1. The respondent herein moved the trial court via plaint dated 28th February 2019 and filed on 23rd April 2019, seeking the following reliefs; special damages Kes.235,513/-, general damages and costs and interests.
2. Upon closure of pleadings, the trial court set down the matter for hearing. The plaintiff called three witnesses.
3. PW1, Dr Darius Kiema, told the court that he examined the plaintiff on 26th June 2019 and prepared a medical report in which he assessed the partial permanent disability at 13%.
4. PW2, Felix Kithome, the plaintiff, told the court that on 24th April 2016 he was travelling along Mombasa-Lunga Lunga road onboard motor vehicle registration number KCA 467R owned by the 1st defendant and being driven by the 2nd defendant. At or near the National Petrol Station area, the vehicle was driven negligently, at high speed, that it lost control, veered off the road and rammed into a coconut tree. As a result, he sustained abdominal and right shoulder injuries and was taken to Palm Beach Hospital for treatment. He was later treated in various other medical facilities, including Sayyida Fatimah Hospital and Ukunda Medical Centre. The accident was reported at Diani Police Station, where he was issued with a P3 form and a police abstract. The plaintiff produced several documents to support his case.
5. PW3, Police Constable Dominic Asumwa of Diani Police Station Traffic Base, stated that a self-involving road traffic accident occurred on 24th April 2016 at about 7.30 pm at Ngómbeni Area near National Oil Petrol Station along Likoni-Ukunda Road. The accident involved a motor vehicle registered KCA 467R, driven by the 2nd defendant with the plaintiff on board as a passenger.
6. The defendants/appellants did not call any witnesses; however, by consent, the parties adopted a medical report prepared by Dr Udayan Seth, in which permanent partial disability was assessed at 5%, as a defence exhibit.
7. Upon hearing the parties, the trial court delivered its judgement on 21st September 2022 as follows: liability 100%, special damages Kes.115,645/-, and general damages for pain and suffering and loss of amenities at Kes.1,600,000/-. The court also awarded the plaintiff costs and interest at court rate.
8. Dissatisfied with the judgement of the court below the appellants appealed to this court seeking to have the award for general damages be wholly set aside and substituted with a judgement which reduces the same on the following grounds:-
a) That the learned trial magistrate reached a decision that was against the Constitution, the Evidence Act and common law;
b) That the learned trial magistrate improperly exercised his discretion and or duty by taking into account matters he ought not to have taken into account, and failing to take into account matters he should have taken into account in making an award for general damages;
c) That the learned trial magistrate erred in his appreciation and application of the evidence tendered before him with respect to general damages;
d) That the learned trial magistrate erred in his assessment of the general damages;
e) That the learned trial magistrate erred in making a highly and manifestly excessive and or inordinately high award on general damages;
f) That the learned trial magistrate erred in failing to appreciate the nature of injuries sustained, the confirmed extent of recovery, the trend of awards for comparable injuries and the authorities submitted in support of a lesser award;
g) That the learned trial magistrate erred in failing to consider and apply all the relevant legal principles with respect to awards made under the Law Reforms Act and the Fatal Accidents Act; and
h) That the learned trial magistrate assessed damages which were manifestly excessive and against the principles applicable in assessment of such damages.
9. The appeal was canvassed by way of written submissions. The appellants, through their advocates, Isaac Onyango & Company Advocates filed their written submissions dated 23rd February 2024.
10. Counsel relied on several authorities and submitted that the award of general damages is a discretion of court and that the court should not only take cognizance of the recent trends of awards for similar and or comparable injuries but also note that high and excessive awards of damages is against public policy since it leads to high insurance premiums which are passed to the public. Counsel called upon the court to relook at the evidence tendered before the trial court.
11. Counsel faulted the authorities relied on by the trial court in reaching its decision on the award for general damages and submitted the award of Kes.1,600,000/- was grossly erroneous, based on the wrongful and improper exercise of discretion, inordinately high and exaggerated and ought, therefore, to be set aside.
12. Counsel urged the court to allow the appeal with costs, set aside the awards made on general damages, and substitute them with an award in the range of Kes.300,000-500,000/-.
13. The respondent, on the other hand, through his advocates, Omondi Waweru & Company Advocates, filed his written submissions dated 14th March 2024.
14. Counsel submitted that the award of general damages was based on the injuries suffered by the respondent, the proper exercise of discretion by the court and cognizance of the trends of awards for similar or comparable injuries and, therefore, cannot be said to be high.
