1. This is an Appeal from the Judgment and Decree of Hon. E. Mulochi, RM, dated 26th April 2021, arising from Kajiado CMCC No. 174 of 2019.
2. The Appeal is on liability and quantum.
3. The Memorandum of Appeal thus raises only two issues, that is: -
a. The quantum of damages
b. Liability .
Pleadings
4. The Plaint claimed damages for an accident involving Motor vehicle Registration No. KTWB 781F. The Defendant was the owner. It was involved in an accident with Motor vehicle Registration No. KWTB 151B in which the Plaintiff was a driver. The two motor vehicles were three wheelers, known as Tuktuk. They collided head on.
5. The Respondent was Plaintiff in the Lower Court suit. He blamed the rider of Motor vehicle Registration No. KTWB 781F for the accident for carelessly ramming into him. The Plaintiff set forth particulars of negligence. he claimed special damages of Kes.19,450/-.
6. The Respondent pleaded the following injuries:
a) Blunt injury to the anterior chest wall
b) Blunt injury to the lumbar region
c) Blunt injury to the left shoulder with swelling
d) Frictional bruises to the left knee
e) Frictional bruises to the right knee
7. The Appellant entered appearance and filed a Defence dated 18 February 2020, denying the particulars of negligence and injuries pleaded in the Plaint.
Evidence
8. The Plaintiff testified and adopted his witness statement and bundle of documents.
9. It was his case that the Defendant was full liable for the accident for driving too fast and overtaking when it was not clear. that he suffered injuries and was still in pain.
10. The Medical Doctor, one Titus Ndeti also testified for the Plaintiff and produced the medical report. He confirmed the injuries as pleaded in the Plaint.
11. The Police Officer, one Scholastica Mwilu also testified and produced the Police Abstract in Court. She blamed the Defendant for the accident.
12. The Appellant did not call any witnesses or produce documents.
Judgment of the Trial Court
13. The Trial Court heard the parties and proceeded to render judgment on 26th April 2021. In the Judgement, the Court found 100% liability against the Defendant. The court also awarded Damages as follows:
(i) Liability 100%
(ii) General Damages Kes.200,000/-;
(iii) Special Damages Kes.19,450/-.
14. Aggrieved by the finding of the Trial Court, the Appellant lodged a Memorandum of Appeal and hence this Appeal.
Submissions
15. The court gave directions for filing submissions. Only the Respondents filed undated submissions on 24th November 2022.
16. It was submitted on liability that the evidence of the Respondent was clear as to the causation of the accident which was connected 100% to the fault on the part of the Appellant. Reliance was placed on the case of Trust Bank Limited vs Paramount Universal Bank & 2 Others (2003)eKLR.
17. On the quantum of damages, it was submitted that the trial court correctly awarded damages that were commensurate with the injuries. The Respondent relied on the case of Bashir Ahmed Butt vs Ahmed Butt (1982-88) KAR 5.
18. It was the Respondent’s submission that the Trial Court correctly based its decision on the similar fact case of Paul Kipsang Koech & Another v Osule Osore (2013)e KLR and the award of Kes.200,000/- in general damages was proportionate.
19. I was urged to dismiss the Appeal.
Analysis & Determination
20. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
21. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
22. In the case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, it was held as follows:-
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
23. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
24. The burden of proof lies on the Respondent to prove both liability and quantum. In Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR the Court of Appeal stated thus:-
“When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along those circumstances, but fair and substantial answer must be given…
…First of all a mere denial is not a sufficient defence in this type of case, there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.”
25. In David Bagine vs Martin Bundi [1997]eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177), where he held that:
“[The] Plaintiffs must understand that if they bring actions for damages it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.
in Attorney General of Jamaica v Clerke (Tanya) (nee Tyrell), Cooke, J.A. delivering the judgment of the court stated that special damages must be strictly proved; the court should be very wary to relax this principle; that what amounts to strict proof is to be determined by the court in the particular circumstance of the case and the court may consider the concept of reasonableness.”
26. Similarly, in Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”.
27. Therefore, it follows that the initial burden of proof lies on the Plaintiff, but the same may shift to the Defendant, depending on the circumstances of the case.
28. The question then is what amounts to proof on a balance of probabilities. Kimaru, J (as he then was) in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:-
“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
29. Similarly, Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that:-
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”
30. Furthermore in Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Court of Appeal held that:-
“Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say:-
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.
This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”
31. Following the detailed authorities above, I have to demystify the evidence produced in the Trial Court to discern whether the Respondent proved on a balance of probabilities that the Appellant was fully to blame for the occurrence of the accident. The trial Court found the Appellant 100% liable for the accident.
