1. Through this appeal, the appellants challenge the judgment of Honourable Hosea Nganga, SPM that was delivered on the 25th April, 2024 in Milimani Commercial Chief Magistrate's Civil Suit No. 2996 of 2022 on the grounds that;
1) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by writing and delivering a judgment against reason and the weight of evidence.
2) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by disregarding reliable medical evidence by Dr. Joyce ChegeNyokabi and instead relying on the flawed medical report by Dr. Cyprianus Okoth Okere and the untruthful contradictory testimony of the Respondent.
3) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by ignoring the Appellant's 2nd Medical Report by Dr. Nyokabi and consequently failing to appreciate the true nature and extent of the injuries sustained by the Respondent, and the measure of damages commensurate to the Respondent's true injuries.
4) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by awarding damages for 'Loss of earnings/diminished earning capacity, without basis, and indeed none were proved by the Respondent at trial, hence no damages for 'Loss of earnings/diminished earning capacity should have been awarded, especially where the Respondent had sustained a minor injury that was termed by Dr. Nyokabi in the 2 nd medical report as a Right leg soft tissue injury that had healed fully and never resulted in any permanent incapacity that would have rendered the Respondent unable to earn a living or diminished her earning capacity.
5) THAT the learned trial Magistrate misdirected himself and erred in law and fact by assessing and awarding unreasonable, excessive Damages for 'Loss of earnings/diminished earning capacity' at Kshs. 1,758,931/- in respect of an unjustified relief, and which is so inordinately high as to represent an entirely erroneous estimate, and against the weight of evidence, while there was no evidence or basis at all in law or fact in support of such an unjustifiable award.
6) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by assessing and awarding unreasonable, excessive General Damages for Pain and Suffering at Kshs. in respect of a soft tissue injury (Right leg soft tissue injury that would normally attract general damages in the region of Kshs. 100,000 to 450,000/= at most) which was so inordinately high as to represent an entirely erroneous estimate, in respect of exaggerated injuries and degree of incapacitation, and against the weight of evidence, while there was no evidence or basis at all in law or fact in support of such an astronomical award.
7) THAT the Learned Trial Magistrate erred in law and fact and misdirected himself by ignoring relevant binding case-law in Daniel GatanaNdungu & another v Harrison Angore Katana [20201 eKLR, John Wambua v Mathew MakauMwololo & another [20201 eKLR , JyotiStructures Limited & another v TruphenaChepkoech Too & another [20201 eKLR, Lilian Anyango Otieno v Philip Mugoya Ogila [20221 eKLR FM (Minor suing through Mother and next friend r.nwM) v JNM & another [2020] eKLR & Edward Mutevu Maithya & another v Edwin Nyamweya [20221 eKLR
8) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by disregarding the fact that the Respondent's doctor was guilty of exaggeration of injuries or degree of incapacitation.
9) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by ignoring the Appellants' written submissions on Court record and all the relevant pertinent issues raised therein and failing to address any of all the raised relevant pertinent issues in his judgement.
10) THAT the learned magistrate erred in law in awarding the respondent costs.
11) THAT the judgment of the trial court, as written and delivered cannot be supported in law or fact.
2. They seek the following orders;
A. THAT the Appeal be allowed.
B. That the judgment and decree of the Trial Court in Milimani Commercial Chief Magistrate's Civil Suit No. 2996 of 2022, Marcela Nyarotso Tubaga V WatuNominees Company Limited & Seneta OwinoOchieng, against the Appellants be set aside and be replaced with lawful and reasonable damages.
C. THAT the costs of the Appeal and the costs of the subordinate court suit appealed from be awarded to the Appellants.
D. THAT this Honourable Court do grant any other or further relief it may deem fit and just to achieve the ends of justice.
The appellants’ submissions;
3. They submit that on the 25th day of April, 2024,a judgment was entered in Milimani Commercial Chief Magistrate's Civil Suit No. 2996 of 2022 against the appellants.
