[2017] KEHC 1449 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

HCCA NO. 4 OF 2017

TELKOM KENYA LIMITED.............................................1ST APPELLANT

ERASTUS OCHELE........................................................2ND APPELLANT

VERSUS

VINCENT ODHIAMBO OSALLOH............................1ST RESPONDENT

ISLAR INYAMBULA SHILAHO..................................2ND RESPONDENT

CONSOLIDATED WITH

HCCA NO. 5/17

TELKOM KENYA LTD. & ERASTUS OCHELE

VS

GEORGE OMONDI OKAKA & ISLAR INYAMBULA SHILAHO

HCCA NO. 6/17

TELKOM KENYA LTD. & ERASTUS OCHELE

VS

FREDRICK OCHIENG & ISLAR INYAMBULA SHILAHO

HCCA NO. 7/17

TELKOM KENYA LTD. & ERASTUS OCHELE

VS

DOMNIC ODAGO ORUKO & ISLAR INYAMBULA SHILAHO

HCCA NO. 8/17

TELKOM KENYA LTD. & ERASTUS OCHELE

VS

ZAKIUS ODHIAMBO & ISLAR INYAMBULA SHILAHO

HCCA NO. 9/17

TELKOM KENYA LTD. & ERASTUS OCHELE

VS

FARUK DAVID MAMBA & ISLAR INYAMBULA SHILAHO

JUDGMENT

The respondents in this consolidated appeal were fare paying passengers in a Motor Vehicle Registration Number KAX 571E which was involved in a collision with the Appellant’s Motor Vehicle Registration Number KBA 912T. The accident is said to have occurred on 22nd October 2009 at the Kibos-Carwash junction within Kisumu City. The Respondents sustained injuries which according to Dr. L. W. Okombo, who examined all of them albeit on different dates, amounted to HARM. In other words they were soft tissue injuries.

The record shows that Winam PMCC No. 507 of 2009 was treated as the test suit and initially the parties had recorded a consent on liability which was later set aside by consent. Nevertheless after considering the evidence the trial magistrate found the appellant’s driver wholly to blame for the collision and proceeded to award the Respondents damages as follows:-

