Tahmeed Transporters Ltd & another v Simiyu (Civil Appeal E017 of 2022) [2023] KEHC 4084 (KLR) (4 May 2023) (Judgment)
Neutral citation:
[2023] KEHC 4084 (KLR)
Republic of Kenya
Civil Appeal E017 of 2022
SM Mohochi, J
May 4, 2023
Between
Tahmeed Transporters Ltd
1st Appellant
Anthony Mulinge
2nd Appellant
and
Evans Wekesa Simiyu
Respondent
(Being an appeal from the Judgment/Decree of the Hon. B. K. KIPTOO (SRM) delivered on 28th January, 2022, in Eldoret CMCC No. 116 of 2020)
Judgment
1.The appeal is mainly on quantum.
2.By a Plaint dated 30th October,2020, Evans Wekesa Simiyu, the Respondent sued the Appellants seeking general damages, special damages and costs plus interest of the suit arising from a road accident that occurred on 27th September, 2020 along Eldoret- Nakuru road, at KEN-KNIT involving motor vehicle registration number KCD 818 D-ZE 7713 and a bicycle which the Respondent was cycling and as a result of which the Respondent sustained severe injuries.
3.In a joint statement of defence dated 25th November, 2020 the Appellants herein denied the occurrence of the said accident. In the alternative, they blamed the Respondent who was a pedal cyclist for occasioning the said accident.
4.On 7th December, 2020, by consent liability was entered in the ratio of 90%: 10% in favour of the Respondent.
5.After trial, Hon. B. K. Kiptoo (SRM) delivered judgment on 28th January, 2022, in which damages were assessed as hereunder: -a.General Damages…….……….................Kshs.300,000/=b.Special Damages………………………….…Kshs.8, 419/=c.Less 10% contributory negligence……….Kshs.30,841/=d.Total ……………………………….…………Kshs.275,577/=Plus, costs & interests
6.Aggrieved by the judgment of the trial Court, the Appellants filed a memorandum of appeal dated 18th February, 2022, citing the following (refined) grounds: -a.That, the learned magistrate, erred law and in fact, in adopting wrong principles in assessment of damages payable to the Respondent;b.That, the learned magistrate, erred law and in fact, in awarding damages which were excessive in the circumstances in view of the injuries sustained by the Respondent; andc.That, the learned magistrate, erred law and in fact, by awarding the Respondent Kshs 300,000/- as general damages for soft tissue injuries which is inordinately high.
7.On 23rd November, 2022, the Court issued notices to the respective Counsels to file submissions within (7) days from the date of the notice. The Appellant filed written submissions on the 14th December 2022 while the Respondent on the 17th January 2023 indicated he had filed his written submissions the same were not in the court file and as such the appeal shall be determined as if no written submissions were filed by the Respondent.
The Appellant’s Submissions
8.Regarding quantum, the Appellants submitted that the trial Magistrate in this matter misdirected himself as to the nature of the injuries that were sustained by the Respondent and thus awarded damages that were manifestly high. The Appellants cited the case of Butt v Khan [1975] eKLR to buttress their argument.
9.The Appellants submitted that, from paragraph 8 of the statement of claim, the Respondent sustained the following injuries: -a.Blunt injury to the head chest;b.Bruises and Blunt injury to the upper limb;c.Bruises and Blunt injury to the right hip;d.Bruises and Blunt injury to the right thigh; ande.Bruises and Blunt injury to the right knee.
10.The Appellants submit that the injuries sustained by the Respondent were soft tissue injuries that would attract a much lower award in general damages than the judgement award and sought reliance on the following authorities: -a.PF (Suing as the next friend and Father of S.K (Minor) v Victor O. Kamadi & Anor [2018] eKLR Where the Court awarded Kshs 100,000/- as general damages for soft tissue injuries;b.Pan African Hauliers Ltd v Paul Webuye Chiter [2021] eKLR where the High Court upheld the award of Kshs 80,000/- as general damages for soft tissue injuries; andc.FM (Suing as the next friend and Mother of MWM v JNM& Anor [2020] eKLR where the Court awarded Kshs 100,000/- as general damages for Blunt object injuries to the head, neck, thorax, abdomen and limbs.
11.It would be appropriate to commence the analysis of this appeal affirming the law and power of the Court to review or vary or affirm the impugned Judgment. G. V. Odunga’s Digest on civil case Law and Procedure 3rd Edition Vol. 2 at page 501 paragraph (K) citing with approval the principles in Peters v Sunday Post Ltd [1958] EA 429 and Shah v Aguto [1970] EA 265 stated: -
Issues for Determination
12.After going through the record, the written submissions as well as the authorities cited by both parties, I opine that the following are the issues for determination: -a.Whether the sum of Kshs. 300,000/- awarded by the trial court as general damages to the Respondent, was manifestly excessive? andb.Who should bear the costs?