4. It is their case that the only injuries that the Plaintiff sustained were soft tissue injuries per the Defense's Medical report by DR. Nyokabi that was produced by consent by both parties.
5. It is submitted that the trial magistrate failed to be guided by the medical reports on record submitted by the parties and subsequently ended up exaggerating the injuries.
6. They submit that on general damages, the Honorable magistrate in his considered view failed to keep alive the Principle of Comparable injuries should attract comparable awards and disregarded the relevant case law submitted by the Defendant.
7. They submit that the Learned trial Magistrate misdirected himself and erred in law and fact by ignoring the Appellant's 2nd Medical Report by Dr. Nyokabi and consequently failing to appreciate the true nature and extent of the injuries sustained by the Respondent, and the measure of damages commensurate to the Respondent's true injuries.
8. The trial Magistrate misdirected himself and erred in law and fact by awarding damages for Loss of earnings/diminished earning capacity, without basis, while no such claim was specifically properly pleaded in the body of the plaint, and indeed none were addressed or proved by the Respondent at trial, hence no damages for loss of earnings/diminished earning capacity' should have been awarded, especially where the Respondent had sustained a minor injury that was termed by Dr. Nyokabi in the 2 nd medical report as a Right leg soft tissue injury that healed fully and never resulted in any permanent incapacity that rendered the unable to earn a living or diminished his earning capacity.
9. The trial Magistrate misdirected himself and erred in law and fact by assessing and awarding unreasonable, excessive Damages for 'Loss of earnings/diminished earning capacity' at Kshs. 1,758,931/- in respect of an unpleaded and unjustified relief, and which is so inordinately high as to represent an entirely erroneous estimate, and against the weight of evidence, while there was no evidence or basis at all in law or fact in support of such an unjustifiable award according to them.
10. According to them the learned trial Magistrate misdirected himself and erred in law and fact by assessing and awarding unreasonable, excessive General Damages for Pain and Suffering at Kshs. 1,280,000/- in respect of a soft tissue injury (Right leg soft tissue injury that would normally attract general damages in the region of Kshs. 100,000 to 450,000/= at most) which was so inordinately high as to represent an entirely erroneous estimate, in respect of exaggerated injuries and degree of incapacitation, and against the weight of evidence, while there was no evidence or basis at all in law or fact in support of such an astronomical award.
11. They submit that they called into question the credibility of the medical report dated 18 th May, 2022 by Dr. Cyprianus Okoth Okere and in the report, the doctor indicated that the Plaintiff was a male adult instead of female and further that he (her) is aged 29 years instead of 32 years.
12. They further submitted that given that the x-ray reports showed no fractures were sustained, it was possible that the entire report is flawed and urged the court to rely on the second examination report by Dr, Nyokabi. The Honorable Magistrate however failed to consider that fact and completely disregarded that truth.
13. They referred the Plaintiff for second medical examination and it was Dr. Nyokabi's assessment that the Patient/ Plaintiff only sustained Right leg soft tissue injury and no fractures sustained.
14. They submit that the Learned trial Magistrate misdirected himself and erred in law and fact by awarding damages for 'Loss of earnings/diminished earning capacity, while the Plaintiff had not supported their prayer for loss of future earning capacity.
15. According to them,it is also a fact that there was no mention of her occupation. In addition, it had been captured in the medical report by Dr. Nyokabi that the Plaintiff is unemployed.
16. It was also not indicated how her injuries would affect her job (if any) and as such we submit that Diminished earning capacity being a general damage must be proven in line with "he who alleges must prove", they submit.
17. In addition, it was not proven the nature of work that the Plaintiff conducted. There was no documentary evidence in support of the Plaintiffs assertion that they were a business lady as alleged.
18. They submit that there was no proof of any kind of income and we wish to submit that it is trite that he who alleges must prove in accordance with section 107 of the Evidence Act.
