[2022] KEHC 14463 (KLR)

Nyamwaya v Moraa (Civil Appeal E002 of 2021) [2022] KEHC 14463 (KLR) (11 February 2022) (Judgment)

Neutral citation: [2022] KEHC 14463 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E002 of 2021

JN Njagi, J

February 11, 2022

Between

Anthony Nyamwaya

Appellant

and

Damaris Moraa

Respondent

(Being an appeal from the judgment and decree of Hon. W.C. Waswa, RM, in Nyamira CMCC No.230 of 2016 delivered on 30/11/2020)

Judgment

1. The respondent had sued the appellant at the lower court claiming damages for injuries sustained in a road traffic accident while she was travelling in the appellant`s motor vehicle. The trial court awarded damages as follows:General damages - Ksh.500,000/=Less 50% contribution by third party - Ksh250,000/=Total - Ksh.250,000/=Costs and interest.The appellant was aggrieved by the award and filed the instant appeal. The grounds of appeal are that the award was inordinately high and wholly erroneous estimate of the loss and damage suffered by the respondent.

2. A medical report was produced in the case that showed that the respondent had sustained the following injuries:a.Left shoulder dislocationb.Bruises on the left fore-armc.Hematoma on the left shoulder, andd.Deep cut would on the left fore-arm.

3. The advocates for the respondent, C.R.Sagwa & Co. Advocates, had at the lower court requested for general damages to the sum of Ksh.500,000/= while making reliance on the High Court decision in the case of Agility Logistics Limited v John Wambua Musau & Another (2017) eKLR where a similar sum was awarded for bruises on the face, tenderness over the chest and left shoulder dislocation fracture. The advocates for the appellant, Kimondo Gachoka & Co. Advocates, had on the other hand made submissions in the court below that a sum of Ksh.170,000/= was adequate compensation for the respondent in damages for the injuries suffered. They had made reliance on the case of Bhupinder S. Bhangra v Joseph Tuwei Koech , Eldoret HCCA No.12B of 2002 (2008) eKLR where an award of Ksh.170,000/= was affirmed for swollen scalp and forehead tender with bruises, blunt trauma to the neck, chest, lumber spine region, swollen right shoulder, dislocation of the left shoulder joint, swollen left elbow with bruises and lacerations, swollen left knee with bruises and lacerations, swollen left ankle with bruises and lacerations, swollen thighs with bruises and lacerations and a swollen right ankle and foot with bruises and lacerations.

4. In this appeal, the advocates for the appellant submitted that the award of Ksh.500,000/= was inordinately high. That an award of Kshs. 200,000/= would be adequate compensation for the injuries suffered. They made reliance on the following authorities:(i)Jacob Omulo Onyango & 2 Others v Jubilee Jumbo Hardware Limited [2017] eKLR, where Majanja J. awarded Kshs. 220,000/- to the 3rd appellant for a head injury with torn wound on the scalp on occipital region, dislocation of the left shoulder joint, multiple bruises all over the trunk, blunt chest injury, dislocation lumbar spine, deep cut right lower limb with multiple lacerations, dislocation of the pedis with damage to the nerve and sprained right hand.(ii)Peter Muchiri Njuguna v David Njuguna Muiruri [2020] eKLR, Muchemi J awarded Kshs. 250,000/- in general damages for a dislocation of the left leg at the ankle joint, specifically the proximal metatarsal bone among other injuries which were classified as soft tissue injuries.(iii)Maseno University College v Elizabeth Kerubo Mokaya [2021] eKLR, Ougo J awarded Kshs 200,000/- as general damages and set aside the trial court`s award of Kshs 600,000/- being damages for chest contusion, bruises on the left elbow, bruises on the right forearm, degloving injury on the left floor, dislocation on the left ankle and bruises on the right leg.

5. The advocates for the Respondent on the other hand submitted in this appeal that the award of ksh.500,000/= was adequate. They urged the court not to interfere with the award.

6. The assessment of general damages is at the discretion of the trial court.In Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 Court of Appeal held that:“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 at first instance. [The appellate court can justifiably interfere with the quantum of damages 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 factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a fig so inordinately high or low as to represent an entirely erroneous estimate.”]

7. The principles under which an appellate court will disturb an award of general damages are well settled. These are as was stated by the Court of Appeal in Kemfro Africa Limited t/a Meru Express Services (1976) & Another (No.2) (1985)eKLR that:The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that 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. See Ilanga v Manyoka, [1961] EA 705, 709, 713 (CA-T); Lukenya Ranching and Farming Co-operative Society Ltd v Kavoloto, [1979] EA 414, 418, 419 (CA-K).

8. The same court in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 stated that;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.

9. It is a principle in assessing damages that comparable injuries should be compensated by comparable awards. In the case of Millicent Atieno Ochuonyo v Katola Richard(2015) eKLR it was held that:In determining the quantum, the courts have held that the general picture, the whole circumstances, and the effect of injuries on the particular person concerned must be looked at, some degree of uniformity must be sought, and the best guide in this respect is to have regard to recent awards in comparable cases in the local courts. It is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. The court has to strike a balance between endeavouring to award the Plaintiff a just amount, so far as money can ever compensate, and entering the realms of very high awards, which can only in the end have a deleterious effect. See generally, Rosemary Wanjiru Kungu Vs Elijah Macharia Githinji & another [2014] eKLR, West (H) & Son Ltd Vs Shepherd, Simon Taveta Vs Mercy Mutitu Njeru [2014].

10. There is no dispute on the injuries sustained by the respondent. These were left shoulder dislocation with hematoma on the same and deep cut on the left fore-arm with bruises on the same. In making an award of Ksh. 500,000/= the trial court made reliance on the case of Agility Logistics Limited v John Wambua Musau (supra) where Kamau J. awarded Ksh.500,000/= for bruises on the face, tenderness over the chest and left shoulder dislocation fracture.

11. I have gone through the said judgment. It is clear that the respondent in that case had sustained both a dislocation and a fracture of the left shoulder unlike in the instant case where the respondent had only sustained a dislocation of the shoulder without a fracture. In awarding similar amount in this case as in the case of Agility Logistics Limited, the trial magistrate failed to note that the injuries sustained by the respondent herein were far less severe than those suffered by the respondent in the referred to case. The trial magistrate made no attempt to consider the authority submitted by the advocates for the appellant where Ibrahim J.(as he then was) had in the year 2008 upheld an award of Ksh.170,000/= for injuries that included dislocation of the left shoulder joint and other soft tissue injuries. I find that the trial court misapprehended the injuries suffered by the respondent as a result of which he made an inordinately high award.

12. I have considered the authorities submitted by the appellant in this appeal together with the authority they relied on at the lower court. The respondent did not file authorities to counter those filed by the appellant in this appeal. The authorities cited by the appellant in this appeal involved dislocation of shoulder joints and ankle joints with other soft tissue injuries in which awards ranging between Ksh.170,000/= and 250,000/= were made. I find the authorities relied on by the advocates for the appellant to have contained relatively comparable injuries to those sustained by the respondent. Considering that the Respondent sustained a shoulder dislocation and deep cut on the left fore-arm, I am of the view that an award of Kshs. 220,000/= would have been adequate compensation.The upshot is that the award of general damages made at the subordinate court was inordinately high. The same is set aside and substituted with an award of Ksh. 220,000/=, subject to contribution by the third party as ordered by the trial court. The appellant to have the costs of the appeal.

DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 11TH DAY OF FEBRUARY, 2022. J. N. NJAGIJUDGEIn the presence of:N/A for the AppellantMiss Shilwatso holding Brief for Miss Sakwa for the Respondent30 days R/A.