15. Counsel urged the court to dismiss the appeal with costs.
16. The appeal herein is in respect of the quantum of general damages only.
17. 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, remember that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
18. In the case of Peters vs Sunday Post Limited [1985] EA 424 the Court therein 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 conclusion…”
19. 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...\"
20. This court is called upon to determine whether the trial court correctly assessed the quantum of general damages.
21. The court in the case of Isaac Muriungimbataru vs Silas Kalumani [2017] eKLR stated:-
“This is an appeal on the quantum of damages. I need not re-invent the wheel on the legal threshold in such an appeal. Quantum of damages is a matter of the discretion of the trial court. Accordingly, the appellate court will only interfere with the exercise of discretion on the quantum of damages only in the circumstances set out in the case of KENYA BUS SERVICES LIMITED vs JANE KARAMBUGITUMA CIVIL APPEAL CASE NO 241 OF 2000 by the Court of Appeal when it stated thus:-
“…in this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account of some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low so as to represent a wholly erroneous estimate of the damages.”
22. Further the court in the case of Odinga Jactone Ouma v Moureen Achieng Odera [2016] eKLR stated:-
“In assessing damages, the general method of approach should be that comparable injuries should, as far as possible, be compensated by comparable awards, but it must be recalled that no two cases are exactly alike as the Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru CA Civil Appeal No. 26 of 2013 [2014] eKLR thus:-
The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.
This point has been emphasised by Lord Morris of Borth-y-Gest in West (H) & Son Ltd v Shepherd [1964] AC. 326,345, where he observed that:-
But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.
The principles were further summarised by the Court of Appeal in Jabane v Olenja [1986] KLR 661 as follows;
The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his 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 leave well alone.”
23. I have considered the said award, and in my view, based on the consideration of awards in similar matters, the award of general damages in the sum of Kes.1,600,000 was manifestly erroneous, based on wrong and improper exercise of discretion and inordinately high (see Bashir Ahmed Butt v Ahmed Khan (1982-88) KAR).
24. In the circumstances I substitute the award of Kes. 1,600,000/- with an award of Kes.900,000/-. The said amount shall attract interest from the date of judgment before the subordinate court.
25. I award the appellant the costs of the appeal. The respondent shall have the costs of the court below.
Dated and signed at Mombasa this 22nd day of May 2024. Delivered virtually via Microsoft TEAMS.
2. Upon closure of pleadings, the trial court set down the matter for hearing. The plaintiff called three witnesses.
3. PW1, Dr Darius Kiema, told the court that he examined the plaintiff on 26th June 2019 and prepared a medical report in which he assessed the partial permanent disability at 13%.
4. PW2, Felix Kithome, the plaintiff, told the court that on 24th April 2016 he was travelling along Mombasa-Lunga Lunga road onboard motor vehicle registration number KCA 467R owned by the 1st defendant and being driven by the 2nd defendant. At or near the National Petrol Station area, the vehicle was driven negligently, at high speed, that it lost control, veered off the road and rammed into a coconut tree. As a result, he sustained abdominal and right shoulder injuries and was taken to Palm Beach Hospital for treatment. He was later treated in various other medical facilities, including Sayyida Fatimah Hospital and Ukunda Medical Centre. The accident was reported at Diani Police Station, where he was issued with a P3 form and a police abstract. The plaintiff produced several documents to support his case.
5. PW3, Police Constable Dominic Asumwa of Diani Police Station Traffic Base, stated that a self-involving road traffic accident occurred on 24th April 2016 at about 7.30 pm at Ngómbeni Area near National Oil Petrol Station along Likoni-Ukunda Road. The accident involved a motor vehicle registered KCA 467R, driven by the 2nd defendant with the plaintiff on board as a passenger.
6. The defendants/appellants did not call any witnesses; however, by consent, the parties adopted a medical report prepared by Dr Udayan Seth, in which permanent partial disability was assessed at 5%, as a defence exhibit.
7. Upon hearing the parties, the trial court delivered its judgement on 21st September 2022 as follows: liability 100%, special damages Kes.115,645/-, and general damages for pain and suffering and loss of amenities at Kes.1,600,000/-. The court also awarded the plaintiff costs and interest at court rate.
