[2019] KEHC 3465 (KLR)
The appellate court found that the trial court exercised its discretion properly in assessing general damages for the respondent's soft tissue injury, taking into account the nature of the injury, the persistence of pain, and the need for multiple hospital visits. The court noted that both parties cited outdated...
Source-derived case information.
- Citation
- [2019] KEHC 3465 (KLR)
- Parties
- Appellant: Revital Healthcare (EPZ) Ltd; Respondent: Mark Anyama
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 125 of 2015
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- CA Otieno
- Legal Topics
- Personal Injury, Assessment of Damages, Judicial Discretion, Appellate Review
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Revital Healthcare (EPZ) Ltd
Appellant
Mark Anyama
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial court's award of general damages for personal injury was so excessive as to warrant interference by the appellate court.
- 2 Whether the trial court properly exercised its discretion in assessing damages given the evidence and authorities cited.
Ratio Decidendi
The appellate court found that the trial court exercised its discretion properly in assessing general damages for the respondent's soft tissue injury, taking into account the nature of the injury, the persistence of pain, and the need for multiple hospital visits. The court noted that both parties cited outdated authorities and emphasized that damages must reflect current economic realities. The award of Kshs.400,000 was not inordinately high when adjusted for the passage of time and inflation. There was no basis for appellate interference as the award was comparable to similar cases when these factors were considered. The appeal was therefore dismissed for lack of merit.
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs to the respondent.
Full Case Text
Judgment text and source record
24 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT MOMBASA
CIVIL APPEAL NO. 125 OF 2015
REVITAL HEALTHCARE (EPZ) LTD ...........................APPELLANT
VERSUS
MARK ANYAMA............................................................RESPONDENT
J U D G M E N T
1. In this appeal all the grounds challenge the award of general damages as being too high excessive and onerous and thereby fit to invite the interference by this court as a first appellate court. There is in fact no challenge on finding and decision on liability
2. Award of general damages is largely an exercise in judicial discretion by the trial court and it is not for an appellate court to slightly freely and in every even interfere[1]. It is also said that assessment of damages in personal injury claims is a difficult task[2] and that an appellate court should not interfere merely because it would have awarded a different sum had it sat as the trial court[3].
3. By this court is also mandated on a first appeal to proceed by way of a retrial by reappraising and reevaluating the entire material availed at trial not a view to coming to own conclusions while being cognizant that the trier of facts had the advantage which the appellate court lacks[4].
4. The material presented at trial and relating to the injuries suffered by the respondent included the medical report by Dr. Ajoni Adede and a medical summary from Bomu Hospital. Both documents reveal that the Respondent suffered cut wound of about 30 centimeters long which was stitched but necessitated a multiple visits to the hospital for wound care. He had healed but with residual pain upon exertion for which the doctors advised no heavy duty work.
5. That evidence together with the Respondents oral evidence was taken into account by the trial court which then found and held:-
“On evaluation, the plaintiff suffered cut wound. The scare was about 20cm and still not dully (sic duly) healed. No organ injury was shown and the doctor clarified it as soft tissue with no permanent disability. I therefore, find and award General damages of Kshs.400,000/= as adequate compensation of 100% liability less 20% contribution.
6. This decision is faulted and challenged on the basis that the award arrived at was high and excessive. The basis of that contention emerges to be the Appellant’s view in both submissions at trial and those offered here that the authorities cited to court awarded much lower awards. What must however be noted is that the decisions cited to court were those made in 1991 and 1992, some over 23 years, prior to the decision by the trial court. To this court the appellant ought to have been of better assistance to the trial court by citing more recent decisions because damages being compensatory must keep pace with the passage of time and the attendant erosion of the value of money. Even the decisions cited by the respondent at trial were equally too old to as to pass for being outdated for purposes of guidance to the court.
7. Having been faced with such level of contribution from the counsel the court did exercise a discretion in assessment of damages and came up with the sum of Kshs.400,000/= on 100% basis. That to this court was not inordinately too high but comparable to the decisions cited when the passage of time is reckoned with. I find nothing untoward to merit my interference because even the persistence of pain months after the injury with attendant multiple visits to the hospital were all relevant factors for consideration in assessing damages. I may only add by quoting Madam J, as there was in the case of in Ugenya Bus Service v James Kongo Gachohi, Civil Appeal No. 66 of 1981 that days of small and stingy awards are long gone.
8. I find no merit in the appeal and thus order it dismissed with costs.
Datedand delivered at Mombasa this 14th day of October 2019.
P.J.O. OTIENO
JUDGE
[1] Butt Vs Khan (1982-88) 1 KAR,1
[2] Sosphinaf Company Limited v James Gatiku Ndolo[2006]eKLR
[3] Kenya Breweries Ltd. v Saro [1991] e KLR
[4] Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira & Co. Advocates [2013] eKLR