REPUBLIC OF KENYA
IN THE HIGH COURT AT MALINDI
CIVIL APPEAL NO. E164 OF 2023
WATU NOMINEES CO. LTD.........................................................................1 ST APPELLANT
GEORGE CHARO MKUTANO......................................................................2 ND APPELLANT
VERSUS
AGNES GABRIEL IDI...................…………………............................................RESPONDENT
(Being an Appeal from the judgment and decree of Hon. E. K. Usui, Chief Magistrate, delivered on 20 th November 2023 in Milimani Magistrate’s Court CMCC No. E317 of 2022)
JUDGMENT
Background
1. The appellants Watu Nominees Co. Ltd and George Charo Mkutano have filed this appeal through a memorandum dated 22 nd November 2023. The appeal is on the issue of assessment of quantum of general damages only.
2. The appellants were the defendants before the trial court. They were sued by the respondent through a plaint dated 25 th October 2022 for injuries sustained in a road traffic accident that occurred on 21 st August 2022. The respondent’s case was that she was standing off the tarmac along the Malindi-Lamu road at Kwa Ndomo area when motor cycle registration number KMGB 831N owned by the 1 st appellant and ridden by the 2 nd appellant veered off its lane from the tarmac and hit her causing the accident. As a result, the respondent sustained severe injuries, loss and damage. The injuries were fracture of the right fibula leg bone and deep cut on the tongue. The respondent blamed the appellants for negligence in the manner the motor cycle was ridden, managed and/or controlled thereby leading to the accident.
3. The respondent claimed from the appellant general damages for pain, suffering and loss of amenities and special damages of KShs 2,550/=, costs and interest.
4. The appellants filed a statement of defence dated 13 th February 2023 and admitted ownership of the said motor cycle and the occurrence of the accident but denied the claim by the respondent that the accident was caused by their negligence. They pleaded that the accident was caused by and/or substantially contributed to by the respondent.
5. At the hearing of the case by the trial court, the respondent gave evidence as PW 1, and called two other witnesses, PW 2, Dr. Ajoni Adede who had examined her and prepared a medical report dated 21 st September 2022 and PW 3, PC Jonathan Mwendwa who visited the scene of the accident and he produced the police abstract issued to the respondent following the accident. He was not the investigating officer, though.
6. The appellants did not call evidence in defence. Instead the parties recorded a consent on 4 th September 2023 to produce the medical report dated 10 th March 2023 by Dr. Udayan Seth as defence exhibit whereupon the defence case was closed.
7. The trial court considered the evidence tendered before it by the parties and the submissions by learned counsels and entered judgment on 23 rd November 2023 on liability at 100% in favour of the respondent and assessed the quantum awarding the respondent general damages for pain and suffering of KShs 800,000/= and special damages KShs 2,550/=. together with costs and interest.
Grounds of appeal
8. The appellants were dissatisfied with that decision and have filed the present appeal based on seven grounds some broken down into sub-paragraphs. In summary, the grounds of appeal allege that the learned trial magistrate erred in law and in fact by failing to properly consider all the evidence tendered with respect to the injuries sustained by the respondent and the submissions made by counsel for the appellants and thereby awarded the sum of KShs 800,000/= general damages for pain and suffering which was inordinately high and amounts to an erroneous estimate.
9. The appellants therefore pray for this court to set aside the judgment of the lower court and allow the appeal with costs and make any other orders as they court may find proper.
10. The appeal was disposed of on written submissions filed by learned counsels for both parties. The same are considered in the analysis that follows.
11. This being a first appeal, the duty of the court is to re-consider the evidence, evaluate and analyze it and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 where it was held that:
“An appeal to this Court from a trial by the High 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
Analysis and Determination
12. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the general damages awarded by the trial court are so inordinately high as to be an erroneous estimate and subject to be upset by this court.
13. The injuries sustained by the respondent as pleaded in the plaint and confirmed in the medical report of Dr. Ajoni Adede, Physician/Veneorologist of Gama Medical Clinic in his medical report dated 21 st September 2022 are:
a. Fracture of the right fibula leg bone.
b. Deep cut on the tongue.
