[2008] KEHC 1063 (KLR)
The High Court found that although the trial magistrate did not explicitly set out the injuries suffered by the respondent, she considered them in making the award. The judgment did not violate Order 20 Rule 4 of the Civil Procedure Rules. The appellate court reiterated that it can only interfere with an award of...
Source-derived case information.
- Citation
- [2008] KEHC 1063 (KLR)
- Parties
- Appellant: Uchumi Mattresses Ltd; Respondent: Zablon Shiroya
- Court
- High Court
- Court Station
- High Court at Nakuru
- Jurisdiction
- Kenya
- Case Number
- Civil Appeal 137 of 2005
- Procedural Posture
- Civil Appeal / Judgment
- Outcome
- appeal dismissed
- Judges
- DK Maraga
- Legal Topics
- Assessment of Damages, Personal Injury, Appellate Review, Judicial Discretion
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Uchumi Mattresses Ltd
Appellant
Zablon Shiroya
Respondent
Procedural Posture
Civil Appeal / Judgment
Legal Issues
- 1 Whether the trial magistrate erred in law by failing to comply with Order 20 Rule 4 of the Civil Procedure Rules in her judgment.
- 2 Whether the award of Kshs.250,000/- for general damages was inordinately high and should be reduced.
Ratio Decidendi
The High Court found that although the trial magistrate did not explicitly set out the injuries suffered by the respondent, she considered them in making the award. The judgment did not violate Order 20 Rule 4 of the Civil Procedure Rules. The appellate court reiterated that it can only interfere with an award of damages if the trial court acted on wrong principles or the award is so inordinately high or low as to amount to an erroneous estimate. The appellant did not demonstrate that the trial court considered irrelevant factors or ignored relevant ones. The authority cited by the appellant was outdated, and inflation justified the higher award. Therefore, the award of Kshs.250,000/- was...
Court Disposition
appeal dismissed
Orders
- The appeal is dismissed with costs.
Full Case Text
Judgment text and source record
15 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAKURU
Civil Appeal 137 of 2005
UCHUMI MATTRESSES LTD……………….....APPELLANT
VERSUS
ZABLON SHIROYA……………………………RESPONDENT
JUDGMENT
This is an appeal against the judgment of the Senior Resident Magistrate delivered on 12th July 2005 in Nakuru CMCC No.976 of 2004 in which she assessed general damages for pain and suffering at Kshs.250,000/-.
Mr. Mahida for the Appellant basing his argument on the memorandum of appeal, submitted that the learned trial magistrate erred in law in failing to comply with the provisions of Order 20 Rule 4 of the Civil Procedure Rules by failing to give a concise statement of the case viz-a-viz injuries suffered by the Respondent, the points for determination and the reasons for her finding on the injuries. He also submitted that the learned trial magistrate ignored both Dr. Malik’s medical report on the Respondent's injuries and his submissions and awarded a sum which was inordinately high. In his view, the Respondent was entitled to an award of only Kshs.130,000/-. He therefore urged me to reduce the award to that sum which has already been paid to the Respondent.
Mr. Wamasa for the Respondent does not think highly of this appeal. In his view an appellate court can only disturb an award if it is so inordinately high or low that it amounts to an erroneous estimate. He said that is not the case in this appeal and submitted that the authority of Ruth Kadide Mwakuwanda Vs Danida /PIV PROJECT & Another HCCC No. 64 of 1993 Mombasa relied upon by counsel for the appellant was decided in 1994 and cannot therefore provide a proper guide in the present appeal. He concluded that given the inflation since then, the sum of Kshs.250,000/- awarded in this case was reasonable and urged me to dismiss this appeal.
I have considered these submissions. Liability was an issue before the lower court, the parties having apportioned it at 15/85% against the Appellant. The only issue before the magistrate was the assessment of damages. Whereas I agree with Mr. Mahida that the learned trial magistrate did not set out the injuries that the Respondent suffered, I nonetheless find that she considered them in making the award. Her judgment cannot therefore be said to have fouled Order 20 Rule 4 of the Civil Procedure Rules. As stated in the case of Kitavi V Coastal Bottlers Limited [1985] KLR 471, an appellate court can only disturb an award of damages when the trial court has taken into account a factor it ought not to have taken into account or failed to take into account something it ought to have taken into account or if the award is so high or so low that it amounts to an erroneous estimate. Save that the award in this matter was inordinately high, Mr. Mahida for the Appellant does not allege any of these things. The contention that the trial court should have relied on the case of Kadide Mwakuwanda Vs Danida /PIV PROJECT & Another HCCC No. 64 of 1993 Mombasawhich had similar injuries like the ones suffered by the Respondent in this appeal and awarded a sum of Kshs.130,000/- has, with respect no merit. That case was decided over 14 years ago. Given the inflation since then I find the sum of Kshs.250,000/- awarded by the learned trial magistrate in this case to be reasonable. In the circumstances I find no merit in this appeal and I accordingly dismiss it with costs.
DATED and delivered at Nakuru this 16th day of October, 2008.
D. K. MARAGA
JUDGE