19. The Honorable Magistrate disregarded the case law that was cited by the Defendant of Beatrice Anyango Okoth -vs- Rift Valley Railways (Kenya) Limited & Another [20181 eKLR, where Justice P. J. Otieno on diminished earning capacity held: -
"...Damages under this heading are awarded where is proved that owing to the injury suffered by the plaintiff, his chances of getting a job in the labour market comparable to the one he held before the injury are diminished or just lowered. It must be differentiated with loss ofearning capacity which occurs where there chances of earning are literally erased...
20. They reiterate that the Plaintiff has not proven that because of the injuries sustained, their ability to work had been affected. It is also contained in the medical report by Dr. Nyokabi that the Plaintiff was unemployed and that her wounds had healed.
21. It is their submission that the Honorable Magistrate erred in law and in fact by awarding damages for diminished earning capacity.
22. They submit that the Learned trial Magistrate misdirected himself and erred in law and fact by assessing and awarding unreasonable, excessive General Damages for Pain and Suffering at Kshs. 1,280,000/- in respect of a soft tissue injury that would normally attract general damages in the region of Kshs. 100,000 to at most which was so inordinately high as to represent an entirely erroneous estimate, in respect of exaggerated injuries and degree of incapacitation, and against the weight of evidence while there was no evidence or basis at all in law or fact in support of such an astronomical award.
23. In the medical report dated 18th February, 2023 by Dr. Joyce Nyokabi. In the same report, it is noted and they quote,
"Patient in fair general health with no general discomfort."
24. They submit that the Magistrate therefore erred in law and fact by ignoring relevant binding case-law and disregarding the ratio decidedi in Daniel Gatana Ndungu& another v Harrison Angore Katana [20201 eKLR, John Wambua v Mathew Makau Mwololo & another [20201 eKLR , Jyoti Structures Limited & another v TruphenaChepkoech Too & another [20201 eKLR, Lilian AnyangoOtieno v Philip Mugoya Ogila [20221 eKLR FM (Minor suing through Mother and next friend MWM) v JNM & another [20201 eKLR & Edward Mutevu Maithya & another v Edwin Nyamweya [20221 el
1) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by writing and delivering a judgment against reason and the weight of evidence.
2) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by disregarding reliable medical evidence by Dr. Joyce ChegeNyokabi and instead relying on the flawed medical report by Dr. Cyprianus Okoth Okere and the untruthful contradictory testimony of the Respondent.
3) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by ignoring the Appellant's 2nd Medical Report by Dr. Nyokabi and consequently failing to appreciate the true nature and extent of the injuries sustained by the Respondent, and the measure of damages commensurate to the Respondent's true injuries.
4) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by awarding damages for 'Loss of earnings/diminished earning capacity, without basis, and indeed none were proved by the Respondent at trial, hence no damages for 'Loss of earnings/diminished earning capacity should have been awarded, especially where the Respondent had sustained a minor injury that was termed by Dr. Nyokabi in the 2 nd medical report as a Right leg soft tissue injury that had healed fully and never resulted in any permanent incapacity that would have rendered the Respondent unable to earn a living or diminished her earning capacity.
5) THAT the learned trial Magistrate misdirected himself and erred in law and fact by assessing and awarding unreasonable, excessive Damages for 'Loss of earnings/diminished earning capacity' at Kshs. 1,758,931/- in respect of an unjustified relief, and which is so inordinately high as to represent an entirely erroneous estimate, and against the weight of evidence, while there was no evidence or basis at all in law or fact in support of such an unjustifiable award.
6) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by assessing and awarding unreasonable, excessive General Damages for Pain and Suffering at Kshs. in respect of a soft tissue injury (Right leg soft tissue injury that would normally attract general damages in the region of Kshs. 100,000 to 450,000/= at most) which was so inordinately high as to represent an entirely erroneous estimate, in respect of exaggerated injuries and degree of incapacitation, and against the weight of evidence, while there was no evidence or basis at all in law or fact in support of such an astronomical award.
