JUDGEMENT
1. This is a Judgement arising out of the decision of Honourable Priscah Nyota (Ms.) Resident Magistrate delivered on the 22nd July 2021 in the Senior Principal Magistrates Court at Ruiru in RUIRU SPMCC NO. 216 of 2020.
Background Facts
2. The Appellant being aggrieved by the judgment of the Trial Court appeals against the entire judgment on quantum and subsequent orders thereto on the following grounds, namely:
a) The Learned Trial Magistrate erred in Law and in fact in finding that the Appellant was entitled to general damages of Kshs. 375,000.00 which was too low on the lower side in view of the injuries suffered by the appellant.
b) The Learned Magistrate erred in Law and in fact in awarding the Appellant the sum of Kshs. 1,324,050 as Special Damages.
c) The Trial Magistrate erred in law and in fact by failing to award the Appellant loss of income including loss of future earnings.
d) The Learned Trial Magistrate erred in Law and in fact by failing to consider the Appellant's submissions and judicial authorities on quantum, thereby arriving at an erroneous figure on quantum
e) The Learned Trial Magistrate erred in Law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which is very low.
f) The Trial Court failed to analyze evidence on record and disregarded the Appellant's evidence on record that the Appellant had suffered multiple fractures.
g) The Trial Magistrate failed to appreciate in totality the place of the Doctor's opinion evidence in the determination of the case and totally disregarded the law of evidence that expert evidence is a piece of evidence to be considered alongside other evidence.
h) The judgment of the learned Trial Magistrate is against the law and weight of the evidence on record.
i) The Learned Magistrate failed erred in law and in fact by failing to address and make a finding on all the issues raised by the Appellant in his pleadings, evidence, and submissions.
j) The Learned Trial Magistrate erred in Law and in fact when making award by failing to consider the passage of time and incidence of inflation.
3. The Appellant sought the following Orders that:
a) This Appeal be allowed with costs.
b) The Judgement delivered on 22nd July 2021 at Ruiru Senior Principal Magistrates' court by the Honourable Priscah Nyota Ms, Resident Magistrate in SPMCC NO.216 of 2020 be set aside and damages be assessed afresh.
c) The cost of this appeal be borne by the Respondent.
Issues for determination
4. The parties having entered a consent on liability at 10%:90% the Appeal lies only on quantum.
5. The Appeal was canvassed by way of written submissions which the Court has carefully considered, alongside the Appeal as well as the Record of Appeal. The Court frames the following issue for determination;
a) Whether the Trial Court misdirected itself in the assessment of damages.
Analysis
6. This being a first Appeal, this Court is under a duty to 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. The foregoing duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424).
7. It was the Appellant’s submissions that he had to undergo extensive medical care and was admitted and thereafter put on physiotherapy. That he had sustained fractures of the humerus bone, pubic symphysis diasthesis and fracture of the left femur. Additional injuries include scalp injury, pelvic and arm injuries, scalp repair, spleen repair, fixation of the humerus and pelvic plates.
8. At the Trial Court, the Appellant had submitted a sum of Kshs.2,500,000 as adequate compensation. He therefore urged the Court to set aside the award of Kshs.375, 000 as general damages for pain and suffering, and substitute it with Kshs.2,500,000.
9. In contrast, the Respondent submitted that the general damages for pain and suffering for Kshs.375, 000 was reasonably awarded and ought not to be disturbed by the Court.
10. Based on the treatment notes, the Appellant presented with deformed upper limb and further investigations revealed pubic symphysis diasthhesis and a fracture to the left humerus.
11. The Court has re-evaluated the evidence and it is unclear why the P3 indicated that the Appellant had suffered a fracture to the femur, yet the same was not captured in the treatment notes. The Court agrees with the Trial Court that the treatment notes are of higher probative value. Even in terms of recency and primacy, the treatment notes were prepared by the attending Doctor. The Doctor would have had first-hand knowledge of the nature of injuries or fractures that he/she was treating. If any injuries or fractures were left out in the treatment notes, the Appellant had ample opportunity to go back to the attending Doctor for correction or insertion of the missing details. As it were, the Doctor who fills in the P3 form is merely guided by the treatment notes. He/she confirms the injuries from the treatment notes, any X-rays and an interview with the victim of the accident. The Court would not be persuaded that the Doctor filling in the P3 forms became aware of injuries that were not apparent to the attending/treating Doctor, more so a serious injury such as a fracture of the femur.
