[2022] KEHC 13631 (KLR)

Nichani & another v Kimani (Civil Appeal E457 of 2021) [2022] KEHC 13631 (KLR) (Civ) (7 October 2022) (Judgment)

Neutral citation: [2022] KEHC 13631 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E457 of 2021

JK Sergon, J

October 7, 2022

Between

Sunil Nichani

1st Appellant

B J Hotworn

2nd Appellant

and

Naftaly Kimani

Respondent

(Being an appeal from the judgment and Decree in Chief Magistrate court at Milimani Nairobi dated 16th July, 2021)

Judgment

1. Naftali Kimani, the respondent herein lodged a suit against the appellants vide the plaint dated February 12, 2020 and prayed for reliefs in the nature of general and special damages together with costs of the suit and interest on the same.

2. In his plaint the respondent pleaded that on or about September 20, 2019, the plaintiff was walking off the road along Accra road when motor vehicle registration no KCB 673Y belonging to the 1st appellant was recklessly and carelessly driven by the 2nd appellant, knocked down the respondent occasioning him severe bodily injuries and has since then suffered loss and damage.

3. The respondent further pleaded that as result of the aforesaid accident, the plaintiff sustained severe bodily injuries as a result of the negligence of the driver of the said motor vehicle as particularized under paragraph 5 of the plaint.

4. The 1st and 2nd appellants entered appearance on being served with summons and filed their statements of defence on August 4, 2020 to deny the respondent’s claim. The matter proceeded for hearing and judgment was eventually delivered in favour of the respondent in the sum of Kshs 273, 550/=.

5. The appellants being aggrieved preferred this appeal and putforward the following grounds:i.The trial court awarded general damages of Kshs 300,000/= for minor injury to the joint is so inordinately high as to warrant an appeal.ii.The trial court in making the award of general damages relied on cases which did not involve injuries comparable to those sustained by the respondent.iii.Based on the above grounds, the trial court in assessing the damages for pain and suffering proceeded on wrong principles and took into account irrelevant factors.

6. This court gave directions to have the appeal disposed of by written submissions. I have re-evaluated the arguments presented before the trial court. I have also considered the rival written submissions. The three grounds of appeal put forward by the appellant revolve around the question as to whether the learned trial magistrate applied the correct principles of law in assessment of damages.

7. The appellants submitted that in the lower court, they had proposed a sum of Kshs 150,000/= for pain and suffering and relied on the case of Richard Kerini Manyisa v YNO (Minor suing through her next friend and father )AAO (2019)eKLR which the minor sustained blunt trauma to the occupied area, bruises on the left leg, contusion on the nose ,blunt trauma to the chest, bruises on the left toe and head injury. The court reviewed the award from Kshs 350,000/= to Kshs 150,000/=

8. The appellants have further invited the court to consider some cases including the case of Francis Omari Ogaro v JAO (minor suing through next friend and father GOD)(2021) eKLR,in which the minor sustained these injuries :Multiple cut wounds on the right lower limb, bruises on the right lower limb, bruises on both elbows, bruises on the right iliacregion,bruises on the frontal region, bruises on the temporal region, lacerations on the frontal region, cut wounds on the left iliac region, cut wounds on the frontal region, cut wounds on the temporal region, blunt trauma to the abdomen. The court gave Kshs 180,000/=.

9. It is the appellants’ submissions that the respondent was treated using analgesics and a bandage was applied on the ankle joint and in November, 2019 he was examined while he was walking with a slight slimp but made full recovery after a year.

10. The appellants therefore propose a sum of Kshs 150,000/= on a 100% basis.

11. The respondent on the other hand in his written submissions before the trial court, had submitted that an award of Kshs 350,000/= was reasonable sufficient to compensate him. On this the respondent relied on the caseKitale Haulliers Limited v Emmanuel Soita Simiyu(2013) eKLR Civil Appeal 107 of 2010 where the claimant suffered painful shoulders, bruises on the right forearm and left upper arms ,bruises on the knee and painful back and was awarded Khsh.200,000/= .

12. The respondent has pointed out that the injuries sustained by the respondent were so serious that they affected his mobility, he walked with a limb.

13. The respondent further submitted that the trial magistrate award was reasonable and appropriate having put into account the injuries sustained and comparable authorities adjusted to the current inflation. On this the respondent has relied on the case of Peter Namu Njeru v Philemone Mwagoti (2016) Eklr ,where it was stated that;“In order for an appellate court to interfere with an exercise in discretion by a trial court in assessing damages, it must be demonstrated that the award was inordinately too high or too low as to present an entirety erroneous estimate of compensation to which the respondent was entitle or that the court took into account irrelevant factors or failed to take into account relevant factors and that the exercise of discretion was wholy injudicious not expected of a reasonable adjudicator. his court takes notice that no two cases are of precise similar injuries hence the decided cases are merely but a guide as much as they would be of binging nature on the trial court being a subordinate court. However the duty to assess damages remains a discretionary factor and there must be a clear and demonstrable show that there was an error to invite interference by an appellate court.”

14. The assessment of General damages is discretionary and in the case of Butt v Khan [1981] KLR 349 Law, JA held as follows:“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.”

15. Also, the Court of Appeal in the case of Hellen Waruguru Waweru (suing as the legal representative ofPeter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR similarly held:“As a general principle, assessment of damages lies in the discretion of the trial court and 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 court must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage

16. After careful review of all the evidence presented to this court as well as the authorities, I believe the award for damages of Kshs 300,000/=, is justified and reasonable in light of the facts and the rate of inflation.

17. Accordingly, I find no basis to interfere with the trial Magistrate’s decision on being satisfied that the respondent sustained severe bodily injuries as a result of the accident and established a prima facie case against the appellants on a balance of probabilities and awarding them the damages of Kshs 300,000/= which is reasonable in my view.

18. The appeal is dismissed with costs to the respondent.

DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 7Th Day Of October, 2022. ……………………….J. K. SERGONJUDGEIn the presence of:……………………………. for the 1st Appellant.................................... for the 2nd Appellant……………………………. for the Respondent