1. The appellant filed the appeal herein against the decision of Hon D. Mac’andere (SRM )delivered on 29.6.23 .
2. On 6.6.24, this matter came up for directions and Miss Koko for the respondent proposed that the Judgments in Kisii High court Civil appeals E070 of 2023 and E072 of 2023 be adopted as Judgments herein as they are sister files to this file . Miss Ogato for the Appellant opposed the said application saying they were aggrieved by the said Judgments . Miss Koko responded that no appeal was filed against the said decisions .
3. The judgments in Kisii High court Civil appeals E070 of 2023 and E072 of 2023 were delivered hon justice Hedwig Ongudi on 12.3.24 and the result was that the appeals were dismissed with costs to the respondent while the cross appeals were allowed and liability of 80:20 was set aside and liability was entered at 100% in favour of the respondent against the appellant . The said appeals were sister files to the instant appeal as the cause of action and appellant were the same .
Res judicata
4. Section 7 of the Civil procedure Act provides ‘’No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
5. Section 7 of the Civil procedure Act bars courts from hearing and determining matters where a court of competent jurisdiction has pronounced its self over the same matter between the same parties . The appellant says that they were aggrieved by the said Judgments but Section 7 and explanation 2 of the Act is clear that the principle of Res judicata principle stands despite there being a right of appeal . No stay orders have been served upon this court from the court of appeal .
6. Section 7 of the CPA was enacted to provide for uniformity , good order , and to avoid occasions Judicial embarrassment by having divergent decisions in different matter involving the same parties and same subject matter. I dismiss the argument by the appellant
7. In the upshot the Judgments in Kisii High court Civil appeals E070 of 2023 and E072 of 2023 on liability at 100 % is adopted . The appeal on liability is dismissed while the cross- appeal is allowed .I proceed enter judgment on liability in favour of the respondent against the appellant at 100% .
8. On the issue of quantum the respondent pleaded that he sustained the following injuries :
a. Head Injuries.
b. Chest in juries .
c. Bruises on the right and left hand ,
d. Bruises on the right and left limbs.
Dr Morebu Peter in his report dated 10. 11.23 confirmed the said injuries and found that the respondent is now unable to carry on his hobby of walking daily as a result of the accident herein.
9. The appellant relied on the case of Kenya Breweries Limited vs Abraham Liam Kisii HCCA No. 23 of 2003 which was cited with approval by the Court of Appeal in the case of Mohamed Musa & Another v Peter ZM Mailany & Another Civil Appeal no. 243 of 1998 where it was held that ‘’ The plaintiff cannot expect the court to make an award without any basis , The court can only award a sum of money an injustice to the defendant as well as to the plaintiffs that the sum must be commensurate with the injuries suffered . The onus lies with the plaintiff to adduce evidence to enable the court make calculations or reach a conclusion thereon otherwise the award cannot stand ‘’ The appellant submitted that the respondent sustained minor soft tissue injuries and suggested general damages in the sum of Kshs 50,000/= . Counsel cited the case of HB (a MInor suing through mother & next friend DMK ) vs Jasper Nchonga Magari and anothers (2021 ) eKLR where the court upheld an award of kshs 60,000/= where the plaintiff sustained blunt injury to the head , neck , thorax and abdomen and limbs . He beseeched this Court to allow the appeal . The respondent t filed submissions dated 24.11.23 through Ochoki and Co Advocates and submitted that the award of general damages in the sum of Kshs. 350,000/= was adequate and he relied on the case of Fred Baraza Matayo vs Channan Agricultural Contractors (2013) eKLR . Dickson Ndungu vs Theresia otieno & 4 others .
10. I have considered the submissions of quantum by both counsel and the only issue arising for determination is whether the general damages were excessive .
11. I have seen the case of Eliezer Kiplimo Keronei & Another =vs= Sally Jepkemboi (2019) eKLR, the claimant was awarded a sum of kshs.250,000/= as general damages for soft tissue injuries which included inter alia:
· Blunt trauma to the neck
· Blunt trauma to the lumbo-social spine
· Swollen knees and legs
The aforesaid amount was reduced on appeal to ksh.150,000/=.