12. On this aspect the Court acknowledges that assessment of damages is an exercise of judicial discretion; and that an Appellate Court ought not to disturb an award simply on the ground that it would have arrived at a different outcome. The Court of Appeal in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR, held that:
“As a general principle, assessment of damages lies in the discretion of the trial court, and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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. The Court must be satisfied that either 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 high that it must be a wholly erroneous estimate of the damages."
13. It was the Appellant’s doctor’s (Dr. Karanja George Kimiri) testimony that the Appellant’s injuries had healed and no permanent disability. In Nguku Joseph & another v Gerald Kihiu Maina [2020] KEHC 7670 (KLR) the Appellant had sustained Mild head injury; Lacerated wound on the left supra orbital region of the face; Blunt injury to the anterior abdominal wall leading to gall bladder laceration and liver laceration; Fracture right humerus; and Lacerated wound on the scalp about four (4) cm long. The Court awarded a sum of Kshs. 500,000/=.
14. Going by the amount awarded in the above case the Court is of the considered opinion that the amount of Kshs.375, 000 awarded by the Trial Court was not low. The amount of general damages as awarded is sustained.
15. The Appellant also appealed against the award of Special Damages. On the special damages, the Appellant pointed out that the sum pleaded was Kshs.1,755,000. Concerning special damages, the rule is that they must be strictly proved as was held by the Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 where it was stated that:
“The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”
16. The Court has perused the evidence at pages 31 to 39 of the Record of Appeal. The receipts adduced as far as the hospital admission of the Appellant was concerned show a total of Kshs.1, 320, 000 from the four receipts issued by the hospital. There was also Kshs.3,500 for the medical report and Kshs.550 for the motor vehicle search making the total Kshs.1,324,050. Thus, the pleaded special damages that were eventually proved amounted to Kshs.1,324, 0050.
17. With regard to loss of income and future earnings, the Appellant submitted that he could not continue working as a result of the injuries and therefore had to stop working. That he cannot engage in meaningful employment. The Appellant urged the Court to award the claim at Kshs.5, 585, 280.
18. On this, it was the Respondent’s position that the Appellant had reached the recognized retirement age in Kenya of 60 years, hence his salary was stopped. This was not as a result of the accident as alleged by the Appellant, but due to the Appellant reaching the age of retirement. The Court is persuaded that indeed the Appellant had attained the statutory age of retirement which currently is fixed at 60 years. This would explain why the employer stopped paying his wages. Therefore, the reasoning of the Trial Court on this is well placed.
19. In Butler -Vs- Butler (1984) KLR 225 (Nbi Civil Appeal No. 49 of 1983) where the Court of Appeal held and Justice Kneller JA observed that;
“A Plaintiff’s loss of earning capacity occurs where, as a result of his injury, his chances in the future of any work in the labour market or work, as well paid as before the accident, are lessened by his injury.
Compensation for diminution of earning capacity is part of general damages….the question is the present value of the risk that a future date or time the Plaintiff will suffer financial disadvantage in the labour market because of his injuries?.......The factors to be taken into account, will vary with the circumstances of each case. Examples include, age, the qualifications of the Plaintiff, his disabilities……”
20. In the instant case, the Doctor testified that the Appellant had healed and had no permanent disability. Therefore, the injuries suffered by the Appellant did not affect his chances in the future of any work in the labour market. Further, the Court notes that the Appellant did not adduce any evidence to prove that he had stopped working or had been asked to stop working as a result of the injuries he had sustained. The Appellant’s argument that he cannot engage in meaningful employment fails.
21. Accordingly, the Appeal against quantum of damages is hereby dismissed.
22. As to costs, the same ordinarily follow the event, unless the Court holds otherwise. The Court has the discretion to award costs. In exercise of this discretion the Court has to act in a judicious manner and not capriciously. Taking into consideration all the factors of this case, the Court directs that there will be no orders as to costs.
Determination
23. The Appeal is hereby dismissed in its entirety as lacking in merits.
24. There will be no order as to costs.
SIGNED, DATED AND DELIVERED AT THIKA THIS 31ST DAY OF JULY, 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Adira for the Appellant.
Mr. Awinja for the Respondent.
Mr. Amos-Court Assistant.
1. This is a Judgement arising out of the decision of Honourable Priscah Nyota (Ms.) Resident Magistrate delivered on the 22nd July 2021 in the Senior Principal Magistrates Court at Ruiru in RUIRU SPMCC NO. 216 of 2020.
