(Being an Appeal from the Judgment and Decree delivered at the Chief Magistrate’s Court in Nyamira, CMCCC No. 22 of 2022 by Hon. C.I. Agutu, Senior Resident Magistrate, delivered on 13 th March 2024)
The Respondent herein was the Plaintiff before the trial court where she sued the Appellant/Defendant seeking damages arising out of a road traffic accident which occurred on 4 th July 2020. The Respondent’s case was that she was on the material day travelling aboard motor vehicle registration No. KBB 215W when at Nyaramba area, along Kericho-Kisii road, the said motor vehicle lost control and collided with another motor vehicle Registration No. KBB 583D thereby causing an accident in which she sustained serious injuries and has, as a result, suffered loss and damage. The Respondent attributed the accident to the negligence and/or recklessness of the Appellant’s driver and/or agent.
The Defendant/Appellant filed his Statement of Defence on 13 th August 2021 wherein he denied the allegations contained in the Plaint and attributed the accident to the negligence to the Plaintiff/Respondent.
The matter was thereafter set down for hearing. The Respondent called four witnesses and produced the following exhibits: -
Copy of National Identity Card – P.Exh 1
Treatment Notes from Nyamira County and Referral Hospital – P.Exh 2
P3 Form – P.Exh 3
Police Abstract – P.Exh 4
Dr. Morebu’s Medical Report – P.Exh 5(a)
Receipt for Dr. Morebu’s Medical Report – P.Exh 5(b)
Copy of Motor Vehicle Records – P.Exh 6(a)
Receipt for Search – P.Exh 6(b)
Demand Letter – P.Exh 7
Affidavit – P.Exh 8
The Appellant did not call any witness but produced a second Medical Report as (D.Exh1).
At the close of the trial, judgment was entered in favour of the Respondent as follows: -
Liability at 100%.
General Damages Kshs. 500,000/=.
Special Damages Kshs. 7,050/=.
Costs and interests at prevailing court rates.
Aggrieved by the trial court’s decision, the Appellant filed the instant appeal wherein he challenges the finding on quantum on the following grounds: -
THAT the Learned Trial Magistrate erred in law and in fact in the assessment of quantum thereby giving an award on quantum on general damaged of Kshs. 500,000/= that was overly in excess in the circumstances of the case.
THAT the Learned Trial Magistrate erred in law and in fact in failing to pay regard to decisions filed alongside the Defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar injuries as the case she was deciding.
THAT the Learned Trial Magistrate’s exercise of discretion the assessment of quantum was injudicious.
The appeal was canvassed by way of written submissions which I have considered.
The duty of a first appellate court was restated in PIL Kenya Ltd vs. Oppong [2009] KLR 442 where the Court of Appeal held thus: -
“It is the duty of the Court of Appeal, as a first appellate court, to analyse and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeing the witnesses and their demeanour and giving allowance for that.”
I have carefully considered the record of appeal and the parties’ rival submissions I find that the main issue for determination is whether the trial court arrived at the correct assessment on quantum of damages.
In Arrow Car Ltd vs. Elijah Shamalla Bimomo & 2 Others (2004) eKLR the Court of Appeal established the principles that an appellate court should consider when determining whether or not to disturb the trial court’s findings on quantum: -
“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. …”
This court is also aware of the principle that comparable injuries should as far as possible attract comparable awards bearing in mind the correct level of awards in similar cases. This is the position that was taken in Stanley Maore vs. Geoffrey Mwenda [2004] eKLR , where it was held thus: -
“Having so considered we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
The Respondent sustained the following injuries as stated in paragraph 5 of the amended Plaint: -
Deep cut wounds on the right leg
Chest contusion
Bruises on the right shoulder
Bruises on the right Upper limb
Blunt trauma to the back
Bruises on the left upper limb
Bruises on the right leg
Bruises on the left leg
The medical report by Dr. Morebu (P.Exh 5(a)) and the P3 Form (P.EXH3) confirms the Respondent’s injuries. The second medical report by Dr. Jennifer Kahuthu (D.Exh1) indicates that the Respondent did not suffer any permanent or physical disability as a result of the said injuries. This means that the Respondent will recover from the said injuries.
I have considered the following comparable cases: -
In Ephraim Wagura Muthui 2 others vs. Toyota Kenya Limited & 2 others [2019] eKLR, Majanja J. set aside the lower court’s award of Kshs. 55,000/= for cut wound on the parietal area of the head, contusion on the neck, blunt trauma to the chest, cut wound on the left leg and blunt trauma to the back and substituted it with an award of Kshs. 100,000/=.
