INTRODUCTION
The instant appeal arises out of a decision delivered on 31 st August 2022 by Hon. D.N Musyoka SPM in Gatundu SPM CC No. 024 of 2021.
The appeal is on quantum only.
The learned Honorable magistrate apportioned liability at 30:70 in a favor of the plaintiff and on quantum made the following award:-
General damages Kshs. 500,000
Less 30% Kshs. 150,000
Subtotal Kshs.350,000
Special damages Kshs. 25,530
Total = Kshs. 375,530
The appellant aggrieved by the decision has appealed on the following grounds:-
The learned magistrate's decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice
The learned magistrate's decision was unjust, against the weight of evidence and was misguided on deciding that the respondent was entitled to Kshs.500,000/= as general damages which ought to be dismissed.
The learned magistrate erred in law and in fact in awarding excessive and undeserved sum of Kshs. 500,000/= to the respondent as general damages for injuries sustained.
The learned magistrate erred in law and in fact in unduly disregarding the Appellant's evidence, submissions and facts produced in assessing quantum to the Respondent.
The issue that arises is :-
Whether the learned Honorable magistrate erred in law in the assessment of damages by applying incorrect principles of law thereby awarding damages that were inordinately high
APPELLANT’S CASE
The appellant contends that the landed magistrate applied the wrong principles of law in the assessment of damages thus his decision occasioned a failure of justice.
According to the appellant the decision was against the weight of evidence and in his view taking into account the facts of the case the lower court ought to have awarded a lesser sum in general damages.
The appellant invited this court to intervene and review the figure of Kenyan shillings 500,000 downwards to Kenyan shillings 100,000
The appellant in his submission stated that taking into account the injury suffered by the 1 st respondent and comparable awards by other courts for similar injuries the learned Honorable magistrate awarded an excessive figure in general damages.
The injuries sustained by the 1 st respondent were;-
a. Deep cut wound-left ankle her
b. Deep cut wound-right leg calf
c. Blunt injuries-chest and ribs
d. Blunt injury-left parietal
e. Head concussion
f. Swollen, left leg
g. Bruises-left shoulder
The appellant in support of his case cited the case of Power and Lighting Co. Ltd & Another Vs. Zakayo Saitoti Naingola & Another (2008) eKLR cited with approval in Jennifer Mathenge Vs. Patrick Muriuki Maina [2020] eKLR where the court held:-
On quantum court the in determining whether to interfere with the same or not, the court has to bear in mind the following principles on assessment of damages;
a. Damages should not be inordinately too high or too low
b. They are meant to compensate a party, for the loss suffered but
not to enrich a party, and as such they should be commensurate to
the injuries suffered.
c. Where past decisions are taken into consideration, they should be
taken as mere guides and each case depends on its own facts.
d. Where past a wards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan Shillings, then at the time of the judgment....
The appellant urged this court to find that this was a suitable case for interference with a discretion of the learned Honorable magistrate on the strength of the following decisions:-
Ephraim Maina Muthui and 2 others Vs. Toyota Kenya Ltd and 2 others [2019] eKLR where Majanja J, set aside An award of Kenyan shillings 500,000 for similar injuries and substituted it with a sum of 100,000.
Ndungu Dennis Vs. Ann Wangari Ndirangu and Another [2018] eKLR Where the court awarded a son of Kenyan shillings 100,000 for similar injuries.
Era Karemi and 5 Others Vs. Koskei Kieng and Another [2020] eKLR Where the apparent was awarded Kenyan shillings 70,000 for injuries to her right thigh and bruises on her lower and upper limbs. The second appellant was awarded Kenyan shillings 40,000 for injuries on the right shoulder pain and cut wounds on her mouth. The third appellant was awarded Kenyan shillings 45,000 for injuries and pain on her back and right shoulder. The fourth appellant was awarded Kenyan shillings 40,000 for cuts on the chin and right shoulder tenderness. The fifth appellant got Kenya shillings 60,000 for injury sustained 2cm cut On the forehead, cut wound On the right elbow and right limb (leg and ankle joint). The sixth parent was awarded Kenyan shillings 65,000 for injury sustained being bruising on the forehead heap and left ankles.
It is on the basis of the authorities cited that the appellant has urged this court to consider a review of the award in general damages.
RESPONDENT’S CASE
The respondent opposed the appeal vide submissions filed on 6 th November 2023.
The respondent’s argument is that Learned honorable magistrate in arriving at his position on both liability and quantum relied on the evidence on records and that there was no proper exercise of judicial discretion by the trial court to warrant the intervention by this court.
