[2022] KEHC 3177 (KLR)

Mutwiwa v Maingi (Civil Appeal 86 of 2019) [2022] KEHC 3177 (KLR) (5 July 2022) (Judgment)

Neutral citation: [2022] KEHC 3177 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 86 of 2019

GMA Dulu, J

July 5, 2022

Between

Wilson Ndolo Mutwiwa

Appellant

and

John Gathara Maingi

Respondent

(Being an appeal from the judgment of C.A Mayamba Principal Magistrate in Kilungu PMCC 146 of 2018 delivered on the 26th day of July 2019)

Judgment

1. In a judgment delivered on 26th July 2019, the trial magistrate awarded damages to the respondent as against the appellant as follows –a.Liability is awarded at 90% t0 10%b.General damages Kshs 1. 8 millionc.Special damages Kshs 18,800d.Less 10% Kshs 1,637,000e.Costs and interests.

2. Dissatisfied with the above decision of the trial court, the appellant has come to this court on appeal on the following grounds –1. The learned trial magistrate erred both in law and fact in finding that the respondent was entitled to (Pay) the plaintiff and awarded general damages of Kshs 1,800,000/= and special damages of Kshs 18,800/=.2. The learned trial magistrate erred infact and in law in failing to consider the appellant’s submissions on quantum.3. The learned trial magistrate erred in failing to consider the appellant’s submissions.4. The learned magistrate erred in awarding quantum contemporaneously by relying and referring to a medical report attached to submissions that was not particularized in the appellant’s list of witnesses filed, nor filed at the pre-trial stage to award damages.5. The learned magistrate erred by awarding damages that were inordinately high in view of the circumstances of the case.6. The learned trial magistrate erred by failing to consider conventional awards for similar cases.

3. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Kimondo & Gachoka advocates for the appellant, and those filed by N.M Kiriba & Company for the respondent. I observe that both counsel relied on a number of decided court cases.

4. This is an appeal on quantum of damages, as liability was recorded by consent as 90% to 10%.

5. The considerations to be taken into account by an appellate court to determine whether or not to interfere with the quantum of damages awarded by a trial court have been explained inmany court cases. In my view, it will suffice if I cite the case ofButtler v Butler [1984] KLR 225, in which the Court of Appeal stated, inter alia that –“10. The assessment for damages is more like the exercise of discretion by the trial Judge and an appellate court should be slow to reverse the trial Judge unless he has either acted on wrong principles or awarded so excessive or so little damages that no reasonable court would; or he has taken into consideration matters he ought not to have considered or not taken into consideration matters he ought to have considered and has, in the result, arrived at wrong decision”.

6. Considering the trial court record, the judgment and the submissions of counsel for both sides herein, in my view the major issue is whether the trial magistrate was correct in considering the report of Dr. Wokabi in assessing quantum of damages.

7. From the record of proceedings, on June 28, 2019, the parties by consent agreed that judgment be entered on 90% to 10% basis , and that parties file submissions on quantum of damages within one week. It was also agreed that “all documents be admitted as evidence”.

8. Thereafter, there was no record that additional documents were introduced or were to be introduced, thus in my view, the documents to be relied upon and which were by consent admitted as evidence, were those that had been filed by June 28, 2019.

9. With specific regard to the report by Dr. W.M Wokabi, I note that it was contained in a list of original documents of the respondent (plaintiff) dated July 18, 2019 whose date of filing in court was not indicated. Thus though the report was dated February 13, 2019, in my view, it featured too late in the proceedings and the trial magistrate should not have relied on the same. Therefore in my view, the magistrate relied on extraneous matters or evidence of Dr. Wokabi in determining the quantum of damages herein. I will thus interfere with the quantum of damages awarded.

10. What should the quantum of general damages be? The appellant asked for an award of Kshs.400,000/= at the trial. He asks for the same amount on appeal but says that it be between Kshs.400,000/= and Kshs.700,000/=.

11. Considering the case authorities cited on either side, I am of the view that an award of Kshs.1,500,000/= as general damages, less 10% will be adequate compensation for the injuries suffered, after removing from consideration the report of Dr. Wokabi.

12. In my view, the special damages awarded by the trial court were specifically pleaded and proved.

13. Consequently, I allow the appeal in part, set aside the award of the trial court for general damages and award Kshs 1,500,000/= in its place. The award will therefore be as follows –a.Liability consented to 90% to 10%/=b.General damages, Kshs 1,500,000/=c.Special damages Kshs 18,800/=Total Kshs 1, 518,800/=d.Les 10% Kshs 151,880/=Total Kshs 1,366,920/=

14. The appellant will pay the respondent 60% of the costs of appeal, and interest at court rates until payment in full.

DELIVERED, SIGNED & DATED THIS 5THDAY OF JULY, 2022, IN OPEN COURT AT MAKUENI.GEORGE DULUJUDGE