[2022] KEHC 16463 (KLR)

Watua v G4S Security Services (Civil Appeal E002 of 2020) [2022] KEHC 16463 (KLR) (16 December 2022) (Judgment)

Neutral citation: [2022] KEHC 16463 (KLR)

Republic of Kenya

In the High Court at Kericho

Civil Appeal E002 of 2020

AN Ongeri, J

December 16, 2022

Between

Peter Mawewe Watua

Appellant

and

G4S Security Services

Respondent

(Being an Appeal from the Judgment and Decree of Hon B LIMO (RM) in CMCC. no .206 of 2015 delivered on March 14, 2018)

Judgment

1. The appellant filed CMCC no 206 of 2015 seeking general damages, special damages and costs of the suit against the respondent.

2. The parties entered into a consent judgment on liability and apportioned liability at 80:20% in favour of the appellant against the respondent.

3. The court assessed quantum of damages as follows :-i.General damages kshs 300,000/=ii.Special damages kshs 2,500/=Total kshs 302,500/=============

4. The appellant is aggrieved with this award of damages and has filed this appeal on the following grounds :-i.That the learned trial magistrate erred in law and fact in making an award on general damages that was inordinately too low as to amount to an erroneous estimate of loss or damage suffered by the appellant.ii.That the learned trial magistrate erred in law and in fact by misapprehending the nature of the injuries suffered by the appellant and the extent of the residual incapacity therefrom thereby awarding an extremely low award of damages.iii.That the learned trial magistrate erred in law and fact in awarding kshs 300,000/= as general damages which was inordinately low as to represent an entirely erroneous estimate of damages.iv.That the learned trial magistrate erred in assessing general damages by failing to apply the principles applicable in an award of damages and comparable awards for analogous injuries.

5. The parties filed written submissions which I have considered.

6. The appellant conceded that the assessment of damages on the part of a judicial officer is an exercise of judicial discretion and therefore an appeal against an award of damages is an appeal against the exercise of judicial discretion and cited cases in which courts have interfered with a finding on quantum on appeal. The appellant citedGitobu Imanyara & 2 Others v Attorney General [2016] eKLR, Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5, Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.M Lubia and Olive Lubia(1982-88) 1 KAR 727.

7. The appellant reiterated that the duty of the first appellate court is to reconsider, re-evaluate the evidence on record and draw its own conclusions.

8. The appellant therefore urged the court to reconsider the evidence on record on the nature of the injuries that the appellant sustained as well as the extent of the residual incapacity resulting from the pleaded injuries.

9. The appellant reiterated that the trial magistrate appears to have misapprehended the nature of the evidence adduced by the appellant in support of the injuries sustained to wit a head injury with loss of consciousness and subsequent memory loss, other soft tissue injuries and the residual incapacity resulting from the said injuries.

10. The appellant contended that a cursory examination of court awards for comparable injuries as those suffered by the appellant around the time when the trial court issued the impugned award attracted awards in the ranges of kshs 400,000/= to kshs 700,000/= depending on the severity thereof.

11. The appellant submitted that kshs 300,000/= as general damages for soft tissue injuries awarded by the trial court was inordinately low, hence warranting the courts intervention, he therefore sought to have the award set aside and substituted with an award of at least kshs 400,000/=

12. The respondent conceded that on the issue of liability, the parties herein agreed vide a consent in the ratio of 80%:20% in favour of the plaintiff as against the defendant.

13. The respondent reiterated the principles that courts apply in deciding whether or not to interfere with the trial court's discretion to assess damages are when the award is inordinately high or low as to represent an entirely erroneous estimate and when the trial court proceeded on wrong principles or misapprehended evidence in some material respect. The respondent cited the case of /Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini v A M Lubia & Olive Lubia (1982-88) 1 KAR 727.

14. The respondent reiterated that the trial magistrate did not proceed on wrong principles or misapprehend the evidence in the case.

15. The respondent contended that as a matter of principle, damages must be within limits set out by previous comparable decided cases and be within the limits the Kenyan economy can afford. Furthermore, there must be uniformity in awards in cases involving similar injuries. The respondent cited the case of Stanley Maore v Geoffrey Mwenda (Nyeri CA no 147 of 2002).

16. The respondent submitted that the amount awarded as general damages was very reasonable in the circumstances and does not warrant/ fit for interference by the court. The respondent cited the following authorities in which the nature of injuries sustained were more severe compared to the present caseMwavita Jonathan v Silivia Onunga(2017) eKLR & Morris Miriti v Nahashon Muriuki & Another (2018) eKLR.

17. The respondent relied on the case of Edward Mutevu Maithya & Another v Edwin Nyamweya[2022] eKLR in which it was held that for soft tissue injuries courts have awarded between kshs 100, 000/= to Kshs. 300,000/=

18. This being a first appeal the duty of the 1st appellate court is to re-evaluate the evidence adduced before the trial court and to arrive at its own conclusion whether or not to support the findings of the trial court.

19. In the case of Abok James Odera t/a A J Odera & Associates v John Patrick Machira t/a Machira & Co Advocates [2013] eKLR, the Court of Appeal highlighted the duty of the first appellate court as follows; “This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and re-analyze the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way”

20. The sole issue for determination in this appeal is whether there is basis for interference with the award of damages.

21. The circumstances under which an appellate court can interfere with an award of damages are as follows;i.That the trial court took into account irrelevant factors or left out relevant factors when assessing damages; orii.The amount of damages is so inordinately high or low that the quantum awarded must be a wholly erroneous estimate of damages.

22. In the Court of Appeal case of Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate 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 at first instance. The appellate court can justifiably interfere with the quantum of damages 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 factor 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.”

23. In the case of Francis Ndungu Wambui & 2 others v Benson Maina Gatia [2019] eKLR quite recently, the High Court reviewed downwards an award of general damages of kshs 400,000 to kshs 300,000 for head injury with loss of consciousness and other soft tissue injuries.

24. I have also considered the authorities relied on by the appellant and the respondent.

25. I find no basis for interfering with the award of damages.

26. This appeal lacks in merit and I dismiss the same with costs to the respondent.

DELIVERED, DATED AND SIGNED AT KERICHO THIS 16TH DAY OF DECEMBER, 2022A N ONGERIJUDGE