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JudgmentHIRAINI KHIMJI VISRAM VS VINCENT ALENGA CHAHILU9 min read

HIRAINI KHIMJI VISRAM VS VINCENT ALENGA CHAHILU

Employment and Labour Relations Court at Nairobi Employment and Labour Relations Court (ELRC) · · J. N. Abuodha

Summary

The court dismissed the appellant's appeal against the trial court's award of Kshs 380,000 for pain and suffering and loss of amenities. The appellant challenged the trial magistrate's assessment of damages, arguing that the injuries were limited to two fingers (left ring and little fingers) with no loss of fingers, and that the award was excessive. The court found that the trial court's error in stating three fingers were injured and the loss of a finger did not significantly impact the award, as the injuries were severe soft tissue damage with deformity and scarring. The court held the award was reasonable and within the trial court's discretion, dismissing the appeal with costs.


  1. Through the Memorandum of Appeal dated 16th June, 2017, the Appellant appeals against the Judgment of Honourable E.K USUI (Miss) delivered on 18th May, 2017 in Milimani Chief Magistrates Court Civil Case No. 706 of 2012.
  2. The Appeal was based on the grounds that:
    1. The Learned Trial Magistrate erred in law and in fact in assessing general damages at Kshs 380,00/= for pain, suffering and loss of amenities on account of soft tissue injuries which amount was/is manifestly excessive in the circumstances.
    2. The Learned Trial Magistrate erred in law and in fact in basing her findings on irrelevant issues/factors not supported by evidence adduced and or/ the applicable law.
    3. The Learned Trial Magistrate erred in law and in fact in failing to take in to account the Appellant’s submissions on quantum or at all.
    4. The Learned Trial Magistrate erred in law and in fact in failing to take in to cognisance the fact that the Kenyan Economy cannot sustain such huge awards.
  3. The Appellant prayed that the appeal be allowed and the Judgment of the Subordinate court of 18th May,2012 in respect of quantum be set aside; this court be pleased to reassess damages as it deems fit to deal; and costs of the Appeal and subordinate court be awarded to the Appellant.
  4. The Appeal was disposed of by written submissions.

APPELLANTS’ SUBMISSIONS

  1. The Appellant filed written submissions dated 14th July, 2023 and submitted among others that parties recorded a consent judgment on the issue of liability leaving the issue of quantum for determination by the trial court. The Appellant was dissatisfied with the quantum the trial court awarded to the Respondent hence this Appeal. The Appellant further submitted that the Respondent’s injuries were severe cut wound on the left ring finger and severe cut wound on the left small finger.
  2. DR. J.L Amugada in his medical report dated 13th January, 2012 confirmed that the Respondent sustained soft tissue injuries and that as a result of the accident there was persistent pain at the tip of the left ring finger and the ugly scarring. That the Respondent could not effectively use his left hand because of the tip pain.
  3. The Appellant submitted that since the report was done on 13th January 2012, 3 months from the date of accident, it was understandable when the doctor said that the Respondent could not effectively use his left hand because of the tip pain. It was the appellant’s submissions that nowhere in the said report did the Doctor mention that the Respondent lost a finger.
  4. The Appellant submitted that the trial Magistrate had no basis to make a finding in her judgment that the Respondent suffered loss of the left ring and little finger with profuse bleeding and crush injury to the tip of the middle finger.
  5. It was the Appellant’s submissions that the trial Magistrate erred in law and in fact in making a finding that the Respondent suffered injuries on 3 fingers i.e the left ring finger, left little finger and tip of the middle finger. That this was contrary to particulars of injuries pleaded in the plaint where only two fingers were mentioned and contrary to Dr. Amugada’s own medical report.
  6. The Appellant submitted that in taking the above wrong considerations the trial court arrived at a figure of Kshs 380,000/= as general damages which amount was manifestly excessive.
  7. The Appellant submitted that the Respondent suffered no fractures and he was not hospitalized. There was no indication of any number of off-duty days he was allocated by a doctor. There was no indication by Dr. Amugada of any percentage of permanent incapacity or temporary incapacity for that matter.
  8. The Appellant submitted that Kshs 50,000/= submitted by the Appellant at the trial court was adequate compensation for the injuries sustained by the Respondent. The Appellant relied on the same authorities it relied on its submissions dated 9th March,2017 and prayed that the court be pleased to set aside the trial court’s Judgment of 18th May,2017 and reassess quantum.
  9. The Appellant submitted that this court would interfere with judgment of the subordinate court where the decision reached failed to take into account material facts or took into account facts which it ought not to have taken therefore arriving at an erroneous decision. This was held the holding in Nairobi HCCA No. 147 of 1994 Salim S. Zein t/a Eastern Bus Service & Another vs Rose Mulee Mutua.
  10. The Respondent did not file submissions.

