(An appeal from the part of the whole judgment Chief Magistrate’s Court at Thika (Hon. V.A Ogutu Resident Magistrate) delivered on 12th February, 2023 in Thika SCCC No. E564 of 2022.
1. This is an appeal on quantum. Vide a Memorandum of Appeal dated 10th May 2023, the appellant seeks that the judgment on quantum be set aside and the same be assessed afresh and that costs of the appeal and that of the trial court be awarded to the appellant. The appeal is premised on the grounds that the trial court misdirected itself in granting general damages of kshs 350,000/- together with costs and interest; the trial court ignored the principles applicable in awarding the quantum of damages and applied wrong principles when assessing damages to be awarded to the respondent; that the trial court arrived at a decision unsustainable in law.
2. In response to the appeal, the respondent submitted that it suffered the following injuries; dislocation of the right shoulder joint; bruises to the right thigh; and bruises to the left knee joint. As per the doctor's report, the claimant was incapacitated for one month and was still in pain at the time of examination.
3. They further submitted that the trial court applied itself to all the issues when it relied on the case of Eric Ratemo v Joash Nyakwebe Ratemo (2018)eKLR where an award of kshs 600,000/- was made for burnt injuries to the back and multiple bruises to the left arm, the case of Naomi Momanyi vs G4S Security Services Kenya Limited Meru HCCCA No 145 of 2010(2018)eKLR where an award of kshs 600,000/- was awarded for abrasion, cut to the face and upper lip bruises to the hand and dislocation to the right shoulder.
4. In urging this court not to interfere with the quantum award, they submitted that every injury should be reasonably compensated in line with comparable awards. To buttress this, they referred to the case of Savana Saw Mills vs George Mwale Mudomo (2005)eKLR and Catholic Diocese of Kisumu v Sophia Achieng Tete Kisumu Civil Appeal No. 284 of 2001. They prayed that the court would dismiss the appeal with costs and direct the funds deposited in court to be released to the respondent’s advocate.
5. This court notes that, at the time of writing this judgment, the appellants had not filed their submissions despite being notified of these proceedings.
6. This court observed that the nature of the respondent's injuries is undisputed. The primary issue is whether the award of general damages was excessive under the circumstances and whether it warrants interference.
7. In deciding whether to interfere with the award of general damages, I find guidance in the decision of the Court of Appeal in the case of Kemfro Africa Limited T/A Meru Express Services [1976] and another vs. Lubia and another (No.2) [1985] eKLR, in which the Court stated as follows:
“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. See Ilanga v Manyoka, [1961] EA 705, 709, 713 (CA-T); Lukenya Ranching and Farming Co-operative Society Ltd v Kavoloto, [1979] EA 414, 418, 419 (CA-K). This Court follows the same principles.”
8. Similarly, in Gitobu Imanyara and 2 others vs. Attorney General [2016] eKLR, the same Court held as follows:
“It is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum in order to justify reversing the trial Judge on the question of the amount of damages. It will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principles of law or that the amount awarded was so extremely high or so very low as to make it in the judgment of this Court an entirely erroneous estimate of the damage to which the plaintiff is entitled.”
9. Based on the foregoing, it is of utmost importance to evaluate whether the trial court considered an irrelevant factor or left out one or whether the amount awarded was so inordinately high. In awarding the general damages, the trial court observed as follows;
“I have considered the authorities cited, guided by past similar decisions, and taking into account the inflation trends in the country, I find that an award of kshs 350,000/= would suffice as general damages for pain and suffering for the injuries sustained.”
10. The trial court then proceeded to grant an award of kshs 350,000/- of the basis of the authorities cited. This court notes the generality of the trial court's statement when it failed to specifically state the referenced past similar authorities that it relied upon. The broad general statement fails to assist this court and instead leaves doubt as to whether the applicable principles were correctly followed.
11. This court also notes in its statement of claim the respondent sought the sum of kshs 650,000/- as compensation and in its submissions during trial the claimant (now respondent) submitted that an award of kshs 800,000/- would have been sufficient compensation for the considering the inflation. Therefore, merely stating reliance on past similar authorities without specifically citing them when conflicting proposals for compensation has been given is insufficient. It is prudent for a trial court to explicitly reference the authorities relied upon.
12. As a general rule, comparable injuries should attract comparable awards which must align with the awards granted in similar decided cases. See Kigaragari vs. Aya (1982-1988) 1 KAR 768 it was held as follows:-
“Damages must be within limits set out by decided cases and also within limits that the Kenyan economy can afford. Kenyan awards are inevitably passed on to the members of the public, the vast majority of whom cannot afford the burden, in the form of increased costs of insurance cover or increased fee…
13. Guided by the above this court refers to the case of Coast Broadway Co. Ltd v Elizabeth Alaka Achebi [2015] eKLR the court affirmed an award of Kshs 300,000/- for a plaintiff that had suffered a dislocation of the shoulder. In the case of Patrick Kinoti Miguna v Peter Mburunga G. Muthamia [2014] eKLR the plaintiff was awarded Kshs 300,000/- after he proved that he had sustained dislocation of the shoulder resulting to post traumatic arthritis and also had loose teeth. In Mara Tea Factory Limited v Lillian Bosibori Nyandika [2021] eKLR the court awarded kshs 300,000/- for the following sustained injuries head injury, deep cut wound on the head, bruises on the frontal part of the head, tenderness on the chest, dislocation on the left wrist joint, dislocation on the left shoulder joint, multiple cut wounds in the upper limb and lower limbs.
14. Based on the foregoing, I do find that the award kshs 350,000/- granted by the trial court falls within the range of comparable cases. Consequently, I find no fault on the part of the trial court. In the circumstances, I find that the appeal lacks merit and is hereby dismissed with costs to the respondent. The money deposited in court
Orders accordingly
Delivered, Dated and Signed this 24th day of January 2025