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JudgmentSUKARI INDUSTRIES LIMITED VS ALFRED OTIENO KIAKA4 min read

SUKARI INDUSTRIES LIMITED VS ALFRED OTIENO KIAKA

High Court at Homabay High Court · · Kiarie W. Kiarie

(Being an Appeal from the judgment and decree in Mbita Principal Magistrate’s PMCC No. E022 of 2021 by Hon. Nicodemus N. Moseti–Senior Resident Magistrate).

  1. Gadaphy Ochieng, the appellant, was the plaintiff in PMCC No. E022 of 2021 at Mbita Principal Magistrate’s Court. The respondent had been sued for special and general damages following injuries the appellant sustained after he was attacked by a hippopotamus while walking along the shores of Lake Victoria. Parties had entered judgment on liability by consent at 80 per cent in favour of the appellant, whose contributory negligence was agreed at 20 per cent. The learned trial magistrate delivered a judgment dated the 6th day of July 2022. He awarded Kshs. 160,000 in general damages before factoring in the contribution.
  2. The appellant was aggrieved by the judgment and filed this appeal. The firm of Ouma & Ouma Associates Advocates represented him. He raised the following grounds of appeal:
  3. The learned trial magistrate erred in principle and law, as laid out in precedents, by awarding damages that were inordinately too low in the circumstances and not commensurate with the loss suffered, thus reaching an erroneous decision.
  4. The learned trial magistrate erred in law and, in fact, by disregarding and failing to consider the appellant’s written submissions, which articulated relevant issues of law, thereby arriving at an erroneous decision in both law and principle.
  5. The learned trial magistrate erred in law and principle by adopting a wrong approach in the computation of the general damages, by departing from the trends contained in the authorities cited by the appellant herein, which authorities are binding upon him and therefore adopting an erroneous principle thus occasioning a miscarriage of justice.
  6. The learned trial magistrate acted in error when he failed to properly evaluate the evidence on record, thus reaching an erroneous decision to award general damages of kshs.160,000/-, which was inordinately low under the circumstances.
  7. The learned trial magistrate acted in error when he relied on extraneous issues to determine liability apportionment and quantum assessment.
  8. The learned trial magistrate erred in law and, in fact, reached a conclusion contrary to the evidence.
  9. The learned trial magistrate erred in law and fact by apportioning liability and failing to assess the quantum of damages or in favour of the appellant.
  10. The respondent was served, but they did not file any responses or submissions.
  11. As the first appellate court, I understand my responsibility to carefully review all of the evidence presented on record without having the advantage of witnessing the witness’s testimony or demeanour. I will be guided by the decision in Selle vs Associated Motor Boat Co. Ltd. [1965] E.A. 123, consider and assess the evidence presented before the trial court and draw my conclusions.
  12. The appellant contended that he had gone to bathe at the lake where a hippopotamus attacked him. He sustained injuries that gave rise to this case. 
  13. Dr. Morebu Peter Momanyi examined the appellant and prepared a report that enumerated the injuries he sustained as follows:
  14. Deep cut wound on the left lower limb.
  15. Bruises on the right lower limb.
  16. Deep cut wounds on the right thigh.
  17. Bruises on the left lower limb.

He opined that the wounds were healing but had prominent keloid formation, thereby creating a significant cosmetic defect in his appearance.

  1. For these injuries, the appellant contended that the award of Kshs. 160,000.00 was inordinately low. An appellate court will only interfere with an award of the trial court in general damages if certain circumstances are satisfied. In Butt vs Khan [1981] KLR 349 on page 356, Law JA stated:

…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 a figure which was either inordinately high or low.

  1. Section 25 of the Wildlife Conservation and Management Act provides guidelines for Compensation for personal injury, death, or property damage. Subsection 3 (c) states:

The Cabinet Secretary shall consider the recommendations made under subsection (2) and, where appropriate, pay compensation to the claimant as follows—

c) in the case of any other injury, a maximum of two million shillings, depending on the extent of injury. [Emphasis added]

  1. The appellant argued that an award of Kshs.3,000,000.00 would be adequate compensation.
  2. The authorities cited by both parties in the trial court and this court do not assist much on the issue of the quantum of damages. I consider the award to be inordinately low.  Factoring in the evidence of the injuries and the inflation, I am compelled to set aside the award of Kshs. 160,000 substitute it with an award of Kenya shillings three hundred and fifty thousand (Kshs. 350,000.00).
  3. I, therefore, allow the appeal with costs.

Delivered and signed at Homa Bay this 9th day of April 2024

    SUKARI INDUSTRIES LIMITED VS ALFRED OTIENO KIAKA SUKARI INDUSTRIES LIMITED VS ALFRED OTIENO KIAKA