[2023] KEHC 23577 (KLR)

Oyaro v Gisore (Civil Appeal E026 of 2022) [2023] KEHC 23577 (KLR) (12 October 2023) (Judgment)

Neutral citation: [2023] KEHC 23577 (KLR)

Republic of Kenya

In the High Court at Nyamira

Civil Appeal E026 of 2022

WA Okwany, J

October 12, 2023

Between

Nicholas Oyaro

Appellant

and

George Morara Gisore

Respondent

(Being an Appeal against the Judgment of Hon. M. C. Nyigei – PM Nyamira dated and delivered on the 18th day of May 2022 in the original Nyamira CMCC No. 26 of 2016)

Judgment

1. The Respondent herein was the Plaintiff before the Lower Court where he sued the Appellant for damages arising out of a road traffic accident which occurred on 9th January 2016.

2. The Respondent’s case was that he was on the material day travelling along Nyamira – Kisii Road as a fare paying passenger in the Appellant’s motor vehicle Registration No. KBJ 867N when near Nyabioto area the Appellant’s driver permitted the said vehicle to collide with motor vehicle Registration No. KAS 964N thereby causing an accident in which he sustained serious injuries. The Respondent attributed the accident to the negligence of the Appellant’s driver/agent.

3. The Appellant denied the Respondent’s claim but after considering the evidence presented by the parties, the trial court rendered a judgment in favour of the Respondent as follows: - Liability – 100%

General Damages – Kshs. 250,000. 00

Special Damages – Kshs. 7,000. 00

Total – Kshs. 257,000. 00

4. Aggrieved by the said judgment, the Appellant filed the instant appeal in which he listed the following grounds of appeal: -1. The Learned Trial Magistrate erred in fact and in law by apportioning 100% liability to the Defendant without considering the Circumstances of the case.2. The Learned Trial Magistrate erred in fact and in law by apportioning 100% liability to the Defendant whereas the Police Abstract produced as plaintiff’s exhibit indicated that the matter was still pending under investigations.3. The Learned Trial Magistrate erred in fact and in law by apportioning liability to the Defendant whereas PW3 gave evidence that the third party motor vehicle Registration Number KAS 964N was entirely to blame.4. That the Learned Trial Magistrate erred in law and in fact in the assessment of quantum thereby giving an award on quantum on general damages of Kshs. 250,000/= that was overly in excess in the circumstances of the case.5. 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.6. That the Learned Trial Magistrate’s exercise of discretion in assessment of quantum was injudicious.

5. The appeal was canvassed by way of written submissions which I have considered.

6. I have considered the Record of Appeal and the parties’ respective submissions. Parties were in agreement that the appeal is only on the issue of quantum.

7. It was not disputed that the Respondent sustained the following injuries in the accident: -a.Contusion on the forehead.b.Cut wound on the left cheek.c.Contusion on the lower back.d.Blunt trauma on the chest.e.Cut wound on the right hand.f.Dislocation on the right wrist.g.Cut wound on the anterior right leg.h.Contusion on the left hip.

8. The Appellant argued that the award of Kshs. 250,000/= general damages was so high that it was an erroneous estimate as the Plaintiff suffered only soft tissue injuries. The Appellant was of the view that an award of Kshs. 80,000/= would be adequate compensation for the Respondent’s injuries.

9. The Appellant cited the following cases: -a.George Mugo & Another v AKM (minor suing through next friend and mother of A.N.K. [2018] where Kemei J awarded Kshs. 90,000/= for soft tissue injuries.b.George Kinyanjui T/A Climax Coaches & Another v Hussein Mahad Kuyala [2016] eKLR where the Respondent sustained injuries on his chest, neck, knees and lost two teeth and the High Court on appeal reduced an award of Kshs. 650,000/= to Kshs. 109,890/=; upon a finding that the loss of teeth was unrelated to the accident in question, as the Respondent had sustained soft tissue injuries.c.Ndungu Dennis v Ann Wangari Ndirangu & Another [2018] eKLR where Ngugi Joel J (as he then was) reduced general damages for soft tissue injuries from Kshs. 1,000,000/= to Kshs. 100,000/=.

10. The Respondent, on the other hand, argued that this court should not be quick to interfere with the amount awarded by the trial court as the same was commensurate with his injuries.

11. The Respondent cited the decision in Anthony Nyamweya v Jackline Moraa Nyandemo [2022] eKLR where, for similar injuries, the court awarded Kshs. 250,000/= general damages.

12. I have considered the injuries that the Respondent suffered in the accident alongside comparable past decisions that the parties cited. I note that even though the injuries that the Respondent sustained in the accident were soft tissue injuries in nature, the said injuries were multiple in nature and covered several parts of the body. I note that Dr. Ezekiel Ogando Zoga, who examined and prepared the Respondent’s Medical Report concluded that the Respondent suffered “grievous harm with serious cut wounds.”

13. My finding is that the award of Kshs. 250,000/= made by the Lower Court cannot, in the circumstances of this case, be said to be on the high side.

14. In conclusion, I find that the instant appeal is not merited and I therefore dismiss it with costs to the Respondent.

15. It is so ordered.

JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIA MICROSOFT TEAMS THIS 12TH DAY OF OCTOBER 2023. W. A. OKWANYJUDGE