1. In a judgment delivered on 7th February 2024, the Court below found at paragraph 10 that:-
“The Court has paid homage to the principles governing the award of general damages as set out in Southern Engineering Company Ltd vs Mutia [1985]eKLR. Further, noting that the injuries at best are to be compensated by comparable awards, the Court has been guided by the decision Edward Mutevu Maithya & another v Edwin Nyamweya [2022] KEHC 2855 (KLR) to decree that the ward of Kes.100,000.00 in general damages would be adequate compensation to the Claimant.”
2. The Court found that special damages of Kes.2,980.00 had been proved and consequently awarded it.
3. The appellant was aggrieved by the said decision and filed the instant appeal. The appeal raises four grounds, to wit that:-
1. That the learned adjudicator erred in law and that in awarding an ordinate low award of the sum Kes.100,000.00 in general damages, against very serious and grievous injuries suffered by the Appellant being friction burn (wound) on the left forearm, blunt object injury to the back and left thigh, lacerations on the lower back and left, ankle and bruise wound on the left thigh;
2. That the learned trial adjudicator erred in fact and law in failing to bring his award within the ambit of awards of such injuries and failing to be bound by the High Court and Court of Appeal authorities on quantum for such injuries;
3. That the learned adjudicator erred in fact and law in failing to analyze and consider the evidence rendered on the injuries suffered by the Appellant, thereby arriving at an erroneous award on account of general damages.
4. That the learned trial adjudicator erred in law and fact in disregarding and failing to put into consideration and or have regard to the pleadings and submissions of the parties duly filed and on Court record in arriving at his erroneous award.
4. The appellant therefore sought to have the appeal allowed, the judgment delivered on 7th February 2024 set aside and general damages awarded “in accordance with the law.”
5. I have perused the proceedings of the Court below. I note that the matter proceeded by way of documentary evidence and written submissions. The Appellant, according to the evidence of Dr. Ajoni Adede, suffered the following injuries:-
1. Friction burn (wound) on the left forearm;
2. Blunt object injury to the back and left thigh;
3. Laceration on the lower back and left ankle; and
4. Bruise wounds on the left thigh.
6. I will set out the summary of the proceedings in the lower court below.
7. The Appellant’s counsel submitted that the Claimant in the matter before the trial Court be awarded Kes.350,000.00. In support of the said contention the Claimant relied on the decision of the Court in Anthony Nyamwaye vs Jackline Moraa Nyandemo; Civil Suit No E046 of 2021 where an award of Kes.250,000.00 was upheld on appeal and Poa Link Services Co Ltd & another vs Shindani Boaz Bonzemo [2021]eKLR where Riechi, J upheld an award of general damage of Kes.350,000.00 where the Plaintiff had sustained blunt injury to the chest, bruises to the lower abdomen, bruises to the right hip joint, bruises to the thigh and bruises to the knee.
8. The Respondent, on the other hand, proposed that an award of Kes.70,000.00 be made if the Court found the Respondent liable. Reliance was placed on the decision of the Court in Rege vs LA ( minor suing through her father and next friend GAA) (Civil Appeal E111 of 2021) [2021] KEHC 16634 (KLR) (20th December 2022) (judgment).
9. Upon considering the matter, the trial Court entered judgment as aforesaid, leading to the instant appeal. As we have already seen, the appeal is in regard to the quantum only. The Respondent didn’t file a cross-appeal.
10. The appeal was canvassed by way of written submissions. I will set out the summary of each party’s submissions.
11. The submissions of the Appellant are dated 14th January 2025. The appellant’s counsel submitted that the correct approach in assessing general damages is that, as far as possible, comparable injuries should attract comparable awards.
12. It was urged that the trial Court was wrong to rely on the Edward Mutevu Maithya case (supra) since the injuries in the said case were not comparable to what the Appellant suffered in respect of the cause before the trial Court.
13. Counsel urged that this Court overturn the decision of the Court below and substitute instead with an award of Kes.350,000.00, taking into consideration inflationary trends and lapse of time.
14. The Appellant relied on the case of Madhupaper Kenya Ltd vs Ronald Ntebere Kangoli [2020] KEHC 3667 (KLR), where Kes.200,000/- was awarded for friction burn wounds on the right forearm, proximal end and right wrist joint dorsal aspect. Reliance was also placed on the decision of the Court in Prime Steel Mills Ltd vs Amos Kipkogei Sialo [2017]eKLR, where an award of Kes. 180,000.00 was made for burn injuries on the right leg, right hand and face, which were termed as soft tissue injuries with no permanent incapacity.
15. In the submissions dated 20th January 2025. Ms. Amarshi, learned counsel for the Respondent, urged that when the Applicant was seen by Dr. Adede after 5 days, he had fully healed from his injuries.
16. She submitted that the authority she relied on at the trial Court, to wit Rege vs LA (supra), was relevant in this matter. She accused the Appellant of introducing new authorities at the appellate stage. Counsel urged that only those submissions relied on in the Court below should be considered.
