[2023] KEHC 26597 (KLR)

Nyarieko v Corris (Civil Appeal E059 of 2021) [2023] KEHC 26597 (KLR) (14 December 2023) (Judgment)

Neutral citation: [2023] KEHC 26597 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E059 of 2021

WA Okwany, J

December 14, 2023

Between

Lucy Nyanchoka Nyarieko

Appellant

and

Nancy Corris

Respondent

(Being an Appeal from the decision in Chief Magistrate’s Court at Nyamira Civil Suit No. 86 of 2020 by Hon. C.W. Waswa, Resident Magistrate dated and delivered on 28th July 2021)

Judgment

1. The Appellant herein was the Defendant before the trial court where she was sued for damages arising out of injuries that she sustained in a road traffic accident.

2. The Respondent’s case was that she was, on or about 2nd July 2020, a lawful passenger travelling along Kisii- Nyamira Road in motor vehicle registration No. KAP 826D Toyota Hiace (Matatu) when the said vehicle collided with the Appellant’s motor vehicle Registration No. KCJ 131Q Isuzu Lorry. The Respondent attributed the accident to the negligence of the Appellant’s driver/agent.

3. The Respondent filed her defence dated 21st August 2020 in which she denied liability for the said accident.

4. The case proceeded for hearing before the trial court and at the end of the trial, the said court found the Appellant 100% liable for the accident and awarded the Respondent damages in the sum of Kshs. 308,050/= together with costs and interests.

5. Dissatisfied with the decision of the trial court, the Appellant instituted the present Appeal and listed the following grounds of appeal in the Memorandum of Appeal: - 1. That the learned trial Magistrate erred in law and in fact in the assessment of quantum thereby giving an award on quantum on (sic) general damages of Kshs. 300,000/= that was overly in excess in the circumstances of the case.

2. That the learned trial Magistrate erred in law and in fact in failing to pay regard to decisions filed alongside the Defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar injuries as the case he was deciding.

3. That the learned trial Magistrate’s exercise of discretion in assessment of quantum was injudicious.

6. The Appeal was canvassed by way of written submissions which I have considered.

7. The duty of the first appellate court is to reconsider and re-analyse the evidence tendered before the trial court with a view to arriving at its own independent findings while bearing in mind the fact that it neither heard nor saw the witnesses testify. This is the position that was taken in the case of by the Court of Appeal in the case of Njoroge vs. Republic (1987) KLR 19 at para. 22 where it held thus: -“As this court has constantly explained, it is the duty of the first appellate court to remember that the parties to the court are entitled, as well as on the questions of facts as on questions of law, to demand a decision of the court of the first appeal, and that court cannot excuse itself from the task of weighing conflicting evidence and drawing its own inferences and conclusions though it should always bear in mind that it has neither seen or heard the witnesses and to make due allowance in this respect (see Pandya vs. R (1957) EA 336, Ruwalla V. R (1957) EA 570).”

8. It is trite law that an appellate court can only interfere with the trial court’s assessment of damages where the trial court took into account an irrelevant factor, or failed to consider a relevant one or where the amount is inordinately low or high to amount to an erroneous estimate of the damage. This principle stated in the oft cited case of Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v. A.m. Lubia and Olive Lubia (1982 –88) 1 KAR 727 at p. 730 thus: -“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 Ilango V. Manyoka [1961] E.A. 705, 709, 713; Lukenya Ranching And Farming Co-operatives Society Ltd V Kavoloto [1970] E.A., 414, 418, 419. This Court follows the same principles.”

9. The Appellant submitted that the trial court’s award of damages was inordinately high considering the injuries that the Respondent suffered in the accident. He relied on the case of Power Lighting Company Ltd & Another vs. Zakayo Saitoti Naingola & Another (2008) eKLR in which Jennifer Mathenge vs. Patrick Muriuki Maina (2020) eKLR was cited in outlining the principles for determining whether to interfere on the assessment of damages. Counsel further cited the cases of Ndung’u Dennis vs. Ann Wangari Ndirangu & Another (2018) eKLR and Eva Karemi & 5 Others vs. Koskei Kieng & Another (2002) eKLR where the courts considered an award of Kshs. 300,000/= excessive and awarded the claimants damages for pain and suffering between Kshs. 40,000/= and Kshs. 100,000/=. The Appellant therefore contended that an award of Kshs. 100,000/= would be adequate compensation for the Respondent’s injuries.

10. The Respondent, on the other hand, submitted that the trial court’s assessment of damages was appropriate and ought not to be disturbed because of the nature of injuries suffered by the Respondent. The Respondent cited the decisions in Malindi Civil Appeal No. 26 of 2020, Justine Nyamweya Ochoki and Jared Nyang’au Obino vs. Prudence Anna Mwambu and Kisii Civil Appeal No. 46 of 2019 Veronicah Mkanjala Mnyapara vs. Charles Kinanga Babu where awards of Kshs. 350,000/= and 300,000/= were made respectively for similar injuries.

11. I have considered the injuries that the Respondent suffered in the accident as disclosed in the P3 Form and the Medical Report. It was not in dispute that the Respondent suffered the following injuries: -a.Deep cut wound on the frontal of the chestb.Loose left upper Caninec.Chest contusiond.Multiple bruises on the trunke.Multiple open deep cut wounds with bruises on the arm and forearmf.Multiple cut wounds on the right knuckles of 2nd and 3rd Digits and wrist jointsg.Bruises noted on the lateral limbs bilaterally.

12. It is trite that comparable injuries should attract comparable awards. (See Stanley Maore v Geoffrey Mwenda [2004] eKLR).

13. I have considered cases where the claimants suffered similar injuries as follows: -a.In Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichumbi Nyeri HCC 320 of 1998, the Respondent who suffered soft tissue injuries to the left ankle, legs and chest was awarded Kshs. 300,000/= in damages.b.In Global Trucks Ltd v Titus Osule Osoro HCCA No. 6 of 2012, the High Court at Bungoma awarded Kshs. 200,000/= to the claimant who had suffered loss of an incisor tooth, injuries to the left elbow and the abdomen with residual permanent disability.c.In Justine Nyamweya Ochoki & another v Prudence Anna Mwambu [2020] eKLR, the High Court at Malindi reduced an award of Kshs. 650,000/= to Kshs. 300,000/= where the claimant had suffered loss of upper front incisor tooth, deep cut on the chin, cut on the lips, loss of the upper teeth, injury to the right forearm and loss of consciousness.

14. Having regard to the nature of injuries that the Respondent suffered alongside the above cited cases with comparable injuries, I find that the trial court’s award of Kshs. 300,000/= for pain and suffering was not excessive as it fell within the range of previous awards made in comparable cases. I find no reason to disturb the trial court’s award of damages.

15. In sum, I find that the instant appeal is not merited and I therefore dismiss it. I award the Respondent the costs of the appeal.

16. Orders accordingly.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 14TH DAY OF DECEMBER 2023. W. A. OKWANYJUDGE