Analysis
13.In Abok James Odera t/a A.J Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the same Court stated with regard to the duty of the first appellate court: -
14.This Court is guided by the Court of Appeal in, Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, cited the case of Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini v A.m. Lubia and Olive Lubia [1982 –88] 1 KAR 727 at p. 730 where Kneller J.A. said: -
15.The Court further refers to the case of Gicheru v Morton and Another [2005] 2 KLR 333 where the Court stated: -
16.Madan, JA (as he then was), on the difficulties that confront a judge in assessment of general damages in the context of personal injuries claims as follows in Ugenya Bus Service v Gachiki,[1976-1985] EA 575, at page 579:
17.The Appellant in its Memorandum of Appeal contends that the general damages of Ksh. 300,000/= awarded by the trial court was inordinately high in light of the injuries suffered by the Respondent.
18.The Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards.”
19.The Court of Appeal while analysis quantum in Catholic Diocese of Kisumu v Tete [2004] eKLR stated: -
20.In the Case of Kitavi v Coast Bottlers Limited [1985] KLR 470) Court stated: -
21.Re-evaluating the material and evidence placed before the trial Court, in his plaint, the Respondent pleaded that he suffered the following injuries: -a.Blunt injury to the head chest;b.Bruises and Blunt injury to the upper limb;c.Bruises and Blunt injury to the right hip;d.Bruises and Blunt injury to the right thigh; ande.Bruises and Blunt injury to the right knee.
Issue (a) Whether the award in General damages, was manifestly excessive?
22.It is true that where a trial exercises its discretion and makes an informed award on damages, an appellate would rarely interfere unless it is shown that the trial court considered an irrelevant factor or disregarded a relevant or that the amount awarded in so inordinately high or so low as to amount to an erroneous estimate of principle.
23.This principle was well illustrated in the decision of Kemfro Africa Ltd T/a Meru Express Service & Another v MM. Lubia & Another[1998] eKLR where the Court of Appeal held as follows: -
24.The Respondent herein pleaded, that he suffered the following injuries; blunt injury to the head chest; bruises and blunt injury to the upper limb; bruises and blunt injury to the right hip; bruises and blunt injury to the right thigh; and bruises and blunt injury to the right knee.
25.Dr. Joseph Sokobe corroborated the evidence of the Respondent vide a medical report dated 28th September 2020 admitted on consent on the 7th December 2021, he confirmed the Respondent suffered the pleaded injuries and that he sustained multiple soft tissue injuries from which he had not recovered at the time.
26.The Appellant on their part similarly led no evidence to controvert the nature of injuries that the Respondent sustained.
27.It is trite that comparable injuries should attract comparable damages, the Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru [2014] eKLR that: –
28.In the case of Francis Omari Ogaro v JAO (minor suing through next friend and father God[2021] eKLR, the Court reviewed and set aside the award of Kshs. 230,000/= and substituted it for Kshs. 180,000/= where the respondent had suffered blunt force injuries and soft tissue injuries.
29.In Ndwiga & another v Mukimba (Civil Appeal E006 of 2022), Where the Plaintiff sustained, a chest contusion, blunt trauma to the occipital region, deep cut wounds on the right knee and ankle, and bruises on the right toes and left knee, the Court reviewed and set aside an award of Kshs 500,000/- on account of general damages and substituted the same with an award of Kshs 150,000/-.
30.In George Mugo& Another v AKM (minor suing through next friend and mother of AM [2018] where Kemei J substituted an award of Kshs. 300,000 with an award of Kshs. 90,000 as general damages for blunt injuries on the left shoulder, blunt chest injury interior, blunt injury to left arm, and bruises on the left wrist.
31.From the above authorities, it is evident that Courts have awarded lower amounts in general damages in similar cases where the victims sustained soft tissue injuries in addition to blunt force injuries and contusions. In the instant case, I note that the learned magistrate awarded general damages without reliance on any precedent. I hold the considered view that the said award was manifestly high to warrant interference by this Court.
32.I, therefore, interfere with the same and substitute the award of Kshs 300,000/-. with an award of Kshs 150,000/= for general damages.
33.The special damages as assessed by the trial Court remain unaffected.
34.The Appellant has been successful in this Appeal. However, in this case, this Court should order that each party do bear their own costs as the appeal was only on quantum and the fact that the Respondent’s costs as awarded in the trial Court are considerably reduced in view of the reduction of the general damages in this appeal.
SIGNED, DATED AND VIRTUALLY DELIVERED AT NAKURU THIS 4TH OF MAY, 2023. __________________________ MOHOCHI S.M (JUDGE)In the Presence ofMs. Nyabuto for the AppellantMr. Matekwa Holding Brief for Okara for the RespondentMr. Kenei C.A