1. The Appellant dissatisfied with the Judgement of Chief Magistrate, Honourable A.K. Ndungu at Milimani Commercial Court delivered on 8th March 2010 in Civil Case Number 7301 of 2005 filed a memorandum of appeal dated 6th April 2010 seeking the following orders:-
a) The Appeal be allowed.
b) The Honourable Magistrate's Judgement be set aside and the same be substituted by the Judgement of this Honourable Court.
c) The costs of the suit .
2. Grounds of the appeal.
1) THAT the Learned Magistrate erred in law and in fact in finding that the Respondent was injured while working for the Appellant.
2) THAT the Learned Magistrate erred in law and in fact in finding the Appellant liable for causing the accident.
3) THAT the Learned Magistrate erred and misdirected himself on the issue of general damages.
4) THAT the amount of general damages awarded to the Respondent is manifestly excessive in light of the injury sustained and the medical report prepared by Dr Kiama Wangai dated 7th July 2005.
5) The Appellant shall file a supplementary Memorandum of Appeal upon receipt of court proceedings.
BACKGROUND TO THE APPEAL
3. The respondent filed suit by way of plaint dated 8th July 2005 alleging negligence of the employer(appellant) on injuries sustained at place of work and sought the following reliefs:-
a. Special damages Kshs. 1500
b. General damages for pain and suffering
c. Costs of this suit
d. Interest on a,b and c above( plaint at pages 34-36 of ROA).
4. The suit was opposed by the appellant who entered an appearance and filed a statement of defence dated 26th October 2005.
5. The Respondent filed reply to the defence dated 7th November 2005.
6. The Respondent’s case was heard on the 19th October 2009. By consent the 2 medical reports , One of Dr. Kiama Wangata dated 7th july 2005 and other by Dr. Shah dated 3rd august 2006 were admitted without calling the makers. The notes for St. Michael Medical Services dated 17th September 2002 be admitted without calling the maker. A receipt of Kshs. 1500 by Dr. Kiarie be admitted and the employment card be produced by the Counsel (page 5 of ROA). The respondent testified as PW1 and relied on the 2 medical reports. He was cross-examined by counsel for the appellant, Bundi. The appellant’s case was heard on even date with DW1 as Stanley Agaru Kihara who testified on oath and was cross-examined by counsel of the respondent, Onguti. (Trial proceedings at pages 3-8 of ROA).
7. The court found that only appellant filed written submissions after the hearing.
8. The trial court delivered judgment in the suit on the 8th March 2010 where it awarded Kshs. 90,000 general damages and 1500 as special damages with costs and interest.
DETERMINATION
11. The appeal was canvassed by way of written submissions. Both parties complied.
12. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 the 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 materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
13. The court is further guided by the principles on appeal decisions in Mbogo v Shah [1968] EA De Lestang V.P (as he then was) observation at page 94: “I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’
Issues for determination
14. The appellant in written submissions at appeal addressed a single issue of whether the general damages were excessive. The respondent addressed the issue of liability and quantum.
15. The trial court found the evidence of the claimant /respondent was produced by consent and was not controverted. The court proceeded to address issue of liability and quantum.
16. On liability, the court observed that in defence statement the appellant pleaded as follows:- at paragraph 9 ‘’ in the alternative in so far as the plaintiff’s alleged claim is under the Workmen’s Compensation Act, the Defendant has always been ready and willing to pay the same or has paid the same. ‘’(page 30 of ROA) The court found that the appellant admitted liability and in its defence and further the evidence of the respondent was uncontroverted. The finding of 100% liability by the trial court is upheld.
Quantum -Whether the general damages were excessive.
9. The trial court delivered judgment in the suit on the 8th March 2010 where it awarded Kshs. 90000 general damages and 1500 as special damages with costs and interest.
10. The appellant submitted that the award of Kshs. 90000 for small cuts was extremely excessive and relied on the decision of the Court of Appeal in Tayab v Kinanu (1983) KLR where the principles for general principles were set out. The court noted the cited decision was by Potter JA as follows:- ‘’ passage from the speech of Lord Morris of Borth-y-Gest in the case of West (H) & Son Ltd v Shephard [1964] AC 326 at 345:
“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.”
