1) The learned trial court erred by overestimating, misapprehending and misunderstanding the extent of the injuries therein so as to reach an overly high and unreasonable award in general damages.
2) The learned trial court erred by failing to consider with a fair measure the submissions of the defendant in writing the judgment.
3) The learned trial court erred in the evaluation of evidence before it and disregarded important elements of the evidence, principles and practice thus reaching an award on quantum so inordinately high in the circumstances.
2. The appellant seeks that :
i. This appeal be allowed and the lower courts judgment be set aside in its entirety;
ii. The award of the quantum be set aside and vacated and a fresh award based on the proper application of the law, evidence, facts and principles be entered.
iii. This court does award costs in this application and in the lower court to the appellant.
3. The background to the appeal is that on 15/7/2021 the plaintiff/respondent was a lawful passenger upon motorcycle registration number KMFM 421B along Kabaa/Mbiuni road when motor vehicle registration number KCU 315S driven by the defendant/appellant or his servant or agent, was so negligently driven that it collided with the motor cycle leading to an accident.
4. She sustained the following injuries as pleaded in her plaint.
i. Proximal right femur hairline fracture
ii. Deep cut wound on the right knee
iii. Multiple lacerations on the right lower limb below the knee joint.
5. She suffered loss and damage and filed suit in Kilungu PMCC E015 of 2022 for general damages for pain and suffering, special damages, costs and interest.
6. On 7/9/2022 parties entered into a consent on liability at 80%:20% in favour of the plaintiff.
7. On 3/11/2022 the learned trial magistrate in his judgment assessed general damages viz:-
General damages Kshs. 500,000/=
Special damages at Kshs. 35,840/=
Total Kshs. 435,840/=
8. The appellant was aggrieved and filed this appeal.
9. Parties proceeded by way of written submissions.
10. The only issue for determination is whether the award for general damages was contrary to the laid down principles to warrant disturbance by this court.
11. This court is alive to the principle that assessment and award of general damages is an exercise of the discretion of the trial court and the award will only be disturbed when it was made pursuant to wrong principles, and it is too high or too low in the circumstances of the case. It is not for the appellate court to simply replace the award of the subordinate court with its own.
12. For the appellant it was submitted that the evidence available for the assessment of damages were the medical reports – one from Dr. Ndeti, the other from Dr. Wambugu.
13. It is submitted that the learned trial magistrate in the Judgment, made the following observations:-
The doctor opined that the plaintiff suffered grievous harm. That she sustained soft tissue and skeletal injuries with complete healing anticipated. The medical report by Dr. Wambugu P.M filed by the defendant confirmed the injuries suffered by the plaintiff herein. In his prognosis, Dr. Wambugu P.M stated that the plaintiff’s injuries were consistent with those due to blunt trauma which may have occurred during the accident. That she sustained soft tissue injuries from which she has since made adequate recovery. That the remnant scar is of cosmetic significance. That no total permanent incapacitation occurred. That plaintiff submitted for an award of Kshs. 200,000/=. The defendant on the other submitted for an award of Kshs. 100,000/=. I have gone through the cases referred to by each advocate, all the referred cases were recently concluded.
14. It is submitted that, however, in arriving at the award the court stated that the plaintiff sustained the following injuries:-
Compound fracture of the tibia/fibula bones on the right leg.
i. Deep cut wound and tissue damage to the right leg.
ii. Head injury with cut wound on the nose
iii. Blunt chest injury
iv. Soft tissue injuries on the left lower limb involving the high ankle joint.
15. That the learned trial magistrate clearly took into consideration the wrong facts because the injuries that were sustained by the plaintiff respondent herein were not the ones the trial court relied on to arrive at the award.
16. For the respondent – it was conceded that the respondent sustained the injuries that were pleaded:
i. Proximal right femur hairline fracture
ii. Deep cut wound on the knee
iii. Multiple lacerations on the right lower limb below the knee joint
17. He observed that the doctors were of the following opinions: -
The doctor opined that the respondent-minor suffered grievous harm and that she sustained soft tissue and skeletal injuries with complete healing anticipated where he made reference to the client’s history and physical examination, referral note from St. Joseph Dispensary Kabaa, hospital follow up card from Mwala sub-county hospital, P3 form and other documents that form part of the respondent’s bundle of documents.
Further, the appellant herein produced a medical report by Dr. Wambugu P.M which confirmed the injuries suffered by the respondent herein and in his prognosis, Dr. Wambugu P.M stated that the plaintiff sustained with those due to blunt trauma which may have occurred during the accident. He confirmed the injuries sustained as deep laceration wound right knee, multiple bruises and alleged hairline fracture right femur involving the proximal third which in his opinion were injuries sustained from a road traffic accident.
18. I have perused the submissions by the parties before the learned trial court. It is evident that the respondent submitted for general damages of Kshs.800,000/= while the respondent submitted for general damages of Kshs.100,000/=.
19. The respondent relied on the following authorities :
Edward Mutevu Maithya & Another v Edwin Nyamweya [2022] e KLR where the appellate court allowed the appeal, and set aside an award of Kshs.550,000/= by substituting it with Kshs.100,000/=. The plaintiff/respondent had sustained soft tissue injuries that included cut wounds on the scalp; bruises on the back; bruises on the right upper limb; and bruises on the left lower limb.
Victoria Mwikali Musyoka v Lucy Mueni Mwandikwa [2021] e KLR where the appellate court found that the award made by the trial court of Kshs. 400,000/= was rather too excessive or high in a case where the claimant/respondent sustained soft tissue injuries deep cut wounds on the face deep cut wounds on the chin and deep bruises on both knees. The award given by the trial court of Kshs. 400,000/= was thus set aside and in its place an award of Kshs. 150,000/= was awarded.
