The appellant filed a suit in the Magistrate court seeking general damages, Special damages and the cost of the suit plus interest arising from an accident that occurred on or about 4th June 2019. The appellant was lawfully and carefully travelling as a passenger onboard motor vehicle registration number CD 357H along Namanga road when Motor vehicle registration number KBN 206T/ZD5437 rammed into the vehicle the appellant was traveling, resulting in injuries on the part of the appellant. The appellant sustained blunt injuries to the chest and back.
After hearing the appellant’s two witnesses in the case, the trial court was in no doubt that an accident did occur involving the two motor vehicles and determined that the respondent was 100% liable.
The court however declined to award any General damages observing that there were inconsistencies in evidence as regard the injuries sustained by the appellant. That on the one hand, the injuries observed at Kajiado Hospital where the appellant was first taken and those observed by Dr Okere were at variance. The court stated that “having analysed the evidence by the plaintiff although not rebutted by evidence of the defence, is not proved on the required standard of the civil procedure code. In this regard, I shall not award any sums in general damages.”
Dissatisfied with the judgement of the trial court, the appellant filed the present appeal on the following grounds;
1. THAT the learned Magistrate erred in law and in fact and arriving at an erroneous finding in quantum
2. THAT the learned Magistrate erred in law and in fact and in finding that no amount is awardable in quantum.
3. THAT the learned magistrate erred in law and in fact by finding that there was any inconsistency in the nature of injuries sustained by the plaintiff/applicant.
4. THAT the learned magistrate erred in law and in fact by not fully considering and/or appreciating all the evidence before her.
5. THAT in all the circumstances of the case, the finding of the learned magistrate in quantum was characterised by misapplication of the law and wrong exercise of discretion.
It is the appellant prayer that the judgement of the trial court in respect of the award on general damages be set aside and substituted with an appropriate award.
The appeal was canvassed by way of written submission.
Appellants Submissions
The appellant premise the appeal on one issue only; that is whether the appellant is entitled to assessment of quantum.
It is submitted that the there was no doubt whatsoever that the appellant sustained the injuries arising from the road traffic accident that occurred on 4th June 2019 and was treated and discharged. The medical report and the treatment notes were produced and exhibited. Having been established that the appellant sustained the injuries complained of, and the fact that the court found the respondent wholly liable it is the appellant submissions that the trial court ought to have proceeded and determined the quantum.
The appellant submits that an award of 380,000 was sufficient as compensation for the injuries suffered. The case of Poa Link Services Co.Ltd & Another vs Sindani Boaz Bonzemo (2021)eklr, where an award of 350,000 was made for injuries to the chest, bruises of the lower abdomen, bruises on the right hip, thigh and the knee. Similarly, in the case of Kitale Hauliers Limited vs Emanuel Soita Simiyu (2013) Eklr, the plaintiff in that suit was awarded 200,000 where the claimant suffered bruises on the right forearm and left upper arm, bruises on the knee and pain on the back.
Respondent Submissions
The respondent submitted on three main issues in opposition to the appeal; firstly, whether there are substantial issues raised by the appellant to warrant the exercise of this court discretion in setting aside the judgement of the learned magistrate; secondly whether the learned magistrate erred in not awarding quantum and her holding of inconsistencies in the nature of injuries suffered.
It is the Respondents submissions that the appellant has not placed before this court materials that would invite this court to exercise its discretion and set aside the judgement of the court below. It is further submitted that the court carefully evaluated the evidence in the nature of documents presented and found contradictory and that the same do not support the injuries sustained by the appellant. The case of Ndege & Another vs Nyarindo (2024) KEHC was referred to for the proposition that an award of damages rests on the discretion of the court and such discretion must not be exercised whimsically, courts are required to consider the nature of injuries sustained by the claimant alongside past similar awards in arriving at the determination as to quantum applicable.
The respondents support the court findig that the medical reports from Kajiado Hospital dated 12th June 2019 were inconsistent with Dr Cyprianus Okoth Okeres report dated 22nd August 2019.
ANALYSIS AND DETERMINATION
The issue for determination is whether the learned Magistrate erred in law and fact in declining to award the appellant general damages.
This being a first appeal, it is the duty of this court under section 78 of the civil procedure Act to re-evaluate the evidence and come up with its own conclusions bearing in mind unlike the trial court that it never had the advantage of hearing the witnesses and observing their demeanours. See the case of Abok James T/A A.J Odera & co. Advocates vs John Patrick Machira T/A Machira & co Advocate (2013) eklr. The court should also not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See Selle & Another v Associated Motor Boat Co. Ltd & Another (1968) EA 123.
The principles on which a court can interfere with an award for damages was stated by Madan JA in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E.A 898 and restated by Kneller JA in Kemfro Africa Limited t/a Meru Express Services (1976) & Anor. vs Lubia & Anor, No. 2 [1987] KLR 30 that:
“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 that 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.”
