1. The cause of action herein is a road traffic accident that occurred on 21.11.2019 which left the Respondent-minor with personal injuries.
2. The primary suit proceeded to full hearing and the trial court rendered its judgment on 18.01,2023 in the following terms: -
Liability 100% jointly and severally as against the Appellants being General damages of Ksh 350,000/= and Special damages of Ksh 27,475/=; and Costs and interest awarded to the Respondents.
3. The Appellants herein being aggrieved by the Judgment of the Learned Trial Magistrate lodged the Appeal herein vide Memorandum of Appeal on grounds that the award of damages made by the Learned Trial Magistrate were inordinately excessive as compared to the damages awarded in other similar cases.
4. The grounds of the appeal are as stated in the memorandum of appeal dated 10.02.2023.
5. It is the Appellants submissions that The Appeal herein revolves only on the issue of quantum of damages awarded in respect of the injuries suffered by the Respondent out of a road traffic accident.
6. During the trial The respondent pleaded the following injuries:-blunt trauma to the neck,chest contusion,bruises on the right upper limb,bruises on the left upper limb,bruises on the left lower limb,bruises on the right lower limb.
7. The appellants also challenged the further treatment on the ground that the Respondent had failed to table any evidence during hearing towards undergoing further treatment.
8. Reliance is placed in the case of NDUGU DENNIS versus Wangari Ndirangu & Another (2016) eKLR in which the court awarded general damages of Kshs 100,000/= where the Plaintiff had sustained blunt injuries to the head, chest and both hands.
9. The Appellant also relied on the recent case of Lilian Anyango Otieno vs Philip Mugoya Ogila (2022)Eklr where the plaintiff sustained soft tissue injuries including head injuries with dislocation of cervical spine of the neck, tissue injuries of both upper limbs with dislocated wrist and elbow joint, chest injury with damage of the rib cage and blunt abdominal injury, dislocated pelvic frame which injuries are more severe to once sustained by the Plaintiff herein.
10. The Appellant proposed an award of Kshs 100,000/= which was reasonable taking into consideration the comparatives touching on the similar injuries in the recent past
11. In the case of Daniel Gatana Ndungu & another v Harrison Angore Katana [2020] eKLR the Appellant mounted an appeal against the Kshs 350,000 which was awarded to the Respondent therein who had suffered the following injuries:-:cut on the head,blunt injury to the right knee,multiple bruises on the upper limbs,bruises on the right knee.
12. The court allowed the appeal, and set aside the award of Kshs.350,000.00/= by substituting it with Kshs. 140,000.00/=, taking into account the salvage of inflation as an additional factor.
13. The appellants urges this court to grant an award of Kshs 100,000 given that the award of Kshs 350,0000 was inordinately high.
14. The Appellants are also seeking costs of the appeal.
Respondents’ case;
15. Aggrieved by the trial court's findings and awards on liability and quantum, the Appellant has lodged the instant Appeal.
16. During the hearing PW-T'- one Dr. Morebu testified that he is the one who examined the Respondent-minor and prepared a medical report on the findings of the said examination. He is the one who also filled the P3 form in respect the Plaintiff's injuries arising out of the accident. He testified on the contents of the said medical report and P3 form. 'PW-Il' - Daniel Omare The Respondent's father testified that the Plaintiff-minor sustained the following injuries;
blunt trauma to the neck,chest contusion,bruises on the right upper limb,bruises on the left upper limb,bruises on the left lower limb,bruises on the right lower limb.
17. 'PW-III' - Police Office one PC Saoke who confirmed that the Plaintiff-minor was a passenger on board the motor cycle.That on reaching location of the accident, the driver of the motor vehicle (Reg. No. KBU 353 U) hit the said motor cycle from behind occasioning the accident.
18. PW-IV' - Treatment facility medical doctor Dr. Moraa who works at Nyangena Hospital where the Respondent was admitted and treated confirmed that the Respondent sustained l injuries.
19. Reliance is placed in the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete (2004) 2 KLR 55 where the COURT OF APPEAL observes as follows: -
"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 itit 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 The foregoing is reiterated by the COURT OF APPEAL in Jane Chelagat Bor vs. Andrew Otieno Onduu (1988-92|2 KAR 288: [1990-1994] EA 47: -
"In effect, 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 suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency."
