[2022] KEHC 14952 (KLR)

Ng'ang'a v WAO (Minor suing through AMV) (Civil Appeal E009 of 2021) [2022] KEHC 14952 (KLR) (3 November 2022) (Judgment)

Neutral citation: [2022] KEHC 14952 (KLR)

Republic of Kenya

In the High Court at Kilgoris

Civil Appeal E009 of 2021

F Gikonyo, J

November 3, 2022

Between

John Mbugua Ng'ang'a

Appellant

and

WAO

Respondent

Minor suing through AMV

(Being an appeal from the Judgement of Hon. R.M. Oanda (P. M) Delivered on 27th June 2019 in Kilgoris PMCC No. 04 of 2018)

Judgment

1. The judgement subject of this appeal is as follows: -i.Liability 20:80 in favour of the respondent against the appellantii.General damages kshs.300,000/=iii.Special damages kshs.5,105/=iv.Costs and interest

Submissions 2. The appeal disposed of by way of written submissions. Both parties filed their respective submissions.

Appellants Submissions 3. The appellant submitted that the appellate court is not under any obligation to accept and follow the trial courts findings on both facts and evidence if it appears that the trial court failed to take into account crucial issues.

4. The appellant submitted that the learned trial magistrate proceeded on wrong principles or misapprehended the evidence in this case.

5. The appellant submitted that a sum of Kshs. 80,000 would suffice as general damages with respect to the injuries sustained by the respondent.

6. The appellant urged this court to allow this appeal and re assess the general damages and do award costs to the appellant.

7. The appellant has relied on the following authorities;i.Statpack Industries Vs James Mbithi Munyao[ 2005] eKLRii.Selle & Anor Vs Associated Motor Boat Co. Ltd & Others [1968 6A 123).iii.Kemfro Africa Limited T/A Meru Express Services & Olive Lubia [1982-88] 1KAR727iv.Eastern Produce (K) Ltd (Savani Estate) Vs Gilbert Muhunzi Makotsi [2013 eKLRv.Godwin Ireri Vs Franklin Gitonga [2018] eKLR.

The Respondent’s Submissions. 8. The respondent submitted that the trial court’s award of Kshs. 300,000 in general damages was appropriate in light of the injuries sustained by the respondent and the resultant effects.

9. The respondent submitted that the appeal herein lacks merit. He urged the court to dismiss the same with costs to the respondent and interest from the date of delivery of judgment before trial court.

10. The respondent has relied on the following authorities;i.Stanley Maoro Vs Geoffrey Mwenda [2004] eKLRii.Catherine Wanjiru Kingori & 3 Others V Gibson Theuri Gichubi[2005] eKLR

Analysis and Determination Duty of court 11. The duty of this court as a first appellate court is to re-evaluate the evidence and draw its own conclusions, but always bearing in mind that it did not have the opportunity to see or hear the witnesses testify. See Selle and Another v Associated Motor Boat Co. Limited and Others (1968) EA 123

Issues 12. The 3 grounds of appeal relate to quantum of damages. Thus, the issue here is: -Whether the trial magistrate made an award of general damages that was inordinately and excessively high in the circumstances, having regard to the injuries sustained by the Respondent.

13. The appellate court will not interfere with assessment of damages except where the trial court has committed an error in principle or awarded inordinately low or high award as to make it wholly erroneous estimate of damages (Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30. )

14. The appellant contended that the quantum of damages awarded by the lower court, is inordinately high or unjustified in light of the injuries sustained by the respondent.

15. The Respondent’s evidence was that he sustained injuries particularized to be bruises on the face all over, blunt trauma on the left thigh, swollen of the left hand due to blunt trauma and contusion of the chest. See the medical report by Dr. E. Ogando (P. Exh. 1) dated 15. 02. 2018 prepared about four months after the accident and treatment notes from Transmara West Sub County Hospital (P. Exh. 2) and a P3 form - (P. Exh. 3).

16. The appellant has relied on the case of Eastern Produce (K) Ltd (Savani Estate) Vs Gilbert Muhunzi Makotsi[2013 eKLR in which the court awarded Kshs. 70,000 and Godwin Ireri Vs Franklin Gitonga [2018] eKLR where the high court set aside an award of Kshs. 300,000/=and substituted it with Kshs. 90,000/=

17. The injuries sustained in the Muhunzi case were; pricked wound on the left foot (dorsal aspect) which was tender and severe pains incurred during and after injury.

18. In the Godwin Ireri case, the plaintiff sustained two cuts on the forehead, cuts on the scalp to the occipital region, bruises on the left ankle and bruises on the right knee.

19. In the case of Catherine Wanjiru Kingori & 3 others –vs- Gibson Theuri Gichubi [2005] eKLR the Third Plaintiff suffered injuries, multiple soft tissue injuries, injury on the left elbow joint, and injuries on both ankles and was awarded general damages at Kshs. 350,000/=.

20. Having had due regard to the aforesaid cases together with the inflationary trends, and having considered the appeal herein and the policy goal of this court to try to compensate injuries as far as possible by comparable awards, I am persuaded the award of Kshs. 300,000/= was excessive. Accordingly, there is lawful justification to interfere with the exercise of discretion by the trial court in the assessment of damages. I set aside the award of Kshs. 300,000 by the trial court.

21. Being guided by the case of Michael Okello v Priscilla Atieno [2021] eKLR I award Kshs 250,000/= as reasonable compensation of the injuries sustained by the respondent.

22. The amount awarded on special damages was not challenged. I so award.

23. In the upshot, I allow this appeal on quantum in the terms following: -i.General damages…….Kshs. 250,000/= less 20% contributions leaving a balance of Kshs. 200,000/=ii.Special damages……… Kshs. 5,105/=.iii.Costs and interest on the award.iv.As the appeal was only on quantum, I order each party to bear their own costs of the appeal.v.It is so ordered.

DATED, SIGNED AND DELIVERED AT KILGORIS THROUGH TEAMS APPLICATION, THIS 3RD DAY OF NOVEMBER, 2022. .......................F. GIKONYO M.JUDGEIn the presence of:1. Mr. Kasaso – CA2. Kerubo for Appellant3. Khan & Associates for Respondents