(Being an appeal against the judgment of the learned Magistrate C.M. MUGO(C.M.) at Limuru in the Senior Principal Magistrate’s Court Civil Case No. 218 of 2020.
Background Information
1. The appellant filed an appeal against the Judgment in Civil Case No.218 of 2020 at the Senior Magistrate’s Court Limuru.
2. The plaintiff had filed a plaint dated 18th August 2020 in the Senior Resident Magistrate’s Court Limuru claiming general damages for pain, suffering and loss of amenities, special damages, costs and interests.
3. The trial proceeded and PW1 Dr.George Mwaura Kuungu adduced evidence that he had examined the plaintiff on 15th July 2010 and confirmed she suffered multiple soft tissue injuries. He produced his report as exhibit 1a and receipts as 1b and 1c.
4. PW2 the plaintiff adopted her statement filed on 11th September 2020 as evidence in chief. She testified that she sustained cuts and bruises on her head,face,right ear,right side shoulders and right leg. PW1 produced documents 1,3,5 and 6 attached to her list of documents dated 18th August 2020 as exhibit 1,3,5 and 6. Pw1 stated that she has not fully healed since she still experiences headaches and she cannot walk for long and prayed for compensation.
5. In response the appellant/1st defendant had filed a statement of defence dated 31st August 2020 wherein they denied liability and prayed that the suit be dismissed with costs. The appellant did not call any witnesses in this case. By consent of parties the medical report by 1st defendant’s Doctor Ruth Ichamwengwe and the 2nd defendant’s Doctor P.M.Wambugu were produced by consent.
6. From the court record, the parties agreed to have CMCC 220 of 2020 chosen as a test suit for liability and judgement. In the test suit judgement was delivered and liability apportioned at 90:10 as against the 1st and 2nd defendant respectively. Consequently, that is the liability that was adopted in this suit and therefore the court only determined the issue on quantum of damages in this suit.
7. At close of the hearing the learned trial magistrate delivered a judgement dated 1st November ,2022 and ordered as follows;
‘‘The plaintiff having proved her case against the defendants on a balance of probabilities, I do enter judgment in the following terms;
a) Liability at 90: 10 as against the 15 defendants and 2nd defendant respectively.
b) General Damages- Ksh. 250,000
c) Special damages-Kshs.8550
Total Award Kshs.258,550/=
The plaintiff will also have costs of the suit and interest at court rates.’’
8. The appellant was aggrieved by the above Judgment of the lower court and filed a memorandum of appeal dated 28th November 2022 citing the following grounds:-
i. That the learned magistrate erred in law in making a finding of damages against the defendant;
ii. That the learned magistrate erred in law and fact in holding that the defendant was 100% liable for the excessive damages so awarded or at all in the absence of any concrete evidence to demonstrated the same;
iii. The learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendants and thereby arriving at a wrong and erroneous conclusion condemning the defendants to General damages of KShs.250,000/= without any tangible proof of the same;
iv. That the learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendants and thereby arriving at a wrong and erroneous conclusion condemning the defendant to special damages of KShs.8,550/= allegedly spent in what the plaintiff turned to be a merry celebration without concrete. Documentary evidence;
v. That the learned magistrate erred in law and fact in failing to appreciate the impeccable defence of the defendant and thereby arriving at a wrong and erroneous conclusion condemning the defendants to excess Quantum and special damages without concrete documentary evidence.
vi. The learned magistrate erred in law and fact in failing to appreciate the long established principle of stare decisis, precedent law thus bringing law into confusion and thereby deriving an erroneous finding/conclusion, in particular relating to damages;
vii. The learned magistrate erred in law and fact in failing to appreciate that the plaintiff’s pleadings and the evidence tendered in support thereof was incapable of sustaining the award of damages;
viii. That the learned magistrate erred in law and fact in entering judgment in favour of the plaintiffs against the defendant inspite of the plaintiff’s miserable failure to establish her case more especially on quantum;
ix. That the learned trial 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;
x. That the learned trial magistrate grossly misdirected himself in ignoring the principles applicable and relevant authorities on quantum cited in the written submissions presented filed by the appellant;
xi. That the learned trial magistrate proceeded on wrong principles when assessing damages to be awarded to the respondent if any and failed to apply precedents and tenets of the law applicable;
xii. It is proposed to ask the Court for the following Orders:
a) THAT this Appeal be allowed.
b) THAT the whole Judgment of the C.M. Mugo(SRM) in Limuru CMCC No. 218 OF 2020 on 1st November, 2022, be set aside and that both Quantum be assessed afresh.
c) THAT the costs of this Appeal be awarded to the Appellant.