14. The medical report indicates further that the examination was done one month after the accident and at the time, the respondent was using crutches and had a right leg plaster cast. The tongue had an upper surface 3cm fading scar. The doctor assessed the degree of permanent partial disability at 6%. He indicated that the fracture sites remain a weak point for life even if the bones unite and healing will occur with right ankle joint stiffness and that the accompanying soft tissue injury will leave no residual disability.
15. The appellants on their part referred to the medical report by Dr. Udayan R. Sheth dated 10 th March 2023. The doctor indicated the injuries sustained as fracture lateral malleolus of right fibula bone and cut over tongue. She was treated as an outpatient at Mjanaheri dispensary, Gongoni. She was applied plaster for one month and cut over tongue was stitched. At the time of examination, the respondent’s complaint was pain on and off right ankle. On examination the doctor found a small scar over the tongue. There was no tenderness, no swelling, no deformity of right ankle. Movement of right ankle was full and painless and there was no limp. The rest of the physical examination was normal. The doctor’s opinion was that the respondent had fully recovered and there was no deformity and no permanent incapacity.
16. In his submissions before the trial court, the respondent proposed an award of KShs 650,000/= general damages for pain, suffering and loss of amenities. The respondent relied on the case of Vincent Mbogholi v Harrison Tunje Chilyalya [2017] KEHC 7765 (KLR) where the respondent suffered a fracture of the left tibia leg bone (medial malleolus), blunt object injury to the chest and left lower limb, bruises on the left forearm, right foot and right big toe. On appeal the High Court in 2017 sustained the award of KShs 500,000/= general damages awarded by the trial court.
17. The appellants on their part proposed an award of KShs 250,000/= general damages and relied on the case of Triad Coaches Ltd & another v Mary Mutheu Kakemu [2020] KEHC 3271 (KLR) where the High Court substituted an award of KShs 300,000/= and reduced it to KShs 250,000/= where the respondent suffered a fracture of the tibia fibula, blunt injury of the right wrist and blunt injury of the right ankle with dislocation. The appellant maintains the same authority in this appeal without any addition.
18. In her judgment the learned trial magistrate indicated that she had taken into account the serious nature of the respondent’s injuries and noted that the fracture affected a sensitive joint, the malleolus joints as noted by Dr. Sheth. She indicated that she had taken into account the age of the comparable awards and the ever-increasing cost of living and awarded general damages for pain, suffering and loss of amenities at KShs 800,000/=.
19. In this appeal, the respondent defends the award of KShs 800,000/= made by the trial court contending that the appellants did not oppose the medical record produced by Dr. Ajoni Adede on the injuries sustained by the respondent. In this appeal, the respondent has added to the case Vincent Mbogholi cited before the trial court the case of Dennis Matagaro v NKO (Minor suing through next friend and father WOO) [2021] KEHC 7524 (KLR) where the High Court on appeal sustained an award of KShs 700,000/= general damages for pain, suffering and loss of amenities where the respondent sustained mild head injury, tenderness on the neck, dislocation of the left shoulder, tenderness on the back, deep lacerated cut wounds on the forearms and a fracture of the left tibia and fibula. Dr Ezekiel Oganda Zoga who examined the respondent noted that the respondent was in the process of recovery and no permanent injury was anticipated. It is immediately discernible that although the injuries involved a fracture of the left fibula, there was also fracture of the left tibia and a host of other injuries which make them more serious than in the present case.
20. Learned counsel for the appellants has termed the award of KShs 800,000/= general damages for pain, suffering and loss of amenities by the trial court as disproportionate and not keeping with other comparable awards for similar injuries. He maintains that this court should reduce the award to KShs 250,000/= as proposed before the lower court.
21. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
22. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturb the same as was held in the case cited by learned counsel for the respondent of Butt v Khan [1978] KECA 24 (KLR) where the court pronounced itself on the issue as follows:
“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.”
23. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A . stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
24. I have considered the reports submitted by the two doctors and I find, in line with what the learned trial magistrate also found, that they are in agreement on the injuries sustained by the respondent which were fracture of the right fibula bone and deep cut on the tongue. The point of departure by the two doctors was that whereas Dr. Ajoni Adede assessed the degree of partial permanent incapacity at 6%, Dr. Udayan Sheth was of the opinion that the respondent had fully recovered and there was no deformity and no permanent incapacity. That difference is understandable, Dr. Adede examined the respondent on 21 st September 2022, exactly one month after the accident had occurred on 21 st August 2022. The respondent was still on clutches. Dr. Udayan Sheth on his part examined the respondent on 10 th March 2023, about six months and three weeks after the accident. By not calling for the cross-examination of Dr. Udayan Sheth, the plaintiff thereby agreed with the findings that she had fully recovered with no permanent incapacity. Therefore, the latest report by Dr. Udayan Sheth has to be taken to represent the respondent’s correct condition.
25. The decision of the trial court is for challenging. First the trial court made an award way much higher than what was proposed by the respondent herself. Granted that the court was not bound to go by the proposals made by the parties, I think to depart from what the injured party feels is fair compensation to herself, some justification should be made. There was no explanation offered by the trial court on why it had to make a higher award than proposed by the respondent.
26. Secondly, even the decision of Vincent Mbogholi (supra) cited by the respondent in support of her proposal had a lower award compared to the award she had proposed. Granted that the decision was a bit older, I do not think a span of six years rising inflation would justify the exponential departure from that award as was done by the trial court herein.
27. I also note that the trial court commended that the fracture affected a sensitive joint, the malleolus bone. It is not clear how the trial court arrived at that assessment given that the two medical reports did not mention such any issue of sensitivity of the injured bone and the trial court did not indicate the source of its finding as such. I am therefore inclined to find that the learned trial magistrate took into account extraneous factors that she ought not to while assessing the damages to award.
28. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
29. The principles for assessment of general damages are as stated in the case of Wahinya v Lucheveleli [2022] KEHC 13762 (KLR) that:
“In assessing general damages, courts must have presence of mind to ascertain the sum of general damages that other courts and especially appellate courts would ordinarily award in respect of a particular injury. A plaintiff’s compensation ought to be comparable to awards by the other courts. In view of the aforesaid, a court must therefore be guided by precedents.” …
“An appellate court can only disturb an award of damages made by a trial court if it was satisfied that it was either inordinately high or low as to justify an inference that it represented an erroneous estimate of the damage suffered; or that the trial court took into account irrelevant factors or omitted to take into account relevant ones or acted on wrong legal principles in arriving at the award.”
30. I find that the decision of Vincent Mbogholi (supra) was a good guide that the learned trial magistrate ought to have relied upon even as I note that besides the fracture to the left tibia bone (malleolus) there were other multiple though minor injuries all over the body unlike in the present case where the only other injury was a deep cut to the tongue but which according to Dr. Udayan Seth had healed leaving a mild scar.
31. I have also considered the following case which I find relevant for further guidance and comparison. In Kiama v Mutiso [2024] KEHC 5135 (KLR) the respondent suffered a fracture of the left tibia bone (upper 1/3) and a blunt injury to the left leg and thigh. The injuries had fully healed without any disability. The High Court on appeal set aside the award of KShs 700,000.00 awarded as general damages and substituted it with an award of KShs 400,000.00 subject to the agreed liability.
32. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award. I am satisfied and do find that indeed it is. I believe that had the trial magistrate considered the final prognosis made by Dr. Udayan Sheth, she could have arrived at a different figure on quantum of general damages.
33. Considering the injuries sustained by the respondent herein and comparable awards made in the cases of Vincent Mbogholi and Kiama above I find that the award of KShs 800,000/= made by the trial court was inordinately high and must be disturbed. Taking all the factors into account I find that an award of KShs 400,000/= would be adequate compensation for the respondent’s injuries in general damages for pain, suffering and loss of amenities.
34. The appeal therefore succeeds to the extent that the lower court award of general damages KShs 800,000/= is substituted with an award of KShs 400,000/=. For clarity, there was no appeal on the assessment of special damages and the award remains KShs 2,550/=. The total award is therefore 402,550/=.
35. Each party will bear its own costs of the appeal.
36. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Microsoft Teams this 2 nd day of September in the presence of:
Musyoki h/b for Gor for the appellants.
