Skip to content
JudgmentSAMUEL NGARUIYA AND JAPHETH GITONGA GUANTAI VS SAMUEL WEKESA WANYONYI8 min read

SAMUEL NGARUIYA AND JAPHETH GITONGA GUANTAI VS SAMUEL WEKESA WANYONYI

High Court at Machakos High Court · · Hon.Lady Justice Noel Adagi

REPUBLIC OF KENYA

IN THE HIGH COURT AT MACHAKOS 

CIVIL APPEAL NO. E146 OF  2021

SAMUEL NGARUYA ………………………………….…1ST APPELLANT

JAPHETH GITONGA GUANTAI……………………..2ND APPELLANT

VERSUS

SAMUEL WEKESA WANYONYI……… ……………...RESPONDENT

(Being an Appeal from the Judgment of Hon. B. Kasavuli (PM) in Mavoko CMCC. No. 844 of 2019 delivered on 05/08/2021)

JUDGMENT

  1. The Appellant in the Memorandum of appeal dated 23rd August 2021 has raised 6 grounds of appeal which basically challenge the judgment of the trial court on quantum.
  2. The Appellant was held 100% liable in negligence.
  3. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) EA 123, (1958) EA page 424
  4. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: -

A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.

  1. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion.
  2. The Respondent in this matter instituted this suit against the Appellant by way of a Plaint dated 15th November 2019. He claimed general damages for pain, suffering and loss of amenities, and special damages following an accident in which he was involved in on the 29th September 2019 while travelling as a passenger. The Respondent is said to have sustained Deep cut wound on the right upper limb and a Deep cut wound on the right knee.
  3. The proceeded for trial and thereafter parties filed their respective submissions. Judgment was delivered on 5th August 2021 as follows:
  • Liability     100%
  • General damages-            Kshs. 250,000.00/=
  • Special damages-              Kshs.     3,550.00/=

Kshs. 253,550.00/=

  1. The Appellant being dissatisfied with the judgment of the trial court on quantum has now appealed to this court basically challenging the awarded damages which it considers to be manifestly excessive as to be erroneous in the circumstances having regard to the nature and extent of the injuries.
  2. I have carefully considered the grounds of appeal, the pleadings in the lower court, the evidence in the medical report adduced on the injuries before the trial court, the written submissions filed by respective counsels as well as the authorities cited.
  3. It is not contested that the Respondent sustained:
  • Deep cut wound on the right upper limb; and
  • Deep cut wound on the right knee.
  1. The Respondent’s   counsel submitted that general damages of Ksh.450,000/= was adequate compensation and relied on the case of Samuel Muthama v Kenneth Maundu Maindi in which the Plaintiff sustained the following injuries:
  • Blunt injury to the head with loss of consciousness for about four hours
  • Blunt injury to the neck
  • Cut on the scalp
  • Injury to the right eye with periorbital oedema
  • Blunt injury to the chest and back
  • Blunt injury to the low back with spondlolithesis L2 (Compression of the 1, 2 vertebra)
  • Small cuts on the dorsum of the right hand.
  1. The trial court was of the view that the injuries were more severe than those sustained by the Respondent hence they could not be compared.
  2. The trial court found that the decisions relied upon by the Appellant were less severe than the Respondent’s. In the case of Kipkebe Limited, the Plaintiff sustained deep cut wound on the leg, chest contusion and bruises on the left shoulder and an award of Kshs.30,000/= would have been made had the appeal been successful. Then 5 years ago. In the case of Buds and Bloom Ltd, the Plaintiff suffered a deep cut wound on the left leg and soft tissue injuries on the leg. An award of Kshs.70,000/= was substituted with an award of Kshs.50,000/= on appeal, 5 years ago. The court thus found that the decisions relied upon by the Appellant as a proper representation of the true scenario of comparable injuries in assessment of damages but in view of passage of time since the said decisions were made, the trial court stated that it was mindful that inflation had since changed and an award of Kshs.250,000/= would be sufficient compensation as general damages.
  3. For an Appellate Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied. See Butt vs. Khan {1981} KLR 349
  4. In the case of Maraga V Musila (1984) 1 KLR 251, the Court of Appeal when addressing its mind to this issue expressed itself thus;

“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered.  The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”.

  1. In the case of Stanley Maore vs Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 (2004) eKLR, the Court of Appeal stated that:-

“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

  1. In Civil Holdings Co. Ltd v Hellen Anyango Okeyo & another (2020) eKLR, where Ougo J. held that:-

“Awards in general damages vary however in considering the award the court does the best it can in reaching an award that reflects the nature and gravity of the injuries. Further in assessing damages the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards noting that no two cases are exactly alike….”

  1. I have taken the liberty to compare the Respondent’s injuries with the injuries sustained by Plaintiffs who suffered similar injuries in more recent decisions as follows: -
  2. In Anyumba & 2 Others v Chepkwony (Civil Appeal 7 of 2020) [2023] KEHC 24459 (KLR) (17 October 2023) (Judgment), the Plaintiff suffered a deep cut wound on the left temporal region and a deep cut wound on his right leg, leading to soft tissue injuries. The Appellate court substituted the trial court’s award of Kshs.300,000/= with Kshs.120,000/=.
  3. In Ochola v Owuor (Civil Appeal E039 of 2022) [2024] KEHC 7689 (KLR) (25 June 2024) (Judgment). The Plaintiff sustained; i. Soft tissue injuries of the right shoulder joint; ii. Blunt injury to the anterior chest wall leading to soft tissue injuries; iii. Blunt injury to the neck leading to soft tissue injuries; iv. Blunt injury to the back leading to soft tissue injuries; v. Soft tissue injuries of both knee joints, the Appellate court substituted the trial court’s award of kshs.250,000/= with Kshs.150,000/=
  4. In  Francis Omari Ogaro vs Jao (minor suing though next friend and father G.O.D (2021) eKLR, the High Court at Nyamira on appeal set aside an award of Kshs.230,000 general damages and substituted it with an award of Kshs.180,000 in a case where the Plaintiff injured sustained injuries in a road traffic accident involving multiple soft tissue injuries of:- a. Multiple cut wounds on the right lower limb; b. Bruises on the right lower limb; c. Bruises on both elbows; d. Bruises on the right iliac region; e. Bruises on the frontal region; f.  Bruises on the temporal region; g. Laceration on the frontal region, cut wounds on the left iliac region; h. Cut wounds on the frontal region; i. Cut wounds on the temporal region; j. Blunt trauma to the abdomen. The injuries healed with permanent ugly scars.
  5. Taking into account all the above, I find this appeal to have merit. It is allowed. I therefore set aside the award of Kshs.250,000 general damages and substitute it with an award of Kshs.120,000 general damages.
  6. The Appellant did not submit on the Special damages which were specifically pleaded and strictly proved. I will therefore not disturb the same.
  7. The Respondent will have costs and interest at court rates from the date of judgment in the lower court until payment in full.
  8. As the damages have been substantially reduced, I order that each party bear their own costs of this appeal.
  9. It is so order.
  10. This file is closed.

JUDGMENT WRITTEN, DATED AND SIGNED AT MACHAKOS THIS 12TH FEBRUARY  2025.

NOEL I. ADAGI

JUDGE

DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 12th FEBRUARY 2025

In the presence of :

.NA.......................................... for Applicant

Ms Kefa............................. for Respondent

Milly Grace.......................... Court Assistant

    SAMUEL NGARUIYA AND JAPHETH GITONGA GUANTAI VS SAMUEL WEKESA WANYONYI SAMUEL NGARUIYA AND JAPHETH GITONGA GUANTAI VS SAMUEL WEKESA WANYONYI