[2011] KEHC 1033 (KLR)
The High Court found that the trial magistrate failed to adequately evaluate the nature and extent of the appellant's injuries, particularly the ongoing pain and complaints at the time of trial. The court held that, although the injuries were soft tissue in nature, the evidence showed the appellant was still...
Source-derived case information.
- Citation
- [2011] KEHC 1033 (KLR)
- Parties
- Appellant: Moses Ogutu Omwono; Respondent: Shiloah Investment Ltd
- Court
- High Court
- Court Station
- High Court at Kisumu
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 80 of 2010
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal_allowed
- Judges
- HK Chemitei
- Legal Topics
- Assessment of Damages, Personal Injury, Soft Tissue Injuries
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Moses Ogutu Omwono
Appellant
Shiloah Investment Ltd
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in law by failing to properly analyse the documentary evidence regarding the extent of the appellant's injuries.
- 2 Whether the quantum of damages awarded by the trial magistrate was so low as to constitute an injustice to the appellant.
- 3 Whether the trial magistrate failed to consider all relevant factors in assessing the quantum of damages.
Ratio Decidendi
The High Court found that the trial magistrate failed to adequately evaluate the nature and extent of the appellant's injuries, particularly the ongoing pain and complaints at the time of trial. The court held that, although the injuries were soft tissue in nature, the evidence showed the appellant was still experiencing pain, which warranted a higher award. The original award of Kshs. 40,000 was manifestly low and did not reflect the circumstances or comparable authorities. The court therefore enhanced the general damages to Kshs. 60,000, finding this amount reasonable and just in the circumstances.
Court Disposition
appeal_allowed
Orders
- General damages enhanced from Kshs. 40,000 to Kshs. 60,000.
- Appellant awarded costs of the appeal.
Full Case Text
Judgment text and source record
27 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT KISUMU
CIVIL APPEAL NO. 80 OF 2010
MOSES OGUTU OMWONO.....................................................................................APPELLANT
VERSUS
SHILOAH INVESTMENT LTD.................................................................................RESPONDENT
JUDGMENT
The appellant’s appeal herein is founded on three (3) grounds namely:-
(1)That the learned trial magistrate erred in law by failing to properly analyse the documentary evidence on record as regards the extend of the appellants injuries and thereby arrived at an erroneous estimate of the quantum of damage.
(2)That the learned trial magistrate awarded an extremely low quantum of damages as to constitute an injustice to the appellant.
(3)That the learned trial magistrate in assessing quantum of damages awardedable to the appellant failed to take into consideration all germane factors.
At the hearing of this appeal the parties agreed to rely on their written submissions.The duty of this court and its mandate on appeal is clear. In the case of Butt =vs= Khan [1982] 1 KAR. 5 the court correctly said:- “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 at a figure which was either inordinately high or low”.
The substance of the Appellant’s appeal is basically on quantum.The report of Dr. Nyamogo stated that the appellant sustained the following injuries:-
(a)Head: He sustained bruises to the right periorbital region.
(b)Thorax: He suffered blunt injuries with generalized tenderness.
(c)Upper limbs: He suffered blunt injuries to the shoulders with tenderness on movement.
Present complaints frequent headaches.He complains of pain in the above injured area. The report was made about three (3) weeks after the incident. His conclusion was that “he suffered soft tissue injuries to the face, chest and shoulder which are improving”.
At the hearing of his case on 23rd October 2008 the appellant said”……..My head still pains. My eyesight is affected”.
I have read the trial court’s judgment and especially the portion regarding the injuries. A part from mentioning the same, the trial court failed to evaluate the injuries.The court ordinarily should have given a thought on the nature of the said injuries and even if they were soft tissue injuries whether or not the appellant had recovered from them.
My analysis therefore is that the injuries were indeed soft but nevertheless the appellant at that moment and especially at the time of trial was still experiencing some pain as quoted above.
For the above reason I shall allow the appeal by enhancing the general damages from Kshs. 40,000 to Kshs. 60,000. I believe that the sum of Kshs. 40,000 was manifestly low in the circumstances. I have also taken into consideration the authorities cited by both parties and that they are far apart. The above award is reasonable in the circumstances. The appellant shall have the costs of the appeal.
Orders accordingly.
Dated, signed and delivered this 2nd day of November 2011.
H. K. CHEMITEI
JUDGE
HKC/aao