According to the pliant dated 10.12.2019 the Respondent was a pillion passenger on motor cycle registration number KMER445H make Bajaji along Ndhiwa – Sori road at Aungo Area on 6.11.2019 when motor vehicle registration KBU 235 F make Toyota wish was carelessly and recklessly driven/ managed and/or controlled by the 1st Appellant thereby causing the said motor vehicle to lose control and hit the motor cycle and caused the Respondent to suffer serious bodily injuries.
According to the Respondent the 1st Appellant being the driver was solely to blame for the accident as he was negligent, that on the other hand the 2nd Appellant was the beneficial owner and the 3rd Appellant was the registered owner of the subject motor vehicle.
The trial magistrate upon consideration of the uncontroverted evidence tendered by the Plaintiff found that the Plaintiff / Respondent had proved his claim on a balance of probabilities that the 1st defendant was directly liable for causing the accident while the 2nd and 3rd Appellants/ Defendants were vicariously liable. The trial magistrate entered judgment on liability against the Appellants at 100%.
The trial magistrate in assessing general damages at Kshs. 350,000/= was guided by the holdings in Migori HCCA 23 OF 2015 Francis Ochieng and Another vs. Alice Kajimba Bildad Onditi & Another vs. Rashid M. Rateng (2013) eKLR and Telkom Orange Kenya Limited vs. S. O. [2018] eKLR where Majanja J stated: -
“In addition, the current value of the shilling and the economy has to be taken into account and although astronomical awards must be avoided, the court must ensure that awards make sense and result in fair compensations.
See Ugenya Bus Service vs. Gachuki Nakuru Civil Appeal No. 60 of 1981[1982] KLR 661.
The Appellants John Chrispine Okungu, Joseph Adera Mukesa and Dominic Onyango Polo brought the appeal herein against the judgment/Decree of Hon. P. Areri (PM) delivered on 23.6.2022 in Migori CMCC No. 210 of 2019 vide Memorandum of Appeal dated 21st July 2022 on the following grounds: -
- That the learned trial magistrate erred in law and in fact in the assessment of quantum thereby giving an award of general damages of Kshs. 350,000/= that was overly in excess in the circumstances of the case.
- That the leaned trial magistrate erred in law and in fact in failing to pay regard to decisions filed alongside the defendants submissions that were guiding in the amount of quantum that is appropriate and applicable in similar injuries as the case he was deciding.
- That the learned trial magistrate exercise of discretion in assessment of quantum was injudicious.
- That the learned trial magistrate erred in fact and in law by apportioning 100% liability to the defendants without considering the circumstances of the case.
The Appellant prayed that the Judgment on liability and quantum be set aside and substituted the Appellate courts own assessment. Cost of the Appeal was also prayed for.
This appeal was canvassed by way of written submissions. The Appellants filed their submissions dated 5th October 2024 and urged the court to apply the approach that comparable injures should as far a possible be compensated by comparable awards as held in Kemfro Africa Limited t/a Meru Express Services & Gathago Kanini vs. A.M. M. Lubia & Another (1982 – 88) 1 KAR 77 as guided in Denshire Muteti Wambia vs. Kenya Power & Lighting Company Ltd. That awards have to make sense and have to have regard to the context in which they are made; they have to strike a chord of fairness.
The Appellant cited the holding in Kim Pho Choo vs. Camden & Islington Area Health Authority, (1979) 1 All ER 332 where Lord Denning held that in assessing damages the injured person is only entitled to what is in the circumstances a fair compensation for both the Plaintiff and the Defendant. The Appellants counsel argued that the trial magistrate did not refer to any of the authorities cited to him by parties. That there was no analysis of the evidence relating to the injuries and their application to all the authorities cited by the parties. That there was no finding as to what injuries the Respondent suffered and there is no statement of the points of determination in the judgment or the reasons for that determination. That the judgment offends Order 20 Rule 4 of the Civil Procedure Rules.
The Appellant argued further that the trial magistrate ignored the principle set out by case law that similar cases attract similar awards. To support this position the Appellants counsel relied on Danshire Muteti Wambua case (supra) to argued that where a trial Judge makes an award without considering authorities cited and without heeding the principle that similar injuries attract similar award is a misdirection warranting an intervention on an award of damages by an appellate court.
The Appellants argued that the trial court even failed to follow the authorities that was relied upon by the Respondent in which an award of Kshs. 300,000/= for similar injuries was set aside and substituted with Kshs. 175,000/=.
The Appellants submitted that the award was not based on any known principle or authority showing similar injuries and similar awards. That the manner the trial magistrate proceeded was a serious error in the assessment of damages.
The Appellants submitted that had the trial magistrate properly directed himself he ought to have made an award of Kshs. 100,000/= or thereabouts. They sought that appeal allowed.
The Respondents advocate Ms. Kuke filed submissions dated 19th July 2024 and opposed the appeal. She reiterated the contents of the submissions on the trial court. Ms. Kuke Advocate submitted that the trial magistrate properly and sufficiently scrutinized the evidence tendered in support of the injuries by the Respondent and correctly related them to the case law and arrived at a fair and reasonable award.
That the trial magistrate confirmed injuries suffered by the Respondent and that they were serious injuries as he was admitted for 8 days in hospital.
