' 1. In a plaint dated 20 November 2020 and stamped in the registry as having been received in the magistrates’ court on 24 November 2020, the respondent alleged that on 19 May 2020, at around 5.00p.m., she was standing outside her house when the appellant, without any provocation, suddenly attacked her physically with kicks, blows and eventually wrestled her to the ground.
2. The attack is said to have taken place at a place called Barsheba, in Bamburi area, within Mombasa County where both the appellant and the respondent resided. As a result of the attack, the respondent is said to have sustained serious injuries and, therefore, she was rushed and treated at Coast General Hospital.
3. She filed a claim for compensation for the loss and damage she is alleged to have suffered. It was her case that at the time she filed the suit, she was still undergoing treatment. Her injuries were particularised in the plaint as “blunt trauma to the head and lower back/ left waist area; finger nail scratches/ laceration neck area.”
4. Besides filing suit, the respondent lodged a complaint with police which was recorded at Nyali Police Station as no. OB 35/3/8/2020.
5. At the conclusion of the trial, the learned magistrate held that respondent had proved her case and awarded her both general and special damages. The learned magistrate’s judgment delivered on 18 May 2023 was rather short; It can conveniently be reproduced here verbatim. It reads as follows:
“The plaintiff herein filed pleadings dated 20/11/2020 seeking general and special damages, costs, interest and any other relief that the court may grant. This was as a result of a Road Traffic Accident that occurred on 19/5/20 when plaintiff was standing outside her home and the defendant attacked her. She suffered injuries as a result.
At the hearing therefore, he testified as PW2. She explained that the assailant was her brother in law, she was treated for the injuries and police informed. A P3 form was given to her and filled. It was presented to court together with the medical report showing she suffered soft tissue injuries.
On quantum, plaintiffs (sic) suffered soft tissue injuries. she was treated and had no permanent incapacity. I proceeded (sic) to award Kshs. 50,000/= in general damages. The plaintiffs produced receipts for Kshs. 8,500/=. I award this figure in special damages. Each party shall bear on costs since they are related. interest shall be on the decretal sum given. Right of Appeal 30 days.”
6. The appellant was aggrieved by this judgment and it is for this reason that he has filed the instant appeal. In his memorandum of appeal dated 6 July 2023, he has raised the following grounds:
“1. That the Learned Magistrate erred in law and fact by allowing the said suit, yet no evidence was tendered to sufficiently support the Respondent''s claim.
2. That the Learned Magistrate erred in law and fact by awarding the Respondent a sum of Kshs. 50,000.00 as general damages without any reference to case laws in justifying quantum.
3. That the Learned Magistrate erred in law and fact by disregarding case laws, including authorities which bind subordinate courts and in particular authorities which provide that civil proceedings based on the tort of assault should only be instituted upon determination of criminal proceedings, if any are commenced in respect of the same subject matter and as there is a pending criminal case over the same matter commenced by the Respondent against the Appellant herein, being Criminal Case No. 714 of 2020 (Shanzu), the trial court erred in allowing the suit. 4. That the Learned Magistrate erred in law and fact by ignoring the Appellant''s strong evidence and allowing the Respondent''s suit, yet the said suit was non- meritous.”
The appellant prays that the appeal be allowed and the Respondent''s suit in the subordinate court, be dismissed with costs.
7. As usual, this being a first appeal, it is incumbent upon this Honourable Court to consider the evidence on record afresh and come to its conclusion though bearing in mind that the subordinate court had the advantage of seeing and hearing the witnesses. (see Selle v Associated Motor Boat Co. [1968] EA 123; Kiruga v Kiruga & Another [1988] KLR 348. In this latter decision, the Court of Appeal held that: -
“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution.”
It is with this in mind that I now consider and evaluate afresh the evidence tendered before the learned magistrate.
8. Only the respondent and the doctor testified in prosecution of the respondent''s case. The doctor, identified as Dr. Darius W. Kiema, who was the first to testify, stated in his evidence that he was a licensed practitioner and that he was in court to produce a medical report in respect of the respondent. The rest of his evidence is not quite clear but at least he is recorded to have testified that the respondent suffered soft tissue injuries.
9. His report, which was admitted in evidence, is clearer. The report was made on 16 November 2021 and in it the doctor stated that he relied on the information given by the respondent, together with treatment notes from Mlaleo CDF health centre and the P3 form to compile his report. In the report, the doctor noted as follows:
“Louryn informed that she was assaulted by a person known to her on 19th May, 2020 at about 1515 hours sustaining the following injury.
