1. The Appellant, who was the Plaintiff before the trial court, instituted a claim seeking general damages, special damages, costs and interest following a road traffic accident involving motorcycle registration numbers KMDY 186U and KMEZ 188U.
2. The Respondent neither entered appearance nor filed a defence, interlocutory judgment was entered, and the matter proceeded by way of formal proof.
3. Upon hearing the Appellant's evidence, the trial court awarded KES.10,000 as general damages and KES.3,350 as special damages together with costs and interest.
4. Dissatisfied with the assessment of general damages, the Appellant lodged the present appeal, contending that the trial court failed to consider his written submissions and consequently made an award of KES 10,000 that was inordinately low in light of the injuries sustained and comparable authorities.
5. As a first appellate court, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was articulated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held that a first appellate court must re-evaluate the evidence afresh and draw its own conclusions, while giving due allowance for the fact that it did not have the advantage of seeing and hearing the witnesses testify.
6. The medical evidence on record leaves no doubt as to the injuries sustained by the Appellant. The treatment notes from Keroka Sub-County Hospital, the P3 Form dated 08th January 2020 and the medical report prepared by Dr. Cyprianus Okere on 25th February 2020 consistently show that the Appellant sustained bruises on the left leg, recurrent pain on the left leg and bruised scars on the left lower leg following the road traffic accident. Dr. Okere classified the injuries as harm, noted that the Appellant had been managed conservatively without surgery, and observed that he continued to experience recurrent pain and residual bruised scars. The evidence disclosed no fractures, permanent incapacity or permanent disability.
7. The circumstances in which an appellate court may interfere with an award of damages are well settled. In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR), the Court of Appeal held that interference is justified where the trial court acted on wrong principles, took into account an irrelevant factor, failed to take into account a relevant factor, or arrived at an award that is so inordinately high or low as to represent an entirely erroneous estimate of the damage suffered. Those principles govern the determination of this appeal.
8. Applying those principles to the present appeal, I am satisfied that this is a proper case for appellate intervention. The learned trial magistrate failed to consider the Appellant's written submissions dated 05th October 2024 in which he urged the trial court to award KES 400,000 as general damages.
9. The injuries proved comprised bruises on the left leg, recurrent pain on the left leg and bruised scars on the left lower leg. Although they were soft tissue injuries and were not accompanied by fractures or permanent disability, they were not trivial. The medical evidence confirmed persistent pain and residual scarring, both of which are compensable injuries. An award of KES 10,000 did not fairly compensate the Appellant for the pain, suffering and loss of amenities arising from those injuries and was manifestly low in the circumstances.
10. In reassessing damages, this Court is guided by the principle that comparable injuries should, as far as possible, attract comparable awards while making allowance for the particular circumstances of each case. In Arrow Car Ltd v Bimomo & 2 others [2004] KECA 136 (KLR) , the Court of Appeal upheld an award of KES 150,000 to claimants who had sustained soft tissue injuries comprising sprains, lacerations, recurrent pain, swelling and scarring. The injuries in that case were more extensive than those sustained by the Appellant, but the decision nevertheless provides useful guidance because it involved comparable soft tissue injuries with residual pain and scarring.
11. Having independently re-evaluated the evidence and considered the applicable authorities, I find that an award of KES 150,000 constitutes fair and reasonable compensation for the Appellant's injuries.
12. The award of special damages in the sum of KES 3,350 was specifically pleaded and strictly proved by documentary evidence produced at the trial. There is consequently no basis for disturbing that award.
13. In the result, the appeal succeeds on quantum. The award of KES 10,000 as general damages is hereby set aside and substituted with an award of KES 150,000. The award of KES 3,350 as special damages is affirmed.
14. The Appellant shall have the costs of the appeal together with interest on the general and special damages at court rates
2. The Respondent neither entered appearance nor filed a defence, interlocutory judgment was entered, and the matter proceeded by way of formal proof.
3. Upon hearing the Appellant's evidence, the trial court awarded KES.10,000 as general damages and KES.3,350 as special damages together with costs and interest.
4. Dissatisfied with the assessment of general damages, the Appellant lodged the present appeal, contending that the trial court failed to consider his written submissions and consequently made an award of KES 10,000 that was inordinately low in light of the injuries sustained and comparable authorities.
5. As a first appellate court, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was articulated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held that a first appellate court must re-evaluate the evidence afresh and draw its own conclusions, while giving due allowance for the fact that it did not have the advantage of seeing and hearing the witnesses testify.
6. The medical evidence on record leaves no doubt as to the injuries sustained by the Appellant. The treatment notes from Keroka Sub-County Hospital, the P3 Form dated 08th January 2020 and the medical report prepared by Dr. Cyprianus Okere on 25th February 2020 consistently show that the Appellant sustained bruises on the left leg, recurrent pain on the left leg and bruised scars on the left lower leg following the road traffic accident. Dr. Okere classified the injuries as harm, noted that the Appellant had been managed conservatively without surgery, and observed that he continued to experience recurrent pain and residual bruised scars. The evidence disclosed no fractures, permanent incapacity or permanent disability.
7. The circumstances in which an appellate court may interfere with an award of damages are well settled. In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR), the Court of Appeal held that interference is justified where the trial court acted on wrong principles, took into account an irrelevant factor, failed to take into account a relevant factor, or arrived at an award that is so inordinately high or low as to represent an entirely erroneous estimate of the damage suffered. Those principles govern the determination of this appeal.
8. Applying those principles to the present appeal, I am satisfied that this is a proper case for appellate intervention. The learned trial magistrate failed to consider the Appellant's written submissions dated 05th October 2024 in which he urged the trial court to award KES 400,000 as general damages.
9. The injuries proved comprised bruises on the left leg, recurrent pain on the left leg and bruised scars on the left lower leg. Although they were soft tissue injuries and were not accompanied by fractures or permanent disability, they were not trivial. The medical evidence confirmed persistent pain and residual scarring, both of which are compensable injuries. An award of KES 10,000 did not fairly compensate the Appellant for the pain, suffering and loss of amenities arising from those injuries and was manifestly low in the circumstances.
10. In reassessing damages, this Court is guided by the principle that comparable injuries should, as far as possible, attract comparable awards while making allowance for the particular circumstances of each case. In Arrow Car Ltd v Bimomo & 2 others [2004] KECA 136 (KLR) , the Court of Appeal upheld an award of KES 150,000 to claimants who had sustained soft tissue injuries comprising sprains, lacerations, recurrent pain, swelling and scarring. The injuries in that case were more extensive than those sustained by the Appellant, but the decision nevertheless provides useful guidance because it involved comparable soft tissue injuries with residual pain and scarring.
11. Having independently re-evaluated the evidence and considered the applicable authorities, I find that an award of KES 150,000 constitutes fair and reasonable compensation for the Appellant's injuries.
12. The award of special damages in the sum of KES 3,350 was specifically pleaded and strictly proved by documentary evidence produced at the trial. There is consequently no basis for disturbing that award.
13. In the result, the appeal succeeds on quantum. The award of KES 10,000 as general damages is hereby set aside and substituted with an award of KES 150,000. The award of KES 3,350 as special damages is affirmed.
14. The Appellant shall have the costs of the appeal together with interest on the general and special damages at court rates