The award of general damages is a discretion of the trial court and the Appellate court would not normally interfere with the exercise of such discretion unless there exist reasons to do so. The evidence before the trial court was that the appellant sustained injuries arising from the road traffic accident that occurred on 4th August 2019. The fact of the accident is not in dispute nor is the fact that the respondent was to blame. Indeed, the court attribute the occurrence of the accident wholly on the part of respondent. In paragraph 5 of the plaint, the appellant set out the particulars of injuries as; blunt chest injuries, blunt back injuries, lumbo- sacral region tender on palpation and recurrent backaches.
The treatment notes from Kajiado Health Services department and the Scan lab diagnosis Kitengela dated 6th June 2019, all indicate that the patient KITAVU MWANGANGI sustained soft tissue injuries of the chest and the back. These two primary medical documents are consistent as to the injuries sustained by the appellant. The trial magistrate took issue with the medical report prepared by Dr Okoth Okere dated 22nd August 2019 which according to the magistrate added more and severe injuries. The injuries the court found added by the doctor are “recurrent headaches and sustained blunt chest and back injuries with a deep palpation”
A review of the evidence and especially the injuries sustained by the appellant shows consistent medical finding as contained in the P3 form, treatment notes from Kajiado Health Services and the Scan lab report. Similarly, the report by Dr Okoth Okere gives the history of the injuries sustained, the treatment given, the present complaint and his opinion and prognosis. In the doctor’s opinion, he confirmed that the appellant sustained blunt injuries to the chest and lower back. These injuries are the exact same one established by the other medical facility the appellant attended shortly after the accident, except that the terms used are different. Soft tissue injury is the result of blunt trauma or injury. It is the blunt trauma on the body that causes soft tissue injuries. On recurrent headache, this is not entirely unexpected. In one of the treatment notes from Scan Lab there is mention of an injury to the head and therefore it is not uncommon for the pain to later recur.
In any event the injuries sustained by the appellant were not controverted by the respondent. From the record of the court, the appellant was not re-examined by the respondent doctor and none was called to speak to the medical reports produced by the appellants or give a different assessment.
In the Circumstances, I find that the trial court misapprehended the evidence tendered by the appellant with respect to injuries sustained and arrived at an erroneous conclusion not supported by the evidence. The finding of the learned Magistrate on Quantum is thus Set aside.
I have considered the injuries suffered by the appellant. General damages are damages at large and cannot be determined with mathematical precision. In awarding general damages, the court exercises best judgment to arrive at an award which is fair compensation and reflects the nature and gravity of the injuries. I should also state that, although no two cases of personal injuries are exactly the same, previous decisions on comparable injuries offer a guide. See Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR. See also the Court of Appeal in Mbaka Nguru and Another v James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR that: -
“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”
I have considered the authorities referred to by the respondent and the appellant before the trial magistrate and their respective proposals. I am satisfied that an award of 200,000 would be appropriate taking into account the prevailing inflationary factors.
Consequently, the appeal herein is allowed, with cost and interest with effect from the date of filing the suit in the lower court.
After hearing the appellant’s two witnesses in the case, the trial court was in no doubt that an accident did occur involving the two motor vehicles and determined that the respondent was 100% liable.
The court however declined to award any General damages observing that there were inconsistencies in evidence as regard the injuries sustained by the appellant. That on the one hand, the injuries observed at Kajiado Hospital where the appellant was first taken and those observed by Dr Okere were at variance. The court stated that “having analysed the evidence by the plaintiff although not rebutted by evidence of the defence, is not proved on the required standard of the civil procedure code. In this regard, I shall not award any sums in general damages.”
Dissatisfied with the judgement of the trial court, the appellant filed the present appeal on the following grounds;
1. THAT the learned Magistrate erred in law and in fact and arriving at an erroneous finding in quantum
2. THAT the learned Magistrate erred in law and in fact and in finding that no amount is awardable in quantum.
3. THAT the learned magistrate erred in law and in fact by finding that there was any inconsistency in the nature of injuries sustained by the plaintiff/applicant.
4. THAT the learned magistrate erred in law and in fact by not fully considering and/or appreciating all the evidence before her.
5. THAT in all the circumstances of the case, the finding of the learned magistrate in quantum was characterised by misapplication of the law and wrong exercise of discretion.
It is the appellant prayer that the judgement of the trial court in respect of the award on general damages be set aside and substituted with an appropriate award.
The appeal was canvassed by way of written submission.
Appellants Submissions
The appellant premise the appeal on one issue only; that is whether the appellant is entitled to assessment of quantum.
It is submitted that the there was no doubt whatsoever that the appellant sustained the injuries arising from the road traffic accident that occurred on 4th June 2019 and was treated and discharged. The medical report and the treatment notes were produced and exhibited. Having been established that the appellant sustained the injuries complained of, and the fact that the court found the respondent wholly liable it is the appellant submissions that the trial court ought to have proceeded and determined the quantum.
The appellant submits that an award of 380,000 was sufficient as compensation for the injuries suffered. The case of Poa Link Services Co.Ltd & Another vs Sindani Boaz Bonzemo (2021)eklr, where an award of 350,000 was made for injuries to the chest, bruises of the lower abdomen, bruises on the right hip, thigh and the knee. Similarly, in the case of Kitale Hauliers Limited vs Emanuel Soita Simiyu (2013) Eklr, the plaintiff in that suit was awarded 200,000 where the claimant suffered bruises on the right forearm and left upper arm, bruises on the knee and pain on the back.