32. It was the testimony of the Respondent that he was on his lane. Further, that the accident occurred when the Defendant’s driver was overtaking when it was not clear. This evidence was supported by the Police Officer who testified and even blamed the Defendant drive for the accident.
33. Therefore, as the evidence of the Plaintiff was uncontroverted, I do not find reason to differ with the finding of the Trial Court. The Appellant had the opportunity to provide evidence that would challenge the assertion by the Respondent.
34. I consequently agree with the finding of the Trial Court that if the Defendant driver had not overtaken when it was not safe, it would have been easier to swerve or stop or manoeuvre the car to avoid the accident. Similarly, the Appellant had the burden to proof contributory negligence but he did not.
35. I am consequently in consonance with the reasoning of the Trial Court in the case of Mombasa Maize Millers & another v Elius Kinyua Gicovi [2021] eKLR where Nyakundi J referred to Wayne Ann Holdings Limited (T/a Superplus Food Stores) v Sandra Morgan, and held as follows:
“In this case contributory negligence was raised as a defence. When such a defence [sic] is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury. In Nance v British Columbia Electric Rly [1951] AC 601, at page 611, Lord Simon said:
“……When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.”
36. Stemming from the stated finding of the Learned Magistrate, I find no reason to interfere with the Trial Court’s finding on liability. The liability at 100% as against the Appellant is upheld.
37. I then proceed to establish whether the Trial Court erred in the award of General Damages. The injuries pleaded by the Respondent were as follows:
a) Blunt injury to the anterior chest wall
b) Blunt injury to the lumbar region
c) Blunt injury to the left shoulder with swelling
d) Frictional bruises to the left knee
e) Frictional bruises to the right knee
38. The Trail Court awarded General Damages of Kes.200,000/-. Fact-finding is primarily the duty of the trial court. Once evidence is presented before it on the basis of which it could arrive at a finding one way or the other, as was held in Job Obanda vs. Stage Coach International Services Limited & Another Civil Appeal No. 6 of 2001, it is not for the appellate court to set aside the trial court’s exercise of discretion and substitute its own simply because if it had been the trial court it would have exercised the discretion differently.
39. In Nyambati Nyaswabu Erick versus Toyota Kenya Ltd & 2 Others (2019)eKLR, Justice D.S Majanja held as follows:-
“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”
40. The foregoing was settled in the cases of Butter Vs Butter Civil Appeal No. 43 of 1983 (1984) KLR where the Court of Appeal held as follows as paragraph 8.
“In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant … regard would be paid to recent awards in comparable cases in local Courts. The fall of the value of monies generally, the levelling up and down of the facts of exchange between currencies…should be taken into consideration.”
41. Therefore, in deciding whether to disturb the quantum given by the Lower Court, the Court should be aware of its limits. As an exercise of discretion, it should be done judiciously, taking into account the circumstances to ensure that the award is not too high or too low to be an erroneous estimate of damages.
42. The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd Vs Meru Express Services versus A.M Lubia & Another 1957 KLR 27 as follows: -
“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages.
43. Furthermore, in Parvin Singh Dhalay vs Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that:
“It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts ... Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-
"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."..."
44. With the above guide, if the Award is inordinately high, then I will have to set it aside. If, however, it is just high but not inordinately high, I will not do so. For the Appellate Court to interfere with the Award, it is not enough to show that the Award is high or had I handled the case in the Subordinate Court I would have awarded a different figure.
45. The Trial Court cited comparable authorities in its determination. The Court relied on Paul Kipsang Koech & Another vs Osule Osore (2013)eKLR and found that the award of Kes.200,000/- in general damages was proportionate to similar injuries. The Court of Appeal in Odinga Jacktone Ouma vs Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards.”
46. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -
1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2) The award should be commensurable with the injuries sustained.
3) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
4) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
5) The awards should not be inordinately low or high.
47. I have perused the authority relied un by the Trial Court, that is Paul Kipsang (supra). The injuries in the said case are similar to the instant case. Therefore, the award of Kes.200,000/- in general damages was proportionate to similar injuries. It cannot be said to be inordinately low or high.
Disposition
48. In the circumstances, I make the following orders: -
(a) The Appeal on both liability and quantum is dismissed with costs to the Respondent.
49. Orders accordingly.
Dated and signed at Mombasa virtually on this 30th day of May 2024. Judgement delivered through Microsoft Teams Online Platform.
2. The Appeal is on liability and quantum.
3. The Memorandum of Appeal thus raises only two issues, that is: -
a. The quantum of damages
b. Liability .
Pleadings
4. The Plaint claimed damages for an accident involving Motor vehicle Registration No. KTWB 781F. The Defendant was the owner. It was involved in an accident with Motor vehicle Registration No. KWTB 151B in which the Plaintiff was a driver. The two motor vehicles were three wheelers, known as Tuktuk. They collided head on.
