[2022] KEHC 9847 (KLR)

Wambua alias Timothy Gideon Wambua Mutiso v Steve alias Ian Musyoki Munyao (Civil Appeal 46 of 2019) [2022] KEHC 9847 (KLR) (5 July 2022) (Judgment)

Neutral citation: [2022] KEHC 9847 (KLR)

Republic of Kenya

In the High Court at Makueni

Civil Appeal 46 of 2019

GMA Dulu, J

July 5, 2022

Between

Timothy Wambua alias Timothy Gideon Wambua Mutiso

Appellant

and

Ian Steve alias Ian Musyoki Munyao

Respondent

(Being an appeal from the original judgment of Hon. C.A Muchoki (S.R.M) in Tawa Senior Resident Magistrate’s Court SRMCC Case No. 172 of 2017 pronounced on 27th November, 2018)

Judgment

1. In a judgment delivered on November 27, 2018, the trial magistrate entered judgment for the respondent on 85:15 liability basis and awarded damages as follows –1. Liability 85:152. Special damages Kshs.4,950/=3. General Damages Kshs.600,000/=Total ………………… Kshs.604,950/=This amount when subjected to apportionment comes to Kshs.514,207/=. Plaintiff is awarded costs of the suit and interest.

2. Dissatisfied with the above decision of the trial court, the appellant who was the defendant in the trial court has come to this court on appeal through counsel on the following grounds –1. The trial magistrate erred in law and in fact in failing to appreciate the relevant principles and case law in assessing general damages on pain, suffering and loss of amenities and thereby giving an inordinately high and manifestly excessive award unsupported by law so as to amount to an erroneous award in the circumstances of the case.2. The trial magistrate erred in law and fact in failing to appreciate and properly evaluate the evidence on the plaintiff’s injuries and thereby erroneously awarded inordinately high and manifestly excessive award on general damages.3. The trial magistrate erred in law and in fact in awarding general damages of Kshs.600,000/= for the injuries sustained by the respondent which is inordinately excessive given the circumstances of the case.4. The learned magistrate erred in law and in fact in proceeding on the wrong principles vis a vis the evidence before him and laid down principles of law thus arriving at a judgment that was erroneous in the circumstances.5. The learned magistrate erred in law and in fact by taking into account irrelevant considerations/factors while awarding general damages.6. The learned magistrate further erred in law and in fact by failing to appreciate, consider and take into account the appellant’s submissions on the quantum of damages, awardable in the circumstances.7. The learned magistrate erred by making a decision on quantum that was erroneous, without proper basis and against the weight of the evidence.

3. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions filed by J. Maluki & company advocates for the appellant and Annie W. Thoronjo & company advocates for the respondent. I note that both counsel relied on decided court case authorities.

4. In the submissions, counsel for the appellant argued that the trial magistrate did not take into account awards of general damages for similar cases cited by the counsel at the trial, especially the case of Patrick Muli –vs- E.M (minor) (2021) eKLR where the High Court upheld an award of Kshs.200,000/= and the case of Kenya Power & Lighting Co. Ltd & Another (2008) eKLR where the High Court refused to interfere with an award of Kshs.300,000/=. Counsel urged this court to award Kshs.350,000/= herein as general damages, as they had requested in the trial court. Counsel for the respondent, on their part, submitted that as the appellant did not bring any witness at the trial to testify, the liability should have been entered at 100%, thus the apportionment of liability should be set aside. Counsel relied on the case of Hussein Abdi Hashi –vs- Hassan Noor – Msa. HCCA No. 550 of 2000 wherein an award of Kshs.800,000/= was sustained, and another case of Kiru Tea Factory & Anor –vs- Peterson Watheka Wanjohi– Civil Case No. 1045 of 2004 wherein Kshs.800,000/= was awarded by the court. No copies of these two cases was filed.

5. I have to state that though counsel for the respondent has argued that liability should be revised to 100%, that is not feasible in the present case, as the 85:15 percent liability was not a finding of the trial court, but a consent by the parties. If it was an independent finding by the court, then it could be challenged on appeal. As the apportionment of liability herein was by consent of the parties, it became an agreement or contract between them and cannot be contested on appeal by claiming that it is an error of the trial court. The fact that the appellant did not call witnesses also did not change the pre-existing consent on liability, as the trial herein was merely for the purpose of assessment of quantum of damages and had nothing to do with liability. I thus dismiss the complaint by the respondent’s counsel.

6. I now turn to quantum of damages. As appreciated by both counsel, this is an appeal on quantum of damages awarded by a trial court. The principles to be considered by the appellate court in deciding whether to interfere with the trial court’s award of damages are well settled. Both sides have relied on the pronouncement in the persuasive case of the High Court in Trustees Registered of Maua Methodist Hospital –vs- Penina Thirindi Koome (2021) eKLR wherein the learned Judge stated as follows –“…. The well-known principles for interference of an award of damages by a trial court were laid down by the Privy Council in Nance –vs- British Columbia Electric Railway Co. Ltd (1951) AC 601, 613 and applied in East Africa by Sir K. O’Conner (with whom Sir Alstair Forbes VP and Newbold JA agreed) in Henry H. Ilanga –vs- Manyaka (1961) E.A 705, 715. ”

7. Also in the later case of Kenfro Africa Ltd t/a Meru Express Service & Another (1982 – 88) I KAR the Court of Appeal stated as follows –“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal for East Africa to be that it must be satisfied that either the Judge in assessing damages took into account an irrelevant factor or left out of account a relevant one or that short of this the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage”.

8. Coming back to our present case, the facts were clear. The victim suffered deep cut wound on chin, laceration wound on tongue, degloving injury lower lip, avulsion of 6 upper anterior teeth, fracture maxilla, and blunt head injury. In the medical report, the doctor did not indicate permanent incapacity, and noted that due to his young age the missing teeth will naturally be replaced as he grew up, although currently he had to choose his diet due to missing teeth, and that recovery was expected over time. This was according to the medical report signed by Dr. Kimunyu.

9. I note that, in assessing the quantum of damages, the trial court merely stated as follows –“I have looked at the authorities relied upon by both parties. I have considered the nature of injuries sustained by the plaintiff in the respective authorities to the injuries sustained by the plaintiff in our present case. I note that the plaintiff suffered serious injuries according to the doctor’s report. The amount of kshs.350,000/= proposed by the defendant is way on the lower side considering the nature of injuries. I find the sum of Kshs.600,000/= would adequately compensate the plaintiff. I award the same as general damages”.

10. In my view, this court is entitled to interfere with the above award of general damages as it did not take into account relevant factors. The first relevant factor is that the medical evidence did not indicate any incapacity suffered by the victim. Secondly, the medical report was to the effect that due to the young age of the victim, the knocked down six (6) front teeth would grow. As such, I am of the view that if the trial court had taken these relevant factors into account, it would have determined a much lower figure as general damages. I will thus set aside the award of Kshs.600,000/= and instead award Kshs.450,000/= as general damages.

11. Consequently and for the above reasons, I allow the appeal in part and order as follows –1. I set aside the award of Kshs.600,000/= as general damages and substitute thereto a figure of Kshs.450,000/=2. I uphold the award of special damages of Kshs.4,950/=Total Kshs.454,950. Amount subjected to apportionment comes to Kshs.386,707/=.

12. The appellant will pay 60% of the costs of appeal.

DELIVERED, SIGNED & DATED THIS 5TH DAY OF JULY, 2022, IN OPEN COURT AT MAKUENI.........................GEORGE DULUJUDGE