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JudgmentSIMON MUTERO MUNENE VS MARGRET KWAMBOKA NYAKUNDI5 min read

SIMON MUTERO MUNENE VS MARGRET KWAMBOKA NYAKUNDI

High Court at Kisii High Court · · Anne Ong'injo


The Appellant was sued by the Respondent in Plaint dated 27th December 2020 seeking special and general damages for injuries suffered on 16th November 2020 when she was a pillion passenger on unknown motor cycle along Kisii-Kilgoris road when motor vehicle Reg. KBY  153 Y lost control and collided with the unknown motor cycle

The Trial Magistrate considered the evidence of the Respondent and her witness Mr Nyameino the Clinical Officer who treated her and filled P3 form indicating that the Respondent had plaster of paris on both the elbow joint and the left leg just below the knee. PW2 confirmed that the Respondent suffered fractures and he estimated permanent disability at 10%.

The Trial Magistrate also considered the evidence of Dr. James Obondi Otieno who re-examined the Respondent and said he did not see any evidence of fractures and he referred the Respondent for x-ray but she did not return with the results. DW1produced Medical Report that he prepared in respect of the examination he did on the Respondent.

DW1 in cross examination confirmed he saw the medical documents from Kisii TRH showing the Respondent had a fracture and plaster of paris and but that a healing fracture could only be ascertained by anx-ray. That DW1 confirmed that his finding that the Respondent did not suffer a fracture was not conclusive as he examined the Respondent one year after the accident.

The Trial Magistrate found that the Respondent proved she suffered the injuries as pleaded and entered judgment for the Respondent on liability at 100% against the Appellant and assessed general damages at Kshs. 600,000/= and special damages of Kshs.7270/= together with costs and interest.

The Appellant was aggrieved by the judgment and he lodged the appeal herein vide Memorandum of Appeal dated 11th May 2023 on the following grounds:-

  1. That the award is excessive in the circumstances.
  2. That the trial magistrate adopted the wrong approach or principles in computation of general damages.
  3. That the trial magistrate based her judgment on extraneous issues which were never pleaded to award general damages.
  4. That the trial magistrate disregarded and / or failed to take into account the Appellant’s written submissions.

The appeal herein was canvassed by way of written submissions. The Appellant’s submissions are dated 13th March 2024 and filed on 12th February 2024. The Appellant submitted that the injuries sustained by the Respondent were minor and the same had fully recovered as at the time of examination by Dr. Obondi and in the circumstances an award of Kshs. 600,000/= was inordinately high as there was no basis for the said award.

The Appellant cited the holdings in  HB vs Jaser Nchonga Magari and Another (2021) eKLR where the lower court awarded Kshs. 60,000/= and the same was set aside on appeal and substituted with Kshs. 40,000/=

The Appellant also cited Sarah Karungari Munene vs Anester Secondary School (2020) eKLR where the plaintiff suffered blunt injuries and was awarded Kshs. 40,000/=.

The Appellant also submitted that the Trial Magistrate did not consider that the Respondent did not suffer fractures as the2ndmediacl examination ruled possibility of a fracture and the court would have considered that and made a finding that the Respondent only suffered soft tissue injuries

The Appellant also faulted the Trial Magistrate erred in adopting the Respondent’s submission when the authorities cited did not have uniformity of injuries to those suffered by the Respondent and failing to take into account similar awards.

The Respondent did not file submissions and tis court will therefore determine this appeal based on the records of the Trial court, the judgment of the Trial Magistrate and the grounds of appeal as well as the Appellant’s submission.

ANALYSIS AND DETERMINATION

This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:

"...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 retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court   must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."

Having considered the grounds of appeal and Appellant’s submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are:-

  1. Whether the award is excessive in the circumstances.
  2. Whether the trial magistrate adopted the wrong approach or principles in computation of general damages.
  3. Whether the trial magistrate based her judgment on extraneous issue which were never pleaded to award general damages.
  4. Whether the trial magistrate disregarded and / or failed to take into account the Appellant’s written submissions.

The Appellant relied on the case of H. B. vs Jasper Nchonga Magari and Another to argue that the injuries sustained by the minor therein were similar to those sustained by the Respondent and that being the case an award of Kshs. 40,000/= would have been sufficient for general damages but this authority has not particularised the injuries suffered to enable this court confirm whether they were similar to those of the Respondent to apply the same award. 

The Appellant also relied on the case of Sarah Karungai Munene vs. Anestar Secondary School 2020 eKLR to argued that the Respondent herein suffered minor injuries and should be awarded 40,000/=. In this case the Appellant suffered trauma to the left side of the chest and was awarded 40,000/= in general damages. 

On the other hand, the Respondent in her submissions in the trial court showed that she ha suffered injuries to the scalp chest contusion, Bilateral elbow bruising, fracture of the left ulna, tender right knee joint and fracture of the left tibia fibula.   These injuries were treated at the Kisii Teaching and Referral Hospital and the clinical officer filled a P3 form confirming that the Respondent suffered grievous harm and a plaster of paris was applied on the elbow joint and below the knee.  It is therefore obvious the injuries suffered by the Respondent were not similar to those in the authorities cited by the Appellant herein.  Tis court therefore finds that there is no reason to warrant deviating from the assessment of the quantum of damages as found by the trial magistrate as it was an exercise of her discretion upon hearing and seeing the Respondent and her witnesses testifying in court. 

Based on the above reasons it is my finding that the Appellant’s appeal lacks merit and the same is dismissed with costs of the appeal to the Respondent.

DELIVERED, DATED and SIGNED at MIGORI this   6th  day of  March,   2025

    SIMON MUTERO MUNENE VS MARGRET KWAMBOKA NYAKUNDI SIMON MUTERO MUNENE VS MARGRET KWAMBOKA NYAKUNDI