[2023] KEHC 24331 (KLR)

Sagaaf v Muchere (Civil Appeal 77 of 2022) [2023] KEHC 24331 (KLR) (24 October 2023) (Judgment)

Neutral citation: [2023] KEHC 24331 (KLR)

Republic of Kenya

In the High Court at Malindi

Civil Appeal 77 of 2022

KW Kiarie, J

October 24, 2023

Between

Omar Ahmed Omar Sagaaf

Appellant

and

Allan Okere Muchere

Respondent

(From the Judgment and Decree in the Malindi Chief Magistrate’s Court Civil Case No.E237 of 2021by Hon. Ivy Wasike- Senior Resident Magistrate)

Judgment

1. Omar Ahmed Omar Sagaaf, the appellant herein, was the defendant in Malindi Chief Magistrate’s Civil Case number E237 of 2021. This was a claim that arose from a road traffic accident that involved motor vehicle registration number KCX 879T Mitsubishi Mirage and motor vehicle registration number KCW 215E in which the respondent was a passenger. As a result of the collision, the respondent sustained injuries. The learned trial magistrate delivered a judgment dated July 27, 2022. She made a finding that the respondent was 100% liable.

2. The learned trial magistrate made an award of Kshs. 3,000,000. 00 in general damages and special damages Kshs. 2,000. 00 in favour of the respondent.

3. The appellant was aggrieved by the said judgment and filed this appeal through the firm of Nduati & Company Advocates. He raised the following grounds of appeal:a.That the learned trial magistrate grossly misdirected herself in treating the evidence and submissions on general damages before her superficially and consequently coming to an erroneous conclusion on the same.b.That the learned trial magistrate misdirected herself in ignoring the principles applicable in awarding general damages and the relevant authorities on general damages cited in the written submissions presented and filed by the appellant.c.That the learned trial magistrate proceeded on wrong principles when assessing the general damages to be awarded to the respondent (if any) and failed to apply the precedents and tenets of law applicable.d.That the learned trial magistrate erred in awarding a sum in respect of general damages which was so inordinately high in the circumstances that it represented an entirely erroneous estimate vis-à-vis the respondent’s claim.e.That the learned trial magistrate failed to apply herself judicially and did not adequately evaluate the evidence and exhibits tendered on general damages and thereby arrived at a decision unsustainable in law.

4. The respondent was represented by the firm of Tsofwa Mweni & Company Advocates. He opposed the appeal and contended that the appeal lacked merit.

5. This court is the first appellate court. I am aware of my duty to evaluate the entire evidence on record bearing in mind that I had no advantage of seeing the witnesses testify and watch their demeanor. I will be guided by the pronouncements in the case of Selle vs. Associated Motor Boat Co. Ltd. [1965] E.A. 123, where it was held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter.

6. The appeal is both on liability and quantum of damages awarded.

7. In his evidence, the respondent testified that motor vehicle registration number KCX 879T was coming from the opposite direction. It collided with the motor vehicle he was in on their lane. This evidence was supported by that of PC Jonathan Mwendwa. This officer testified that the collision occurred as the driver of motor vehicle registration number KCX 879T was in the process of overtaking another vehicle.

8. The appellant did not testify at the trial. The learned trial magistrate had only one version of the accident at her disposal. Her finding on liability cannot therefore be faulted.

9. It is trite law that an appellate court will only interfere with an award of the trial court if certain circumstances are satisfied. In Butt vs. Khan [1981] KLR 349 on page 356 Law JA stated:…an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived a figure which was either inordinately high or low.

10. As a result of the complained of accident, the respondent sustained the following injuries:a.Blunt abdominal trauma with injury and damage to intestines;b.Blunt trauma to the right hand/forearm, chest lower back, pelvis and right knee; andc.Bruises and abrasions on the right forearm/wrist.

11. The opinion of doctor Darius Wambua Kiema was that the injuries that the respondent sustained and which led to intestinal injuries necessitating surgery and resection and ileostomy/colostomy will make him prone to:a.Malnutrition due to shortened reabsorption time for nutrients, loss of minerals, water and electrolytes;b.Risk of future intestinal obstruction and indigestion;c.Psychological trauma by virtual of having to carry a stoma bag and inability to control bowel movement/flatus; andd.Diminished capacity to work and undertake other activities of daily living.

12. The doctor further opined that the respondent would incur further expenses for:a.Purchase stoma bags till such a time that evaluation is done and a decision made to close the stoma: andb.Surgical closure of the stoma in theatre estimated at Kshs. 120, 000. 00. Disability was estimated at 30%.

13. In the trial court the appellant had proposed an award of Kshs.120,000. 00 and relied on the following cases:a.FM (Minor suing through Mother and next friend MWM) v JNM & another [2020] eKLR. In this case, the appellant sustained the following injuries:i)Blunt Object injury to the head;ii)Blunt Object injury to the neck;iii)Blunt Object injury to the thoraxiv)Blunt Object injury to the abdomen; andv)Blunt Object injury to the limb.An award of Kshs. 100,000. 00/= was given for these injuries.b.Daniel Gatana Ndungu & another v Harrison Angore Katana [2020] eKLR the respondent suffered non-skeletal injuries to the head, right knee, and upper limbs. He was awarded Kshs. 140, 000/=.

14. Not every soft tissue injury is non-serious. Some soft tissue injuries can be life-threatening. The intestinal injury necessitating surgery, resection, and ileostomy/colostomy is one such case. The learned trial magistrate addressed her mind to the seriousness of the injuries and the impact the same would have on the life of the respondent. I have not been persuaded to interfere with the award she made. Consequently, the appeal is dismissed with costs.

DELIVERED AND SIGNED AT HOMA BAY THIS 24TH DAY OF OCTOBER 2023KIARIE WAWERU KIARIEJUDGE