Vide Plaint dated 11th September 2020 the Respondent sued the Appellant seeking (a). General damages
(b). Special damages of Kshs.16,170/=
(c). Costs and incidentals to the suit
(d). Interests on a, b, and c above at court rates
(e). Any other relief the court may deem fit to grant.
The Respondent’s case was based on the tort of negligence against the Appellant following a road traffic accident that occurred along Keumbu-Igare road on 9th November 2019 when the Appellant’s driver, servant or agent so negligently drove, managed and / or controlled the Appellant’s Motor Vehicle Reg. KCU 057A Isuzu NPR and caused it to hit the Respondent who sustained serious injuries and he suffered loss and damage. The Appellant was held personally and / or vicariously liable for the tortious acts of his driver.
The trial Magistrate considered the evidence on record and found the Appellant 100% liable for the accident that occasioned injuries to the Respondent and quantified general damages for the said injuries at Kshs. 500,000/= and awarded special damages at Kshs. 15,470/= together with costs and interest from the date of judgement till payment in full.
The Appellant was aggrieved by the judgment of the trial court and brought the appeal herein vide the Memorandum of Appeal dated 20th February, 2024 on the following grounds: -
i) The Honourable Court erred in law by entering judgment in favour of the Respondent whereas unrebutted evidence and material were present demonstrating that the Respondent was solely responsible.
ii) That the Trial Magistrate erred in holding the Appellant 100% liable or at all.
iii) THAT the Trial Magistrate erred in law when he awarded excessive general damages in the circumstances.
iv) THAT the Learned Trial Magistrate erred in law and fact in failing to make determination on allegations of fraud on the part of the Respondent despite the same having been specifically pleaded in the Defendant’s Ammended statement of defence.
v) THAT the Learned Trial Magistrate’s judgement was against the weight of evidence, submissions and authorities relied upon by the Appellant based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
vi) THAT the Learned Trial Magistrate erred in fact and in law in not appreciating sufficiently or at all that the Appellant had raised matters of a fundamental nature to warrant the dismissal of the suit against the Appellant.
vii) THAT the learned Trial Magistrate misdirected himself in law by making an award of general damages which were not proved to the requisite standard in law, which award was equally excessive.
viii) THAT the Learned Trial Magistrate misapprehended the principles applicable in computation of damages thus occasioning miscarriage of justice.
ix) THAT the Learned Trial Magistrate erred in law and fact by failing to properly evaluate the evidence on record thus reaching to an erroneous decision.
The Appellant proposed to ask that the court orders that:
(a). That the appeal herein be allowed and the judgment and decree of the trial magistrate dated 20th November 2023 be set aside and/ or varied.
(b). That the court be pleased to re-visit, re-assess and / or review the issue of liability and quantum of damages which is reasonable in the circumstances.
(c). That the costs of the appeal and costs of the suit in the subordinate court and the appeal be borne by the Respondent.
(d). Such further relief as the court may deem necessary.
This appeal was canvassed by way of written submissions.
The Appellants counsel in submissions dated 5th December 2024 submitted that the award of damages was excessive as compared to damages awarded in similar cases.
It was also submitted that the Respondent failed to table evidence that he went for further treatment.
The Appellant argued that the Trial Magistrate misapprehended the guiding principle in assessment of damages and the authorities he cited with similar injuries were ignored. The Court was urged to award Kshs. 350,000/= as general damages for pain and suffering.
The Respondents submissions dated 6th January 2025 sought that the appeal be dismissed with costs as the injuries sustained by the Respondent were not contested and the award is therefore reasonable and not excessive as claimed by the Appellant.
The Respondent cited the decisions in SACCO Vs Koleli [2023] KEHC 3658 (KLR) in which the appeal was dismissed and award of Kshs. 1,000,000/= made for fracture to the right tibia and fibula and the decision in Dennis Matagaro Vs NKO (Minor suing through next of friend and father WOO) [2021] KEHC (KLR) where the Respondent sustained injuries similar to those of the Respondent herein and was awarded Kshs. 700,000/= as general damages.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...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 retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that 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..."
Having considered the grounds of appeal and rival submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issue that arise for determination is whether quantum of damages awarded was inordinately high and excessive in the circumstances.
