[2019] KEHC 9564 (KLR)

REPUBLIC OF KENYA

IN THE HIGH OF KENYA

AT MURANG’A

CIVIL APPEAL NO. 70 OF 2013

PAUL GATHERU MUREITHI................................APPELLANT

VERSUS

AA GROWERS LIMITED.....................................RESPONDENT

[Being an appeal from the original judgment of S. Mbungi, Senior Principal Magistrate,

in Kigumo PMCC No. 144 of 2010 delivered on 15th June 2012]

JUDGMENT

1. This appeal is on quantum of damages only.

2. None of the disputants challenged the findings on liability. The learned trial magistrate found that the respondent contributed 70% to the road traffic accident. The appellant on the other hand was liable for 30% in negligence.

3. The learned trial magistrate assessed general damages for pain and suffering at Kshs 50,000; and, special damages at Kshs 700. The net award came to Kshs 35,490. The appellant was also granted interest and costs.

4. The memorandum of appeal raises four grounds. They can be compressed into one: That the learned trial magistrate employed wrong principles in assessing damages.

5. Learned counsel for the appellant relied on the written submissions filed on 12th February 2019. Learned counsel submitted that in view of the injuries suffered by the appellant, the award was inordinately low as to disclose an error of principle.

6. The appeal is contested by the respondent. The respondent’s submissions were filed on 20th August 2018. They are on a two-strand. First, that the appellant suffered minor soft tissue injuries. Secondly, that there is no basis for the appellate court to interfere with the discretion of the learned trial magistrate.

7. This is a first appeal to the High Court. It is an appeal on both facts and the law. I have re-evaluated the evidence and reached independent conclusions. I am cognizant that I neither saw nor heard the witnesses. Peters v Sunday Post Limited [1958] E.A 424, Selle v Associated Motor Boat Company Ltd [1968] E.A 123.

8. As a general rule, an appellate court will not interfere with quantum of damages unless the award is so high or inordinately low; or, founded on wrong principles. Butt v Khan [1982-88] KAR 1, Arkay Industries Ltd v Amani[1990] KLR 309.

9. At paragraph 5 of the plaint, the appellant pleaded three injuries: Soft tissue injury to the neck; dislocation of the right thumb; and, soft tissue injury to the chest. When he took to the stand he stated:

“I was injured on the neck, right thumb finger among other injuries. The pain on the neck persisted”

10. The appellant was admitted to Thika Level 5 Hospital and discharged on the same day. Dr. Rose Chakago (PW3) worked there. She said:

“He had left lung contusion with dislocation of the right thumb secondary to a road traffic accident. He was put on antibiotic, analgesics and [anti] tetanus medication…..it is normal for one to develop pneumonia a day after a road traffic accident.”

11. Clearly, the appellant suffered minor soft tissue injuries which had healed. There was no permanent injury. The alleged injury to the neck was notproved. The treatment given comprised of a prescription of antibiotics, anti-tetanus medication and analgesics.

12. I have perused some precedents: In Peter Kahugu & another v Ongaro, High Court, Nairobi, Civil Appeal 676 of 2000 [2004] eKLR, Kshs 80,000 was awarded for multiple soft tissue injuries. In Timsales Ltd v Penina Omondi, High Court, Nakuru, Civil Appeal 192 of 2008 [2011] eKLR, the respondent suffered a deep cut wound on the left index finger and severe soft tissue injuries. The High Court reduced the general damages to Kshs 50,000.

13. I am hard pressed to say that the general damages awarded by the lower court were inordinately low; or, that the award was founded on wrong principles. I will not disturb it.

14. Special damages must be specifically pleaded; and, strictly proved. Kampala City Council v Nakaye [1972] E.A 446. I concur with the learned trial magistrate that the appellant only proved the sum of Kshs 700.

15. The upshot is that the entire appeal is devoid of merit. It is dismissed.

16. Costs follow the event and are at the discretion of the court. I grant the appellant costs and interest in the lower court. In the interests of justice I order that each party shall bear its own costs in the appeal.

It is so ordered.

DATED, SIGNED and DELIVERED at MURANG’A this 5th day of March 2019.

KANYI KIMONDO

JUDGE

Judgment read in open court in the presence of:-

No appearance by counsel for the appellant.

No appearance by counsel for the respondent.

Ms. Dorcas and Ms. Elizabeth, Court Clerks.