Ngosho (Ms) for the respondent.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
FOOTNOTES
[1]
ENDNOTES
[i]
malindi HCCA No. E164 of 20239/General damages-RTA
IN THE HIGH COURT AT MALINDI
CIVIL APPEAL NO. E164 OF 2023
WATU NOMINEES CO. LTD.........................................................................1 ST APPELLANT
GEORGE CHARO MKUTANO......................................................................2 ND APPELLANT
VERSUS
AGNES GABRIEL IDI...................…………………............................................RESPONDENT
(Being an Appeal from the judgment and decree of Hon. E. K. Usui, Chief Magistrate, delivered on 20 th November 2023 in Milimani Magistrate’s Court CMCC No. E317 of 2022)
JUDGMENT
Background
1. The appellants Watu Nominees Co. Ltd and George Charo Mkutano have filed this appeal through a memorandum dated 22 nd November 2023. The appeal is on the issue of assessment of quantum of general damages only.
2. The appellants were the defendants before the trial court. They were sued by the respondent through a plaint dated 25 th October 2022 for injuries sustained in a road traffic accident that occurred on 21 st August 2022. The respondent’s case was that she was standing off the tarmac along the Malindi-Lamu road at Kwa Ndomo area when motor cycle registration number KMGB 831N owned by the 1 st appellant and ridden by the 2 nd appellant veered off its lane from the tarmac and hit her causing the accident. As a result, the respondent sustained severe injuries, loss and damage. The injuries were fracture of the right fibula leg bone and deep cut on the tongue. The respondent blamed the appellants for negligence in the manner the motor cycle was ridden, managed and/or controlled thereby leading to the accident.
3. The respondent claimed from the appellant general damages for pain, suffering and loss of amenities and special damages of KShs 2,550/=, costs and interest.
4. The appellants filed a statement of defence dated 13 th February 2023 and admitted ownership of the said motor cycle and the occurrence of the accident but denied the claim by the respondent that the accident was caused by their negligence. They pleaded that the accident was caused by and/or substantially contributed to by the respondent.
5. At the hearing of the case by the trial court, the respondent gave evidence as PW 1, and called two other witnesses, PW 2, Dr. Ajoni Adede who had examined her and prepared a medical report dated 21 st September 2022 and PW 3, PC Jonathan Mwendwa who visited the scene of the accident and he produced the police abstract issued to the respondent following the accident. He was not the investigating officer, though.
6. The appellants did not call evidence in defence. Instead the parties recorded a consent on 4 th September 2023 to produce the medical report dated 10 th March 2023 by Dr. Udayan Seth as defence exhibit whereupon the defence case was closed.
7. The trial court considered the evidence tendered before it by the parties and the submissions by learned counsels and entered judgment on 23 rd November 2023 on liability at 100% in favour of the respondent and assessed the quantum awarding the respondent general damages for pain and suffering of KShs 800,000/= and special damages KShs 2,550/=. together with costs and interest.
Grounds of appeal
8. The appellants were dissatisfied with that decision and have filed the present appeal based on seven grounds some broken down into sub-paragraphs. In summary, the grounds of appeal allege that the learned trial magistrate erred in law and in fact by failing to properly consider all the evidence tendered with respect to the injuries sustained by the respondent and the submissions made by counsel for the appellants and thereby awarded the sum of KShs 800,000/= general damages for pain and suffering which was inordinately high and amounts to an erroneous estimate.
9. The appellants therefore pray for this court to set aside the judgment of the lower court and allow the appeal with costs and make any other orders as they court may find proper.
10. The appeal was disposed of on written submissions filed by learned counsels for both parties. The same are considered in the analysis that follows.
11. This being a first appeal, the duty of the court is to re-consider the evidence, evaluate and analyze it and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 where it was held that:
“An appeal to this Court from a trial by the High 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
Analysis and Determination
12. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the general damages awarded by the trial court are so inordinately high as to be an erroneous estimate and subject to be upset by this court.
13. The injuries sustained by the respondent as pleaded in the plaint and confirmed in the medical report of Dr. Ajoni Adede, Physician/Veneorologist of Gama Medical Clinic in his medical report dated 21 st September 2022 are:
a. Fracture of the right fibula leg bone.
b. Deep cut on the tongue.