The guiding principles in the assessment of damages the principle of restoration, aiming to place the injured party in the position they would have been in had the wrongdoing not occurred. This principle is often expressed as "making whole" or "compensating for loss." Specifically, courts consider the nature of the damage, the certainty of proving the loss, and the need for mitigation to ensure a fair and just outcome.
The appellate court’s interference of the trial Court's award of damages should occur at very exceptional circumstances, especially where the trial Court acted on wrong principle of law, or misapprehended the facts, or made a wholly erroneous estimate of the damage suffered. This was the holding in the Court of Appeal decision in Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55, where it stated:
“ 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.”
Similarly in Jane Chelagat Bor vs. Andrew
Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the court said:
“ …….the Court before it interferes with an award of damages, should be satisfied
that the Judge acted on wrong principle of law, or has misapprehended the fact,
or has for these or other reasons made a wholly erroneous estimate of the damage
suered. It is not enough that there is a balance of opinion or preference. The
scale must go down heavily against the gure attacked if the appellate Court is to
interfere, whether on the ground of excess or insuffciency.”
As submitted by the Respondent the Appellant did not suggest that the trial Court misapprehended the facts on the injuries sustained by the Respondent as captured in the proceedings and pleadings in the Trial court and there was no other evidence to controvert the fact that the Respondet suffered the injuries pleaded.
This court is alive to the principle that an award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The award should be commensurate with the injuries sustained and previous awards in similar injuries should be taken into account to maintain stability of awards but factors such as inflation should be taken into account. Further similar injuries sustained are mere guide but each case should be treated on its own facts.
In consideration of the submissions of the parties at the trial court and in the appeal herein and in consideration of the proposals as to quantum of damages, injuries sustained by the Appellant and cited authorities I find that the authorities cited by the Appellant related to injuries that were suffered long before the said decisions were made and cannot therefore remain the same even where the injuries are similar as economic trends and inflation has to be factored in the quantum. This court is therefore not able to find any fault with the Trial Magistrate’s verdict in assessment of damages as the same was within the range of comparable awards made in other similar cases. The award of the said sum by the trial court was quite proper as there is no proof that the principles guiding the award of damages were misapprehended.
Based on the above reasons it is my finding that the Appellant’s appeal lacks merit and the same is dismissed with costs of the appeal to the Respondent.
Delivered dated and signed at Kisii this 30th May, 2025
(b). Special damages of Kshs.16,170/=
(c). Costs and incidentals to the suit
(d). Interests on a, b, and c above at court rates
(e). Any other relief the court may deem fit to grant.
The Respondent’s case was based on the tort of negligence against the Appellant following a road traffic accident that occurred along Keumbu-Igare road on 9th November 2019 when the Appellant’s driver, servant or agent so negligently drove, managed and / or controlled the Appellant’s Motor Vehicle Reg. KCU 057A Isuzu NPR and caused it to hit the Respondent who sustained serious injuries and he suffered loss and damage. The Appellant was held personally and / or vicariously liable for the tortious acts of his driver.
The trial Magistrate considered the evidence on record and found the Appellant 100% liable for the accident that occasioned injuries to the Respondent and quantified general damages for the said injuries at Kshs. 500,000/= and awarded special damages at Kshs. 15,470/= together with costs and interest from the date of judgement till payment in full.
The Appellant was aggrieved by the judgment of the trial court and brought the appeal herein vide the Memorandum of Appeal dated 20th February, 2024 on the following grounds: -
i) The Honourable Court erred in law by entering judgment in favour of the Respondent whereas unrebutted evidence and material were present demonstrating that the Respondent was solely responsible.
ii) That the Trial Magistrate erred in holding the Appellant 100% liable or at all.
iii) THAT the Trial Magistrate erred in law when he awarded excessive general damages in the circumstances.
iv) THAT the Learned Trial Magistrate erred in law and fact in failing to make determination on allegations of fraud on the part of the Respondent despite the same having been specifically pleaded in the Defendant’s Ammended statement of defence.
v) THAT the Learned Trial Magistrate’s judgement was against the weight of evidence, submissions and authorities relied upon by the Appellant based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.
vi) THAT the Learned Trial Magistrate erred in fact and in law in not appreciating sufficiently or at all that the Appellant had raised matters of a fundamental nature to warrant the dismissal of the suit against the Appellant.
vii) THAT the learned Trial Magistrate misdirected himself in law by making an award of general damages which were not proved to the requisite standard in law, which award was equally excessive.
viii) THAT the Learned Trial Magistrate misapprehended the principles applicable in computation of damages thus occasioning miscarriage of justice.
ix) THAT the Learned Trial Magistrate erred in law and fact by failing to properly evaluate the evidence on record thus reaching to an erroneous decision.