The approach of Lord Morris to the matter of compensatory damages was supported by Lord Denning MR in Lim Poh Choo v Camden and Islington Area Health Authority [1979] 1 All ER 332 at 339:
“In considering damages in personal injury cases, it is often said: ‘The defendants are wrongdoers, so make them pay up in full. They do not deserve any consideration.’ That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall any one of us. I stress this so as to remove the misapprehension, so often repeated, that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is in the circumstances, a fair compensation, fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay. It is worth recording the wise words of Parke B over a century ago.
‘Scarcely any sum could compensate a labouring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life ... You are not to consider the value of existence as if you were bargaining with an annuity office ... I advise you to take a reasonable view of the case and give what you consider fair compensation’.”
Later in his judgment, at 341, Lord Denning had this to say about extravagant awards:
“I may add, too, that if these sums get too large, we are in danger of injuring the body politic, just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and they are passed to the public in the shape of higher and higher fees for medical attention. By contrast we have a national health service. But the health authorities cannot stand huge sums without impeding their service to the community. The funds available come out of the pockets of the tax payers. They have to be carefully husbanded and spent on essential services. They should not be dissipated in paying more than fair compensation.”
The court found the citations pointing the court in the right direction.
17. The appellant submitted that in the instant case the award of Kshs. 90000 was excessive and not in tandem with the principle of damages for comparable injuries should be uniform. The appellant relied on the decision in Kalthom Mbaraka Mohammed v Reuben Maganzi & another HCCC NO. 531 /85 judgment delivered on the 25th October 1989 where the plaintiff had multiple bruises to the leg arm and shoulder and was awarded Kshs. 20000. The appellant opined Kshs. 40000 would be adequate consideration of inflation. Ndungu Dennis v Ann Wangari Ndirangu & another (2018)w KLR where he stated that the injuries were less and/ or similar and the plaintiff was awarded Kshs. 300000 and on appeal Kshs. 100000. He submitted that taking into account inflation he should be awarded Kshs. 150000.
18. The injuries in the instant case the claimant produced two medical reports. The 1st report dated 7th july 2005 was by Dr. Kiama Wangai who categorised the injuries as harm being cut wound on right knee and right leg stated to be soft tissue injuries. The 2nd medical report dated 3rd August 2006 was by Dr. R.P Shah who stated the injuries as cuts on right leg. He stated the injuries were few small cuts. The date of accident was stated as 17th September 2002.
19. The trial court held that the authority relied on by the appellant of Kalthom Mbaraka Mohammed v Reuben Maganzi & another HCCC NO. 531 /85 judgment delivered on the 25th October 1989. The trial court found the injuries were at variance. In the case the plaintiff was a housewife aged 24 years at the time of accident, she sustained multiple bruises on her right leg, arm and shoulder. The plaintiff fully recovered without permanent disability except for two scars on the right shoulder 1 1/2 “ x 1” and right leg 1” x 1” which were not ugly. General damages for pain suffering and loss of amenities was assed at Kshs 20,000/-(cited in Janepher Asami & 3 Others V Akamba Bus Services [2001] KEHC 14 (KLR).) The court found the injuries were comparable but for the fact that this decision was over a decade older.
20. The court was guided by the observation in Ugenya Bus services v Gachoki where the Court of Appeal stated:- ‘’We have inflation with us. We all have to live with the exorbitance which inflation has brought into our lives.’’ The value of Kenya currency in 1985 was at a big variance as of 8th March 2010 when the judgment was delivered. The award of damages ought to make some sense to the injured employee. Taking into account the foregoing I do not find that the decision of the trial court was not clearly wrong and the award excessively high so as to interfere with the exercise of the discretion of the trial court (Mbogo v Shah).
21. In conclusion, the Judgement of Chief Magistrate, Honourable A.K. Ndungu at Milimani Commercial Court delivered on 8th March 2010 in Civil Case Number 7301 of 2005 is upheld and the appeal dismissed with costs to the Respondent.
22. It so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 21st DAY OF FEBRUARY, 2025.
a) The Appeal be allowed.
b) The Honourable Magistrate's Judgement be set aside and the same be substituted by the Judgement of this Honourable Court.
c) The costs of the suit .