SUBMISSIONS
9. The appellant filed submissions dated 16th May 2024 in which she submitted that the respondent was a passenger in suit motor vehicle and she sustained injuries as set out in her plaint. The appellant submitted that the medical report by Pw1 list the same injuries as those that are in the plaint. The appellant submitted the injuries were soft tissue injuries and lower court awarded special damages of Kshs.8550 and general damages of Kshs.250,000/= which was inordinately high. The appellant proposed general damages of between Kshs.50,000/= and Kshs.100,000/=.
10. On quantum, the appellant relied on the case of Power Lighting Company Limited and another Versus Zakayo Saitoti Naingola & Another(2008)Eklr among other authorities.
11. The appellant urged this court to consider the appeal and set aside the trial court’s judgment and reassess the quantum based on submissions herein.
1st Respondent’s Submissions:
12. The 1st respondent filed submissions dated 28th May 2024 in which she submitted that the trial court exercised her unfetted discretion based on evidenced place before her. She submitted that it is trite law that the exercise of judicial discretion is not to be interfered with unless it is shown that it was exercised on the wrong principle. The 1st respondent relied on the decision in Ratnam Vs. Cumarasamy & Another ALL ELR(1964) VOLUME 3 AT pg 933. The respondent urged this court to dismiss the appeal with costs.
13. I have carefully considered the grounds of appeal, the evidence adduced before the learned trial magistrate as well as the parties’ rival written submissions. I have also read the Judgment of the trial court. I find that the issues for determination is on Quantum/Damages awarded and whether or not this court should interfere with the award.
Analysis and Determination
14. Being a first appeal the court relies on a number of principles as set out in Selle and Another vs Associated Motor Boat Company Ltd & others [1968] 1EA 123:“…this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”
15. A court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.” (see also Law Ja Kneller & Hancox Ag Jja In Mkube vs Nyamuro [1983] KLR, 403-415, AT 403)
16. The question is whether this court should interfere with the damages awarded by the trial court. As stated above, the discretion in assessing general damages payable will only be disturbed if the trial court took into account an irrelevant fact or failed to take into account a relevant factor or that the award is so inordinately high that it must be wholly erroneous estimate of the damages or that it was inordinately low.
17. The trial magistrate awarded Kshs.250,000/= as general damages. The appellant regards the award as inordinately high. The respondent agrees with the trial magistrate that the award is commensurate to the injuries sustained.
18. It is imperative to note that normally an award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The respondent herein sustained the following injuries; cuts and bruises on her head,face,right ear,right side shoulders and right leg..
19. The medical report by PW1 Dr. George Mwaura Kungu confirmed that the respondent herein suffered multiple soft tissue injuries. The Doctor noted the injuries as set out in the plaint.
20. The Court of Appeal observed in Simon Taveta vs Mercy Mutitu Njeru [2014] eKLR stated:“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”
21. Considering the injuries sustained by the respondent and keeping in mind that no injuries can be completely similar and further time and inflation; I find that the trial court was properly guided by the authorities cited before her and arrived at a reasonable assessment of general damages. The learned trial magistrate cannot be faulted as the award is neither too low nor too high in the circumstances.
22. Turning to the award of special damages, I note that they were all specifically pleaded and strictly proved in evidence. There award was well founded on the trite law that special damages must be specifically pleaded and proved. I have no reason to upset the finding in special damages.
23. Conclusion:
I find that the appeal lacks merit and is hereby dismissed.
Costs of the Appeal awarded at ksh 50,000 all inclusive
Dated signed and delivered virtually this 30th day of July 2024
Wendy kagendo
Judge