The Appellant proposed to ask that the court orders that:
(a). That the appeal herein be allowed and the judgment and decree of the trial magistrate dated 20th November 2023 be set aside and/ or varied.
(b). That the court be pleased to re-visit, re-assess and / or review the issue of liability and quantum of damages which is reasonable in the circumstances.
(c). That the costs of the appeal and costs of the suit in the subordinate court and the appeal be borne by the Respondent.
(d). Such further relief as the court may deem necessary.
This appeal was canvassed by way of written submissions.
The Appellants counsel in submissions dated 5th December 2024 submitted that the award of damages was excessive as compared to damages awarded in similar cases.
It was also submitted that the Respondent failed to table evidence that he went for further treatment.
The Appellant argued that the Trial Magistrate misapprehended the guiding principle in assessment of damages and the authorities he cited with similar injuries were ignored. The Court was urged to award Kshs. 350,000/= as general damages for pain and suffering.
The Respondents submissions dated 6th January 2025 sought that the appeal be dismissed with costs as the injuries sustained by the Respondent were not contested and the award is therefore reasonable and not excessive as claimed by the Appellant.
The Respondent cited the decisions in SACCO Vs Koleli [2023] KEHC 3658 (KLR) in which the appeal was dismissed and award of Kshs. 1,000,000/= made for fracture to the right tibia and fibula and the decision in Dennis Matagaro Vs NKO (Minor suing through next of friend and father WOO) [2021] KEHC (KLR) where the Respondent sustained injuries similar to those of the Respondent herein and was awarded Kshs. 700,000/= as general damages.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...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 retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that 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..."
Having considered the grounds of appeal and rival submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issue that arise for determination is whether quantum of damages awarded was inordinately high and excessive in the circumstances.
The guiding principles in the assessment of damages the principle of restoration, aiming to place the injured party in the position they would have been in had the wrongdoing not occurred. This principle is often expressed as "making whole" or "compensating for loss." Specifically, courts consider the nature of the damage, the certainty of proving the loss, and the need for mitigation to ensure a fair and just outcome.
The appellate court’s interference of the trial Court's award of damages should occur at very exceptional circumstances, especially where the trial Court acted on wrong principle of law, or misapprehended the facts, or made a wholly erroneous estimate of the damage suffered. This was the holding in the Court of Appeal decision in Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55, where it stated:
“ 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.”
Similarly in Jane Chelagat Bor vs. Andrew
Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the court said:
“ …….the Court before it interferes with an award of damages, should be satisfied
that the Judge acted on wrong principle of law, or has misapprehended the fact,
or has for these or other reasons made a wholly erroneous estimate of the damage
suered. It is not enough that there is a balance of opinion or preference. The
scale must go down heavily against the gure attacked if the appellate Court is to
interfere, whether on the ground of excess or insuffciency.”
As submitted by the Respondent the Appellant did not suggest that the trial Court misapprehended the facts on the injuries sustained by the Respondent as captured in the proceedings and pleadings in the Trial court and there was no other evidence to controvert the fact that the Respondet suffered the injuries pleaded.
This court is alive to the principle that an award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. The award should be commensurate with the injuries sustained and previous awards in similar injuries should be taken into account to maintain stability of awards but factors such as inflation should be taken into account. Further similar injuries sustained are mere guide but each case should be treated on its own facts.
In consideration of the submissions of the parties at the trial court and in the appeal herein and in consideration of the proposals as to quantum of damages, injuries sustained by the Appellant and cited authorities I find that the authorities cited by the Appellant related to injuries that were suffered long before the said decisions were made and cannot therefore remain the same even where the injuries are similar as economic trends and inflation has to be factored in the quantum. This court is therefore not able to find any fault with the Trial Magistrate’s verdict in assessment of damages as the same was within the range of comparable awards made in other similar cases. The award of the said sum by the trial court was quite proper as there is no proof that the principles guiding the award of damages were misapprehended.
Based on the above reasons it is my finding that the Appellant’s appeal lacks merit and the same is dismissed with costs of the appeal to the Respondent.
Delivered dated and signed at Kisii this 30th May, 2025