14. The medical report indicates further that the examination was done one month after the accident and at the time, the respondent was using crutches and had a right leg plaster cast. The tongue had an upper surface 3cm fading scar. The doctor assessed the degree of permanent partial disability at 6%. He indicated that the fracture sites remain a weak point for life even if the bones unite and healing will occur with right ankle joint stiffness and that the accompanying soft tissue injury will leave no residual disability.
15. The appellants on their part referred to the medical report by Dr. Udayan R. Sheth dated 10 th March 2023. The doctor indicated the injuries sustained as fracture lateral malleolus of right fibula bone and cut over tongue. She was treated as an outpatient at Mjanaheri dispensary, Gongoni. She was applied plaster for one month and cut over tongue was stitched. At the time of examination, the respondent’s complaint was pain on and off right ankle. On examination the doctor found a small scar over the tongue. There was no tenderness, no swelling, no deformity of right ankle. Movement of right ankle was full and painless and there was no limp. The rest of the physical examination was normal. The doctor’s opinion was that the respondent had fully recovered and there was no deformity and no permanent incapacity.
16. In his submissions before the trial court, the respondent proposed an award of KShs 650,000/= general damages for pain, suffering and loss of amenities. The respondent relied on the case of Vincent Mbogholi v Harrison Tunje Chilyalya [2017] KEHC 7765 (KLR) where the respondent suffered a fracture of the left tibia leg bone (medial malleolus), blunt object injury to the chest and left lower limb, bruises on the left forearm, right foot and right big toe. On appeal the High Court in 2017 sustained the award of KShs 500,000/= general damages awarded by the trial court.
17. The appellants on their part proposed an award of KShs 250,000/= general damages and relied on the case of Triad Coaches Ltd & another v Mary Mutheu Kakemu [2020] KEHC 3271 (KLR) where the High Court substituted an award of KShs 300,000/= and reduced it to KShs 250,000/= where the respondent suffered a fracture of the tibia fibula, blunt injury of the right wrist and blunt injury of the right ankle with dislocation. The appellant maintains the same authority in this appeal without any addition.
18. In her judgment the learned trial magistrate indicated that she had taken into account the serious nature of the respondent’s injuries and noted that the fracture affected a sensitive joint, the malleolus joints as noted by Dr. Sheth. She indicated that she had taken into account the age of the comparable awards and the ever-increasing cost of living and awarded general damages for pain, suffering and loss of amenities at KShs 800,000/=.
19. In this appeal, the respondent defends the award of KShs 800,000/= made by the trial court contending that the appellants did not oppose the medical record produced by Dr. Ajoni Adede on the injuries sustained by the respondent. In this appeal, the respondent has added to the case Vincent Mbogholi cited before the trial court the case of Dennis Matagaro v NKO (Minor suing through next friend and father WOO) [2021] KEHC 7524 (KLR) where the High Court on appeal sustained an award of KShs 700,000/= general damages for pain, suffering and loss of amenities where the respondent sustained mild head injury, tenderness on the neck, dislocation of the left shoulder, tenderness on the back, deep lacerated cut wounds on the forearms and a fracture of the left tibia and fibula. Dr Ezekiel Oganda Zoga who examined the respondent noted that the respondent was in the process of recovery and no permanent injury was anticipated. It is immediately discernible that although the injuries involved a fracture of the left fibula, there was also fracture of the left tibia and a host of other injuries which make them more serious than in the present case.
20. Learned counsel for the appellants has termed the award of KShs 800,000/= general damages for pain, suffering and loss of amenities by the trial court as disproportionate and not keeping with other comparable awards for similar injuries. He maintains that this court should reduce the award to KShs 250,000/= as proposed before the lower court.
21. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
22. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturb the same as was held in the case cited by learned counsel for the respondent of Butt v Khan [1978] KECA 24 (KLR) where the court pronounced itself on the issue as follows:
“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.”
23. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A . stated:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
24. I have considered the reports submitted by the two doctors and I find, in line with what the learned trial magistrate also found, that they are in agreement on the injuries sustained by the respondent which were fracture of the right fibula bone and deep cut on the tongue. The point of departure by the two doctors was that whereas Dr. Ajoni Adede assessed the degree of partial permanent incapacity at 6%, Dr. Udayan Sheth was of the opinion that the respondent had fully recovered and there was no deformity and no permanent incapacity. That difference is understandable, Dr. Adede examined the respondent on 21 st September 2022, exactly one month after the accident had occurred on 21 st August 2022. The respondent was still on clutches. Dr. Udayan Sheth on his part examined the respondent on 10 th March 2023, about six months and three weeks after the accident. By not calling for the cross-examination of Dr. Udayan Sheth, the plaintiff thereby agreed with the findings that she had fully recovered with no permanent incapacity. Therefore, the latest report by Dr. Udayan Sheth has to be taken to represent the respondent’s correct condition.
25. The decision of the trial court is for challenging. First the trial court made an award way much higher than what was proposed by the respondent herself. Granted that the court was not bound to go by the proposals made by the parties, I think to depart from what the injured party feels is fair compensation to herself, some justification should be made. There was no explanation offered by the trial court on why it had to make a higher award than proposed by the respondent.
26. Secondly, even the decision of Vincent Mbogholi (supra) cited by the respondent in support of her proposal had a lower award compared to the award she had proposed. Granted that the decision was a bit older, I do not think a span of six years rising inflation would justify the exponential departure from that award as was done by the trial court herein.
27. I also note that the trial court commended that the fracture affected a sensitive joint, the malleolus bone. It is not clear how the trial court arrived at that assessment given that the two medical reports did not mention such any issue of sensitivity of the injured bone and the trial court did not indicate the source of its finding as such. I am therefore inclined to find that the learned trial magistrate took into account extraneous factors that she ought not to while assessing the damages to award.
28. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
29. The principles for assessment of general damages are as stated in the case of Wahinya v Lucheveleli [2022] KEHC 13762 (KLR) that:
“In assessing general damages, courts must have presence of mind to ascertain the sum of general damages that other courts and especially appellate courts would ordinarily award in respect of a particular injury. A plaintiff’s compensation ought to be comparable to awards by the other courts. In view of the aforesaid, a court must therefore be guided by precedents.” …
“An appellate court can only disturb an award of damages made by a trial court if it was satisfied that it was either inordinately high or low as to justify an inference that it represented an erroneous estimate of the damage suffered; or that the trial court took into account irrelevant factors or omitted to take into account relevant ones or acted on wrong legal principles in arriving at the award.”
30. I find that the decision of Vincent Mbogholi (supra) was a good guide that the learned trial magistrate ought to have relied upon even as I note that besides the fracture to the left tibia bone (malleolus) there were other multiple though minor injuries all over the body unlike in the present case where the only other injury was a deep cut to the tongue but which according to Dr. Udayan Seth had healed leaving a mild scar.
31. I have also considered the following case which I find relevant for further guidance and comparison. In Kiama v Mutiso [2024] KEHC 5135 (KLR) the respondent suffered a fracture of the left tibia bone (upper 1/3) and a blunt injury to the left leg and thigh. The injuries had fully healed without any disability. The High Court on appeal set aside the award of KShs 700,000.00 awarded as general damages and substituted it with an award of KShs 400,000.00 subject to the agreed liability.
32. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award. I am satisfied and do find that indeed it is. I believe that had the trial magistrate considered the final prognosis made by Dr. Udayan Sheth, she could have arrived at a different figure on quantum of general damages.
33. Considering the injuries sustained by the respondent herein and comparable awards made in the cases of Vincent Mbogholi and Kiama above I find that the award of KShs 800,000/= made by the trial court was inordinately high and must be disturbed. Taking all the factors into account I find that an award of KShs 400,000/= would be adequate compensation for the respondent’s injuries in general damages for pain, suffering and loss of amenities.
34. The appeal therefore succeeds to the extent that the lower court award of general damages KShs 800,000/= is substituted with an award of KShs 400,000/=. For clarity, there was no appeal on the assessment of special damages and the award remains KShs 2,550/=. The total award is therefore 402,550/=.
35. Each party will bear its own costs of the appeal.
36. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Microsoft Teams this 2 nd day of September in the presence of:
Musyoki h/b for Gor for the appellants.
Ngosho (Ms) for the respondent.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
FOOTNOTES
[1]
ENDNOTES
[i]
malindi HCCA No. E164 of 20239/General damages-RTA