[2023] KEHC 20426 (KLR)

Surian Enterprises Ltd v Peter (Civil Appeal E199 of 2021) [2023] KEHC 20426 (KLR) (5 July 2023) (Judgment)

Neutral citation: [2023] KEHC 20426 (KLR)

Republic of Kenya

In the High Court at Machakos

Civil Appeal E199 of 2021

FROO Olel, J

July 5, 2023

Between

Surian Enterprises Ltd

Appellant

and

Mary Bahati Peter

Respondent

(Being an appeal from the judgment and decree of Hon. B.Kasavuli (P.M.) delivered on 11th November 2021 in Machakos Civil Appeal No E199 of 2021)

Judgment

1. This appeal is brought against the judgment and decree of Honourable B. Kasavuli (PM) delivered on 11th November 2021, where he awarded the Appellant as sum of Kshs 245,120= plus costs and interest. The Respondent was the Plaintiff in the primary suit and had averred that on 17. 12. 2017, she was lawful passenger travelling in motor vehicle registration number KCB 054A( hereinafter referred to as the 1st suit motor vehicle ) along Matuu-Thika road at Kwa Makaa area, when the Defendant, his driver, servant and/or employee negligently drove, managed and or controlled motor vehicle KCG 110C/ZC 1748 ( Hereinafter referred to as the 2nd suit motor vehicle), that they cause it to violently collide head on with the 1st suit motor vehicle , thereby causing the respondent to suffer severe injuries. The Respondent prayed for General damages, Special damages, costs and interest.

2. The appellant filed a statement of defense dated 14. 11. 2019 denying all the contents of the Plaint and stated in the alternative that if indeed an accident did occur, it was caused or substantially contributed to by the driver of the 1st suit motor vehicle. Further the appellant pleaded that they would rely on the doctrine of Res ipsa Loquitor.

3. The parties did record a consent in court on 04. 10. 2021. Liability was agreed at 20:80 in favour of the Respondent, all the respondent’s claim supporting documents were produced as plaintiff Exhibit 1 to 10, special damages was allowed subject to proof and finally quantum would be assessed by way of written submissions. The consent was adopted as a judgment of the court. After considering the submissions filed, the learned magistrate in his judgment delivered on 11th November 2021 awarded the respondent as follows;i.Agreed liability 20:80ii.General damages Kshs 300,000iii.Special Damages Kshs 6,400iv.Less 20% contribution (Ksh61,280)v.Net Total 245,120/=Costs and Interest thereon.

4. Dissatisfied by this decision, the Appellant filed this Appeal seeking to have the judgment on quantum set aside, reviewed and the same be reduced and also prayed for costs of this Appeal.

5. The Appeal was founded on the grounds that;i.The Honourable Principal Magistrate erred in law and fact in awarding an excessive award on general damages which was not supported by the medical evidence produced in court and this amounted to an erroneous estimate of damages.ii.The Honourable Principal Magistrate erred in law and fact by failing to consider that the plaintiff sustained only one minor cut and soft tissue injury to the right knee joint that was classified as “harm” in the P3 form which is the least severe injury classification and did not warrant the excessive award on General damages that was assessed.iii.The Honourable Principal Magistrate erred and misdirected himself in law and fact by relying on legal authorities’ where the injuries were more severe than those sustained by the plaintiff and thereby arrived at an erroneous estimate of the award of damages which was three times the amount awarded for similar injuries comparable to those sustained by the plaintiff.iv.The Honourable Principal Magistrate erred in law by awarding special damages that was not strictly proved by way of receipts evidencing payment thereof.