8. Dissatisfied with the judgement of the court below the appellants appealed to this court seeking to have the award for general damages be wholly set aside and substituted with a judgement which reduces the same on the following grounds:-
a) That the learned trial magistrate reached a decision that was against the Constitution, the Evidence Act and common law;
b) That the learned trial magistrate improperly exercised his discretion and or duty by taking into account matters he ought not to have taken into account, and failing to take into account matters he should have taken into account in making an award for general damages;
c) That the learned trial magistrate erred in his appreciation and application of the evidence tendered before him with respect to general damages;
d) That the learned trial magistrate erred in his assessment of the general damages;
e) That the learned trial magistrate erred in making a highly and manifestly excessive and or inordinately high award on general damages;
f) That the learned trial magistrate erred in failing to appreciate the nature of injuries sustained, the confirmed extent of recovery, the trend of awards for comparable injuries and the authorities submitted in support of a lesser award;
g) That the learned trial magistrate erred in failing to consider and apply all the relevant legal principles with respect to awards made under the Law Reforms Act and the Fatal Accidents Act; and
h) That the learned trial magistrate assessed damages which were manifestly excessive and against the principles applicable in assessment of such damages.
9. The appeal was canvassed by way of written submissions. The appellants, through their advocates, Isaac Onyango & Company Advocates filed their written submissions dated 23rd February 2024.
10. Counsel relied on several authorities and submitted that the award of general damages is a discretion of court and that the court should not only take cognizance of the recent trends of awards for similar and or comparable injuries but also note that high and excessive awards of damages is against public policy since it leads to high insurance premiums which are passed to the public. Counsel called upon the court to relook at the evidence tendered before the trial court.
11. Counsel faulted the authorities relied on by the trial court in reaching its decision on the award for general damages and submitted the award of Kes.1,600,000/- was grossly erroneous, based on the wrongful and improper exercise of discretion, inordinately high and exaggerated and ought, therefore, to be set aside.
12. Counsel urged the court to allow the appeal with costs, set aside the awards made on general damages, and substitute them with an award in the range of Kes.300,000-500,000/-.
13. The respondent, on the other hand, through his advocates, Omondi Waweru & Company Advocates, filed his written submissions dated 14th March 2024.
14. Counsel submitted that the award of general damages was based on the injuries suffered by the respondent, the proper exercise of discretion by the court and cognizance of the trends of awards for similar or comparable injuries and, therefore, cannot be said to be high.
15. Counsel urged the court to dismiss the appeal with costs.
16. The appeal herein is in respect of the quantum of general damages only.
17. 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, remember that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first-hand.
18. In the case of Peters vs Sunday Post Limited [1985] EA 424 the Court therein 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 conclusion…”
19. 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...\"
20. This court is called upon to determine whether the trial court correctly assessed the quantum of general damages.
21. The court in the case of Isaac Muriungimbataru vs Silas Kalumani [2017] eKLR stated:-
“This is an appeal on the quantum of damages. I need not re-invent the wheel on the legal threshold in such an appeal. Quantum of damages is a matter of the discretion of the trial court. Accordingly, the appellate court will only interfere with the exercise of discretion on the quantum of damages only in the circumstances set out in the case of KENYA BUS SERVICES LIMITED vs JANE KARAMBUGITUMA CIVIL APPEAL CASE NO 241 OF 2000 by the Court of Appeal when it stated thus:-
“…in this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account of some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low so as to represent a wholly erroneous estimate of the damages.”
22. Further the court in the case of Odinga Jactone Ouma v Moureen Achieng Odera [2016] eKLR stated:-
“In assessing damages, the general method of approach should be that comparable injuries should, as far as possible, be compensated by comparable awards, but it must be recalled that no two cases are exactly alike as the Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru CA Civil Appeal No. 26 of 2013 [2014] eKLR thus:-
The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.
This point has been emphasised by Lord Morris of Borth-y-Gest in West (H) & Son Ltd v Shepherd [1964] AC. 326,345, where he observed that:-
But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.
The principles were further summarised by the Court of Appeal in Jabane v Olenja [1986] KLR 661 as follows;
The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his 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 leave well alone.”
23. I have considered the said award, and in my view, based on the consideration of awards in similar matters, the award of general damages in the sum of Kes.1,600,000 was manifestly erroneous, based on wrong and improper exercise of discretion and inordinately high (see Bashir Ahmed Butt v Ahmed Khan (1982-88) KAR).
24. In the circumstances I substitute the award of Kes. 1,600,000/- with an award of Kes.900,000/-. The said amount shall attract interest from the date of judgment before the subordinate court.
25. I award the appellant the costs of the appeal. The respondent shall have the costs of the court below.
Dated and signed at Mombasa this 22nd day of May 2024. Delivered virtually via Microsoft TEAMS.