Respondent Submissions
The respondent submitted on three main issues in opposition to the appeal; firstly, whether there are substantial issues raised by the appellant to warrant the exercise of this court discretion in setting aside the judgement of the learned magistrate; secondly whether the learned magistrate erred in not awarding quantum and her holding of inconsistencies in the nature of injuries suffered.
It is the Respondents submissions that the appellant has not placed before this court materials that would invite this court to exercise its discretion and set aside the judgement of the court below. It is further submitted that the court carefully evaluated the evidence in the nature of documents presented and found contradictory and that the same do not support the injuries sustained by the appellant. The case of Ndege & Another vs Nyarindo (2024) KEHC was referred to for the proposition that an award of damages rests on the discretion of the court and such discretion must not be exercised whimsically, courts are required to consider the nature of injuries sustained by the claimant alongside past similar awards in arriving at the determination as to quantum applicable.
The respondents support the court findig that the medical reports from Kajiado Hospital dated 12th June 2019 were inconsistent with Dr Cyprianus Okoth Okeres report dated 22nd August 2019.
ANALYSIS AND DETERMINATION
The issue for determination is whether the learned Magistrate erred in law and fact in declining to award the appellant general damages.
This being a first appeal, it is the duty of this court under section 78 of the civil procedure Act to re-evaluate the evidence and come up with its own conclusions bearing in mind unlike the trial court that it never had the advantage of hearing the witnesses and observing their demeanours. See the case of Abok James T/A A.J Odera & co. Advocates vs John Patrick Machira T/A Machira & co Advocate (2013) eklr. The court should also not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. (See Selle & Another v Associated Motor Boat Co. Ltd & Another (1968) EA 123.
The principles on which a court can interfere with an award for damages was stated by Madan JA in United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd [1985] E.A 898 and restated by Kneller JA in Kemfro Africa Limited t/a Meru Express Services (1976) & Anor. vs Lubia & Anor, No. 2 [1987] KLR 30 that:
“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 that 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.”
The award of general damages is a discretion of the trial court and the Appellate court would not normally interfere with the exercise of such discretion unless there exist reasons to do so. The evidence before the trial court was that the appellant sustained injuries arising from the road traffic accident that occurred on 4th August 2019. The fact of the accident is not in dispute nor is the fact that the respondent was to blame. Indeed, the court attribute the occurrence of the accident wholly on the part of respondent. In paragraph 5 of the plaint, the appellant set out the particulars of injuries as; blunt chest injuries, blunt back injuries, lumbo- sacral region tender on palpation and recurrent backaches.
The treatment notes from Kajiado Health Services department and the Scan lab diagnosis Kitengela dated 6th June 2019, all indicate that the patient KITAVU MWANGANGI sustained soft tissue injuries of the chest and the back. These two primary medical documents are consistent as to the injuries sustained by the appellant. The trial magistrate took issue with the medical report prepared by Dr Okoth Okere dated 22nd August 2019 which according to the magistrate added more and severe injuries. The injuries the court found added by the doctor are “recurrent headaches and sustained blunt chest and back injuries with a deep palpation”
A review of the evidence and especially the injuries sustained by the appellant shows consistent medical finding as contained in the P3 form, treatment notes from Kajiado Health Services and the Scan lab report. Similarly, the report by Dr Okoth Okere gives the history of the injuries sustained, the treatment given, the present complaint and his opinion and prognosis. In the doctor’s opinion, he confirmed that the appellant sustained blunt injuries to the chest and lower back. These injuries are the exact same one established by the other medical facility the appellant attended shortly after the accident, except that the terms used are different. Soft tissue injury is the result of blunt trauma or injury. It is the blunt trauma on the body that causes soft tissue injuries. On recurrent headache, this is not entirely unexpected. In one of the treatment notes from Scan Lab there is mention of an injury to the head and therefore it is not uncommon for the pain to later recur.
In any event the injuries sustained by the appellant were not controverted by the respondent. From the record of the court, the appellant was not re-examined by the respondent doctor and none was called to speak to the medical reports produced by the appellants or give a different assessment.
In the Circumstances, I find that the trial court misapprehended the evidence tendered by the appellant with respect to injuries sustained and arrived at an erroneous conclusion not supported by the evidence. The finding of the learned Magistrate on Quantum is thus Set aside.
I have considered the injuries suffered by the appellant. General damages are damages at large and cannot be determined with mathematical precision. In awarding general damages, the court exercises best judgment to arrive at an award which is fair compensation and reflects the nature and gravity of the injuries. I should also state that, although no two cases of personal injuries are exactly the same, previous decisions on comparable injuries offer a guide. See Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR. See also the Court of Appeal in Mbaka Nguru and Another v James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR that: -
“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”
I have considered the authorities referred to by the respondent and the appellant before the trial magistrate and their respective proposals. I am satisfied that an award of 200,000 would be appropriate taking into account the prevailing inflationary factors.
Consequently, the appeal herein is allowed, with cost and interest with effect from the date of filing the suit in the lower court.