6. This Appeal was disposed of by way of written submissions.

Submissions 7. The Appellant filed submissions on 02. 03. 2023. They submitted that the trial court misdirected itself and failed to consider that the respondent sustained only one minor cut on the forehead and soft tissue injury to the right knee, which injuries were classified as “harm” in the P3 form and therefore did not warrant the excessive award of General damages. The court could disturb such an award where it is shown to be inordinately high or low to represent an entirely erroneous estimate. The sum awarded of Ksh 300,000/= was manifestly excessive and should have been reduced to Ksh 100,000/=, which was a reasonable award given in similar injury citations. Reliance was placed on Ndungu Dennisvs Ann Wangari Ndirangu & Another(2018) eKLR, PF (suing as next friend and father of SK (Minor) Vs Victor Kamadi & Another (2018) eKLR, HB (Minor suing through mother and next friend DKM)vs Jasper Nchonga Magari & Another (2021) eKLR and Rahma Tayab & Anothervs Mary Kinaru(1987 -88) 1KAR 90.

8. The appellants thus urged this court to find that indeed they had demonstrated that this appeal had merit and that given comparable injuries, the award should be reduced to the range of Ksh.60,000/= and Ksh.100,000/=

9. The respondent on the other hand filed their submissions on 12. 04. 2023 and did submit that the appellant had not demonstrated that the trial court misapprehended the facts and evidence adduced, nor did the trial court consider irrelevant factors in arriving at its determination. Reliance was place on Kemfro Africa Ltd & Ano Vs Lubia & Another(1982-88) KLR & Catholic Diocese of Kisumu Vs Sophia Achieng Tete -Kisumu civil Appeal No 284 of 2001.

10. The respondent further submitted that the appellant submissions that the award was inordinately high was incorrect. The respondent had pleaded that she sustained a deep cut on the forehead and blunt injury to the right knee with a swelling and similar injury awards supported the finding arrived at by the trial Magistrate. Reliance was place on Catherine Wanjiru Kingori & 3 othersvs Gibson Theuri Gichubi {2005} eKLR & Meru Hcc Lucy Ntibuka Vs Bernard Mutwiri & others {1983} eKLR.

11. The respondent submitted that in the two above cited decision’s, the court awarded Kshs 350,000/= and Kshs 500. 000/= respectively as damages for pain, suffering and loss of amenities. Bearing in mind the inflation and the fact that the respondent’s injuries were more severe, the respondent was entitled to more that the Kshs 300,000/= awarded. The same was fair and should be affirmed

Analysis and Determination 12. I have considered the pleadings, evidence presented and submissions of the parties in this appeal, this court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions.

13. As held inSelle & Anothervs Associated Motor Boat Co ltd & others (1968) EA 123 where it was stated that;“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the high court Is by way of retrial and the principals upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. (Abduk Hammed saif v Ali Mohammed Sholan(1955), 22 E.A.C.A 270

14. In Coghlan vs. Cumberland(1898) 1 Ch. 704, the Court of Appeal (of England) stated as follows -“Even where, as in this case, the appeal turns on a question of fact, the Court of Appeal has to bear in mind that its duty is to rehear the case, and the court must reconsider the materials before the judge with such other materials as it may have decided to admit. The court must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the court comes to the conclusion that the judgment is wrong...When the question arises which witness is to be believed rather than another and that question turns on manner and demeanour, the Court of Appeal always is, and must be, guided by the impression made on the judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not; and these circumstances may warrant the court in differing from the judge, even on a question of fact turning on the credibility of witnesses whom the court has not seen."

15. A first appellate court is also the final court of fact and litigants are entitled to full fair independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the civil procedure Act a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko v Varkey Joseph AIR 1969 Keral 316

16. Guided by the above cases, the duty of this appellate court is cut out. The only issue raised in this Appeal is that of quantum and the question is whether this court should interfere with it by enhancing the same.

17. As regards quantum, in Woodruff vs. Dupont [1964] EA 404 it was held by the East African court of appeal that:“The question as to quantum of damage is one of fact for the trial Judge and the principles of law enunciated in the decided case are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties. So to use them would be to misuse them...The quantum of damages being a question of fact for the trial Judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff, but whether the damages awarded are “such as may fairly and reasonable be considered as a rising according to the usual course of things, from the breach of the contract itself.” The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.”

18. The Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No. 284 of 2001[2004] eKLR 55 set out circumstances under which an appellant court can interfere with an award of damages in the following terms:-“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case in the first instance. The appellate court can justifiably interfere with quantum of damage’s awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factors or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate”.