The Respondents counsel submitted that from the Judgment it is clear that the trial magistrate perused the submissions, evaluated the evidence tendered and related to case law and arrived a fair and reasonable award which should not be disturbed.
ANALYSIS AND DETERMINATION
This being the first Appellate court it has a duty to reanalyze and re-evaluate the evidence which was before the trial court and come to its own conclusion on that evidence without overlooking the conclusion of the trial court. This was the principle established in Selle and Another vs. Associated Motor Boat and Another (1968) E.A. 123.
From the record Charles Otieno Omollo testified that as he was travelling on a motor cycle, he was hit by motor vehicle registration KBU 235F and that he lost consciousness. That when he woke up, he finds himself at the Lakeside Hospital in Sori and he had injuries on the head, cut wound on the face, injuries on the right and left hand as well as bruises. He said he was admitted for hospital for 8 days. A discharge summary dated 14.9. 19 was produced as Exhibit 1. This accident was reported to the police and P3 Form was duly issued and filled and the same produced as Exhibit 2. A police abstract was also issued and was produced by the Respondent as Exhibit 3. The Respondent confirmed that the subject motor vehicle belonged to the third Appellant as per Motor Vehicle Record produced as Exhibit The Respondent said that the motor vehicle hit them from behind.
PW2 PC Ngali of Karungu Police Station confirmed the occurrence of the accident and injuries suffered by the rider of the motor cycle Caleb Okombo and Charles Omollo the pillion passenger. PC Ngali said the driver of the accident motor vehicle was drunk.
Doctor Jeniffer Kahoto testified on behalf of the defence and produced medical report for Charles Otieno Omollo Exhibit D1. She said that she examined the Respondent 7 months after the accident and found healed scars on the temporal region of the head and she formed an opinion that he had suffered mild head injuries and soft tissues injuries. She said that the Respondent had recovered from injuries save for occasional headaches.
Although the Appellants in their ground 4 of appeal faulted the trial magistrate for apportioning 100% liability without considering the circumstances of the accident this court did not find any evidence challenging the claim by the Respondent that the accident happened as a result of negligence on the part of Appellants. That evidence having been uncontroverted the findings of the trial magistrate is upheld.
On quantum of damages, it is a general rule that an Appellate court should not interfere with the assessment of the damages by the trial court as it is an exercise of the court’s discretion. In Butt vs. Khan (1981)KLR 349 it was held,
“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 arrive d at a figure which is inordinately high or low.”
In the trial court the Appellants proposed an ward of Kshs. 100,000/= for general damages and relied on the case of Elizabeth Wamboi Gichoni vs, Bernard Ouma Owuor (2019) EKLR where general damages of Kshs.300,000/= was set aside and substituted with Kshs. 175,000/= where the plaintiff sustained head and back injuries, deep cut wounds leaving keloids, 2 deep lateral cuts on the neck leaving keloids, multiple bruises on the chest and chest injuries cut wounds on the buttocks, deep bruises on the left hand and loss of consciousness .
The Respondent on the other hand proposed 2,000,000/= for general damages and relied on the case of Zachary Karithi vs. Jason Otieno Ocholla (2016) EKLR where Manjaja – J awarded 1,500,000/=where the plaintiff suffered chest pain, injuries to waist, compound fractures of the right tibia /fibula, compound fracture of left femur bone mid shaft, fracture of the right femur bone, fracture of the third, fourth and fifth ribs of the right side, injuries to the forehead, injuries to hip joint and injuries to big right toe.
The factors to be considered in determining the award to give in damages include the nature and extent of the injuries, the award made for comparable injuries as well as inflation rates. It must however be bone in mind that , not two cases are exactly the same. This court finds that the authority that was cited by the Respondent in the trial court had much more serious injuries than those sustained by the Respondent and was not therefore of any assistance to the court in assessing damages.
On the other hand, I have perused the authority cited by the Appellants and in it several other authorities are quoted where plaintiffs suffered similar injuries to those of the Respondent herein and were admitted to the hospital for periods similar to the one the Respondent was admitted e.g in Ndungu Denis vs. Ann Wangari & Another Kiambu High Court Civil Appeal No. 54 of 2016 which was decided in February 2018 and an award of Kshs. 100,000/= given where the plaintiff sustained injuries involving blunt head injuries, head concussion (brief loss of consciousness), blunt injuries to the chest and both hands.
Although the Appellant counsel contend that the trial magistrate did not refer to any authorities referred to him by the parties and that he failed to analyse evidence related to injuries and the application to the authority cited this court has re-evaluated the said judgment and seen that the trial magistrate was alive to the fact that in assessing damages he had to consider the injuries suffered the limits set in decided case and state of economy. He considered the injuries suffered and considered the authorities that were relied on by the parties and also considered other independent authorities and came to the conclusion that the Respondent was entitled to damages of Kshs. 350,000/=.
The injuries in the authority relied on by the Appellants may have been similar to those of the Respondent herein but the injuries in that authority were sustained way back in 2016 and damages awarded in 2018. In consideration of effluxion of time since the date of injuries and the date of award there is no way that the same award can be made for similar injuries several years down the line. This court finds that the trial magistrate properly exercised his discretion in assessing the damages taking in account inflation and the same cannot be said to be inordinately low or high in the circumstances.
In conclusion, this court finds that the Appeal lacks merit and the same is dismissed with costs.
Dated, Delivered and Signed at Migori this 20th day of December, 2024