(Being an Appeal from the judgment of Honourable Nathan Shiundu Lutta- Chief Magistrate delivered on 31.08.2021 in Kisii MCC NO.491 OF 2018)
1. The appellant appealed liability and quantum. However, in his submissions he abandoned the issue of liability and opted to pursue quantum only.
2. This is a first appellate court and its duty is to re-evaluate the entire evidence on record and arrive at its own determination bearing in mind that it did not see the witnesses during their testimony as was held in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co Advocates [2013] eKLR3. The respondent pleaded soft tissue injuries on the;
a. Right shoulder dislocation
b. Multiple injuries on the face
c. Multiple injuries on the scalp.
d. Multiple deep cut wounds on the scalp
4. The injuries were supported by the evidence of PW1, the P3 form (Pexh 3) and the medical report (Pexh 6). Dw1 Dr Jennifer Kahuthu re-examined the respondent and differed and noted that he did not sustain the shoulder dislocation injury. She said she saw the initial treatment notes of the plaintiff and noted that the dislocation was not indicated. Also, that the X-ray was not availed to her. She concluded in her report (Dexh 1) that the patient did not sustain dislocation. I have also looked at the evidence and I note that the initial treatment notes from Kisii County Referral Hospital were not produced in the lower court. The initial treatment notes form the basis of the injuries sustained by any patient. The X-ray films were also not produced to support the alleged dislocation. I find that plaintiff sustained soft tissue injuries of the face and scalp only and not a dislocation. The dislocation injury was thus an exaggeration. The trial magistrate thus erred finding that the respondent sustained dislocation injury.
5. On general damages the trial magistrate awarded Ksh. 200,000/= considering the alleged dislocation. Appellant submitted that the award was excessive since no dislocation injury was sustained. He proposed general damages in the sum of Ksh. 100,000/= and relied on the case of Eva Karemi & 5 others vs Koskei and another (2020) eKLR where the plaintiffs were awarded general damages of between Ksh. 40,000/= -70,000/= for soft tissue injuries. The respondent submitted that the trial magistrate was right in awarding the general damages in the sum of Kshs. 200,000/= which was commensurate with the injuries sustained and that the respondent sustained a dislocation and soft tissue injuries. He cited on the case of B.M Security vs James Kisii High Court Civil Appeal no. 125 of 2021 Olongumot Musaya where the respondent was awarded general damages in the sum of Ksh 3,000,000/= for soft tissue injuries and 2 fractures.
6. In the case of Kenya Power Lighting Company limited & another -versus- Zakayo Saitoti Naingola & another (2008) eKLR. Where court held that “the court has to bear in mind the following principles on assessment of damages; 1. Damages should not be inordinately too high or too low 2. They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered. 3. Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts. 4. Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan Shillings, then at the time of the judgment’’.
7. On whether this court should disturb the award on general damages, in the case of Kemfro Africa Limited T/A Meru Express Services, Gathongo Kanini versus A.M. Lubia and Olive Lubia, decided by the Court of Appeal on 27th day of February 1985. The court of appeal held inter alia that “ the principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either 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 high that it must be a wholly erroneous estimate of the damages”.
8. I have considered the nature of the injuries sustained by the respondent, the recent comparable cases, the cited cases, the inflation and all the necessary factors. The injuries in the case of Olongumot case are not comparable to the injuries in the instant case as the respondent herein sustained soft tissue injuries while in the said case the respondents sustained are both fractures and soft tissue injuries which are severe. It is my considered view that general damages in the sum of Ksh. 100,000/= is adequate in this case. The trial magistrate thus erred in awarding general damages in the sum of Ksh. 200,000/= and I proceed to substitute it with Ksh. 100,000/=.
9. In the upshot I proceed to enter judgment in favour of the respondent against the appellant as follows:
a. General damages in the sum of Ksh. 100,000/=.
b. Costs of this appeal in the sum of Kshs. 20,000/=,
c. Costs in the lower court case,
d. Special damages in the sum of Ksh.12,170/=
e. Interests on (a), (c) & (d) at court rates from the date of the Judgment of the lower court till payment in full.
f. Interest on (b) from the date of this Judgment.
