A. CASE BACKDROP
1. The instant appeal emanates from the respondent’s suit in the subordinate court in which he had sued the appellant for compensation for injuries sustained in a road traffic accident which occurred on 20/10/2020 involving the appellant’s motor vehicle registration number KCP 096J and an unknown motor cycle in which the respondent was riding in.
2. The respondent pleaded that as a result of the said accident, he sustained the following injuries;
- compound fracture right tibia
- chest contusion,
-blunt trauma to the right elbow
- deep cut wound on the right leg
- bruises on the right elbow
- blunt trauma to the back.
3. The respondent attributed the accident to the appellant’s negligence.
4. The appellant in his statement of defence denied the negligence attributed to him.
5. In the ensuing trial, the respondent testified as PW-1 stating that he was hit from behind by the appellant and treated at Jaramogi Oginga Odinga Teaching and referral Hospital and discharged. At the time of the hearing the respondent had fully healed.
6. PW-2 Dr Morebu Peter stated that PW-1 was rushed to their facility on 20/10/2020 and was taken to the theatre for management of the compound fracture and was thereafter given crutches to walk on. This witness assessed permanent disability at 30%.
7. PW-3 PC Geofrey Ndiema of Kondele police station testified that he visited the scene of accident after the motor vehicle and the motor cycle had been moved. That from the witness account, the motor cycle was knocked from behind.
8. Beatrice Anyango Othieno testified as DW-1 and her evidence was that she was the one who was driving the motor vehicle at the time of accident. She denied knocking the respondent but that the respondent knocked her on the left side of her car.
9. The trial court after considering the evidence found the respondent 30% liable for the accident and awarded; Kshs 1,500,000/- in general damages, kshs 350,000/- in future medical expenses and Kshs 15,830 in special damages.
B. APPEAL
10. The appellant being aggrieved by the award appealed to this court raising the following grounds;
a. The learned trial magistrate erred in law and facts by basing her decision on irrelevant matters and failing to base her decision on the facts and evidence on record thereby arriving at an excessive award on the issue of general damages.
b. The learned trial magistrate erred in law and facts on assessment of quantum of damages.
c. The learned trial magistrate erred by basing her decision on irrelevant matters and failing to base her decision on the facts and evidence on record.
d. The learned trial magistrate erred in failing to follow and uphold legal parameters and binding precedents on assessment of general damages in similar circumstances.
C. SUBMISSIONS
11. The appeal was canvassed by way of written submissions. In his submissions, the appellant submitted on the single issue; whether the trial court granted an excessive award under the issue of quantum of damages. He thus submitted that the trial court’s award is excessively high and proposed a sum of Kshs Kshs 350,000.00 and cited the three authorities. In Remic Investments v Joaz Amenza [2019] eKLR where an award of Kshs 357,000/- was made for open left femur fracture, abrasion on the left knees, face, neck, right upper imp and left upper lip as well as a contusion on the anterior chest. In Gladys Lyaka Mwombe v Francis Namatsi& 2 others [2019] eKLR Kshs 300,000/- was awarded for the following injuries; cut wound on the anterior part of the scalp, a head injury, spinal cord injury, neck injury, fracture of the lower tibia and fibula and a cut wound on the face.
12. The appellant also cited David Momanyi Matonda v Baharini Consultants Ltd [2019] eKLR, where the Respondent sustained: deep stitched cut wound on the head, Multiple fracture of the right 4th, 5th& 7th ribs, fracture of the left forearm and severe injury to the chest, Kshs. 300,000/= was affirmed on appeal.
13. On his part the respondent supported the awards and cited the following authorities; George William Awuor v Beryl Awuor Ochieng [2020] eKLR wherein the plaintiff had sustained fractures of the right femur and left tibia fibula and the High Court awarded of Ksh 1,200,000/= as general damages, Zachary Kariithi v Jashon Otieno Ochola KSM HCCA No. 153 of 2012 [2016] eKLR the plaintiff sustained chest pains, injuries to the waist, compound fracture of the right tibia/fibula, compound fracture of the left femur bone mid shaft, fracture of the right femur bone and the High Court awarded Ksh 1,500,000/= as general damages.