Counsel cited the case of SAMKEN LIMITED & ANOTHER VS. MERCE DES SANCHEZ CIVIL Appeal No. 21 of 1999 where the court of Appeal held:
“ The burden of proving that a single judge in exercising unfettered discretion confirmed by Rule 4 of the court of appeal Rules has exercised his discretion improperly lies on the person challenging the same.”
The respondent thus contended that it was incumbent upon the appellant to demonstrate the improper exercise of judicial discretion by the learned Honorable magistrate.
Counsel for the respondent further argued that a court of appeal should not interfere with the exercise of judicial discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at the wrong decision. See Mbogo Vs. Shah (1968) EA 93.
In the respondent’s view there was no misdirection by the lower court thus there is no justification for interference by this court.
ANALYSIS AND DETERMINATION
This court is called upon by the appellant to interfere with what is precisely the exercise of judicial discretion.
The burden of establishing that the learned honorable magistrate in exercising his discretion wrongly lies within the appellant.
The injuries suffered by the 1 st respondent and not denied. All that’s the appellant told this court is that the learned honorable magistrate failed to consider awards by other courts for similar injuries.
Whereas it is true that courts should maintain consistency in the award of damages for similar injuries, it must be acknowledged that there is never a case that is an exact replica of another thus the courts must be able to analyze the facts of each particular case and determine it on its own merit.
The appellate court must be satisfied that the lower court in arriving at its decision failed to consider some material facts or consider some irrelevant matters in arriving at the impugned decision.
It is not enough for an appellant to cite authorities in which relatively lesser amounts were granted for similar injuries.
It is also important for the court to note and take into account when the decision cited by the appellant were made and the aspect of inflation must never be forgotten.
The purpose of damages being to compensate and not to enrich invites an equitable look at the comparable award at a given time when a court is called upon to review previous awards.
They appellate court must not interfere with the decision of a lower court in exercise of it judicial discretion without proof of any form of misdirection or incorrect application of the principles of law relevant to the issue.
The court has gone through the medical record from Kinoo Medical Clinic and noted the injury suffered by the 1 st respondent as a result of the accident. The court has also analyzed the authorities cited by the appellant and noted that none of them has an exact resemblance with the instant case.
The view taken by this court is that there was no material misdirection by the lower court or any incorrect application of the principles of law relevant in the assessment of damages to warrant the intervention of this court. See MBOGO VS. SHAH [1968] EA 93.
Accordingly, this court finds that the appeal has no merit and the same is hereby dismissed with costs.
It is so ordered.
The instant appeal arises out of a decision delivered on 31 st August 2022 by Hon. D.N Musyoka SPM in Gatundu SPM CC No. 024 of 2021.
The appeal is on quantum only.
The learned Honorable magistrate apportioned liability at 30:70 in a favor of the plaintiff and on quantum made the following award:-
General damages Kshs. 500,000
Less 30% Kshs. 150,000
Subtotal Kshs.350,000
Special damages Kshs. 25,530
Total = Kshs. 375,530
The appellant aggrieved by the decision has appealed on the following grounds:-
The learned magistrate's decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice
The learned magistrate's decision was unjust, against the weight of evidence and was misguided on deciding that the respondent was entitled to Kshs.500,000/= as general damages which ought to be dismissed.
The learned magistrate erred in law and in fact in awarding excessive and undeserved sum of Kshs. 500,000/= to the respondent as general damages for injuries sustained.
The learned magistrate erred in law and in fact in unduly disregarding the Appellant's evidence, submissions and facts produced in assessing quantum to the Respondent.
The issue that arises is :-
Whether the learned Honorable magistrate erred in law in the assessment of damages by applying incorrect principles of law thereby awarding damages that were inordinately high
APPELLANT’S CASE
The appellant contends that the landed magistrate applied the wrong principles of law in the assessment of damages thus his decision occasioned a failure of justice.
According to the appellant the decision was against the weight of evidence and in his view taking into account the facts of the case the lower court ought to have awarded a lesser sum in general damages.
The appellant invited this court to intervene and review the figure of Kenyan shillings 500,000 downwards to Kenyan shillings 100,000
The appellant in his submission stated that taking into account the injury suffered by the 1 st respondent and comparable awards by other courts for similar injuries the learned Honorable magistrate awarded an excessive figure in general damages.
The injuries sustained by the 1 st respondent were;-
a. Deep cut wound-left ankle her
b. Deep cut wound-right leg calf
c. Blunt injuries-chest and ribs
d. Blunt injury-left parietal
e. Head concussion
f. Swollen, left leg
g. Bruises-left shoulder
The appellant in support of his case cited the case of Power and Lighting Co. Ltd & Another Vs. Zakayo Saitoti Naingola & Another (2008) eKLR cited with approval in Jennifer Mathenge Vs. Patrick Muriuki Maina [2020] eKLR where the court held:-
On quantum court the in determining whether to interfere with the same or not, the court has to bear in mind the following principles on assessment of damages;
a. Damages should not be inordinately too high or too low
b. They are meant to compensate a party, for the loss suffered but
not to enrich a party, and as such they should be commensurate to
the injuries suffered.
c. Where past decisions are taken into consideration, they should be
taken as mere guides and each case depends on its own facts.
d. Where past a wards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan Shillings, then at the time of the judgment....
