[2018] KEHC 3444 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT MOMBASA

CIVIL APPEAL NO. 14 OF 2016

SHEIKH ABDULQADIR MOHAMED AHMED SHALLO....PLAINTIFF

VERSUS

JULIUS MUTISO MUMO........................................................DEFENDANT

J U D G M E N T

1. By a memorandum of Appeal dated the 12/2/2016 and filed in court on the 15/2/2016, the Appellant seeks to challenge the decision of the trial court, (Hon. Njagi, RM) dated 20/01/2016 in the original Kwale RMCC No. 245 of 2012. The challenge is solely that the award of damages were erroneous for being overly too high considering the nature of injuries suffered by the respondent.

2. To the Appellant, the erroneous decision was reached owing to failure to give due regard to the evidence by the Appellant and the submissions offered. As there is no challenge on the finding on liability, my task and the only issue for determination is whether or not the award made was commensurate with the injuries proved by the evidence tendered.

3. In her judgment, the trial court said in its assessment of damages:-

“Damages Payable

The Plaintiff produced the medical report as PEX8 which noted that he had a displaced fracture of the left clavicle, blunt object injury to the neck and left leg and bruises on the cheeks and left knee. He was noted to have 3% permanent partial disability and deformity and he also required the refracturing of the clavicle at a cost of Kshs.80,000/=.

The plaintiff seeks Kshs.450,000/= as damages and the Defendant thinks that Kshs.100,000/= would be sufficient. In looking at the nature of injuries, I am guided by the following cases:

1) JALDESSA DIBA T/A DIKUS TRANSPORTERS & ANOTHER V JOSEPH MBITHI ISIKA [2013] eKLR, In the High Court at Machakos, Civil Appeal 96 of 2011, the Plaintiff in this case also sustained the fracture of the clavicle amongst other injuries and the Court awarded Kshs.350,000/= in 2013.

2) In the more recent case of ANNE AYUMA HARRISON V SIMON GITHURE MARUNGO [2014] eKLR, in the High Court of Kenya at Kakamega, Civil Appeal No. 129 of 2010, the Plaintiff suffered a fracture of the left clavicle, chest and head injuries. These are injuries which are more or less similar to those that were sustained by the Plaintiff in the present case. In this case the Court awarded Kshs.500,000/= to the Plaintiff.

Therefore being guided by the above authorities and the nature of injuries, I will award the Plaintiff Kshs.500,000/= as general damages”.

4. Assessment of damages being a matter that falls at the discretion of the court, it is indeed only a very strong case of improper exercise of such discretion that would entitle an appellate court to interfere[1].The evidence of the injuries sustained by the Respondent was led by the Respondent himself and PW 1 and DR Ajoni Adede PW 3.

5. The oral evidence was supported by medical documents including treatment notes, P3 form theatre notes and ex-ray reports all showing the respondent suffered bruises to the neck contusion and bruises to the cheeks and knees, contusion to the left leg and displaced fracture of the left clavide and the doctor assessed permanent partial disability at 3%. The displaced fracture would require a corrective surgery at the cost of Kshs.80,000/-. The two witness were never put to task on the particulars of injury, the extent thereof and even residual effect hence that evidence remained largely uncontroverted. Uncontroverted further because there was no evidence by the defence to contradict that by the Respondent.

6. It was therefore only the evidence by the PW 1 and PW 3 which the court had to consider in its task to assess damages.

7. Having reassessed the evidence and the exhibits produced in line with the decision of the trial court, I have been unable to lay my hands on any error in principles applicable in assessment of damages. This is inspite of the fact that even the submissions offered by the appellant did not disclose any error that would entitle this court to interfere instead those submission cited to court several cases which did much to show that the trial court observed the principle of law that comparable injuries should attract comparable damages. I am persuaded that the decisions in Anne Ayunda Harrison vs Simon Githure Marungo [2014] eKLR and George Kinyanji vs Hassan Musa [2016] eKLR support the award by the trial court rather than discredit it.

8. Equally in coming to her assessment relied on decision which I consider to have been aptly relevant and thus there is no justification to interfere with her discretion. One may only add that no two cases are similar in the injuries and extent thereof and that when a court relies on a decided cases it does so for guidance and comparison only but it is not bound to award what was awarded in those decided cases. One is entitled to deviate from the award provided the eviction does not evidence an error so as to qualify the award as to high or too low to demonstrate wholly erroneous approach in assessing damages.

9. I find no merit with appeal and order the same to be dismissed with costs.

Dated and delivered at Mombasa this 5th day of October 2018.

P.J.O. OTIENO

JUDGE

[1] Ken Odondi & 2 Others vs James Okoth Ombura [2013] eKLR