(Being an Appeal from the judgment and Decree of Honourable Nyariki J, Senior Resident magistrate delivered in Mombasa Chief Magistrate’s Court Civil Case No. 980 of 2021 on 8th November, 2022)
- STEPHEN MWANYULE KADHUMA, the Appellant herein filed the memorandum of appeal dated 7.2.22 on 8.12.22 against the quantum of damages of the said judgment and decree of Honourable Nyariki J. Senior Resident Magistrate delivered in Mombasa Chief Magistrate No.980 of 2021 on 8th November, 2022 on the following grounds: -
a.That the learned trial magistrate erred in fact and in law in assessment of general damages by arriving at a sum that was very low in the circumstances, unsustainable in law hence occasioning a miscarriage of justice.
b. THAT the learned trial magistrate applied the wrong principles of law and hence arrived at an award that was erroneous.
c. That the learned trial magistrate erred in law and in fact in failing to consider judicial precedents and hence arrived at an assessment of damages that was erroneous.
d. The learned trial magistrate misapprehended the evidence and misapplied, misunderstood and or overlooked the correct legal principles and judicial precedent and that he made an award of general damages that was erroneous and very low.
e. The award for general damages was made without due regard to judicial precedent, the parties submissions and in considering irrelevant factors hence very low
REASONS WHEREOF the appellants pray that the appeal be allowed with costs and the following orders made: -
i.That the quantum of damages in the judgment of Honourable Nyariki J. Senior Resident Magistrate delivered in Mombasa Chief Magistrate Case No.980 of 2021 on 8th November, 2022 be set aside and be replaced with a re-assessment of damages for general damages upwards.
ii.That the appellant be awarded costs of this appeal.
iii.The duty of the appellate court is to reconsider the entire evidence on record and arrive at its own conclusions bearing in mind that it never saw the witnesses during their testimony .
2. The appeal is thus basically on quantum only. The appellant disputes the general damages awarded in the sum Kshs 400,000/= .
3. In his plaint dated 13.5.21 , the appellant pleaded that he sustained the following injuries ;
- Compound fracture of the right tibula /fibula bone.
- Post traumatic swelling/ deformity of the leg .
- Post traumatic arthritis and stiffness of the right ankle joint .
- Risk of post traumatic arthritis and stiffness of the right knee Joint .
- Risk of shortening of the right leg .
- Partial permanent incapacity disability rated at 15 %.
4. The injuries are supported by the medical report from My clinic made and produced by Dr Darius Kiema who saw appellant 8 months after the incident , the case summary from Coast provincial hospital and also the P3 form indicates that the appellant sustained a compound fracture to the right tibia -fibula . the appellant also supported the said injuries and said he was still undergoing treatment by the time he testified.\
5. Defendant engaged Dr Udayan R Sheth who saw appellant as per the medical report dated 9.8.21 (which was produced by consent ) and confirmed that he sustained compound fracture of the right tibia fibula bone and had a resultant 1 cm scar , a small raw wound on the right leg , shortening on the right leg by 1 cm , the movement of right knee was full and the right ankle was stiff and painful. He assessed the permanent incapacity at 15 %.
6. It is thus clear from the foregoing that the appellant sustained compound fracture of the right leg tibia fibula with resultant shortening of the leg by 1 cm and 15% permanent incapacity . he also had anterior bowing of the right leg and the right ankle was stiff . both doctors agreed that there was need to correct the deformity by way of a surgery . Future medical expenses for the surgery were awarded in the judgment of the lower court and so it is not in issue herein .
7. It is trite law as was held in the case of Rook v Rairrie [1941] 1 ALL E.R. 297 and cited with approval in the case Butt v Khan [1981] KLR 349 when it held as per Law, J.A that:“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely 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
8. The trial court relied on the case of Triad coaches ltd & Another vs Mary Mutheu Kakemu (2020) eKLR and Zippora Nangila vs Eldoret Express Limited & 2 others(2016) eklr to arrive at the general damages . In the said case the said Triad case the respondent sustained fracture of distal tibia fibula and soft tissue injuries and was awarded general damages in the sum of Kshs 250,000/= in the year 2020. The Zippora Nangila case was cited by the appellant but this court was thus unable to trace it online . The injuries in the said Triad are comparable to the one sustained by the appellant save that there was no resultant permanent disability .
9. . I have also seen the case of Tirus Mburu Chege & Another –vs- J K N (minor suing through the next friend and mother D W N & Another [2018] eKLR, where the Respondent suffered fractures on the tibia and fibula on both legs, blunt injury on the forehead, broken upper right second front tooth, nose bleeding and consistent loss of consciousness the court awarded general damages at Kshs.500,000/= The injuries in the said case are comparable to the ones sustained in the instant case but there was no resultant permanent disability . Also Daniel Otieno Owino & Another –vs- Elizabeth Atieno Owuor[2020]eKLR the court gave an award of Kshs.400,000/= for a compound fracture of tibia and fibula bones of the right leg, deep cut wound and tissue damage of the right leg, head injury with cut wound on the nose, blunt chest injuries and soft tissue injury on the lower left leg . In the said case there was no disability the case is however relevant for purposes of comparison . In the case of Ahmed Mohamed –vs- Abdulhafidh Mohamed Banragah HCCC No.319 OF 2001. Where the Plaintiff suffered fracture left femur sub trochanteric and comminuted compound fracture left tibia and fibula. The court awarded him Kshs.750,000/= for pain, suffering and loss of amenities. The injuries sustained in the said case were more serious than the ones herein as there was also a fracture of the left femur in addition to the fracture of tibia fibula however it is also relevant for purposes of comparison of awards .
10. I have considered the nature of injuries sustained by the appellant , the comparable cases, the inflation factor and the impugned award of Kshs 400,000/= and all the necessary factors. The appellant sustained fracture of the right tibial fibula which resulted in 15 % liability, he will also undergo a second correctional surgery and thus will be exposed to more pain . I find that the award of general damages in the sum of Kshs 400,000/= is inadequate in the circumstances and thus the trial magistrate erred in awarding low damages . I proceed to substitute the award of damages of Kshs 400,000/= with Kshs 700,000/= .
11. The appeal thus succeeds and i also award costs of the appeal to the appellant .
T.A ODERA
JUDGE
25.4.24
DELIVERED IN THE PRESENCE OF KITOO FOR THE APPEALLANT. NO APPEARANCE FOR THE RESPONDENT . COURT ASSISTANT OWIWA.