7) THAT the Learned Trial Magistrate erred in law and fact and misdirected himself by ignoring relevant binding case-law in Daniel GatanaNdungu & another v Harrison Angore Katana [20201 eKLR, John Wambua v Mathew MakauMwololo & another [20201 eKLR , JyotiStructures Limited & another v TruphenaChepkoech Too & another [20201 eKLR, Lilian Anyango Otieno v Philip Mugoya Ogila [20221 eKLR FM (Minor suing through Mother and next friend r.nwM) v JNM & another [2020] eKLR & Edward Mutevu Maithya & another v Edwin Nyamweya [20221 eKLR
8) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by disregarding the fact that the Respondent's doctor was guilty of exaggeration of injuries or degree of incapacitation.
9) THAT the Learned trial Magistrate misdirected himself and erred in law and fact by ignoring the Appellants' written submissions on Court record and all the relevant pertinent issues raised therein and failing to address any of all the raised relevant pertinent issues in his judgement.
10) THAT the learned magistrate erred in law in awarding the respondent costs.
11) THAT the judgment of the trial court, as written and delivered cannot be supported in law or fact.
2. They seek the following orders;
A. THAT the Appeal be allowed.
B. That the judgment and decree of the Trial Court in Milimani Commercial Chief Magistrate's Civil Suit No. 2996 of 2022, Marcela Nyarotso Tubaga V WatuNominees Company Limited & Seneta OwinoOchieng, against the Appellants be set aside and be replaced with lawful and reasonable damages.
C. THAT the costs of the Appeal and the costs of the subordinate court suit appealed from be awarded to the Appellants.
D. THAT this Honourable Court do grant any other or further relief it may deem fit and just to achieve the ends of justice.
The appellants’ submissions;
3. They submit that on the 25th day of April, 2024,a judgment was entered in Milimani Commercial Chief Magistrate's Civil Suit No. 2996 of 2022 against the appellants.
4. It is their case that the only injuries that the Plaintiff sustained were soft tissue injuries per the Defense's Medical report by DR. Nyokabi that was produced by consent by both parties.
5. It is submitted that the trial magistrate failed to be guided by the medical reports on record submitted by the parties and subsequently ended up exaggerating the injuries.
6. They submit that on general damages, the Honorable magistrate in his considered view failed to keep alive the Principle of Comparable injuries should attract comparable awards and disregarded the relevant case law submitted by the Defendant.
7. They submit that the Learned trial Magistrate misdirected himself and erred in law and fact by ignoring the Appellant's 2nd Medical Report by Dr. Nyokabi and consequently failing to appreciate the true nature and extent of the injuries sustained by the Respondent, and the measure of damages commensurate to the Respondent's true injuries.
8. The trial Magistrate misdirected himself and erred in law and fact by awarding damages for Loss of earnings/diminished earning capacity, without basis, while no such claim was specifically properly pleaded in the body of the plaint, and indeed none were addressed or proved by the Respondent at trial, hence no damages for loss of earnings/diminished earning capacity' should have been awarded, especially where the Respondent had sustained a minor injury that was termed by Dr. Nyokabi in the 2 nd medical report as a Right leg soft tissue injury that healed fully and never resulted in any permanent incapacity that rendered the unable to earn a living or diminished his earning capacity.
9. The trial Magistrate misdirected himself and erred in law and fact by assessing and awarding unreasonable, excessive Damages for 'Loss of earnings/diminished earning capacity' at Kshs. 1,758,931/- in respect of an unpleaded and unjustified relief, and which is so inordinately high as to represent an entirely erroneous estimate, and against the weight of evidence, while there was no evidence or basis at all in law or fact in support of such an unjustifiable award according to them.
10. According to them the learned trial Magistrate misdirected himself and erred in law and fact by assessing and awarding unreasonable, excessive General Damages for Pain and Suffering at Kshs. 1,280,000/- in respect of a soft tissue injury (Right leg soft tissue injury that would normally attract general damages in the region of Kshs. 100,000 to 450,000/= at most) which was so inordinately high as to represent an entirely erroneous estimate, in respect of exaggerated injuries and degree of incapacitation, and against the weight of evidence, while there was no evidence or basis at all in law or fact in support of such an astronomical award.