17. Ms. Amarshi urged that the Court below was right to rely on the decision of the Court in the Edward Maithya case and that the award of Kes.100,000.00 was consistent with injuries sustained by the Appellant.
18. She thus urged that the appeal be dismissed with costs.
19. This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
20. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:-
“…that this Court will not interfere with the exercise of judicial 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 is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
21. The duty of the first appellate Court was settled in the case of Selle & another vs Associated Motor Boat Company and Others [1968]EA 123. In the said case the learned Judges of Appeal stated as follows:-
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
22. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different.”
23. The appeal is on the quantum of general damages only.
24. It is trite law that the appellate Court will not interfere with an award of the trial Court unless it was inordinately high or low. In the case of Butt v Khan [1978] KECA 24 (KLR), Law, JA stated as follows:-
“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 arrived at a figure which was either inordinately high or low.”
25. I have considered the record of the Court below, the proceedings, judgment the Memorandum of appeal and the submissions of the parties.
26. The appeal is on quantum only. I am required to determine if the award of the trial Court ought to be disturbed. The principles under which I could do so have been discussed in the Butt vs Khan case. I will only disturb the trial Court’s judgment if the same was inordinately low or inordinately high as to amount to an erroneous decision. See also the decision of the Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tete [2004] eKLR where it was held that:-
“It is trite law that the assessment of general damages is at the discretion of the trial court, and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles.”
27. Looking at the injuries suffered by the Appellant, I note that they were soft tissue injuries. The Court below relied on the judgment in the Edward Mutevu Maithya case (supra), where the learned Judge found that an award of Kes.80,000.00 for similar injuries was reasonable. The decision was made in 2022, about 2 years before the lower Court delivered its judgment.
28. In my view, the decision of the Court below wasn’t unreasonable. It was well reasoned and relied on precedents arising from cases where injuries were broadly similar. Although I may not have arrived at the same decision if I tried the matter in the first instance, the adjudicator's determination was not based on misapprehension of facts, nor based on wrong principles. The trial adjudicator wasn't so clearly wrong as to justify the exercise by this Court of its discretion.
29. The upshot of the foregoing is that I find no merit in the appeal. The same is dismissed with costs.
30. Orders accordingly.
Dated and signed at Mombasa this 5th day of May 2024. Delivered virtually through Microsoft TEAMS
“The Court has paid homage to the principles governing the award of general damages as set out in Southern Engineering Company Ltd vs Mutia [1985]eKLR. Further, noting that the injuries at best are to be compensated by comparable awards, the Court has been guided by the decision Edward Mutevu Maithya & another v Edwin Nyamweya [2022] KEHC 2855 (KLR) to decree that the ward of Kes.100,000.00 in general damages would be adequate compensation to the Claimant.”
2. The Court found that special damages of Kes.2,980.00 had been proved and consequently awarded it.
3. The appellant was aggrieved by the said decision and filed the instant appeal. The appeal raises four grounds, to wit that:-
1. That the learned adjudicator erred in law and that in awarding an ordinate low award of the sum Kes.100,000.00 in general damages, against very serious and grievous injuries suffered by the Appellant being friction burn (wound) on the left forearm, blunt object injury to the back and left thigh, lacerations on the lower back and left, ankle and bruise wound on the left thigh;
2. That the learned trial adjudicator erred in fact and law in failing to bring his award within the ambit of awards of such injuries and failing to be bound by the High Court and Court of Appeal authorities on quantum for such injuries;
3. That the learned adjudicator erred in fact and law in failing to analyze and consider the evidence rendered on the injuries suffered by the Appellant, thereby arriving at an erroneous award on account of general damages.
4. That the learned trial adjudicator erred in law and fact in disregarding and failing to put into consideration and or have regard to the pleadings and submissions of the parties duly filed and on Court record in arriving at his erroneous award.
4. The appellant therefore sought to have the appeal allowed, the judgment delivered on 7th February 2024 set aside and general damages awarded “in accordance with the law.”
5. I have perused the proceedings of the Court below. I note that the matter proceeded by way of documentary evidence and written submissions. The Appellant, according to the evidence of Dr. Ajoni Adede, suffered the following injuries:-
1. Friction burn (wound) on the left forearm;
2. Blunt object injury to the back and left thigh;
3. Laceration on the lower back and left ankle; and
4. Bruise wounds on the left thigh.
6. I will set out the summary of the proceedings in the lower court below.
7. The Appellant’s counsel submitted that the Claimant in the matter before the trial Court be awarded Kes.350,000.00. In support of the said contention the Claimant relied on the decision of the Court in Anthony Nyamwaye vs Jackline Moraa Nyandemo; Civil Suit No E046 of 2021 where an award of Kes.250,000.00 was upheld on appeal and Poa Link Services Co Ltd & another vs Shindani Boaz Bonzemo [2021]eKLR where Riechi, J upheld an award of general damage of Kes.350,000.00 where the Plaintiff had sustained blunt injury to the chest, bruises to the lower abdomen, bruises to the right hip joint, bruises to the thigh and bruises to the knee.
