistrate delivered judgment dated 4th February, 2021. She awarded the respondent Kshs. 406,500 in general damages.

2. The appellant was aggrieved by the said judgment and filed this appeal. He was represented by the firm of Kimondo Gachoka & Company Advocates. He raised four grounds of appeal as follows:a)That the learned trial magistrate erred in law and in fact in awarding kshs.406, 500/- as damages which amount was excessive and lacked basis.b)That the learned trial magistrate erred in law and in fact in awarding kshs.500,000/- as general damages which amount was excessive, unjustified and contrary to the evidence on record.c)That the learned trial magistrate erred in law and in fact by failing to consider and appreciate the applicable principles in assessment of damages and thereby arrived at an excessive and unjustified award.d)That the trial magistrate erred in law and fact by failing to consider the appellant’s evidence and submissions on record.

3. The appeal was opposed by the respondent through the firm of Ben K. Gichana & Company Advocates.

4. This Court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle v Associated Motor Boat Co Ltd[1965] E A 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

5. Liability was arrived at by consent of the parties. On 28th November, 2019 both parties entered the following consent:By consent liability be apportioned in the ratio of 80:20 in favour of the plaintiff against the defendant.This explains why the appeal is against quantum of damages only.

6. It is trite law that an appellate court will only interfere with an award of the trial court if certain circumstances are satisfied. In Butt v Khan[1981] KLR 349 at page 356 Law JA stated:“…an appellate court will not disturb an award of 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 a figure which was either inordinately high or low.

7. In the submissions on appeal, the appellant has proposed a sum of Kshs.50, 000. 00 whereas in the trial court he had proposed an award of Kshs.80, 000. 00.

8. The respondent had proposed an award of Kshs. 500,000. 00 in the trial court. He has contended that there is no justification to interfere with the award by the trial court.

9. As a result of the complained of accident, the respondent sustained the following injuries:a)Blunt trauma to the neck;b)Abrasions on the left elbow;c)Abrasions on the right forearm;d)Cut wounds on the right leg;e)Bruises on the left knee.He was treated and managed by analgesics, antibiotics, tetanus toxoid and by cleaning and dressing.

10. Dr. Morebu Peter Momanyi concluded that he sustained severe multiple injuries which were on the process of healing on 24th April, 2017, the time of examination.

11. These injuries compare closely to what the plaintiff in the case of HB (Minor suing through mother & next friend DKM) v Jasper Nchonga Magari & another[2021] eKLR sustained. The claimant in this case sustained blunt injury to the head and neck, thorax, abdomen and limbs. On routine examination Dr. Adede opined that the injuries suffered were soft tissue in terms of gravity.

12. Taking all circumstances in consideration, my opinion is that the award by the trial court was inordinately high. I am aware that no two injuries can be the same and am equally aware that an injury to a child cannot be compared with precision with that of an adult. An adult takes longer to heal. After factoring all the necessary circumstances an award of Kshs.200, 000/= ought to be sufficient compensation. I therefore set aside the award by the trial court and substitute it with an award of Kshs.200, 000/=.

13. The appeal therefore succeed with half the costs in this court.

DELIVERED AND SIGNED AT HOMA BAY THIS 19TH DAY OF JULY, 2022KIARIE WAWERU KIARIEJUDGE