12. In the case of Tahmeed Transporters Ltd & another v Simiyu (Civil Appeal E017 of 2022) [2023] KEHC 4084 (KLR) (4 May 2023) (Judgment) where the respondent sustained Blunt injury to the head chest,Bruises and Blunt injury to the upper limb, Bruises and Blunt injury to the right hip, Bruises and Blunt injury to the right thigh andBruises and Blunt injury to the right knee. The respondent was awarded Kshs 300,000/= by the lower court but this was reduced to Kshs . 150,000/= on appeal .
13. I have also seen Kisii Civil appeal no E070 of 2023 Elias Kayanga Moturi and Another vs Dolphine Kwamboka Obara where Lady Justice Ongudi upheld an award of Kshs. 280,000/= for deep cut wounds on the lower chin, chest contusion, Bruises on the leg , , Blunt trauma to the back , Bruises on the right forearm .Bruises on the left leg and bruises on the left forearm .
14. In Kisii HCCA E073 0f 2023 11. In the case of Elias Kayanga Moturi and Another vs Charles Omuko Mose the respondent suffered deep cut wound on the frontal region, multiple bruises on the left lower limb, bruises on the left and right elbow , multiple bruises on the right lower limb and he was awarded general damages in the sum of Kshs 350,000/= which was upheld on appeal .
15. I have carefully looked into the issue of quantum by considering the nature of the injuries sustained by the respondent, the recent awards for similar injuries and the resultant inability of the respondent to continue with his his hobby of walking as a result of the said injuries.
16. The current of awards of general; damages for soft tissue injuries is between Kshs 150,000/=-350,000/= considering the peculiar circumstances of each case . I find that the general damages awarded by the learned magistrate at Kshs 350,000/= was not excessive but adequate .
17. I proceed to uphold the general damages in the sum of Kshs 350,000/= Costs to the respondent .
Delivered Virtually Via teams Platform the presence of :
CA : OIGO
Koko for the respondent
N/A for appellant
2. On 6.6.24, this matter came up for directions and Miss Koko for the respondent proposed that the Judgments in Kisii High court Civil appeals E070 of 2023 and E072 of 2023 be adopted as Judgments herein as they are sister files to this file . Miss Ogato for the Appellant opposed the said application saying they were aggrieved by the said Judgments . Miss Koko responded that no appeal was filed against the said decisions .
3. The judgments in Kisii High court Civil appeals E070 of 2023 and E072 of 2023 were delivered hon justice Hedwig Ongudi on 12.3.24 and the result was that the appeals were dismissed with costs to the respondent while the cross appeals were allowed and liability of 80:20 was set aside and liability was entered at 100% in favour of the respondent against the appellant . The said appeals were sister files to the instant appeal as the cause of action and appellant were the same .
Res judicata
4. Section 7 of the Civil procedure Act provides ‘’No court shall try any suit or issue in which the matter directly and substantially in issue has been directly and substantially in issue in a former suit between the same parties, or between parties under whom they or any of them claim, litigating under the same title, in a court competent to try such subsequent suit or the suit in which such issue has been subsequently raised, and has been heard and finally decided by such court.Explanation. — (1) The expression "former suit" means a suit which has been decided before the suit in question whether or not it was instituted before it.Explanation. — (2) For the purposes of this section, the competence of a court shall be determined irrespective of any provision as to right of appeal from the decision of that court.Explanation. — (3) The matter above referred to must in the former suit have been alleged by one party and either denied or admitted, expressly or impliedly, by the other.Explanation. — (4) Any matter which might and ought to have been made ground of defence or attack in such former suit shall be deemed to have been a matter directly and substantially in issue in such suit.Explanation. — (5) Any relief claimed in a suit, which is not expressly granted by the decree shall, for the purposes of this section, be deemed to have been refused.
5. Section 7 of the Civil procedure Act bars courts from hearing and determining matters where a court of competent jurisdiction has pronounced its self over the same matter between the same parties . The appellant says that they were aggrieved by the said Judgments but Section 7 and explanation 2 of the Act is clear that the principle of Res judicata principle stands despite there being a right of appeal . No stay orders have been served upon this court from the court of appeal .
6. Section 7 of the CPA was enacted to provide for uniformity , good order , and to avoid occasions Judicial embarrassment by having divergent decisions in different matter involving the same parties and same subject matter. I dismiss the argument by the appellant
7. In the upshot the Judgments in Kisii High court Civil appeals E070 of 2023 and E072 of 2023 on liability at 100 % is adopted . The appeal on liability is dismissed while the cross- appeal is allowed .I proceed enter judgment on liability in favour of the respondent against the appellant at 100% .