Background Facts
2. The Appellant being aggrieved by the judgment of the Trial Court appeals against the entire judgment on quantum and subsequent orders thereto on the following grounds, namely:
a) The Learned Trial Magistrate erred in Law and in fact in finding that the Appellant was entitled to general damages of Kshs. 375,000.00 which was too low on the lower side in view of the injuries suffered by the appellant.
b) The Learned Magistrate erred in Law and in fact in awarding the Appellant the sum of Kshs. 1,324,050 as Special Damages.
c) The Trial Magistrate erred in law and in fact by failing to award the Appellant loss of income including loss of future earnings.
d) The Learned Trial Magistrate erred in Law and in fact by failing to consider the Appellant's submissions and judicial authorities on quantum, thereby arriving at an erroneous figure on quantum
e) The Learned Trial Magistrate erred in Law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which is very low.
f) The Trial Court failed to analyze evidence on record and disregarded the Appellant's evidence on record that the Appellant had suffered multiple fractures.
g) The Trial Magistrate failed to appreciate in totality the place of the Doctor's opinion evidence in the determination of the case and totally disregarded the law of evidence that expert evidence is a piece of evidence to be considered alongside other evidence.
h) The judgment of the learned Trial Magistrate is against the law and weight of the evidence on record.
i) The Learned Magistrate failed erred in law and in fact by failing to address and make a finding on all the issues raised by the Appellant in his pleadings, evidence, and submissions.
j) The Learned Trial Magistrate erred in Law and in fact when making award by failing to consider the passage of time and incidence of inflation.
3. The Appellant sought the following Orders that:
a) This Appeal be allowed with costs.
b) The Judgement delivered on 22nd July 2021 at Ruiru Senior Principal Magistrates' court by the Honourable Priscah Nyota Ms, Resident Magistrate in SPMCC NO.216 of 2020 be set aside and damages be assessed afresh.
c) The cost of this appeal be borne by the Respondent.
Issues for determination
4. The parties having entered a consent on liability at 10%:90% the Appeal lies only on quantum.
5. The Appeal was canvassed by way of written submissions which the Court has carefully considered, alongside the Appeal as well as the Record of Appeal. The Court frames the following issue for determination;
a) Whether the Trial Court misdirected itself in the assessment of damages.
Analysis
6. This being a first Appeal, this Court is under a duty to 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. The foregoing duty was succinctly stated by the Court of Appeal in the case of Selle v Associated Motor Boat Company Ltd (1968) EA 123 and Peters v Sunday Post Limited [1985] EA 424).
7. It was the Appellant’s submissions that he had to undergo extensive medical care and was admitted and thereafter put on physiotherapy. That he had sustained fractures of the humerus bone, pubic symphysis diasthesis and fracture of the left femur. Additional injuries include scalp injury, pelvic and arm injuries, scalp repair, spleen repair, fixation of the humerus and pelvic plates.
8. At the Trial Court, the Appellant had submitted a sum of Kshs.2,500,000 as adequate compensation. He therefore urged the Court to set aside the award of Kshs.375, 000 as general damages for pain and suffering, and substitute it with Kshs.2,500,000.
9. In contrast, the Respondent submitted that the general damages for pain and suffering for Kshs.375, 000 was reasonably awarded and ought not to be disturbed by the Court.
10. Based on the treatment notes, the Appellant presented with deformed upper limb and further investigations revealed pubic symphysis diasthhesis and a fracture to the left humerus.
11. The Court has re-evaluated the evidence and it is unclear why the P3 indicated that the Appellant had suffered a fracture to the femur, yet the same was not captured in the treatment notes. The Court agrees with the Trial Court that the treatment notes are of higher probative value. Even in terms of recency and primacy, the treatment notes were prepared by the attending Doctor. The Doctor would have had first-hand knowledge of the nature of injuries or fractures that he/she was treating. If any injuries or fractures were left out in the treatment notes, the Appellant had ample opportunity to go back to the attending Doctor for correction or insertion of the missing details. As it were, the Doctor who fills in the P3 form is merely guided by the treatment notes. He/she confirms the injuries from the treatment notes, any X-rays and an interview with the victim of the accident. The Court would not be persuaded that the Doctor filling in the P3 forms became aware of injuries that were not apparent to the attending/treating Doctor, more so a serious injury such as a fracture of the femur.