8. The Respondent, on the other hand, proposed that an award of Kes.70,000.00 be made if the Court found the Respondent liable. Reliance was placed on the decision of the Court in Rege vs LA ( minor suing through her father and next friend GAA) (Civil Appeal E111 of 2021) [2021] KEHC 16634 (KLR) (20th December 2022) (judgment).
9. Upon considering the matter, the trial Court entered judgment as aforesaid, leading to the instant appeal. As we have already seen, the appeal is in regard to the quantum only. The Respondent didn’t file a cross-appeal.
10. The appeal was canvassed by way of written submissions. I will set out the summary of each party’s submissions.
11. The submissions of the Appellant are dated 14th January 2025. The appellant’s counsel submitted that the correct approach in assessing general damages is that, as far as possible, comparable injuries should attract comparable awards.
12. It was urged that the trial Court was wrong to rely on the Edward Mutevu Maithya case (supra) since the injuries in the said case were not comparable to what the Appellant suffered in respect of the cause before the trial Court.
13. Counsel urged that this Court overturn the decision of the Court below and substitute instead with an award of Kes.350,000.00, taking into consideration inflationary trends and lapse of time.
14. The Appellant relied on the case of Madhupaper Kenya Ltd vs Ronald Ntebere Kangoli [2020] KEHC 3667 (KLR), where Kes.200,000/- was awarded for friction burn wounds on the right forearm, proximal end and right wrist joint dorsal aspect. Reliance was also placed on the decision of the Court in Prime Steel Mills Ltd vs Amos Kipkogei Sialo [2017]eKLR, where an award of Kes. 180,000.00 was made for burn injuries on the right leg, right hand and face, which were termed as soft tissue injuries with no permanent incapacity.
15. In the submissions dated 20th January 2025. Ms. Amarshi, learned counsel for the Respondent, urged that when the Applicant was seen by Dr. Adede after 5 days, he had fully healed from his injuries.
16. She submitted that the authority she relied on at the trial Court, to wit Rege vs LA (supra), was relevant in this matter. She accused the Appellant of introducing new authorities at the appellate stage. Counsel urged that only those submissions relied on in the Court below should be considered.
17. Ms. Amarshi urged that the Court below was right to rely on the decision of the Court in the Edward Maithya case and that the award of Kes.100,000.00 was consistent with injuries sustained by the Appellant.
18. She thus urged that the appeal be dismissed with costs.
19. This being a first appeal, this court must re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
20. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:-
“…that this Court will not interfere with the exercise of judicial 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 is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
21. The duty of the first appellate Court was settled in the case of Selle & another vs Associated Motor Boat Company and Others [1968]EA 123. In the said case the learned Judges of Appeal stated as follows:-
“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
22. Further, in the case of Peters vs Sunday Post Limited [1958] EA 424, the court rendered itself as follows:-
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different.”
23. The appeal is on the quantum of general damages only.
24. It is trite law that the appellate Court will not interfere with an award of the trial Court unless it was inordinately high or low. In the case of Butt v Khan [1978] KECA 24 (KLR), Law, JA stated as follows:-
“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 arrived at a figure which was either inordinately high or low.”
25. I have considered the record of the Court below, the proceedings, judgment the Memorandum of appeal and the submissions of the parties.
26. The appeal is on quantum only. I am required to determine if the award of the trial Court ought to be disturbed. The principles under which I could do so have been discussed in the Butt vs Khan case. I will only disturb the trial Court’s judgment if the same was inordinately low or inordinately high as to amount to an erroneous decision. See also the decision of the Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tete [2004] eKLR where it was held that:-
“It is trite law that the assessment of general damages is at the discretion of the trial court, and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles.”
27. Looking at the injuries suffered by the Appellant, I note that they were soft tissue injuries. The Court below relied on the judgment in the Edward Mutevu Maithya case (supra), where the learned Judge found that an award of Kes.80,000.00 for similar injuries was reasonable. The decision was made in 2022, about 2 years before the lower Court delivered its judgment.
28. In my view, the decision of the Court below wasn’t unreasonable. It was well reasoned and relied on precedents arising from cases where injuries were broadly similar. Although I may not have arrived at the same decision if I tried the matter in the first instance, the adjudicator's determination was not based on misapprehension of facts, nor based on wrong principles. The trial adjudicator wasn't so clearly wrong as to justify the exercise by this Court of its discretion.
29. The upshot of the foregoing is that I find no merit in the appeal. The same is dismissed with costs.
30. Orders accordingly.
Dated and signed at Mombasa this 5th day of May 2024. Delivered virtually through Microsoft TEAMS