11. They submit that they called into question the credibility of the medical report dated 18 th May, 2022 by Dr. Cyprianus Okoth Okere and in the report, the doctor indicated that the Plaintiff was a male adult instead of female and further that he (her) is aged 29 years instead of 32 years.
12. They further submitted that given that the x-ray reports showed no fractures were sustained, it was possible that the entire report is flawed and urged the court to rely on the second examination report by Dr, Nyokabi. The Honorable Magistrate however failed to consider that fact and completely disregarded that truth.
13. They referred the Plaintiff for second medical examination and it was Dr. Nyokabi's assessment that the Patient/ Plaintiff only sustained Right leg soft tissue injury and no fractures sustained.
14. They submit that the Learned trial Magistrate misdirected himself and erred in law and fact by awarding damages for 'Loss of earnings/diminished earning capacity, while the Plaintiff had not supported their prayer for loss of future earning capacity.
15. According to them,it is also a fact that there was no mention of her occupation. In addition, it had been captured in the medical report by Dr. Nyokabi that the Plaintiff is unemployed.
16. It was also not indicated how her injuries would affect her job (if any) and as such we submit that Diminished earning capacity being a general damage must be proven in line with "he who alleges must prove", they submit.
17. In addition, it was not proven the nature of work that the Plaintiff conducted. There was no documentary evidence in support of the Plaintiffs assertion that they were a business lady as alleged.
18. They submit that there was no proof of any kind of income and we wish to submit that it is trite that he who alleges must prove in accordance with section 107 of the Evidence Act.
19. The Honorable Magistrate disregarded the case law that was cited by the Defendant of Beatrice Anyango Okoth -vs- Rift Valley Railways (Kenya) Limited & Another [20181 eKLR, where Justice P. J. Otieno on diminished earning capacity held: -
"...Damages under this heading are awarded where is proved that owing to the injury suffered by the plaintiff, his chances of getting a job in the labour market comparable to the one he held before the injury are diminished or just lowered. It must be differentiated with loss ofearning capacity which occurs where there chances of earning are literally erased...
20. They reiterate that the Plaintiff has not proven that because of the injuries sustained, their ability to work had been affected. It is also contained in the medical report by Dr. Nyokabi that the Plaintiff was unemployed and that her wounds had healed.
21. It is their submission that the Honorable Magistrate erred in law and in fact by awarding damages for diminished earning capacity.
22. They submit that the Learned trial Magistrate misdirected himself and erred in law and fact by assessing and awarding unreasonable, excessive General Damages for Pain and Suffering at Kshs. 1,280,000/- in respect of a soft tissue injury that would normally attract general damages in the region of Kshs. 100,000 to at most which was so inordinately high as to represent an entirely erroneous estimate, in respect of exaggerated injuries and degree of incapacitation, and against the weight of evidence while there was no evidence or basis at all in law or fact in support of such an astronomical award.
23. In the medical report dated 18th February, 2023 by Dr. Joyce Nyokabi. In the same report, it is noted and they quote,
"Patient in fair general health with no general discomfort."
24. They submit that the Magistrate therefore erred in law and fact by ignoring relevant binding case-law and disregarding the ratio decidedi in Daniel Gatana Ndungu& another v Harrison Angore Katana [20201 eKLR, John Wambua v Mathew Makau Mwololo & another [20201 eKLR , Jyoti Structures Limited & another v TruphenaChepkoech Too & another [20201 eKLR, Lilian AnyangoOtieno v Philip Mugoya Ogila [20221 eKLR FM (Minor suing through Mother and next friend MWM) v JNM & another [20201 eKLR & Edward Mutevu Maithya & another v Edwin Nyamweya [20221 el