[2022] KEHC 13052 (KLR)

Moraa Osoro v Amicable Travel Services LTD & another (Civil Appeal 16 of 2017) [2022] KEHC 13052 (KLR) (20 September 2022) (Judgment)

Neutral citation: [2022] KEHC 13052 (KLR)

Republic of Kenya

In the High Court at Narok

Civil Appeal 16 of 2017

F Gikonyo, J

September 20, 2022

Between

Esther Moraa Osoro

Appellant

and

Amicable Travel Services LTD

1st Respondent

John Makori

2nd Respondent

((Being an appeal from the judgment of Hon. Z. Abdul (S.R.M) delivered on 20thAugust 2014 in Narok CMCC No. 59 of 2013))

Judgment

1. This appeal is on quantum only. Liability was settled by consent in the ratio 85:15 in favour of the appellant.

2. The trial magistrate assessed general damages at Kshs 300,000/=, special damages of Kshs 65,345/= plus costs and interest from the date of the decree.

3. From the Memorandum of Appeal dated September 16, 2014 two grounds have been cited to wit;i.The damages awarded to the appellant were inordinately low; andii.That the learned trial magistrate failed to appreciate and / or misapplied the principles applicable in the assessment of damages.

4. The appeal was canvassed by way of written submissions. Both parties filed written submissions.

Appellant’s submissions 5. The appellant submitted that the award made by the trial court in light of the severity of injuries sustained by the appellant and the factor of inflation; it did not consider these relevant factors. She argued further that the trial court relied on authorities with less severe injuries and over 15 years old.

6. Thus, the appellant prayed that the appellant herein be allowed as prayed and that the judgment delivered in the lower court be set aside and this court to assess damages payable to the appellant.

7. The appellant has relied on the following authorities;i.Gilbert Nicholas Otieno v Oil Crop Development Co Ltd & Another [2009] eKLR.ii.Arrow Car Limited vs Bimomo & 2 Other [2004] 2KLR 101 Cited in Moi Teaching and Referral Hospital & another v Simon Kimutai Oloibei [2020] eKLR.iii.Patrick Kinoti Miguna v Peter Mburunga G Muthania [2004] eKLR.iv.Tridev Construction v Chrles Wekesa Kasembeli Civil Appeal No. 121 of 2002. v.Kemfro Africa Ltd T/A Meru Express Service Gathogo Kanini vs A M Lubia and Olive [ 1982-88] L KAR 717 At Page 730.

Respondents’ submissions. 8. The respondents submitted that the chest injuries purported to have been sustained by the appellant were disproved.

9. The respondents submitted that the injuries in the authorities cited by the appellant are not comparable to the injuries the appellant sustained. Therefore, they urged the court to dismiss the appeal with costs for lack of merit.

10. The respondents have relied on the following authorities;i.Jotham Odhiambo Otiende vs Benard Ondiek HCC No 17 of 2000 Kericho.ii.Civil Appeal No 125 of 2015 at Nairobi Albert Kubai Mbogori vs Violet Jeptum Rahedi.

ANALYSIS AND DETERMINATION Duty of court 11. I will perform the duty of first appellate court under section 78(2) of the Civil Procedure Act; exercise the same powers and perform nearly the same duties as those of the courts of original jurisdiction herein; re-evaluate the evidence and make own conclusions albeit bearing in mind that I neither saw nor heard the witnesses first hand; matters of demeanor are best evaluated by the trial court (Selle & Anor –Vs- Associate Motor Boat Co Ltd 1968 EA 123).

Issues 12. Whether the trial court made inordinately low award, or committed an error in principle in assessment of damages herein.

13. The appellate court will only disturb the discretion of the trial court in as assessment of damages only where the trial court committed an error in principle or made an award that was inordinately high or low as to be wholly erroneous estimate of damages (Kemfro Africa Ltd Vs Gathogo Kanini vs A M M Lubia & Another).

14. The trial magistrate awarded Kshs 300,000/=as general damages. The appellant considers the award as inordinately low; the respondent sees it as fair compensation for the injuries sustained.

Injuries 15. Nature, extent and effect (if any) of injuries as well as inflationary trends determine the amount of damages a court should award. And, in so doing, past comparable decisions act as a guide.

16. What injuries were suffered by the appellant?

17. From the evidence, the appellant suffered multiple injuries. She sustained two fractures: fracture of the right clavicle and fracture of the pelvis on the left side. She also suffered severe injuries to the chest: extensive subcutaneous emphysema and bilateral pneumohaemothorax. Dr kiamba made the following observations. There are two surgical scars on the axillary region of the chest. The scars are tender. There is a swelling on the upper part of the sternum. The chest is tender on the anterior aspect. There is a deformity on the lateral aspect of the collar bone. There are superficial scars on the left side of the abdomen. The left lumbar region and iliac cossa are tender. The doctor opined that the appellant is still on treatment.

18. The trial court relied on the cases of Benedict Oncqabqu Bunduki v J A Korir and Another HCC 1980/88 ,Hassan Noor Mahmood[2001] eKLR And Michael Ouma Nyaoke v Cires Nyanchama Nyasoko[2010] eKLR where the court made awards of Kshs 250,000/=, 200,000/= and 300,000/= respectively. I find that the authorities relied upon by the trial court are relatively old.

19. Taking into account the nature of the injuries and the residual effects on the appellant, I find damages awarded by the trial court to be inordinately low in light of the injuries suffered; it is erroneous estimate of damages. From the judgment, it appears, the trial court did not consider the severe nature and effects of the injuries suffered as the guiding factors in assessment of damages. It also appears, the trial court did not consider the inflationary trends which are relevant factors in assessment of damages, thereby, falling into error of principle. Consequently, I set aside the award of Kshs 300,000 made by the trial court.

20. What would be fair compensation therefor?

21. The appellant cited authorities which made awards ranging from Kshs 600, 000/= to Kshs 1,200,000/=. The respondents relied on an authority where the court awarded Kshs 100,000/=. I do note that the authorities cited by the respondent are quite old.

22. The cases cited by the appellant had more comparable injuries to her and are more recent. From these decisions, such injuries would attract an award between Kshs 1,000,000/- and Kshs 1,500,000. Thus, a sum of Kshs 1,200,000 is fair compensation in general damages which I award.

Orders 23. In the end, I allow the appeal on quantum set aside the award of Kshs 300,000/- general damages awarded to the respondent by the trial court and substitute it with an award of Kshs 1,200,000/- less 15% contribution. For avoidance of doubt the award shall be made up as follows:General Damages less 15% contribution Kshs 1,020,000/-Special Damages Kshs 65,345/=TOTAL Kshs 1,085,345/=

24. I also award the appellant costs of the suit, and interest. The appellant shall have the costs of the appeal. It is so ordered.

DATED, SIGNED AND DELIVERED AT NAROK THROUGH TEAMS APPLICATION, THIS 20TH DAY OF SEPTEMBER, 2022. ...............F GIKONYO M.JUDGEIn the Presence of:1. M/s Aguko for appellant present2. No appearance for respondent3. Kasaso C/A