The appellant urged this court to find that this was a suitable case for interference with a discretion of the learned Honorable magistrate on the strength of the following decisions:-
Ephraim Maina Muthui and 2 others Vs. Toyota Kenya Ltd and 2 others [2019] eKLR where Majanja J, set aside An award of Kenyan shillings 500,000 for similar injuries and substituted it with a sum of 100,000.
Ndungu Dennis Vs. Ann Wangari Ndirangu and Another [2018] eKLR Where the court awarded a son of Kenyan shillings 100,000 for similar injuries.
Era Karemi and 5 Others Vs. Koskei Kieng and Another [2020] eKLR Where the apparent was awarded Kenyan shillings 70,000 for injuries to her right thigh and bruises on her lower and upper limbs. The second appellant was awarded Kenyan shillings 40,000 for injuries on the right shoulder pain and cut wounds on her mouth. The third appellant was awarded Kenyan shillings 45,000 for injuries and pain on her back and right shoulder. The fourth appellant was awarded Kenyan shillings 40,000 for cuts on the chin and right shoulder tenderness. The fifth appellant got Kenya shillings 60,000 for injury sustained 2cm cut On the forehead, cut wound On the right elbow and right limb (leg and ankle joint). The sixth parent was awarded Kenyan shillings 65,000 for injury sustained being bruising on the forehead heap and left ankles.
It is on the basis of the authorities cited that the appellant has urged this court to consider a review of the award in general damages.
RESPONDENT’S CASE
The respondent opposed the appeal vide submissions filed on 6 th November 2023.
The respondent’s argument is that Learned honorable magistrate in arriving at his position on both liability and quantum relied on the evidence on records and that there was no proper exercise of judicial discretion by the trial court to warrant the intervention by this court.
Counsel cited the case of SAMKEN LIMITED & ANOTHER VS. MERCE DES SANCHEZ CIVIL Appeal No. 21 of 1999 where the court of Appeal held:
“ The burden of proving that a single judge in exercising unfettered discretion confirmed by Rule 4 of the court of appeal Rules has exercised his discretion improperly lies on the person challenging the same.”
The respondent thus contended that it was incumbent upon the appellant to demonstrate the improper exercise of judicial discretion by the learned Honorable magistrate.
Counsel for the respondent further argued that a court of appeal should not interfere with the exercise of judicial discretion of a judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at the wrong decision. See Mbogo Vs. Shah (1968) EA 93.
In the respondent’s view there was no misdirection by the lower court thus there is no justification for interference by this court.
ANALYSIS AND DETERMINATION
This court is called upon by the appellant to interfere with what is precisely the exercise of judicial discretion.
The burden of establishing that the learned honorable magistrate in exercising his discretion wrongly lies within the appellant.
The injuries suffered by the 1 st respondent and not denied. All that’s the appellant told this court is that the learned honorable magistrate failed to consider awards by other courts for similar injuries.
Whereas it is true that courts should maintain consistency in the award of damages for similar injuries, it must be acknowledged that there is never a case that is an exact replica of another thus the courts must be able to analyze the facts of each particular case and determine it on its own merit.
The appellate court must be satisfied that the lower court in arriving at its decision failed to consider some material facts or consider some irrelevant matters in arriving at the impugned decision.
It is not enough for an appellant to cite authorities in which relatively lesser amounts were granted for similar injuries.
It is also important for the court to note and take into account when the decision cited by the appellant were made and the aspect of inflation must never be forgotten.
The purpose of damages being to compensate and not to enrich invites an equitable look at the comparable award at a given time when a court is called upon to review previous awards.
They appellate court must not interfere with the decision of a lower court in exercise of it judicial discretion without proof of any form of misdirection or incorrect application of the principles of law relevant to the issue.
The court has gone through the medical record from Kinoo Medical Clinic and noted the injury suffered by the 1 st respondent as a result of the accident. The court has also analyzed the authorities cited by the appellant and noted that none of them has an exact resemblance with the instant case.
The view taken by this court is that there was no material misdirection by the lower court or any incorrect application of the principles of law relevant in the assessment of damages to warrant the intervention of this court. See MBOGO VS. SHAH [1968] EA 93.
Accordingly, this court finds that the appeal has no merit and the same is hereby dismissed with costs.
It is so ordered.