In Francis Omari Ogaro vs. JAO (minor suing through next friend and father G.O.D) [2021] eKLR , Maina J. set aside an award of Kshs. 230,000 and substituted with Kshs. 180,000/= for general damages where the claimant sustained multiple cut wounds on the right lower limb; bruises on the right lower limb, both elbows, the right iliac region, the frontal region, the temporal region; lacerations on the frontal region, cut wounds on the left iliac region, the frontal region and the temporal region; and blunt trauma to the abdomen.
In Poa Link Services Co. Ltd & another vs. Sindani Boaz Bonzemo [2021] eKLR , the plaintiff sustained blunt injury to the chest; bruises to the lower abdomen; bruises of the right hip joint; bruises of the thigh and bruises on the knee. The High Court affirmed an award of Ksh 350,000/= general damages.
In Blue Horizon Travel Co Ltd vs. Kenneth Njoroge [2020] eKLR the plaintiff sustained: bruises on the scalp; bruises on the neck; bruises on the abdomen; bruises on the lower back; cut wound on the left thumb; cut wound on the left palm; and subluxation of the left shoulder joint. The court awarded Kshs. 400,000/= as general damages.
In Samwel Martin Njoroge Kamunyu vs. Mildred Okweya Barasa [2020] eKLR the plaintiff who sustained two deep cut wounds on the forehead; bruises and lacerations on the right cheek; blunt injury to the shoulder and chest; blunt injury to the pelvis; deep cut wounds on right and left legs was awarded Kshs. 300,000/= as general damages.
Guided by the decisions in the above cited cases, I find that the award of Kshs. 500,000/= general damages was on the higher side and not commensurate with the Respondent’s injuries. I therefore set aside the said award and substitute it with an award for the sum of Kshs. 350,000/=.
The trial court’s award on Special Damages was not contested and I will therefore uphold it.
In the final analysis, I find that the appeal on quantum is merited and I therefore allow it and set aside the award by the trial court and enter judgment for the Respondent as follows: -
Liability at 100% in favour of the Respondent.
General Damages – 350,000/=
Special Damages – 7,050/=
Total – 357,050/=
The Respondent is also granted the interests on the total award at court rates till payment in full.
I award the Appellant half the costs of this appeal which I hereby assess at Kshs. 30,000.
It is so ordered.
The Respondent herein was the Plaintiff before the trial court where she sued the Appellant/Defendant seeking damages arising out of a road traffic accident which occurred on 4 th July 2020. The Respondent’s case was that she was on the material day travelling aboard motor vehicle registration No. KBB 215W when at Nyaramba area, along Kericho-Kisii road, the said motor vehicle lost control and collided with another motor vehicle Registration No. KBB 583D thereby causing an accident in which she sustained serious injuries and has, as a result, suffered loss and damage. The Respondent attributed the accident to the negligence and/or recklessness of the Appellant’s driver and/or agent.
The Defendant/Appellant filed his Statement of Defence on 13 th August 2021 wherein he denied the allegations contained in the Plaint and attributed the accident to the negligence to the Plaintiff/Respondent.
The matter was thereafter set down for hearing. The Respondent called four witnesses and produced the following exhibits: -
Copy of National Identity Card – P.Exh 1
Treatment Notes from Nyamira County and Referral Hospital – P.Exh 2
P3 Form – P.Exh 3
Police Abstract – P.Exh 4
Dr. Morebu’s Medical Report – P.Exh 5(a)
Receipt for Dr. Morebu’s Medical Report – P.Exh 5(b)
Copy of Motor Vehicle Records – P.Exh 6(a)
Receipt for Search – P.Exh 6(b)
Demand Letter – P.Exh 7
Affidavit – P.Exh 8
The Appellant did not call any witness but produced a second Medical Report as (D.Exh1).
At the close of the trial, judgment was entered in favour of the Respondent as follows: -
Liability at 100%.
General Damages Kshs. 500,000/=.
Special Damages Kshs. 7,050/=.
Costs and interests at prevailing court rates.
Aggrieved by the trial court’s decision, the Appellant filed the instant appeal wherein he challenges the finding on quantum on the following grounds: -
THAT the Learned Trial Magistrate erred in law and in fact in the assessment of quantum thereby giving an award on quantum on general damaged of Kshs. 500,000/= that was overly in excess in the circumstances of the case.
THAT the Learned Trial Magistrate erred in law and in fact in failing to pay regard to decisions filed alongside the Defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar injuries as the case she was deciding.