D. Analysis and determination.
14. This being a first appeal, the duty of the court is as was held in Mark Oiruri Mose vs. R (2013) eKLR thus;
“….the Court is duty bound to revisit the evidence tendered before the trial court afresh, evaluate it, analyze it and come to its own independent conclusion on the matter but always bearing in mind that the trial court had the advantage of observing the demeanor of the witnesses and hearing them give evidence and give allowance for that.”
15. The issue that emerges for determination in this appeal is whether the quantum of damages awarded to the respondent on account of pain, suffering and loss of amenities is inordinately excessive as to represent an erroneous estimate of damages.
16. It is trite law that an appellate court cannot disturb an award of a lower court unless the trial court fell in error by when assessing the damages took into account an irrelevant factor or left out a relevant factor or that, the quantum of damages awarded is inordinately low or inordinately high as to constitute an erroneous estimate of the damages. This court places reliance on the case of Butt vs Khan 19882- 1988 KLR).
17. The cardinal principles applied in awarding damages is that comparable injuries should attract comparable awards. See the case of Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd [2013] eKLR and also the case of Godfrey Wamalwa Wamba & another v Kyalo Wambua [2018] eKLR.
18. Further, awards ought to be made in moderation and should be reasonably assessed with regard being had on the need to ensure that they are in tandem with the economic realities of the day lest they hurt the body politic.
19. An award of damages can never mend a battered and shattered body frame and all that the courts do is to give reasonable compensation to assuage the injured. This position found judicial pronouncement in the case of Rahima Tayab & others v Anna Mary Kinanu (1983) KLR 114, where the court held that:
“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.
I cannot resist stating that there was no medical evidence that would proof that the deceased prior to the wrongful act was not enjoying good health and engaged in income generating activities for his benefit and dependant. A man in good health able to make a living from his business or farming activities and is killed due to the negligence ought to be fairly and adequately compensated for the benefit of his estate.”
20. In the case of Nahson Nyabaro Nyandega Vs Peter Nyakweba Ombogo (2021) eKLR, Justice E.W Maina reviewed several authorities and reduced an award of Ksh 900,000 to ksh 650,000, where the respondent had sustained the following injuries:-
-Bruises on the face
- Compound fracture of right tibia bone
-Cut wound on right leg.
21. In the case of Harun Munyoma Boge Vs Daniel Otieno Agulo (2015) the respondent had suffered multiple injuries, fracture of right tibia and fibula and the appellate reduced an award of ksh 1500,000 to ksh 300,000.
22. I have re-evaluated the nature of injuries sustained by the respondent viz avis the rival authorities cited by the appellant contain comparable injuries to the ones sustained by the respondent herein, the same are five years old wherefore when one is considering them, the passage of time and inflation factor ought to be taken into account. On the other hand the authorities relied on by the respondent exhibit injuries that are severe as compared to the ones suffered by the respondent wherefore any reliance placed upon them would be an act of error.
23. Premised upon the analysis made herein above I do find that the award made of ksh1,500,0000 by way of general damages is excessive and thus constitutes an erroneous estimate of damages and I will thus set it aside and substitute it with an award a sum of ksh 900,000. The quantum of damages payable to the respondent is thus as computed hereunder :-
a) Liability 30:70
b) General damages Ksh 900,000
c) Future Medical Expenses Ksh 350,000
d) Special Damages Ksh 15, 830
Sub total Ksh 1,265,830
Less 30% contribution Ksh 379,749
Total Ksh 886,081
24. The respondent is awarded costs of the trial court, interest at court rates on the special damages from the date of filing of the suit and from the date of judgment on the general damages. Given that costs abide the event, the appellant is awarded the costs of this appeal.
Orders accordingly.
Delivered, Dated, and Signed at Kisumu this 30th day of September 2024