Kyoga Hauliers v Okoddi (Civil Appeal 58 of 2022) [2023] KEHC 26762 (KLR) (19 December 2023) (Judgment)
Neutral citation:
[2023] KEHC 26762 (KLR)
Republic of Kenya
Civil Appeal 58 of 2022
SC Chirchir, J
December 19, 2023
Between
Kyoga Hauliers
Appellant
and
Miriam Okoddi
Respondent
(Being an appeal from the judgment and decree of Hon. Z.J Nyakundi delivered on 18/8/2022 in Butali SPMCC no 54. of 2021)
Judgment
1.The Respondent herein sued the Appellant seeking damages for injuries sustained as a result of a road traffic accident which occurred on 24th March 2021, along Eldoret- Webuye road. The respondent attributed the accident to the negligence of the defendant
2.The trial court- delivered judgment on 18.8.2022 in which the appellant was held fully liable for the accident and the Respondent awarded ksh. 300,000 on general Damages
Grounds of Appeal
3.The appellant, being dissatisfied with the judgment filed this appeal, limited to the issue of the award on general Damages and set out the following grounds:
4.The Appellant prays that the appeal be allowed and that the lower court’s judgment be set aside and that the judgment to be substituted with a judgment of this court reviwing the general damages downwards.
5.The appeal proceeded by way of written submissions.
Appellant’s submissions
6.The Appellant submitted that in assessing of damages, the trial court acted on the wrong principles and took in to account matters which it ought not to have. They relied in the case of Charles Oriwo Odeyo v. Apollo Justus Andabwa & Another (2017) eKLR
7.They highlighted the respondent’s injuries as:
8.The Appellant further submits that the said injuries were confirmed by the Dr. Sokobe and Dr. Gaya and both doctors confirmed that the Respondent had recovered well from the injuries.
9.The Appellant further submits that an award of Kshs. 90,000 would be sufficient compensation.
10.The Applicant has supported their proposal with the following past decisions:
Respondent’s Submissions.
11.The Respondent submits that the trial court excised its discretion judiciously and that there was no need to interfere with the stated award of Kshs. 300,000/= in general damages.
12.In support of this submission she has cited the following authorities,
Determination
13.I have considered the memorandum of Appeal, the lower court record and the submissions of the parties. There is no dispute on the nature and extent of the injuries sustained by the respondent. The only issue this court is left to determine is whether the award of ksh. 300,000 was excessive.
14.Assessment of damages is an act of discretion by the Trial court and the basis of interfering with such discretion by the appellate court is well settled. In the case of Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 the court held 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”
15.The injuries sustained by the Respondent are as set out in paragraph 7 of this Judgment. Can the award of ks. 300,0000 be said to be too excessive so as to warrant any disturbance by this court? I think not. The injuries may be classified as serious and multiple soft tissue injuries The guiding principles in assessment of damages for personal injuries has been a subject of a host of decisions. In the case of Boniface Waiti & Ano v Michael Kariuki & Ano [2007] eKLR the principles were stated as follows: :
16.Further comparable injuries should be compensated by comparable awards. ( see Morris Mugambi and Another v Isaiah Gituru Nairobi Court of Appeal 138 of 2002 and Odinga Jacktone Ouma v Moureen Odera [2016] eKLR.
17.In arriving at the conclusion that the award is not excessive, I have compared the injuries in the present case with those in Peter Njuguna v Francis Njuguna Njoroge [2015] eKLR where an award of ksh. 230,000 was made in 2015. The injuries were: -
18.Also, in Michael Okello v Priscilla Atieno HCCA No. 45 of 2019, Kshs 250,000/= was awarded for fairly similar injuries.
19.In the light of the above decisions as well as the factors of inflation as aforesaid am not convinced that the award of ksh. 300, 000 was too excessive to warrant the intervention of this court.
20.In arriving at this conclusion am further guided by the observation of the court in Savanna Saw Mills Ltd v Gorge Mwale Mudomo [2005] eKLR where the court stated as follows: - “ It is the law that assessment of damages is at the discretion of the Trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court simply because it would have awarded a different figure if it had tried the case at the first instance”
21.I don’t find any merit in the Appeal, the same is hereby dismissed with costs to the respondent.
DATED , SIGNED AND DELIVERED AT KAKAMEGA THIS 19TH DAY OF DECEMBER, 2023S. CHIRCHIRIn the presence of:E.Zalo- Court Assistant.