2. Grounds of the appeal.
1) THAT the Learned Magistrate erred in law and in fact in finding that the Respondent was injured while working for the Appellant.
2) THAT the Learned Magistrate erred in law and in fact in finding the Appellant liable for causing the accident.
3) THAT the Learned Magistrate erred and misdirected himself on the issue of general damages.
4) THAT the amount of general damages awarded to the Respondent is manifestly excessive in light of the injury sustained and the medical report prepared by Dr Kiama Wangai dated 7th July 2005.
5) The Appellant shall file a supplementary Memorandum of Appeal upon receipt of court proceedings.
BACKGROUND TO THE APPEAL
3. The respondent filed suit by way of plaint dated 8th July 2005 alleging negligence of the employer(appellant) on injuries sustained at place of work and sought the following reliefs:-
a. Special damages Kshs. 1500
b. General damages for pain and suffering
c. Costs of this suit
d. Interest on a,b and c above( plaint at pages 34-36 of ROA).
4. The suit was opposed by the appellant who entered an appearance and filed a statement of defence dated 26th October 2005.
5. The Respondent filed reply to the defence dated 7th November 2005.
6. The Respondent’s case was heard on the 19th October 2009. By consent the 2 medical reports , One of Dr. Kiama Wangata dated 7th july 2005 and other by Dr. Shah dated 3rd august 2006 were admitted without calling the makers. The notes for St. Michael Medical Services dated 17th September 2002 be admitted without calling the maker. A receipt of Kshs. 1500 by Dr. Kiarie be admitted and the employment card be produced by the Counsel (page 5 of ROA). The respondent testified as PW1 and relied on the 2 medical reports. He was cross-examined by counsel for the appellant, Bundi. The appellant’s case was heard on even date with DW1 as Stanley Agaru Kihara who testified on oath and was cross-examined by counsel of the respondent, Onguti. (Trial proceedings at pages 3-8 of ROA).
7. The court found that only appellant filed written submissions after the hearing.
8. The trial court delivered judgment in the suit on the 8th March 2010 where it awarded Kshs. 90,000 general damages and 1500 as special damages with costs and interest.
DETERMINATION
11. The appeal was canvassed by way of written submissions. Both parties complied.
12. This being a first appellate court, it was held in Selle v Associated Motor Boat Co. [1968] EA 123 that:- “The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 the 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 materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”
13. The court is further guided by the principles on appeal decisions in Mbogo v Shah [1968] EA De Lestang V.P (as he then was) observation at page 94: “I think it is well settled that this Court will not interfere with the exercise of its discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.’’
Issues for determination
14. The appellant in written submissions at appeal addressed a single issue of whether the general damages were excessive. The respondent addressed the issue of liability and quantum.
15. The trial court found the evidence of the claimant /respondent was produced by consent and was not controverted. The court proceeded to address issue of liability and quantum.
16. On liability, the court observed that in defence statement the appellant pleaded as follows:- at paragraph 9 ‘’ in the alternative in so far as the plaintiff’s alleged claim is under the Workmen’s Compensation Act, the Defendant has always been ready and willing to pay the same or has paid the same. ‘’(page 30 of ROA) The court found that the appellant admitted liability and in its defence and further the evidence of the respondent was uncontroverted. The finding of 100% liability by the trial court is upheld.
Quantum -Whether the general damages were excessive.
9. The trial court delivered judgment in the suit on the 8th March 2010 where it awarded Kshs. 90000 general damages and 1500 as special damages with costs and interest.
10. The appellant submitted that the award of Kshs. 90000 for small cuts was extremely excessive and relied on the decision of the Court of Appeal in Tayab v Kinanu (1983) KLR where the principles for general principles were set out. The court noted the cited decision was by Potter JA as follows:- ‘’ passage from the speech of Lord Morris of Borth-y-Gest in the case of West (H) & Son Ltd v Shephard [1964] AC 326 at 345:
“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.”