THAT the Learned Trial Magistrate’s exercise of discretion the assessment of quantum was injudicious.
The appeal was canvassed by way of written submissions which I have considered.
The duty of a first appellate court was restated in PIL Kenya Ltd vs. Oppong [2009] KLR 442 where the Court of Appeal held thus: -
“It is the duty of the Court of Appeal, as a first appellate court, to analyse and evaluate the evidence on record afresh and to reach its own independent decision, but always bearing in mind that the trial court had the advantage of hearing and seeing the witnesses and their demeanour and giving allowance for that.”
I have carefully considered the record of appeal and the parties’ rival submissions I find that the main issue for determination is whether the trial court arrived at the correct assessment on quantum of damages.
In Arrow Car Ltd vs. Elijah Shamalla Bimomo & 2 Others (2004) eKLR the Court of Appeal established the principles that an appellate court should consider when determining whether or not to disturb the trial court’s findings on quantum: -
“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. …”
This court is also aware of the principle that comparable injuries should as far as possible attract comparable awards bearing in mind the correct level of awards in similar cases. This is the position that was taken in Stanley Maore vs. Geoffrey Mwenda [2004] eKLR , where it was held thus: -
“Having so considered we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
The Respondent sustained the following injuries as stated in paragraph 5 of the amended Plaint: -
Deep cut wounds on the right leg
Chest contusion
Bruises on the right shoulder
Bruises on the right Upper limb
Blunt trauma to the back
Bruises on the left upper limb
Bruises on the right leg
Bruises on the left leg
The medical report by Dr. Morebu (P.Exh 5(a)) and the P3 Form (P.EXH3) confirms the Respondent’s injuries. The second medical report by Dr. Jennifer Kahuthu (D.Exh1) indicates that the Respondent did not suffer any permanent or physical disability as a result of the said injuries. This means that the Respondent will recover from the said injuries.
I have considered the following comparable cases: -
In Ephraim Wagura Muthui 2 others vs. Toyota Kenya Limited & 2 others [2019] eKLR, Majanja J. set aside the lower court’s award of Kshs. 55,000/= for cut wound on the parietal area of the head, contusion on the neck, blunt trauma to the chest, cut wound on the left leg and blunt trauma to the back and substituted it with an award of Kshs. 100,000/=.
In Francis Omari Ogaro vs. JAO (minor suing through next friend and father G.O.D) [2021] eKLR , Maina J. set aside an award of Kshs. 230,000 and substituted with Kshs. 180,000/= for general damages where the claimant sustained multiple cut wounds on the right lower limb; bruises on the right lower limb, both elbows, the right iliac region, the frontal region, the temporal region; lacerations on the frontal region, cut wounds on the left iliac region, the frontal region and the temporal region; and blunt trauma to the abdomen.
In Poa Link Services Co. Ltd & another vs. Sindani Boaz Bonzemo [2021] eKLR , the plaintiff sustained blunt injury to the chest; bruises to the lower abdomen; bruises of the right hip joint; bruises of the thigh and bruises on the knee. The High Court affirmed an award of Ksh 350,000/= general damages.
In Blue Horizon Travel Co Ltd vs. Kenneth Njoroge [2020] eKLR the plaintiff sustained: bruises on the scalp; bruises on the neck; bruises on the abdomen; bruises on the lower back; cut wound on the left thumb; cut wound on the left palm; and subluxation of the left shoulder joint. The court awarded Kshs. 400,000/= as general damages.
In Samwel Martin Njoroge Kamunyu vs. Mildred Okweya Barasa [2020] eKLR the plaintiff who sustained two deep cut wounds on the forehead; bruises and lacerations on the right cheek; blunt injury to the shoulder and chest; blunt injury to the pelvis; deep cut wounds on right and left legs was awarded Kshs. 300,000/= as general damages.
Guided by the decisions in the above cited cases, I find that the award of Kshs. 500,000/= general damages was on the higher side and not commensurate with the Respondent’s injuries. I therefore set aside the said award and substitute it with an award for the sum of Kshs. 350,000/=.
The trial court’s award on Special Damages was not contested and I will therefore uphold it.
In the final analysis, I find that the appeal on quantum is merited and I therefore allow it and set aside the award by the trial court and enter judgment for the Respondent as follows: -
Liability at 100% in favour of the Respondent.
General Damages – 350,000/=
Special Damages – 7,050/=
Total – 357,050/=
The Respondent is also granted the interests on the total award at court rates till payment in full.
I award the Appellant half the costs of this appeal which I hereby assess at Kshs. 30,000.
It is so ordered.