10. It is so ordered.
1. The appellant appealed liability and quantum. However, in his submissions he abandoned the issue of liability and opted to pursue quantum only.
2. This is a first appellate court and its duty is to re-evaluate the entire evidence on record and arrive at its own determination bearing in mind that it did not see the witnesses during their testimony as was held in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co Advocates [2013] eKLR3. The respondent pleaded soft tissue injuries on the;
a. Right shoulder dislocation
b. Multiple injuries on the face
c. Multiple injuries on the scalp.
d. Multiple deep cut wounds on the scalp
4. The injuries were supported by the evidence of PW1, the P3 form (Pexh 3) and the medical report (Pexh 6). Dw1 Dr Jennifer Kahuthu re-examined the respondent and differed and noted that he did not sustain the shoulder dislocation injury. She said she saw the initial treatment notes of the plaintiff and noted that the dislocation was not indicated. Also, that the X-ray was not availed to her. She concluded in her report (Dexh 1) that the patient did not sustain dislocation. I have also looked at the evidence and I note that the initial treatment notes from Kisii County Referral Hospital were not produced in the lower court. The initial treatment notes form the basis of the injuries sustained by any patient. The X-ray films were also not produced to support the alleged dislocation. I find that plaintiff sustained soft tissue injuries of the face and scalp only and not a dislocation. The dislocation injury was thus an exaggeration. The trial magistrate thus erred finding that the respondent sustained dislocation injury.
5. On general damages the trial magistrate awarded Ksh. 200,000/= considering the alleged dislocation. Appellant submitted that the award was excessive since no dislocation injury was sustained. He proposed general damages in the sum of Ksh. 100,000/= and relied on the case of Eva Karemi & 5 others vs Koskei and another (2020) eKLR where the plaintiffs were awarded general damages of between Ksh. 40,000/= -70,000/= for soft tissue injuries. The respondent submitted that the trial magistrate was right in awarding the general damages in the sum of Kshs. 200,000/= which was commensurate with the injuries sustained and that the respondent sustained a dislocation and soft tissue injuries. He cited on the case of B.M Security vs James Kisii High Court Civil Appeal no. 125 of 2021 Olongumot Musaya where the respondent was awarded general damages in the sum of Ksh 3,000,000/= for soft tissue injuries and 2 fractures.
6. In the case of Kenya Power Lighting Company limited & another -versus- Zakayo Saitoti Naingola & another (2008) eKLR. Where court held that “the court has to bear in mind the following principles on assessment of damages; 1. Damages should not be inordinately too high or too low 2. They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered. 3. Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts. 4. Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan Shillings, then at the time of the judgment’’.
7. On whether this court should disturb the award on general damages, in the case of Kemfro Africa Limited T/A Meru Express Services, Gathongo Kanini versus A.M. Lubia and Olive Lubia, decided by the Court of Appeal on 27th day of February 1985. The court of appeal held inter alia that “ the principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either 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 high that it must be a wholly erroneous estimate of the damages”.
8. I have considered the nature of the injuries sustained by the respondent, the recent comparable cases, the cited cases, the inflation and all the necessary factors. The injuries in the case of Olongumot case are not comparable to the injuries in the instant case as the respondent herein sustained soft tissue injuries while in the said case the respondents sustained are both fractures and soft tissue injuries which are severe. It is my considered view that general damages in the sum of Ksh. 100,000/= is adequate in this case. The trial magistrate thus erred in awarding general damages in the sum of Ksh. 200,000/= and I proceed to substitute it with Ksh. 100,000/=.
9. In the upshot I proceed to enter judgment in favour of the respondent against the appellant as follows:
a. General damages in the sum of Ksh. 100,000/=.
b. Costs of this appeal in the sum of Kshs. 20,000/=,
c. Costs in the lower court case,
d. Special damages in the sum of Ksh.12,170/=
e. Interests on (a), (c) & (d) at court rates from the date of the Judgment of the lower court till payment in full.
f. Interest on (b) from the date of this Judgment.
10. It is so ordered.