[2022] KEHC 17199 (KLR)

Perino v Charo (Civil Appeal E002 of 2021) [2022] KEHC 17199 (KLR) (16 December 2022) (Judgment)

Neutral citation: [2022] KEHC 17199 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal E002 of 2021

SM Githinji, J

December 16, 2022

Between

Iliana Perino

Appellant

and

Abdalla Tabu Charo

Respondent

(Being an Appeal against the whole of the Judgment and decree of Hon. Dr. Julie Oseko CM dated 21st December, 2020 in Malindi Civil Suit No. 56 of 2018)

Judgment

CORAM: Hon. Justice S. M. GithinjiChepkwony & Associates Advocates for the Appellant.Kaluki Muriu Ndiritu & Co. Advocates for the Respondent. 1The appeal before me is against the award of damages by the trial court in the sum of Kshs. 500,000/= for general damages. The judgment is dated 21. 12. 2020. Aggrieved by the judgment, the Appellant filed a memorandum of appeal on the 4. 01. 2021. The appeal is mainly on the Trial Court’s finding on quantum. The grounds of appeal are: -1. That the learned magistrate erred in law and in fact in disregarding the medical report from Tawfiq hospital dated 4th April, 2017 produced by the Appellant confirming that the Respondent was fully healed and sensation had returned to Respondent’s limb fully and intact.2. That the learned magistrate erred in law and in fact in failing to appreciate the fact that there was already a medical report produced on record by the Appellant and failed to consider the law on production of documents or evidence.3. That the learned magistrate erred in law and fact in taking into consideration a letter from Tawfiq dated 18th May, 2018 which was never produced by a doctor from the said hospital but third parties despite objection by the Appellants. Further the said report was made and filed after filing the suit in total disregard of the law on admission of documents and their production.4. That the learned magistrate erred in law and in fact in holding that the Respondent was entitled to general damages of Kshs. 500,000/- which was excessive and punitive to the Appellant who had fully compensated the Respondent and paid for all medical expenses and monthly payment in lieu of injuries.5. That the learned magistrate erred in law and fact in finding that the Appellant was negligent and in failing to consider the explanation in the Appellant defence or considering the submissions.6. That the learned magistrate erred in law by failing to appreciate the fact that the Respondent had fully healed and dully compensated by the Appellant.7. That the learned magistrate erred in law and fact by failing to consider or even adequately adopt and appreciate the submissions of the Appellant.

2. In all the circumstances of the case, the finding of the learned magistrate on compensation for general damages are insupportable in law or on the basis of the evidence adduced.The Appellant sought the following orders: -a.Appeal be allowedb.The order dated December 21, 2020 be set aside and substituted with an order dismissing the Respondent’s suit with costs.c.That the Respondent had fully been compensated and that the award was in excess and punitive.

Background 3Vide a Plaint dated 28. 02. 2018, the Respondent filed Malindi CMCC No. 56 of 2018, Abdalla Tabu Charo vs Iliana seeking general and special damages arising from a dog’s attack that happened on January 12, 2017 while he was walking to work along Casuarina Road in Malindi.

4In the plaint its averred that the Plaintiff sustained deep dog bites with loss of tissue and muscle on both legs. The particulars of negligence on the part of the Defendant were as follows;1. Permitting a fierce dog to wander in public when she knew or ought to have known it was dangerous to do so.2. Failing to tie or cage the dog when he knew it was dangerous to let it free.3. Failing to give due notice and/or warning to the Plaintiff and public about the fierce nature of the dog.

5The Defendant filed her Defence on the 23rd day of April, 2018 denying the allegations by the Plaintiff and asserted that the Plaintiff was declared medically fit on April 4, 2017 and he never informed the Defendant of any further complications and that this suit is just a ploy to extort money from the Defendant. This recital of pleadings formed the basis of the trial.

Evidence 6The Plaintiff Abdalla Tabu Charo, testified as PW1 and relied on his witness statement filed on 3. 07. 2019 as his evidence in chief. The List of documents dated 28. 2.2018 and the supplementary list of documents dated 22. 07. 2018 as the Plaintiff’s Exhibits.

7On cross examination, he stated that he did not go to the police station. He confirmed to having written a statement and that he was admitted for 4days and he did not work for 4 months. It was his testimony that the injuries have affected him since he cannot work as he used to.

8PW2 Ibrahim Abdulahi a Clinician at Malindi General Hospital produced the medical report from Tawfiq Hospital showing the Plaintiff had sustained injuries from dog bites. The report was produced as Plaintiff Exhibit 4.

Defence Case 9DW1 Vincent Odhiambo told the court that he recorded a statement dated 8. 6.2018 which he adopted as his evidence in chief. The list of documents was produced as Defence Exhibit 1-4.

Analysis and Determination 10The duty of the first appellate court is to re-evaluate the evidence in the subordinate court, both on points of law and facts, and come up with its own finding and conclusion as was held in Court of Appeal for East Africa in Peters –vs- Sunday Post Limited (1958) EA 424. The appropriate court’s duty established in cases of appeal can be stated in three complementary principles:1. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusion;2. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court, unlike it, had the advantage of seeing and hearing the witnesses testify before it; and3. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.

11The issue for determination here is whether the award of general damages of Kshs. 500,000. 00/= in light of the injuries stated above is excessive to persuade this court to interfere with it.

12I have considered the Appellant’s submissions on the quantum of damages and the authorities cited by Counsel in their submissions in this appeal. It must be noted that injuries will never comparatively perfectly fit other person’s injuries. The courts consider decisions where injuries are closely comparable to the injuries sustained by the plaintiff and the after effects. I am guided by the Court of Appeal decision in Odinga Jacktone Ouma V Moureen Achieng Odera (2016) eKLR.

13It is trite that if anyone suffers personal injuries as a result of wrongful act of another in negligence, that other person is liable to compensate the Plaintiff in damages for the injuries suffered. From the record, it is not disputed that the Plaintiff was found to have deep dog bites with loss of tissue and muscle on both legs. The fact that the Appellant catered for the hospital expenses does not negate liability but calls for the amount paid be considered when settling on special damages.

14On appeal the principles that guide an appellate court on whether to interfere with the decision of the trial court are well settled and as stated by the Court of Appeal in Kemfro Africa Limited T/A “Meru Express Services 1976” & Gathogo Kanini v A. M. Lubia & Olive Lubia (1982 – 1988) 1 KAR 727, where Kneller J. A. said:"The principle 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 the Judge in assessing the damage 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.”

15In the end, I wish to state that the Plaintiff is only entitled to what is in the circumstances, fair to him and to the defendant. Having considered the entire appeal, I find no reasonable cause to disturb the trial Court’s award on damages. There is no merit in the appellant’s appeal against the learned magistrate’s finding and award on general damages. Accordingly, this appeal fails. Costs goes to the respondent.This Court so orders.

RULING READ, SIGNED AND DELIVERED in the absence of the partiesVIRTUALLY AT MALINDI THIS 16THDAY OF DECEMBER, 2022. ...................................S.M. GITHINJIJUDGE