(Being an appeal from the judgment and decree of Hon. D. M. Ireri, Senior Resident Magistrate, in Baricho Magistrate’s Court Civil Suit No. 145 of 2021 delivered on 9/12/2022)
JUDGMENT
1. This appeal through the memorandum dated 5/1/2023 is on assessment of damages only. It seeks to set aside the decree of the learned trial magistrate arising from a judgment of the trial court dated 9/12/2023 to the extent of assessment of damages only.
2. The respondent sued the appellant through a plaint dated 24/8/2021 claiming general and special damages for injuries arising out of a road traffic accident on 13/11/2020 at around 12.00 Hours along the Makutano-Sagana road. The respondent was a lawful passenger in the appellant’s motor vehicle registration number KCB 957M Toyota Hiace when the accident happened. As a result, the respondent sustained the following injuries:
a. tenderness and stiffness to the neck.
b. chest and back tenderness.
c. bilateral elbow joint tenderness.
d. bruises on the left knee.
e. hematoma on the left thigh.
3. The appellant was found 100% liable for the accident.
4. Upon considering the evidence tendered, the submissions and authorities tendered by the parties and the learned trial magistrate awarded a sum of KShs 350,000/= as general damages.
5. The appellant was dissatisfied with the judgment and has filed this appeal based on several listed grounds but which can be summed into one, that the learned trial magistrate erred by awarding the respondent an inordinately high amount of general damages for pain and suffering for the injuries sustained.
6. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
7. The appellant’s submissions reiterate his grounds of appeal that the damages are inordinately high while the submissions by the respondent support the trial court’s award as being fair compensation for the respondent’s injuries. He proposes an award of KShs 100,000/=.
8. Learned counsel for the respondent submits that the award of KShs 350,000/= was modest and reasonable and this court should not interfere with it.
9. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
10. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset.
11. There is no dispute on the injuries sustained by the respondent. The appellant proposed an award of KShs 70,000/= while the respondent proposed an award of KShs 400,000/= as general damages.
12. The learned trial magistrate relied on the following authority cited by learned counsel for the respondent (plaintiff at the trial) in arriving at his assessment of damages of KShs 350,000/= awarded to the respondent: Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichubi [2005] eKLR. There were several Plaintiffs in the case. Each suffered various injuries and the High Court in 1998 made various awards for general damages as follows:
a) The First Plaintiff suffered injury on the left ankle, injuries on the legs and injuries on the chest. An award of KShs 300,000/= was made.
b) The Second Plaintiff suffered injury on the back. An award of KShs 100,000/= was made.
c) The Third Plaintiff suffered injuries, multiple soft tissue injuries, injury on the left elbow joint, and injuries on both ankles. An award of KShs 350,000/=.
d) The Fourth Plaintiff suffered injury on the neck and had headache. An award of KShs 100,000/= was made.
13. With respect to the authorities cited by the appellant, the learned trial magistrate observed that in the present case the injuries were more than those sustained in the cases referred to by the appellant.
14. In this appeal, learned counsel for the appellant now proposes an award of KShs 100,000/=. He has cited the following cases:
a. Civil Appeal No. 54 of 2016: Ndung’u Dennis v Ann Wangari Ndirangu & another (2018) eKLR where the Respondent suffered bruises on the neck, tenderness on the right leg, blunt injury to the chest and both hands, back and chest pains. The trial court awarded Ksh. 300,000/= which was reduced to Ksh. 100,000/= on appeal.
b. HB (Minor suing through mother & next friend DKM) vs. Jasper Nchonga Magari & another [2021] eKLR, the appellant sustained blunt object injury to the head and neck, thorax, abdomen and limbs. On routine examination, Dr. Adede opined that the injuries suffered amounted to soft tissue injuries. The High Court on appeal sustained the award of KShs 60,000/= general damages for pain, suffering, and loss of amenities in 2021.
15. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR where the court pronounced itself on the issue as follows:
“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.”
16. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“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 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 Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
17. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award.
18. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
19. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
20. The case relied upon by the trial court was decided in 1998 making the circumstances under which it was decided to be incomparable to the present. But more importantly, on the injuries sustained I note that in the present case, the more serious injury would be stiffness to the neck and chest and back tenderness. In the authorities cited by learned counsel for the appellant none of them has an injury of stiffness to the neck. The injuries to the neck in those cases are either bruises or blunt object injury without more. In the circumstances, I find that in comparison to the present case, the injuries are less severe.
21. So, besides the cases cited by learned counsels I have looked the case of Amref Health Africa v Obadha [2024] KEHC 14210 (KLR) where the respondent sustained injuries very similar to those in the present case as follows: a. tenderness on the neck with stiffness. b. tenderness on the chest. c. minor bruises on the upper limb. d. swollen right elbow with tenderness. e. tenderness on the lower limbs. The High Court in 2024 sustained an award of KShs 200,000/= awarded by the lower court.
22. I find that the award made by the trial court was inordinately high and I am satisfied that this is a proper case to interfere with the trial court’s award. Consequently, the award is reduced to KShs 200,000/= general damages for pain, suffering and loss of amenities. The rest of the awards will remain as made by the trial court.
23. Consequently, the decision by learned trial magistrate on assessment of general damages for pain, suffering and loss of amenities is hereby set aside and substituted with an award of KShs 200,000/=.