1 Blunt trauma to the head and lower back/left waist area
2 Finger nail scratches/laceration neck area.”
10. The report goes further to indicate that the respondent was given analgesics, antibiotics and tetanus toxoid injection. The respondent is said to have complained of lower back pains and the waist area. In the doctor''s opinion, the respondent''s injuries were soft tissue injuries that were projected to heal with no danger of any permanent disability.
11. On her part, the respondent testified that she got scratched with finger nails; she was hit on the wall and that her head got swollen as a result. She also testified that she is related to the appellant in that he was her brother-in-law. To be precise, he was a brother to the respondent''s husband.
12. In his testimony, the appellant denied assaulting the respondent though he admitted that the two were not in good terms. The respondent, according to his evidence, was married to his younger brother and that, at the time material to the suit, they all lived in the same house. However, he had to move out due to the differences between him and his brother and the respondent.
13. The appellant''s wife, Ruth Mandale, testified in support of her husband''s case. In her witness statement which she adopted as her evidence, she stated that she was present during the altercation between the appellant and the respondent on 19 May 2020. According to her, the appellant had just arrived home from work when the respondent called him a witch and vowed that she was going to teach him a lesson. It was her evidence that she never saw her husband assault the respondent.
That is far as the evidence of the witnesses went.
14. Section 107(1) of the Evidenced Act, cap. 80 is to the effect that a party whose case is based on the existence of a particular fact has the obligation to prove that fact. This section reads as follows:
107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
According to subsection (2), a person who is bound to prove the existence of any fact, bears the burden of proof.
15. Thus, the burden was on the respondent to prove, first, that she was assaulted and, secondly, that she was assaulted by the appellant; and, as a result of the assault, she sustained bodily injuries and hence suffered loss and damages for which she would be entitled to damages.
16. All that is attributed to the respondent’s testimony is what she said in court. Among the documents she filed, was her written statement but nowhere in her testimony did she ever adopt what she wrote in that statement as her evidence. A bare statement to which a party cannot commit himself or herself on oath has no evidential value.
17. Turning back to the respondent''s testimony in court, there is nowhere the respondent ever stated that the appellant assaulted or injured her. She said that she was scratched and that her head was hit on the wall but she never testified that it was the appellant who scratched her or hit her head on the wall. In the absence of such evidence, there was no basis of holding the appellant responsible for the respondent''s injuries. To the exent that the learned magistrate reached a contrary evidentiary conclusion, she misdirected herself on the facts.
18. But even if the respondent had proved that she had been injured by the appellant, the learned magistrate’s assesment of damages left a lot to be desired. To be precise, she misapprehended the law on assesment of damages.
19. On this point, I must start by saying that assessment of damages is always the discretion of the trial court and, for that reason, the appellate court would normally be reluctant to interfere with such assesment unless it can be demonstrated that the assessment was erronoeus in certain respects. This was so held by the court of Apeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR). In that case, it was held 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. 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).”
20. Speaking of principles to be considered in award of damages, the Court of Appeal outlined them Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KECA 21 (KLR) where Kneller JA, held as follows
“The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by this court to an award of damages by a trial judge:
1. each case depends on its own facts;
2. awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);
3. comparable injuries should attract comparable awards;
4. inflation should be taken into account; and
5. unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award…”.
21. It is not apparent from the learned magistrate''s judgment that she took any of these principles into account in making the award on general damages. As it is apparent on the face of the judgment, no reference was ever made to any court decision to demonstrate that in assessing the damages, the learned magistrate had, for instance, taken into account the principle that comparable injuries should attract comparable awards.
22. The learned magistrate’s award on general damages was literally plucked from nowhere. It is the kind of award that can be properly be described as having been made in disregard of the principles of assessment of general damages. In disregarding those principles, it can be validly urged that the learned magistrate ignored a relevant factor which ought to have been considered.
23. As far as special damages are concerned, all that was particularised under this head, in the plaint, was Kshs. 2000= only. Contrary to the learned magistrate''s finding that the respondent produced receipts of Kshs. 8500=, there is no such evidence on record. However, even if the evidence was available, the sum of Kshs. 8500= could not have been awarded when it was not pleaded. It is trite that special damages need not only be pleaded but they have to be proved as well.