1. SRMCC NO. 507 OF 2009 (HCCA NO. 4 OF 2017)

Where the Plaintiff sustained

- Injury on the chest with cut wound

- Injury on the back

- Injury on the left hand

- Injury on the left leg

General Damages – Kshs.180,000. 00

Special Damages - Kshs. 2,000. 00

TOTAL - Kshs.182,000. 00

2. SRMCC NO. 508 OF 2009 (HCCA NO. 5 OF 2017)

Where the Plaintiff sustained

- Injury on the head

- Injury on the chest

- Injury on the back

- Injury on the right ankle joint

General Damages – Kshs.100,000. 00

Special Damages - Kshs. 2,000. 00

TOTAL - Kshs.102,000. 00

3. SRMCC NO. 511 OF 2009 (HCCA NO. 6 OF 2017)

Where the Plaintiff sustained

- Injury to the chest

- Injury on the back

- Injury on the right hip joint

- Injury on the right knee

General Damages – Kshs.160,000. 00

Special Damages - Kshs. 2,000. 00

TOTAL - Kshs.162,000. 00

4. SRMCC NO. 512 OF 2009 (HCCA NO. 7 OF 2017)

Where the Plaintiff sustained

- Injury to the chest

- Injury on the right hand with dislocation

- Injury on the right ankle joint

General Damages – Kshs.180,000. 00

Special Damages - Kshs. 2,000. 00

TOTAL - Kshs.182,000. 00

5. SRMCC NO. 513 OF 2009 (HCCA NO. 8 OF 2017)

Where the Plaintiff sustained

- Injuries on the head

- Injuries to the stomach

- Injuries to the left knee

- Injuries to the left shoulder

- Injuries to the chest

- Injuries to the ribs

General Damages – Kshs.100,000. 00

Special Damages - Kshs. 2,000. 00

TOTAL - Kshs.102,000. 00

6. SRMCC NO. 514 OF 2009 (HCCA NO. 9 OF 2017)

Where the Plaintiff sustained

- Head injury

- Injury on the chest

- Injury on the left shoulder

- Injury on the left thigh

- Injury on the left ankle joint with cut wound

- Injury on the right knee

General Damages – Kshs.100,000. 00

Special Damages - Kshs. 2,000. 00

TOTAL - Kshs.102,000. 00

Being aggrieved the appellant filed these appeals. The same were consolidated with Civil Appeal No. 4 of 2017 Telkom Kenya Limited & Erastus Ochele –VS- Vincent Odhiambo Osalloh & Islar Inyambula Shilaho being the lead file. I do not recall telling the Advocates that the appeals on liability could not succeed but I remember Counsel for the Plaintiff on 26th July 2017 stating that they were abandoning the appeal on liability and seeking leave to amend the Memorandum of Appeal. The court ordered that a formal application be filed to that end but when Counsel appeared in court next they had already filed a supplementary Memorandum of Appeal and submissions on the issue of quantum. This court therefore deemed the Supplementary Memorandum of Appeal as duly filed and proceeded to give Counsel a date for judgment. The grounds of appeal as stated in the Memorandum of Appeal are:-

1. “The learned Trial Magistrate grossly misdirected himself in treating the evidence and submissions on quantum before him superficially and consequently coming to a wrong conclusion on the same.

2. The Learned Trial Magistrate misdirected himself in ignoring the principles applicable in awarding quantum of damages and the relevant authorities on quantum cited in the written submissions presented and filed by the Appellants.

3. The Learned Trial Magistrate proceeded on wrong principles when assessing the damages to be awarded to the Respondent (if any) and failed to apply precedents and tenets of law applicable.

4. The Learned Trial Magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstance that it represented an entirely erroneous estimate vis-a-vis the Respondent’s claim.

5. The Learned Trial Magistrate failed to apply himself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision unsustainable in law.”

I have considered the evidence before the trial court as well as the rival submissions in this appeal. In determining these appeals I am guided by the principle set down in Shaban V. City Council of Nairobi [1985] KLR 516that –

“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 based on some wrong principle or on a misapprehension of the evidence.”

Or in Buttler V. Buttler [1984] KLR 227that –

“The assessment of damages is more like an exercise of discretion by the trial judge and an appellate court should be slow to reverse the trial judge unless he has either acted on wrong principles or awarded so excessive or so little damages that no reasonable court would; or he has taken into consideration matters he ought not to have considered , or not taken into consideration matters he ought to have considered and in the result arrived at a wrong decision.”

In Mariga V. Musila [1984] KLR 251the Court of Appeal added:-

“……… The question is not what the appellate court would award but whether the lower court judge acted on the wrong principles.”

I must therefore consider whether the trial magistrate acted on a wrong principle or awarded such excessive that no reasonable court would or whether he took into consideration irrelevant factors or neglected to take into consideration relevant fact was thereby acting on the wrong principle.

On the issue of what should guide a court in awarding damages the Court of Appeal stated:-

“In awarding damages a court should consider the general picture and all the prevailing circumstances and effect of the injuries on the claimant but some degree of uniformity is to be sought in the awards, so regard should be paid to recent awards in comparable cases in local courts.”

I have perused the medical reports in all the cases that form the subject of this consolidated appeal. I have also perused the judgment of the learned trial magistrate. In all of them the trial magistrate has taken into consideration the injuries sustained by the Respondents, their effect on the Respondents and has also relied on comparable awards. He therefore in my view took all relevant factors into consideration and ensured a degree of consistency by taking into account comparable awards. In my finding he did not act on a wrong principle. I am also not persuaded that any of the awards is excessive given that the trial magistrate had also to consider the age of the authorities cited and thereby factor in inflation. The appeals lack merit and are accordingly dismissed with costs to the Respondents.

This judgment applies toHCCA 5/2017 TELKOM KENYA LTD. & ERASTUS OCHELE –VS- GEORGE OMONDI OKAKA & ISLAR INYAMBULA SHILAHO, HCCA 6/2017 TELKOM KENYA LTD. & ERASTUS OCHELE –VS- FREDRICK OCHIENG & ISLAR INYAMBULA SHILAHO, HCCA 7/2017TELKOM KENYA LTD. & ERASTUS OCHELE –VS- DOMNIC ODAGO ORUKO & ISLAR INYAMBULA SHILAHO, HCCCA 8/2017 TELKOM KENYA LTD. & ERASTUS OCHELE –VS- ZAKIUS ODHIAMBO & ISLAR INYAMBULA SHILAHO and HCCA 9/2017TELKOM KENYA LTD. & ERASTUS OCHELE –VS- FARUK DAVID MAMBA & ISLAR INYAMBULA SHILAHO.

It is so ordered.

Signed and dated at Kisumu this 6th day of December 2017

E. N. MAINA

JUDGE

Signed and delivered at Kisumu this 7th day of December 2017

D. S. MAJANJA

JUDGE