8. On the issue of quantum the respondent pleaded that he sustained the following injuries :
a. Head Injuries.
b. Chest in juries .
c. Bruises on the right and left hand ,
d. Bruises on the right and left limbs.
Dr Morebu Peter in his report dated 10. 11.23 confirmed the said injuries and found that the respondent is now unable to carry on his hobby of walking daily as a result of the accident herein.
9. The appellant relied on the case of Kenya Breweries Limited vs Abraham Liam Kisii HCCA No. 23 of 2003 which was cited with approval by the Court of Appeal in the case of Mohamed Musa & Another v Peter ZM Mailany & Another Civil Appeal no. 243 of 1998 where it was held that ‘’ The plaintiff cannot expect the court to make an award without any basis , The court can only award a sum of money an injustice to the defendant as well as to the plaintiffs that the sum must be commensurate with the injuries suffered . The onus lies with the plaintiff to adduce evidence to enable the court make calculations or reach a conclusion thereon otherwise the award cannot stand ‘’ The appellant submitted that the respondent sustained minor soft tissue injuries and suggested general damages in the sum of Kshs 50,000/= . Counsel cited the case of HB (a MInor suing through mother & next friend DMK ) vs Jasper Nchonga Magari and anothers (2021 ) eKLR where the court upheld an award of kshs 60,000/= where the plaintiff sustained blunt injury to the head , neck , thorax and abdomen and limbs . He beseeched this Court to allow the appeal . The respondent t filed submissions dated 24.11.23 through Ochoki and Co Advocates and submitted that the award of general damages in the sum of Kshs. 350,000/= was adequate and he relied on the case of Fred Baraza Matayo vs Channan Agricultural Contractors (2013) eKLR . Dickson Ndungu vs Theresia otieno & 4 others .
10. I have considered the submissions of quantum by both counsel and the only issue arising for determination is whether the general damages were excessive .
11. I have seen the case of Eliezer Kiplimo Keronei & Another =vs= Sally Jepkemboi (2019) eKLR, the claimant was awarded a sum of kshs.250,000/= as general damages for soft tissue injuries which included inter alia:
· Blunt trauma to the neck
· Blunt trauma to the lumbo-social spine
· Swollen knees and legs
The aforesaid amount was reduced on appeal to ksh.150,000/=.
12. In the case of Tahmeed Transporters Ltd & another v Simiyu (Civil Appeal E017 of 2022) [2023] KEHC 4084 (KLR) (4 May 2023) (Judgment) where the respondent sustained Blunt injury to the head chest,Bruises and Blunt injury to the upper limb, Bruises and Blunt injury to the right hip, Bruises and Blunt injury to the right thigh andBruises and Blunt injury to the right knee. The respondent was awarded Kshs 300,000/= by the lower court but this was reduced to Kshs . 150,000/= on appeal .
13. I have also seen Kisii Civil appeal no E070 of 2023 Elias Kayanga Moturi and Another vs Dolphine Kwamboka Obara where Lady Justice Ongudi upheld an award of Kshs. 280,000/= for deep cut wounds on the lower chin, chest contusion, Bruises on the leg , , Blunt trauma to the back , Bruises on the right forearm .Bruises on the left leg and bruises on the left forearm .
14. In Kisii HCCA E073 0f 2023 11. In the case of Elias Kayanga Moturi and Another vs Charles Omuko Mose the respondent suffered deep cut wound on the frontal region, multiple bruises on the left lower limb, bruises on the left and right elbow , multiple bruises on the right lower limb and he was awarded general damages in the sum of Kshs 350,000/= which was upheld on appeal .
15. I have carefully looked into the issue of quantum by considering the nature of the injuries sustained by the respondent, the recent awards for similar injuries and the resultant inability of the respondent to continue with his his hobby of walking as a result of the said injuries.
16. The current of awards of general; damages for soft tissue injuries is between Kshs 150,000/=-350,000/= considering the peculiar circumstances of each case . I find that the general damages awarded by the learned magistrate at Kshs 350,000/= was not excessive but adequate .
17. I proceed to uphold the general damages in the sum of Kshs 350,000/= Costs to the respondent .
Delivered Virtually Via teams Platform the presence of :
CA : OIGO
Koko for the respondent
N/A for appellant