[2023] KEHC 26496 (KLR)

Muthusi & another v Ndanu (Civil Appeal E28 of 2021) [2023] KEHC 26496 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26496 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E28 of 2021

FROO Olel, J

December 14, 2023

Between

Jimma Kaloki Muthusi

1st Appellant

Penninah Ndungwa Mweu

2nd Appellant

and

Gladys Ndanu Ndinda alias Gladys Ndanu

Respondent

(Being an Appeal Arising frim the Judgement/ Decree of Hion A. Nyoike (P.M) Delivered on 25th February 2021 in Machakos CMCC No. 552 of 2018)

Judgment

Introduction 1. This appeal arises from the judgement/decree of Hon. A. Nyoike (P.M.) dated 25th February 2021 delivered in Machakos CMCC No. 532 of 2018, where she entered judgement in favour of the Respondent and awarded her Kshs. 300,000/= as general damages and Kshs. 4,150/= as special damages less 10% contributory negligence. The total award thus stood at Kshs. 273,735/= plus costs and interest.

2. The Respondent herein had filed a claim on the basis that on 11th July 2018, she was lawfully travelling as a fare paying passenger in motor vehicle Registration Number. KCG 098 D (hereinafter referred to as the suit motor vehicle) along Machakos-Kitui road, when at Ghetto area, the 2nd appellant carelessly and negligently controlled and/or managed the said motor vehicle and caused the same to lose control, veer off the road and overturn, thereby causing her to suffer/sustain severe injury and suffered loss and damages. The Respondent particularized the appellant’s negligence and also the injuries suffered, which included blunt injury to the head, blunt injury to the shoulder and blunt injury and bruises on the left thigh.

3. The appellants filed their joint statement of defence, where they denied all the particulars pleaded by the Respondent in her plaint. Further in the alternative they stated that if an accident did occur, the same was partially caused by the Respondent’s negligence which they particularized in the said statement of defence. At trial, the parties did appear before the trial magistrate on 09. 09. 2019 and they did record a consent on liability in the ration of 90:10 in favour of the Respondent, special damages was agreed at Kshs. 4,150/= and parties agreed to file written submissions on quantum and leave it for the court to make a determination on the same.

4. The appellants being dissatisfied with the said judgement did file this appeal and raised the following grounds of appeal;a.The learned magistrate erred in fact and in law in finding that the Respondent was entitled to general damages of Kshs. 300,000/=.b.The learned magistrate erred in fact and in law in finding that the Respondent was entitled to general damages that were too high in view of the evidence tendered and Respondent did not have any future medical expenses nor did she suffer any disability nor did she suffer any fractures. The same was too high and the same is not justified.c.The learnt magistrate erred in fact and in law in failing to consider the submissions of the Applicants/Appellants and stated that they did not file any submissions in the matter.d.The learnt magistrate erred in fact and in law in failing to consider the Appellants’ submissions on liability and quantum.e.The learned magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.

Appellants Submissions 5. The Appellant did submit that this court had jurisdiction to reevaluate the entire evidence and reassess quantum awarded as the same was extremely high and constituted a wrong exercise of discretion by the trial magistrate. The trial magistrate failed to consider comparable injury awards and thus arrived at a high award. Reliance was placed on Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd. [2013] eKLR, Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018] eKLR.

6. The appellant thus urged this court to set aside the award of Kshs. 300,000/= as it was excessive and erroneous and reduce it to Kshs. 80,000/=. Reliance was placed on George Mugo & Another v AKM (Minor suing through next friend and mother of A.N.K.) [2018] eKLR, George Kinyanjui T/A Climax Coaches & Another v Hussein Mahad Kuyala[2016] eKLR, Ndugu Dennis v Ann Wangari Ndirangu & Another[2018] eKLR and PF (Suing as next friend and father of SK (minor) v Victor O. Kamadi & Another[2018] eKLR. The appellant thus prayed that this appeal be allowed with costs.