Daniel Katana Ndungu & Another vs Harrison Angore Katana [2020] e KLR where the appellate court allowed the appeal, and set aside an award of Kshs. 350,000/= by substituting it with Kshs. 140,000/= taking into account the state of inflation as an additional factor. The plaintiff/respondent had sustained soft tissue injuries that included cut on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee
.
20. Looking through the plaintiff /appellant’s submissions I did not find the analysis of how the authorities cited applied to their case but simply listed three authorities as applicable.
21. I have perused each of the cases and they are clearly distinguishable as the plaintiff therein sustained far more serious injuries than the respondent herein
a. Elizaphen Mokaya Bogonko vs Fredrick Omondi Ouna (Civil Appeal E016 of 2021) The respondent pleaded that he suffered the following injuries:
i. Head injury with loss of consciousness
ii. Fracture of the right zygoma (facial bone)
iii. Multiple facial lacerations
iv. Blunt injury to the shoulders
v. Blunt injury and bruises to both lower limbs
b. Daniel Otieno Owino & Another vs Elizabeth Atieno Owuor (Civil Appeal 18 OF 2019) The respondent herein sustained the following injuries:
a. Compound fracture of tibia and fibula bones of the right leg
b. Deep cut wound and tissue damage of the right leg
c. Head injury with cut wound on the nose
d. Blunt chest injuries
e. Soft tissue injury on the lower left leg
c. Amazon Energy Limited vs Patrick Gathogo Gathomi (Civil Appeal 59 of 2017) the respondent sustained personal injuries involving comminuted fracture of the proximal right femur, several cut wounds on the left upper back and shoulder and 3cm cut wound on the right forehead near the hairline.
22. Before me the respondent has cited the following cases:-
Vincent Mbogholi vs Harrison Tunje Chiyalya 9(2017) e KLR, where the appellate court declined to disturb an award of kshs.500,000.00 for a fracture of the left tibia leg bone (medial malleolus), blunt injury to the chest and left lower limb and bruises on the left forearm, right foot and right big toe.
David Mutembei vs Maurice Ochieng Odoyo(2019) e KLR, where the respondent suffered injuries of a fracture of the right femur and a proximal fracture of the left tibia. On appeal, the respondent was awarded kshs. 800,000/=.
Mary Pamela Oyioma vs Yess Holdings Limited (2011) e KLR, where the court awarded Kshs.900,000/= in general damages for comminuted fracture of the right femur, compound fracture of the left tibia, soft tissue injuries of the right shoulder and multiple cut wounds all over the body.
Francis Maina Kahura vs Nahashon Wanjau Muriithi (2015) e KLR, where the respondent suffered a segmental fracture of the mid-shaft right femur and a cut wound on the right knee. General damages awarded was Kshs.500,00/=.
23. I have carefully considered all these authorities. Guided by Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini vs AM Lubia and Olive Lubia 91982 – 88) I KAR 727 at p. 730 where Kneller J.A said: -
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former court of appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, 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 the damage, see IIango vs Manyoka [1961] EA 705, 709, 713, Lukenya Ranching and Farming Co-operatives Society Ltd bs Kavoloto [1970] EA 414, 418, 419.
24. And in Gicheru vs Morton and Another (2005) 2 KLR 333 the court stated:
“In order to justify reversing the trial judge on the question on the amount of damages it was generally necessary that the court of appeal should be convinced either that the judge acted upon some wrong principle or law, or that the amount awarded was so extremely high or so very small as to make it, in the judgment of the court an entirely erroneous estimate of the damage to which the appellant was entitled.”See also Major General Peter. M. Kariuki vs Attorney General – Civil Appeal No. 79 of 2012.
25. It is evident that the foregoing set out the law and the guiding principles which I am bound to apply in the determination of this appeal. It is my finding that the learned trial court took into consideration the wrong facts with regard to the respondent’s injuries – and hence proceeded to award the wrong award in damages. - an award that was not based on the presented facts.
26. In addition, he did not consider the submissions that provided guidance on the comparable awards , had he done so, – he would have been able to see the disparities in the injuries sustained by the plaintiff/respondent and those cited by the plaintiff in the authorities cited by counsel for the plaintiff/respondent.
27. In addition, the learned magistrate’s judgment indicates that the plaintiff/respondent had submitted for general damages of Kshs. 200,000 and the defendant/appellant for Kshs. 100,000/=. If that was the position, how then would he have arrived at an award of Kshs. 500,000/=?
28. Damages must be commensurate to the injuries sustained and supported by previous awards as seen from present. This is settled and I need not belabor the issue.
29. Was the award herein excessive? The answer would be yes – as it was on the wrong facts, and not guided by precedent for similar injuries. The upshot is that the appeal is meritorious and it succeeds.
30. In the circumstances and based on the awards for similar injuries – the award of the trial court be and is hereby set aside and is substituted with an award of Kshs. 185,000/=.
31. Final order:
Liability 80:20
Special damages 35,840/=
General damages 185,000/= plus costs and interest below at court rates from the date of the judgment of the subordinate court.
Appellant will have the costs of the appeal.
Dated Signed and Delivered via CTS on 18th October 2024
Mumbua T Matheka
Judge
CA Ms Nelima? Ms Elizabeth
Mwangangi Nzisa& Associates for appellant
J A Makau & Advocates for the Respondent