5. The Respondent was Plaintiff in the Lower Court suit. He blamed the rider of Motor vehicle Registration No. KTWB 781F for the accident for carelessly ramming into him. The Plaintiff set forth particulars of negligence. he claimed special damages of Kes.19,450/-.
6. The Respondent pleaded the following injuries:
a) Blunt injury to the anterior chest wall
b) Blunt injury to the lumbar region
c) Blunt injury to the left shoulder with swelling
d) Frictional bruises to the left knee
e) Frictional bruises to the right knee
7. The Appellant entered appearance and filed a Defence dated 18 February 2020, denying the particulars of negligence and injuries pleaded in the Plaint.
Evidence
8. The Plaintiff testified and adopted his witness statement and bundle of documents.
9. It was his case that the Defendant was full liable for the accident for driving too fast and overtaking when it was not clear. that he suffered injuries and was still in pain.
10. The Medical Doctor, one Titus Ndeti also testified for the Plaintiff and produced the medical report. He confirmed the injuries as pleaded in the Plaint.
11. The Police Officer, one Scholastica Mwilu also testified and produced the Police Abstract in Court. She blamed the Defendant for the accident.
12. The Appellant did not call any witnesses or produce documents.
Judgment of the Trial Court
13. The Trial Court heard the parties and proceeded to render judgment on 26th April 2021. In the Judgement, the Court found 100% liability against the Defendant. The court also awarded Damages as follows:
(i) Liability 100%
(ii) General Damages Kes.200,000/-;
(iii) Special Damages Kes.19,450/-.
14. Aggrieved by the finding of the Trial Court, the Appellant lodged a Memorandum of Appeal and hence this Appeal.
Submissions
15. The court gave directions for filing submissions. Only the Respondents filed undated submissions on 24th November 2022.
16. It was submitted on liability that the evidence of the Respondent was clear as to the causation of the accident which was connected 100% to the fault on the part of the Appellant. Reliance was placed on the case of Trust Bank Limited vs Paramount Universal Bank & 2 Others (2003)eKLR.
17. On the quantum of damages, it was submitted that the trial court correctly awarded damages that were commensurate with the injuries. The Respondent relied on the case of Bashir Ahmed Butt vs Ahmed Butt (1982-88) KAR 5.
18. It was the Respondent’s submission that the Trial Court correctly based its decision on the similar fact case of Paul Kipsang Koech & Another v Osule Osore (2013)e KLR and the award of Kes.200,000/- in general damages was proportionate.
19. I was urged to dismiss the Appeal.
Analysis & Determination
20. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
21. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
22. In the case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, it was held as follows:-
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
23. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
24. The burden of proof lies on the Respondent to prove both liability and quantum. In Raghbir Singh Chatte v National Bank of Kenya Limited [1996] eKLR the Court of Appeal stated thus:-
“When a party in any pleading denied an allegation of fact in the previous pleading of the opposite party, he must not do so evasively, but answer the point of substance. Thus, if it be alleged that he received a certain sum of money, it shall not be sufficient to deny that he received that particular amount, but he must deny that he received that sum, or any part thereof, or else set out how much he received. And so, when a matter of fact is alleged with divers circumstances, it shall not be sufficient to deny it as alleged along those circumstances, but fair and substantial answer must be given…
…First of all a mere denial is not a sufficient defence in this type of case, there must be some reason why the defendant does not owe the money. Either there was no contract or it was not carried out and failed. It could also be that payment had been made and could be proved. It is not sufficient therefore simply to deny liability without some reason given.”
25. In David Bagine vs Martin Bundi [1997]eKLR, the Court of Appeal cited the judgment by Lord Goddard CJ. in Bonham Carter v Hyde Park Hotel Limited (1948) 64 TLR 177), where he held that:
“[The] Plaintiffs must understand that if they bring actions for damages it is for them to prove damage. It is not enough to note down the particulars and, so to speak, throw them at the head of the court saying ‘this is what I have lost’, I ask you to give me these damages; they have to prove it.
in Attorney General of Jamaica v Clerke (Tanya) (nee Tyrell), Cooke, J.A. delivering the judgment of the court stated that special damages must be strictly proved; the court should be very wary to relax this principle; that what amounts to strict proof is to be determined by the court in the particular circumstance of the case and the court may consider the concept of reasonableness.”
26. Similarly, in Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”.
27. Therefore, it follows that the initial burden of proof lies on the Plaintiff, but the same may shift to the Defendant, depending on the circumstances of the case.
28. The question then is what amounts to proof on a balance of probabilities. Kimaru, J (as he then was) in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:-
“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.”
29. Similarly, Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that:-
“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the event was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..”