12. On this aspect the Court acknowledges that assessment of damages is an exercise of judicial discretion; and that an Appellate Court ought not to disturb an award simply on the ground that it would have arrived at a different outcome. The Court of Appeal in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR, held that:
“As a general principle, assessment of damages lies in the discretion of the trial court, and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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. The Court must be satisfied that either 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 high that it must be a wholly erroneous estimate of the damages."
13. It was the Appellant’s doctor’s (Dr. Karanja George Kimiri) testimony that the Appellant’s injuries had healed and no permanent disability. In Nguku Joseph & another v Gerald Kihiu Maina [2020] KEHC 7670 (KLR) the Appellant had sustained Mild head injury; Lacerated wound on the left supra orbital region of the face; Blunt injury to the anterior abdominal wall leading to gall bladder laceration and liver laceration; Fracture right humerus; and Lacerated wound on the scalp about four (4) cm long. The Court awarded a sum of Kshs. 500,000/=.
14. Going by the amount awarded in the above case the Court is of the considered opinion that the amount of Kshs.375, 000 awarded by the Trial Court was not low. The amount of general damages as awarded is sustained.
15. The Appellant also appealed against the award of Special Damages. On the special damages, the Appellant pointed out that the sum pleaded was Kshs.1,755,000. Concerning special damages, the rule is that they must be strictly proved as was held by the Court of Appeal in Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177 where it was stated that:
“The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.”
16. The Court has perused the evidence at pages 31 to 39 of the Record of Appeal. The receipts adduced as far as the hospital admission of the Appellant was concerned show a total of Kshs.1, 320, 000 from the four receipts issued by the hospital. There was also Kshs.3,500 for the medical report and Kshs.550 for the motor vehicle search making the total Kshs.1,324,050. Thus, the pleaded special damages that were eventually proved amounted to Kshs.1,324, 0050.
17. With regard to loss of income and future earnings, the Appellant submitted that he could not continue working as a result of the injuries and therefore had to stop working. That he cannot engage in meaningful employment. The Appellant urged the Court to award the claim at Kshs.5, 585, 280.
18. On this, it was the Respondent’s position that the Appellant had reached the recognized retirement age in Kenya of 60 years, hence his salary was stopped. This was not as a result of the accident as alleged by the Appellant, but due to the Appellant reaching the age of retirement. The Court is persuaded that indeed the Appellant had attained the statutory age of retirement which currently is fixed at 60 years. This would explain why the employer stopped paying his wages. Therefore, the reasoning of the Trial Court on this is well placed.
19. In Butler -Vs- Butler (1984) KLR 225 (Nbi Civil Appeal No. 49 of 1983) where the Court of Appeal held and Justice Kneller JA observed that;
“A Plaintiff’s loss of earning capacity occurs where, as a result of his injury, his chances in the future of any work in the labour market or work, as well paid as before the accident, are lessened by his injury.
Compensation for diminution of earning capacity is part of general damages….the question is the present value of the risk that a future date or time the Plaintiff will suffer financial disadvantage in the labour market because of his injuries?.......The factors to be taken into account, will vary with the circumstances of each case. Examples include, age, the qualifications of the Plaintiff, his disabilities……”
20. In the instant case, the Doctor testified that the Appellant had healed and had no permanent disability. Therefore, the injuries suffered by the Appellant did not affect his chances in the future of any work in the labour market. Further, the Court notes that the Appellant did not adduce any evidence to prove that he had stopped working or had been asked to stop working as a result of the injuries he had sustained. The Appellant’s argument that he cannot engage in meaningful employment fails.
21. Accordingly, the Appeal against quantum of damages is hereby dismissed.
22. As to costs, the same ordinarily follow the event, unless the Court holds otherwise. The Court has the discretion to award costs. In exercise of this discretion the Court has to act in a judicious manner and not capriciously. Taking into consideration all the factors of this case, the Court directs that there will be no orders as to costs.
Determination
23. The Appeal is hereby dismissed in its entirety as lacking in merits.
24. There will be no order as to costs.
SIGNED, DATED AND DELIVERED AT THIKA THIS 31ST DAY OF JULY, 2025.
NJOROGE BENJAMIN K.
JUDGE
In the presence of:
Miss Adira for the Appellant.
Mr. Awinja for the Respondent.
Mr. Amos-Court Assistant.