[2022] KEHC 15384 (KLR)

Osore v Silver Style Investment Company Limited (Civil Appeal 104 of 2017) [2022] KEHC 15384 (KLR) (11 November 2022) (Judgment)

Neutral citation: [2022] KEHC 15384 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal 104 of 2017

PJO Otieno, J

November 11, 2022

Between

Anastacia Oyugi Osore

Appellant

and

Silver Style Investment Company Limited

Respondent

(Being an appeal from the Judgment and Decree of Hon F M Nyakundi (RM) in Mumias SPMCC No 40 of 2016 delivered on the 4th September 2017))

Judgment

1. In this appeal, the only challenge to the trial court’s judgment is on the sum of general damages. The complaint is that the general damages awarded are inordinately too low to commensurately compensation for the injuries suffered.

2. At the trial, the appellant had proposed a sum of Kshs 350,000 for general damages while the respondent proposed Kshs 50,000. Both cited decisions of the High Court for guidance to the trialcourt.

3. In its determination the trial court did consider the decisions cited and distinguished those by the appellant as having regarded more severe injuries compared to those at hand. The court then rendered itself as follows:-“On the third, it is clear that the plaintiff sustained injuries as indicated by the P3 and the medical report by Dorctor Andai who stated that the plaintiff sustained blunt injuries on the chest, and back. The treatment notes were produced to that effect. Abok Odhiambo and Company for the plaintiff submitted that Kshs 350,000 will be an appropriate figure for compensation. He relied on the case of Francis Ochieng and Another v Alice Kajimba [2015] KLR. I have however noted that the injuries suffered in this case are more serious than in this instant case.On his part Kibichiy, advocate for the defendant submitted that Kshs 50,000 will be sufficient enough for the said injuries if he had proved the case on a balance of probabilities. He relied on the case of David Okaka Odero v Kilindini Tea Warehouse – Mombasa HCCA No 178 of 2006 and Suburu Saw Mills v Grace Maina Ndungu and Elizephen Kareri v Maina Kimani – Nairobi HCCA 609 of 2006 where court awarded Kshs 40,000, 30,000 and 40,000 respectively.In the case of Cyrus Gachanja Muya v Abbas Mohammed and Another [1999] eKLR court awarded Kshs 11,000, 70,000, 45,000 and Kshs 20,000 for the first, second, third and fourth respectively. In view of the above authorities, doing the best that I can, I, hereby award Kshs 60,000 as general damages considering the rate of inflation and lapse of time.”

4. Assessment of damages is a matter at the discretion of the court, is known as a very difficult task demanding that comparable injuries need to attract comparable awards hence an appellate court can only interfere with the exercise of discretion on demonstration that it was not judiciously exercised or when the award assessed is manifestly too high or too low as to demonstrate an outright error in assessment.

5. In this matter it is clear that the trial court took into account the injuries suffered by the appellant as soft tissues largely, then compared those injuries to the injuries in the cited cases and came by the award.

6. As a first appellate court, having re-appraised the entire evidence I have not encountered any error committed by the trial court in his exercise of discretion on assessment of damages. It is still the law that while days of small and misery award could have long gone by, the awards by the courts must remain modest so that the economy is stabilized and not harmed by very large awards.

7. It is therefore the conclusion of the court that no demonstration of injudicious exercise of discretion has been made out. The award of Kshs 60,000 per see is not manifestly too low to present and an erroneous assessment or capable of being seen as far off the mark hence the appeal fails and is dismissed.

8. However there appears a typographical error at the rendition in the judgment which contradicts the substantive finding by the court that the damages were assessed at Kshs 60,000. This error is corrected so that the general damages remain assessed at Kshs 60,000 while special damages stand at Kshs 10,500.

9. As the appellant has failed, he shall pay costs of the appeal to the respondent, which costs the court has assesses at Kshs 30,000.

DATED, SIGNED AND DELIVERED AT KAKAMEGA, THIS 11TH DAY OF NOVEMBER 2022. PATRICK J O OTIENOJUDGEIn the presence of:Mr. Mulama for Abok for the appellantMr. Biwot for the respondentCourt Assistant: Polycap Mukabwa