[2020] KEHC 7927 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MALINDI

CIVIL APPEAL NO. 8 OF 2018

MOMBASA MAIZE MILLERS LTD........................................1ST APPELLANT

ABASS ATHMAN.........................................................................2ND APPELLANT

VERSUS

FRANCIS MWALUNGO WANJE................................................RESPONDENT

(An Appeal from the Judgment of Hon. S. Wewa, Principal Magistrate made on 29. 1.18 in Malindi CMCC NO. 170 of 2016)

JUDGMENT

1. The Appeal herein arises from the judgment of Hon. S. Wewa, Principal Magistrate, delivered on 29. 1.18 in Malindi CMCC NO. 170 of 2016, Francis Mwalungo Wanje v Mombasa Maize Millers Ltd & Abass Athman. The Respondent, Francis Mwalungo Wanje instituted the suit in the trial Court against the Appellants, Mombasa Maize Millers Ltd and Abass Athman claiming both general and special damages arising from a road traffic accident. The Respondent was travelling as a passenger in motor vehicle registration number KAZ 325J from Malindi to Kilifi which collided with motor vehicle registration number KBQ 549T driven by the 2nd Appellant from Mombasa to Malindi. The latter motor vehicle is owned by the 1st Appellant. Following a hearing, the trial Magistrate entered judgment in favour of the Respondent for the sum of Kshs. 150,000/= in general damages less 10% contribution. The Respondent was also awarded special damages of Kshs. 2,000/=, costs and interest.

2. Being aggrieved by the said judgment, the Appellant preferred the Appeal herein. The summarized grounds of appeal are that the Honourable Magistrate erred in fact and in law in that she:

1. disregarded vital evidence adduced by the Appellants thereby arriving at a wrong finding.

2. failed to correctly evaluate the testimony of the defence witnesses thereby making an inordinately/astronomically high award to the Respondent.

3. disregarded and or failed to evaluate the evidence adduced by both the plaintiff and the Defendants in apportionment of liability putting in mind the entirety of the circumstances.

4. failed to consider the entirety of the circumstances of the case.

5. having found that the driver of motor vehicle registration number KAZ 325 J contributed and or led to the occurrence of the accident proceeded to make a wrong finding by punishing the defendant.

6. delivered judgment based on wrong principles of law and fact.

3. The Appellants prayed for the following orders:

i) The appeal be allowed.

ii) The judgment in favour of the Respondent be set aside and the suit against the Appellants be dismissed.

iii) The Appellants be awarded the costs of this Appeal and costs in the lower Court be shared between the parties.

4. The accident gave rise to claims in Civil Cases Nos. CMCC No. 177/2016; CMCC No. 176/2016; CMCC No. 178/2016 and CMCC No. 170/2016. These cases were consolidated for the purpose of determining liability. CMCC No. 177/2016 became the main file. The cases generated Civil Appeals Nos. 7/2018; 8/2018; 9/2018 and 10/2018. The issue of liability has been determined in Civil Appeal No. 10 of 2018 Ibrahim Gumbao Gona v Mombasa Maize Millers Ltd & Abass Athman. This Court upheld the trial Court’s apportionment of liability at 90:10 in favour of the Respondent.

5. I have re-examined the entire record and given due consideration to the submissions by the parties’ respective counsel. This being a first appeal, the Court is under a duty to reconsider and re-evaluate the evidence and draw its own conclusion. However the Court must make due allowance with respect to the fact that it has neither seen nor heard the witnesses. These principles were set out in Selle and another –vs- Associated Motor Boat Company Ltd.& Others (1968) EA 123by Sir Clement De Lestang, V. P. as follows:

An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should made due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif –v- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).

6. Although the Appellant raised 6 grounds of appeal, the only issues to be determined are whether the learned Magistrate erred on liability and quantum. As a determination has already been made on the issue of liability, I now turn to the issue of quantum.

7. The record shows that the injuries suffered by the Respondent as enumerated in the medical report by Gama Medical Clinic are cuts on both ears and on the left cheek and foreign body (glass) in left side of face. The injuries were described as soft tissue injuries which left the Respondent with 3 cm scars on both ears, 3 cm scar on left cheek, multiple 2 cm scars on left side of face.

8. In arriving at the quantum for award of general damages, the learned Magistrate stated:

“The injuries are soft tissue in nature and no permanent disability noted. I do proceed to award Kshs. 150,000/= less 10% contribution in general damages. I do award Kshs. 2,000/= as special damages. Costs and interest.”

9. It is the Appellant’s case that the award of damages is excessive given the nature of the injuries. Citing the case of Ndungu Dennis v Ann Wangari Ndirangu & another [2018] eKLR, the Appellant contended that the trial Magistrate erred by relying on wrong principles to arrive at the award. I have looked at the case and note that Ngugi, J. found that an award of Kshs. 300,000/= for soft tissue injuries to the lower right leg and to the back was manifestly excessive and proceeded to reduce it to Kshs. 100,000/=.

10. On her part, the Respondent submitted that the amount awarded was not exaggerated or excessive but fair under the circumstances. It was within the boundaries of awards for similar injuries and should not be disturbed. Reliance was placed on the case of James Guturu Kimani v Kamanga Wairegi HCC No. 4133 of 1991 Nairobi where Kshs. 150,000/= was awarded for head injuries and injury to left knee which healed without any permanent incapacity. The case of Machakos HCCC 42 OF 1995 Abednego Kyalo v Eliud Kioko & Anor where Kshs. 100,000/- was awarded for multiple soft tissue injuries bruises over the head, left shoulder, nose, upper lip, below the chin and left knee.

11. While considering whether the learned Magistrate erred in arriving at this award, this Court is guided by the holding in Butt v. Khan[1981] KLR 349 per Law, J.A that:

“An appellate court will not disturb an award of damages unless it is 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 at a figure which was either inordinately high or low.”

12. The Court is also guided by the decision in Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v. A.m. Lubia and Olive Lubia(1982 –88) 1 KAR 727 at p. 730 where Kneller J.A. said:-

“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”

13. The learned Magistrate noted that the Respondent sustained soft tissue injuries. In the 3 cases cited by the parties, the injuries are comparable. My view therefore is that the sum awarded is reasonable and would be adequate to compensate for the injuries suffered by the Respondent. Accordingly, I find no reason to interfere with the assessment of general damages. The upshot is that the Appeal is devoid of merit and is dismissed with costs to the Respondent.

DATED this 24th day of February 2020

_____________________

M. THANDE

JUDGE

SIGNED and DELIVERED in MALINDI this 28th day of February 2020

_____________________

NJOKI MWANGI

JUDGE

In the presence of: -

…………………………………………………………… for the Appellants

…………………………………………………………… for the Respondent

……………………………………………………..……. Court Assistant