24. The appeal is successful to that extend.
25. Each party will bear its own costs.
26. Orders accordingly.
JUDGMENT
1. This appeal through the memorandum dated 5/1/2023 is on assessment of damages only. It seeks to set aside the decree of the learned trial magistrate arising from a judgment of the trial court dated 9/12/2023 to the extent of assessment of damages only.
2. The respondent sued the appellant through a plaint dated 24/8/2021 claiming general and special damages for injuries arising out of a road traffic accident on 13/11/2020 at around 12.00 Hours along the Makutano-Sagana road. The respondent was a lawful passenger in the appellant’s motor vehicle registration number KCB 957M Toyota Hiace when the accident happened. As a result, the respondent sustained the following injuries:
a. tenderness and stiffness to the neck.
b. chest and back tenderness.
c. bilateral elbow joint tenderness.
d. bruises on the left knee.
e. hematoma on the left thigh.
3. The appellant was found 100% liable for the accident.
4. Upon considering the evidence tendered, the submissions and authorities tendered by the parties and the learned trial magistrate awarded a sum of KShs 350,000/= as general damages.
5. The appellant was dissatisfied with the judgment and has filed this appeal based on several listed grounds but which can be summed into one, that the learned trial magistrate erred by awarding the respondent an inordinately high amount of general damages for pain and suffering for the injuries sustained.
6. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
7. The appellant’s submissions reiterate his grounds of appeal that the damages are inordinately high while the submissions by the respondent support the trial court’s award as being fair compensation for the respondent’s injuries. He proposes an award of KShs 100,000/=.
8. Learned counsel for the respondent submits that the award of KShs 350,000/= was modest and reasonable and this court should not interfere with it.
9. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
10. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset.
11. There is no dispute on the injuries sustained by the respondent. The appellant proposed an award of KShs 70,000/= while the respondent proposed an award of KShs 400,000/= as general damages.
12. The learned trial magistrate relied on the following authority cited by learned counsel for the respondent (plaintiff at the trial) in arriving at his assessment of damages of KShs 350,000/= awarded to the respondent: Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichubi [2005] eKLR. There were several Plaintiffs in the case. Each suffered various injuries and the High Court in 1998 made various awards for general damages as follows:
a) The First Plaintiff suffered injury on the left ankle, injuries on the legs and injuries on the chest. An award of KShs 300,000/= was made.
b) The Second Plaintiff suffered injury on the back. An award of KShs 100,000/= was made.
c) The Third Plaintiff suffered injuries, multiple soft tissue injuries, injury on the left elbow joint, and injuries on both ankles. An award of KShs 350,000/=.
d) The Fourth Plaintiff suffered injury on the neck and had headache. An award of KShs 100,000/= was made.
13. With respect to the authorities cited by the appellant, the learned trial magistrate observed that in the present case the injuries were more than those sustained in the cases referred to by the appellant.
14. In this appeal, learned counsel for the appellant now proposes an award of KShs 100,000/=. He has cited the following cases:
a. Civil Appeal No. 54 of 2016: Ndung’u Dennis v Ann Wangari Ndirangu & another (2018) eKLR where the Respondent suffered bruises on the neck, tenderness on the right leg, blunt injury to the chest and both hands, back and chest pains. The trial court awarded Ksh. 300,000/= which was reduced to Ksh. 100,000/= on appeal.
b. HB (Minor suing through mother & next friend DKM) vs. Jasper Nchonga Magari & another [2021] eKLR, the appellant sustained blunt object injury to the head and neck, thorax, abdomen and limbs. On routine examination, Dr. Adede opined that the injuries suffered amounted to soft tissue injuries. The High Court on appeal sustained the award of KShs 60,000/= general damages for pain, suffering, and loss of amenities in 2021.
15. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR where the court pronounced itself on the issue as follows:
“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.”
16. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“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 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 Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
17. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award.
18. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
19. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
20. The case relied upon by the trial court was decided in 1998 making the circumstances under which it was decided to be incomparable to the present. But more importantly, on the injuries sustained I note that in the present case, the more serious injury would be stiffness to the neck and chest and back tenderness. In the authorities cited by learned counsel for the appellant none of them has an injury of stiffness to the neck. The injuries to the neck in those cases are either bruises or blunt object injury without more. In the circumstances, I find that in comparison to the present case, the injuries are less severe.
21. So, besides the cases cited by learned counsels I have looked the case of Amref Health Africa v Obadha [2024] KEHC 14210 (KLR) where the respondent sustained injuries very similar to those in the present case as follows: a. tenderness on the neck with stiffness. b. tenderness on the chest. c. minor bruises on the upper limb. d. swollen right elbow with tenderness. e. tenderness on the lower limbs. The High Court in 2024 sustained an award of KShs 200,000/= awarded by the lower court.
22. I find that the award made by the trial court was inordinately high and I am satisfied that this is a proper case to interfere with the trial court’s award. Consequently, the award is reduced to KShs 200,000/= general damages for pain, suffering and loss of amenities. The rest of the awards will remain as made by the trial court.
23. Consequently, the decision by learned trial magistrate on assessment of general damages for pain, suffering and loss of amenities is hereby set aside and substituted with an award of KShs 200,000/=.
24. The appeal is successful to that extend.
25. Each party will bear its own costs.
26. Orders accordingly.