The approach of Lord Morris to the matter of compensatory damages was supported by Lord Denning MR in Lim Poh Choo v Camden and Islington Area Health Authority [1979] 1 All ER 332 at 339:
“In considering damages in personal injury cases, it is often said: ‘The defendants are wrongdoers, so make them pay up in full. They do not deserve any consideration.’ That is a tendentious way of putting the case. The accident, like this one, may have been due to a pardonable error such as may befall any one of us. I stress this so as to remove the misapprehension, so often repeated, that the plaintiff is entitled to be fully compensated for all the loss and detriment she has suffered. That is not the law. She is only entitled to what is in the circumstances, a fair compensation, fair both to her and to the defendants. The defendants are not wrongdoers. They are simply the people who have to foot the bill. They are, as the lawyers say, only vicariously liable. In this case it is in the long run the tax payers who have to pay. It is worth recording the wise words of Parke B over a century ago.
‘Scarcely any sum could compensate a labouring man for the loss of a limb, yet you do not in such a case give him enough to maintain him for life ... You are not to consider the value of existence as if you were bargaining with an annuity office ... I advise you to take a reasonable view of the case and give what you consider fair compensation’.”
Later in his judgment, at 341, Lord Denning had this to say about extravagant awards:
“I may add, too, that if these sums get too large, we are in danger of injuring the body politic, just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and they are passed to the public in the shape of higher and higher fees for medical attention. By contrast we have a national health service. But the health authorities cannot stand huge sums without impeding their service to the community. The funds available come out of the pockets of the tax payers. They have to be carefully husbanded and spent on essential services. They should not be dissipated in paying more than fair compensation.”
The court found the citations pointing the court in the right direction.
17. The appellant submitted that in the instant case the award of Kshs. 90000 was excessive and not in tandem with the principle of damages for comparable injuries should be uniform. The appellant relied on the decision in Kalthom Mbaraka Mohammed v Reuben Maganzi & another HCCC NO. 531 /85 judgment delivered on the 25th October 1989 where the plaintiff had multiple bruises to the leg arm and shoulder and was awarded Kshs. 20000. The appellant opined Kshs. 40000 would be adequate consideration of inflation. Ndungu Dennis v Ann Wangari Ndirangu & another (2018)w KLR where he stated that the injuries were less and/ or similar and the plaintiff was awarded Kshs. 300000 and on appeal Kshs. 100000. He submitted that taking into account inflation he should be awarded Kshs. 150000.
18. The injuries in the instant case the claimant produced two medical reports. The 1st report dated 7th july 2005 was by Dr. Kiama Wangai who categorised the injuries as harm being cut wound on right knee and right leg stated to be soft tissue injuries. The 2nd medical report dated 3rd August 2006 was by Dr. R.P Shah who stated the injuries as cuts on right leg. He stated the injuries were few small cuts. The date of accident was stated as 17th September 2002.
19. The trial court held that the authority relied on by the appellant of Kalthom Mbaraka Mohammed v Reuben Maganzi & another HCCC NO. 531 /85 judgment delivered on the 25th October 1989. The trial court found the injuries were at variance. In the case the plaintiff was a housewife aged 24 years at the time of accident, she sustained multiple bruises on her right leg, arm and shoulder. The plaintiff fully recovered without permanent disability except for two scars on the right shoulder 1 1/2 “ x 1” and right leg 1” x 1” which were not ugly. General damages for pain suffering and loss of amenities was assed at Kshs 20,000/-(cited in Janepher Asami & 3 Others V Akamba Bus Services [2001] KEHC 14 (KLR).) The court found the injuries were comparable but for the fact that this decision was over a decade older.
20. The court was guided by the observation in Ugenya Bus services v Gachoki where the Court of Appeal stated:- ‘’We have inflation with us. We all have to live with the exorbitance which inflation has brought into our lives.’’ The value of Kenya currency in 1985 was at a big variance as of 8th March 2010 when the judgment was delivered. The award of damages ought to make some sense to the injured employee. Taking into account the foregoing I do not find that the decision of the trial court was not clearly wrong and the award excessively high so as to interfere with the exercise of the discretion of the trial court (Mbogo v Shah).
21. In conclusion, the Judgement of Chief Magistrate, Honourable A.K. Ndungu at Milimani Commercial Court delivered on 8th March 2010 in Civil Case Number 7301 of 2005 is upheld and the appeal dismissed with costs to the Respondent.
22. It so Ordered.
DATED, SIGNED, AND DELIVERED IN OPEN COURT AT NAIROBI THIS 21st DAY OF FEBRUARY, 2025.