20. The appellate court can only interfere with the award of damages where it finds that the trial court applied wrong principles of law by taking into account some irrelevant factor, leaving out of account some relevant ones and therefore arriving at an erroneous estimate of damages to be awarded.
21. It is her case that the Trial Court's decision on general damages was in its entirety a just and fair compensation of the Respondent's injuries.
22. The amount awarded is not only commensurate with the nature of injuries suffered by the Respondent but also consistent with other awards made in similar cases.
23. The court was guided by the case of Catherine Wanjiru King'ori and 3 Others y Gibson Theuri Gicubi 12005] eKLR where the plaintiff sustained injuries that are similar and comparable to the Respondent's injuries and where this Honourable Court awarded Ksh 350,000/=.
24. According to the Respondent,the following cases demonstrate and confirm the propriety of the trial court's award;
In the case of Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [20211 eKLR,In Blue Horizon Travel Co Ltd v Kenneth Nioroge [2020] eKLR and in Samwel Martin Njoroge Kamunyu v Mildred Okweya Barasa [20201 eKLR
25. It is her case that the Appellant's submissions show that he is relying on cases where the injuries are less severe than the ones sustained herein.
26. According to the Respondent the trial court's decision on liability is proper in principle and merited in evidence and fact.
Analysis and determination;
27. In Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
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..."
28. In the instant appeal the Appellants appear to have abandoned the issue of liability. The upshot of this is that the finding on the issue of liability against shall remain undisturbed at 100% against the Appellants as decided by the trial court and I so hold.
29. The other issue that is left for determination is whether or not the general and special damages were properly awarded by the trial court.
30. I have a look at the nature of the injuries sustained by the respondent which are as follows:-
a. Blunt trauma to the neck
b. Chest contusion
c. Bruises on the right upper limb
d. Bruises on the left upper limb
e. Bruises on the left lower limb
f. Bruises on the right lower limb.
31. Per PW-T' the examining medical doctor gave oral testimony on 16.02.2022.He is the one who examined the Respondent and prepared a medical report on the findings of the said examination. He is the one who also filled the P3 form in respect the Plaintiff's injuries arising out of the accident.He testified on the contents of the said medical report and P3 form.
32. The medical report of Dr. confirms the seed injuries which formed the basis of the award for general damages. The Appellants believes that the amount awarded by the trial court was inordinately high.
33. He submits that the sum of Kshs. 100,000 should suffice as general damages as commensurate award for the respondents for the injuries sustained.
34. The English case of EL AMRIA (1981) 2 Lloyds Law Reports page 119 at page 123 as per Brandon L J, which has been applied in Kenya, has comprehensive principles that are accepted as applying to an application concerning the exercise of a Judge’s discretion.
35. In determining the issue of quantum of general damages,Iam guided by the leading local decision is the case of MBOGO v SHAH (1968) E a page 93 in which DE LESTANG v (as he then was) observed at page 94.
36. “I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.
37. In determining the Appeal,Iam further guided by the case of Kenya Power & Lighting Co. Ltd v Mary Akinvi, HCCA No. 72 of 2007 Korir J upheld an award of Ksh. 350,000/- as general damages for the following injuries: deep cut wound on the calf muscles of the left leg; laceration on the right knee and right shoulder; contusion on the chest.
38. In Kenya Power & Lighting Co. Ltd v Mary Akinvi, HCCA No. 72 of 2007 Korir J upheld an award of Ksh. 350,000/- as general damages for the following injuries: deep cut wound on the calf muscles of the left leg; laceration on the right knee and right shoulder; contusion on the chest.
39. I have re analyzed the and arrived at the finding that the amount awarded by the trial court is not only commensurate with the nature of injuries suffered by the Respondent but also consistent with other awards made in similar cases. The Appellant's appeal on quantum is therefore unmerited.
40. The amount awarded is commensurate to the injuries sustained as supported by the medical reports P3 and the authorities referred to by the respondent and I so hold.No arguments were advanced on the issue of special damages which this court does not attend to.
41. It is this court’s finding, that the trial magistrate exercised her discretion within the law.
Order:
The appeal lacks merit and the same as here by dismissed with costs.