19. Similarly, in Jane Chelagat Bor vs Andrew Otieno Oduor [1988] – 92] eKLR 288[1990-1994] EA47 the Court of Appeal held that:-“In effect, the court before it interferes with an award of damages, should be satisfied that the judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damages suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked, if the Appellate Court is to interfere, whether on the ground of excess or insufficiency.”

20. From the Plaint, the Respondent pleaded that she sustained the following injuries; deep cut on the forehead and blunt injury to the right knee resulting to swelling. Her present complaints were recurrent headache and recurrent pain on the right knee. There were two medical reports produced of Dr.Esther Nzomo Musyoki and Dr.Cyprianus Okoth Okere. Both medical reports confirmed the said injuries with the latter doctor classifying the said injuries as harm.

21. The trial court considered the medical documents on record and the submissions filed by the respondent. He did find that the injuries suffered were soft tissue injuries with no permanent resultant effect on the respondent. Since the appellant never filed any submissions, the trial magistrate proceeded to rely on the cited decisions filed by the respondent and found that the injuries sustained by the respondent was comparable to those sustained by the plaintiffs in the authorities cited. He proceeded to award the respondent Ksh.300,000/=.

22. 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 at a figure which as either inordinately high or low. This was stated in the case of Butt v Khan (1977) KAR 1. Thus, I can only interfere with an award of damages if the aggrieved party satisfies one of two conditions:a.That the trial Court took into account irrelevant factors or left out relevant factors when assessing damages; orb.The amount of damages is so inordinately high or low that the quantum awarded must be a wholly erroneous estimate of damages.

23. The Appellant contends that the award of Kshs 300,000 was inordinately high given that the respondent only sustained soft tissue injury being a minor cut and soft tissue injury to right knee. Having considered awards relied on by both parties and similar award for similar injuries, I do find merit in the appellants submissions that the damages awarded were excessive and was not reflective of similar award for similar injuries.

24. The decision’s relied on by the respondent namely; Catherine Wanjiru Kingori & 3 others vs Gibson Theuri Gichubi {2005} eKLR & Meru HCC Lucy Ntibuka Vs Bernard Mutwiri & others {1983} eKLR, are not good law and are manifestly excessive given the nature of injuries suffered. The decision’s inPF (Suing as next friend and father of SK (Minor) Vs Victor O Kamadi & Another (2018) eKLR & Ndungu Dennis Vs Ann Wangari Ndirangu & Another {2018} eKLR are more reflective of the correct quantum awarded for similar injuries.

25. Though the respondent did claim that she had residual pain from the knee, Dr.Cyprianus Okoth Okere did make a contrary finding that she had healed and the right leg was normal. The court notes that the respondent suffered a deep cut which left a scar 7 cm long on the forehead, the facial injury was thus severe. Further this court also takes judicial notice of the fact that knee injuries are sensitive and most likely has residual pain which might lead to arthritis of the knee joint.

Disposition 26. Taking into account all the relevant factors regarding the respondent’s nature of injuries, age, inflation, and similar awards for similar injuries, I do find that the award of General Damages of Kshs 300,000/= awarded by Hon Mr B Kasavuli {P.M} in Mavoko SPMCC NO 1479 OF 2018 vide the judgment dated 11th November 2021 was excessive. I do set aside the same and reduce it to Ksh.150,000/=.

27. The award in favour of the respondent shall therefor be;i.Agreed liability 20:80ii.General damages Kshs 150,000iii.Special Damages Kshs 6,400iv.Less 20% contribution (Ksh31,280)v.Net Total 125,120/=Costs and Interest thereon.

28. Each party will bear their costs of this Appeal

29. It is so ordered.

JUDGEMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 5TH DAY OF JULY, 2023. FRANCIS RAYOLA OLELJUDGEDeliveredon thevirtual platform, Teamsthis 5th day ofJuly, 2023. In the presence of;………………………………….for Appellant………………………………….for Respondent………………………………….Court Assistant