24. Having held that the claim against the appellant was not proved on a balance of probabilities, I hereby allow the appeal and substitute the learned magistrate’s order with the order dismissing the suit. Parties will bear their respective costs. Orders accordingly.
'
2. The attack is said to have taken place at a place called Barsheba, in Bamburi area, within Mombasa County where both the appellant and the respondent resided. As a result of the attack, the respondent is said to have sustained serious injuries and, therefore, she was rushed and treated at Coast General Hospital.
3. She filed a claim for compensation for the loss and damage she is alleged to have suffered. It was her case that at the time she filed the suit, she was still undergoing treatment. Her injuries were particularised in the plaint as “blunt trauma to the head and lower back/ left waist area; finger nail scratches/ laceration neck area.”
4. Besides filing suit, the respondent lodged a complaint with police which was recorded at Nyali Police Station as no. OB 35/3/8/2020.
5. At the conclusion of the trial, the learned magistrate held that respondent had proved her case and awarded her both general and special damages. The learned magistrate’s judgment delivered on 18 May 2023 was rather short; It can conveniently be reproduced here verbatim. It reads as follows:
“The plaintiff herein filed pleadings dated 20/11/2020 seeking general and special damages, costs, interest and any other relief that the court may grant. This was as a result of a Road Traffic Accident that occurred on 19/5/20 when plaintiff was standing outside her home and the defendant attacked her. She suffered injuries as a result.
At the hearing therefore, he testified as PW2. She explained that the assailant was her brother in law, she was treated for the injuries and police informed. A P3 form was given to her and filled. It was presented to court together with the medical report showing she suffered soft tissue injuries.
On quantum, plaintiffs (sic) suffered soft tissue injuries. she was treated and had no permanent incapacity. I proceeded (sic) to award Kshs. 50,000/= in general damages. The plaintiffs produced receipts for Kshs. 8,500/=. I award this figure in special damages. Each party shall bear on costs since they are related. interest shall be on the decretal sum given. Right of Appeal 30 days.”
6. The appellant was aggrieved by this judgment and it is for this reason that he has filed the instant appeal. In his memorandum of appeal dated 6 July 2023, he has raised the following grounds:
“1. That the Learned Magistrate erred in law and fact by allowing the said suit, yet no evidence was tendered to sufficiently support the Respondent''s claim.
2. That the Learned Magistrate erred in law and fact by awarding the Respondent a sum of Kshs. 50,000.00 as general damages without any reference to case laws in justifying quantum.
3. That the Learned Magistrate erred in law and fact by disregarding case laws, including authorities which bind subordinate courts and in particular authorities which provide that civil proceedings based on the tort of assault should only be instituted upon determination of criminal proceedings, if any are commenced in respect of the same subject matter and as there is a pending criminal case over the same matter commenced by the Respondent against the Appellant herein, being Criminal Case No. 714 of 2020 (Shanzu), the trial court erred in allowing the suit. 4. That the Learned Magistrate erred in law and fact by ignoring the Appellant''s strong evidence and allowing the Respondent''s suit, yet the said suit was non- meritous.”
The appellant prays that the appeal be allowed and the Respondent''s suit in the subordinate court, be dismissed with costs.
7. As usual, this being a first appeal, it is incumbent upon this Honourable Court to consider the evidence on record afresh and come to its conclusion though bearing in mind that the subordinate court had the advantage of seeing and hearing the witnesses. (see Selle v Associated Motor Boat Co. [1968] EA 123; Kiruga v Kiruga & Another [1988] KLR 348. In this latter decision, the Court of Appeal held that: -
“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution.”
It is with this in mind that I now consider and evaluate afresh the evidence tendered before the learned magistrate.
8. Only the respondent and the doctor testified in prosecution of the respondent''s case. The doctor, identified as Dr. Darius W. Kiema, who was the first to testify, stated in his evidence that he was a licensed practitioner and that he was in court to produce a medical report in respect of the respondent. The rest of his evidence is not quite clear but at least he is recorded to have testified that the respondent suffered soft tissue injuries.
9. His report, which was admitted in evidence, is clearer. The report was made on 16 November 2021 and in it the doctor stated that he relied on the information given by the respondent, together with treatment notes from Mlaleo CDF health centre and the P3 form to compile his report. In the report, the doctor noted as follows:
“Louryn informed that she was assaulted by a person known to her on 19th May, 2020 at about 1515 hours sustaining the following injury.