Respondents Submissions 7. The Respondent submitted that before an appellate court could disturb an award of damages, it must be proved that it was inordinately high or low so as to represent an entirely erroneous estimate of the sum due or that the judge proceeded on the wrong principles or that he misapprehended the evidence in some material respect and thus arrived at a figure which was either inordinately high or low (SeeButt v. Khan [1982 – 1988] KAR).

8. The award, it was submitted was comparable to recent awards and the trial court also factored in inflationary rates prevailing in Kenya. The award was thus appropriate, but should this court hold otherwise, the same should be reduced to Kshs. 250,000/=. Reliance was placed on Mbaka Nguru & Another v James George Rakwar NRB CA Civil Appeal No. 133 of 1998, Channan Agricultural Contractors Ltd. v Fred Barasa Mut [2013] eKLR and Wahinya v Lucheveleli (Civil Appeal E045 of 2021) [2022] KEHC 13762 (KLR).

9. The Respondent thus urged this court to dismiss this appeal with costs. But should the court be inclined to allow the said appeal, the award should be reduced to Kshs. 250,000/=.

Analysis and Determination 10. I have considered the pleadings, evidence presented and submissions of the parties filed in this appeal, this court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions.

11. A first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on the question of fact and law. The judgment of the appellate court must therefore reflect its conscious application of mind and record the findings supported by reasons, on all issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the appellate court had discharged the duty expected of it. See Santosh Hazari v Purushottam Tiwari ( Deceased) by L.Rs (2001) 3 SCC 179.

12. A first appellate court is also the final court of fact and litigants are entitled to full fair independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the civil procedure Act a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko v Varkey JosephAIR 1969 Keral 316.

13. The appellant’s in their memorandum of appeal had raised five (5) grounds of Appeal, which basically challenged the quantum awarded as being too high considering the soft tissue injuries sustained by the respondent in this appeal.

14. The Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001[2004] eKLR 55 set out circumstances under which an appellant court can interfere with an award of damages in the following terms: -“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case in the first instance. The appellate court can justifiably interfere with quantum of damage’s awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factors or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate”.

15. Similarly, inJane Chelagat Bor v Andrew Otieno Oduor [1988] – 92] eKLR 288[1990-1994] EA47 the Court of Appeal held that:-“In effect, the court before it interferes with an award of damages, should be satisfied that the judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damages suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked, If the Appellate Court is to interfere, whether on the ground of excess or insufficiency.”

16. The respondent did plead in her plaint that when she got involved in the road accident on 11th July 2018, she did sustain blunt injury to the head, blunt injury to the shoulder and blunt injuries to the left thigh with bruises. The treatment notes from Machakos level 5 hospital and medical report by Dr. John Mutunga did confirm that indeed the respondent sustained the aforestated injuries. The injuries suffered were soft tissue injuries which according to the medical reports had fully healed.

17. The appellate court will indeed interfere with the trial magistrates finding if she did apply the wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damages suffered. Further the award mustreflect the trend of previous, recent, and comparable awards and also considering all other relevant factors the trial court has to take into account. Finally, the court has to keep in mind that the award should fairly compensate the injured within Kenyan conditions.

18. Having considered all the parameters the court should look at in awarding quantum, I do find that the award of a sum of Ksh 300,000/= for soft tissue injuries the respondent suffered and which her doctor confirmed had healed is truly a wholly erroneous estimate of the damages suffered. The said award is exorbitant and does not match similar awards for similar injuries.

Disposition 19. The upshot is that this appeal has merit and the same is allowed. The award of damages being Kshs 300,000/= awarded to the respondent in Machakos CMCC No. 532 of 2018 by Hon A Nyoike (SPM) is hereby set aside and the same is substituted with an award of Kshs 100,000/=.

20. The appellant is awarded costs of this appeal.

21. It is so ordered.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 14TH DAY OF DECEMBER, 2023. FRANCIS RAYOLA OLELJUDGEDelivered on the virtual platform, Teams this 14th day of December, 2023. In the presence of;No appearance for AppellantNo appearance for RespondentSusan/Sam - Court Assistant