30. Furthermore in Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Court of Appeal held that:-
“Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say:-
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.
This burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.”
31. Following the detailed authorities above, I have to demystify the evidence produced in the Trial Court to discern whether the Respondent proved on a balance of probabilities that the Appellant was fully to blame for the occurrence of the accident. The trial Court found the Appellant 100% liable for the accident.
32. It was the testimony of the Respondent that he was on his lane. Further, that the accident occurred when the Defendant’s driver was overtaking when it was not clear. This evidence was supported by the Police Officer who testified and even blamed the Defendant drive for the accident.
33. Therefore, as the evidence of the Plaintiff was uncontroverted, I do not find reason to differ with the finding of the Trial Court. The Appellant had the opportunity to provide evidence that would challenge the assertion by the Respondent.
34. I consequently agree with the finding of the Trial Court that if the Defendant driver had not overtaken when it was not safe, it would have been easier to swerve or stop or manoeuvre the car to avoid the accident. Similarly, the Appellant had the burden to proof contributory negligence but he did not.
35. I am consequently in consonance with the reasoning of the Trial Court in the case of Mombasa Maize Millers & another v Elius Kinyua Gicovi [2021] eKLR where Nyakundi J referred to Wayne Ann Holdings Limited (T/a Superplus Food Stores) v Sandra Morgan, and held as follows:
“In this case contributory negligence was raised as a defence. When such a defence [sic] is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury. In Nance v British Columbia Electric Rly [1951] AC 601, at page 611, Lord Simon said:
“……When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.”
36. Stemming from the stated finding of the Learned Magistrate, I find no reason to interfere with the Trial Court’s finding on liability. The liability at 100% as against the Appellant is upheld.
37. I then proceed to establish whether the Trial Court erred in the award of General Damages. The injuries pleaded by the Respondent were as follows:
a) Blunt injury to the anterior chest wall
b) Blunt injury to the lumbar region
c) Blunt injury to the left shoulder with swelling
d) Frictional bruises to the left knee
e) Frictional bruises to the right knee
38. The Trail Court awarded General Damages of Kes.200,000/-. Fact-finding is primarily the duty of the trial court. Once evidence is presented before it on the basis of which it could arrive at a finding one way or the other, as was held in Job Obanda vs. Stage Coach International Services Limited & Another Civil Appeal No. 6 of 2001, it is not for the appellate court to set aside the trial court’s exercise of discretion and substitute its own simply because if it had been the trial court it would have exercised the discretion differently.
39. In Nyambati Nyaswabu Erick versus Toyota Kenya Ltd & 2 Others (2019)eKLR, Justice D.S Majanja held as follows:-
“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.”
40. The foregoing was settled in the cases of Butter Vs Butter Civil Appeal No. 43 of 1983 (1984) KLR where the Court of Appeal held as follows as paragraph 8.
“In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant … regard would be paid to recent awards in comparable cases in local Courts. The fall of the value of monies generally, the levelling up and down of the facts of exchange between currencies…should be taken into consideration.”
41. Therefore, in deciding whether to disturb the quantum given by the Lower Court, the Court should be aware of its limits. As an exercise of discretion, it should be done judiciously, taking into account the circumstances to ensure that the award is not too high or too low to be an erroneous estimate of damages.
42. The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd Vs Meru Express Services versus A.M Lubia & Another 1957 KLR 27 as follows: -
“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages.
43. Furthermore, in Parvin Singh Dhalay vs Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that:
“It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts ... Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:-
"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it."..."
44. With the above guide, if the Award is inordinately high, then I will have to set it aside. If, however, it is just high but not inordinately high, I will not do so. For the Appellate Court to interfere with the Award, it is not enough to show that the Award is high or had I handled the case in the Subordinate Court I would have awarded a different figure.
45. The Trial Court cited comparable authorities in its determination. The Court relied on Paul Kipsang Koech & Another vs Osule Osore (2013)eKLR and found that the award of Kes.200,000/- in general damages was proportionate to similar injuries. The Court of Appeal in Odinga Jacktone Ouma vs Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards.”
46. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -
1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2) The award should be commensurable with the injuries sustained.
3) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
4) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
5) The awards should not be inordinately low or high.
47. I have perused the authority relied un by the Trial Court, that is Paul Kipsang (supra). The injuries in the said case are similar to the instant case. Therefore, the award of Kes.200,000/- in general damages was proportionate to similar injuries. It cannot be said to be inordinately low or high.
Disposition
48. In the circumstances, I make the following orders: -
(a) The Appeal on both liability and quantum is dismissed with costs to the Respondent.
49. Orders accordingly.
Dated and signed at Mombasa virtually on this 30th day of May 2024. Judgement delivered through Microsoft Teams Online Platform.