Analysis & determination

  1. I have considered the pleadings by both parties and the submissions by the Appellant and this being a first Appeal I will proceed to reanalyze the evidence before me as was held in the case of Selle vs Associated Motor Boat Company Limited [1968] E.A 123 thus:-

An appeal to this court from a trial by the High 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities……..or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

  1. In this case, the Judgment of the trial court was that;

Judgment is entered for the Plaintiff against the Defendant as follows:-

      1. Pain and suffering Kshs 380,000/=
      2. Special damages Kshs 2,050/= less 30% Kshs 114,615/=

Award Kshs 267,435/=

      1. Costs and interests.
  1. The Appellant was aggrieved with only the award of quantum of damages awarded to the Respondent of Kshs 380,000/= for pain and suffering and loss of amenities. The main issue in this Appeal is therefore whether trial Magistrate erred in awarding Kshs 380,000/= to the Respondent as damages for pain and suffering.
  2. Whereas the trial court acted within its discretion to award the said damages which are discretionary in nature; this court as an appellate court will proceed carefully so as not to interfere with trial Court’s discretion unless certain conditions are satisfied as was held in the case of Gitobu Imanyara & 2 Others vs Attorney General(2016) eKLR. The Court of Appeal held as follows:-

It is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 ALL E.R. 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that:

“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”

  1. In this case the court is called upon to evaluate and see if the trial court proceeded on wrong principle, the amount excessively high or if the award was an erroneous estimate. The Appellant has submitted that the trial magistrate erroneously took in to consideration the fact that the Respondent sustained injuries to 3 fingers instead of two and also took into consideration that there was a loss of finger when there was none. The trial magistrate therefore arrived at a wrong figure.
  2. I have perused the Judgment which states that the Respondent suffered loss of the left ring and little finger with profuse bleeding and crush injury on the lip of the middle finger. The doctor found that he had an ugly scaring of the lip of left ring finger with deformity.
  3. I have also perused the said medical Report by Dr. Amugada dated 13th January,2012 and the nature of injuries noted were cut on the left ring and little fingers with profuse bleeding and crush injury to tip of ring finger. The X-rays showed no fracture.
  4. From the above medical report and pleadings by the Respondent it was clear that the injury was on two fingers that is the ring and little fingers of the left hand. The trial Magistrate erroneously referred to an injury crush on the tip of the middle finger. The injury crush was on the tip of the ring finger. The Trial Magistrate also erroneously referred to loss of left ring finger when none was lost.
  5. The doctor also stated that the Respondent had pain at the tip of left ring finger, that he could not lift loads with left hand and there was scarring of tip of left ring finger which had healed with a deformity. On examination the Respondent had tenderness tip of the left ring finger and ugly scarring of tip with deformity.
  6. The Appellant submitted that at the time of the medical report it was 3 months from the time of the accident and the doctor was entitled to state that the Respondent could not lift up loads with his left hand and that he had pain at the tip of the ring finger. The Court also noted the doctor observed that the tip of the left ring finger had an ugly scarring which had healed with deformity.
  7. Whereas the Appellant submitted that the Respondent was entitled to Kshs 50,000/= at that time and produced a number of authorities to support its case, I note that the nature of injuries which resulted to respondent’s left ring finger healing deformed is not something to be taken as minor injury even though there was no fracture.
  8. I have considered the authorities referred to by the Appellant and all seem to refer to minor injuries where the injuries healed without any permanent incapacity. In this case it is clear the Respondent’s tip of the ring finger healed with deformity. The Doctor did not clarify if this deformity amounted to permanent incapacity or not and at what percentage.
  9. In Kenya Power & Lighting Company Limited v Margaret Wanjiku Njunge [2019] eklr the Respondent had suffered soft tissues injuries on a number of fingers where one healed with a deformity and another healing with surgical scars; the court awarded the Respondent Kshs 500,000/= for pain and suffering.
  10. In this particular case even though the Respondent suffered soft tissue injuries on two fingers; the tip ring finger was crushed healing with a deformity as well as ugly scars.
  11. Whereas in the above case injuries occurred in 2014 and in this particular case injuries occurred in 2011; I am persuaded that the trial court although it misapplied her facts on three fingers and lost one finger the same did not affect her award of damages.
  12. The award of Kshs 380,000/= to me was reasonable assessment of compensation for the injuries the respondent sustained. The Court therefore does not find any compelling reason to disturb the trial court’s award.
  13. The Appeal is therefore found unmerited and is hereby dismissed with costs.
  14. It is so ordered.

Dated at Nairobi this ……day of …………………………..2024

Delivered virtually this ………day of………………….., 2024

Abuodha Nelson Jorum

Judge

    HIRAINI KHIMJI VISRAM VS VINCENT ALENGA CHAHILU HIRAINI KHIMJI VISRAM VS VINCENT ALENGA CHAHILU