1 Blunt trauma to the head and lower back/left waist area
2 Finger nail scratches/laceration neck area.”
10. The report goes further to indicate that the respondent was given analgesics, antibiotics and tetanus toxoid injection. The respondent is said to have complained of lower back pains and the waist area. In the doctor''s opinion, the respondent''s injuries were soft tissue injuries that were projected to heal with no danger of any permanent disability.
11. On her part, the respondent testified that she got scratched with finger nails; she was hit on the wall and that her head got swollen as a result. She also testified that she is related to the appellant in that he was her brother-in-law. To be precise, he was a brother to the respondent''s husband.
12. In his testimony, the appellant denied assaulting the respondent though he admitted that the two were not in good terms. The respondent, according to his evidence, was married to his younger brother and that, at the time material to the suit, they all lived in the same house. However, he had to move out due to the differences between him and his brother and the respondent.
13. The appellant''s wife, Ruth Mandale, testified in support of her husband''s case. In her witness statement which she adopted as her evidence, she stated that she was present during the altercation between the appellant and the respondent on 19 May 2020. According to her, the appellant had just arrived home from work when the respondent called him a witch and vowed that she was going to teach him a lesson. It was her evidence that she never saw her husband assault the respondent.
That is far as the evidence of the witnesses went.
14. Section 107(1) of the Evidenced Act, cap. 80 is to the effect that a party whose case is based on the existence of a particular fact has the obligation to prove that fact. This section reads as follows:
107. (1)Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.
According to subsection (2), a person who is bound to prove the existence of any fact, bears the burden of proof.
15. Thus, the burden was on the respondent to prove, first, that she was assaulted and, secondly, that she was assaulted by the appellant; and, as a result of the assault, she sustained bodily injuries and hence suffered loss and damages for which she would be entitled to damages.
16. All that is attributed to the respondent’s testimony is what she said in court. Among the documents she filed, was her written statement but nowhere in her testimony did she ever adopt what she wrote in that statement as her evidence. A bare statement to which a party cannot commit himself or herself on oath has no evidential value.
17. Turning back to the respondent''s testimony in court, there is nowhere the respondent ever stated that the appellant assaulted or injured her. She said that she was scratched and that her head was hit on the wall but she never testified that it was the appellant who scratched her or hit her head on the wall. In the absence of such evidence, there was no basis of holding the appellant responsible for the respondent''s injuries. To the exent that the learned magistrate reached a contrary evidentiary conclusion, she misdirected herself on the facts.
18. But even if the respondent had proved that she had been injured by the appellant, the learned magistrate’s assesment of damages left a lot to be desired. To be precise, she misapprehended the law on assesment of damages.
19. On this point, I must start by saying that assessment of damages is always the discretion of the trial court and, for that reason, the appellate court would normally be reluctant to interfere with such assesment unless it can be demonstrated that the assessment was erronoeus in certain respects. This was so held by the court of Apeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR). In that case, it was held 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. 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).”
20. Speaking of principles to be considered in award of damages, the Court of Appeal outlined them Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] KECA 21 (KLR) where Kneller JA, held as follows
“The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by this court to an award of damages by a trial judge:
1. each case depends on its own facts;
2. awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);
3. comparable injuries should attract comparable awards;
4. inflation should be taken into account; and
5. unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award…”.
21. It is not apparent from the learned magistrate''s judgment that she took any of these principles into account in making the award on general damages. As it is apparent on the face of the judgment, no reference was ever made to any court decision to demonstrate that in assessing the damages, the learned magistrate had, for instance, taken into account the principle that comparable injuries should attract comparable awards.
22. The learned magistrate’s award on general damages was literally plucked from nowhere. It is the kind of award that can be properly be described as having been made in disregard of the principles of assessment of general damages. In disregarding those principles, it can be validly urged that the learned magistrate ignored a relevant factor which ought to have been considered.
23. As far as special damages are concerned, all that was particularised under this head, in the plaint, was Kshs. 2000= only. Contrary to the learned magistrate''s finding that the respondent produced receipts of Kshs. 8500=, there is no such evidence on record. However, even if the evidence was available, the sum of Kshs. 8500= could not have been awarded when it was not pleaded. It is trite that special damages need not only be pleaded but they have to be proved as well.
24. Having held that the claim against the appellant was not proved on a balance of probabilities, I hereby allow the appeal and substitute the learned magistrate’s order with the order dismissing the suit. Parties will bear their respective costs. Orders accordingly.
'