Ntongai v Mutuma (Civil Appeal E029 of 2023) [2024] KEHC 4733 (KLR) (25 April 2024) (Judgment)
Neutral citation:
[2024] KEHC 4733 (KLR)
Republic of Kenya
Civil Appeal E029 of 2023
TW Cherere, J
April 25, 2024
Between
Shadrack Ntongai
Appellant
and
Joshua Mutuma
Respondent
(Being an appeal from the Judgment in Maua CMCC NO. 51 OF 2019 by Hon. T. Gesora (CM) on 13th April. 2022)
Judgment
Background
1.On 03rd August, 2018, an accident occurred involving motor vehicle Appellant’s M/KBR 919N (accident motor vehicle) as a result of which the Respondent who was a lawfully walking off the road suffered bodily injuries.
2.Respondent filed suit for damages against the Appellant and at the conclusion of the trial, the learned trial magistrate found the accident motor vehicle was driven negligently. Appellant was found liable at 100% and judgment was entered for the Respondent as follows:1.General damages KES. 300,000/-2.Special damages KES. 5,000/-3.Costs4.Interest
The Appeal
3.Appellant dissatisfied with the lower court’s decision preferred this appeal only on quantum.
Analysis and DeterminationQuantum
4.An undated medical report by Dr. Kubai J.Wendo reveals that Respondent suffered the following injuries:i.Pain on chest extending to lumbar region and sub-coastal tendernessii.Bruises right upper limb next to the joiniii.Bruises left hip joint healing with skin hyperpigmentationiv.Multiple bruises right lower limbv.Swollen right ankle extending to the foot
5.At the time of examination, the injuries gad healed with a 6 cm scar on left knee and pain on left iliac.
6.At the hearing, Respondent prayed for KES. 350,000 and cited Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichubi [2005] eKLR where the Court awarded the 1st Plaintiff Kshs 300,000 for injury on the left ankle, injuries on the legs and injuries on the chest and Habiba Abdi Mohamed V Peter Maleve [2000] eKLR where the Court awarded the Plaintiff Kshs 400,000 for injury on the left arm, head and face.
7.Appellant on the other hand offered KES. 60,000/- and cited the following authorities:i.HB (Minor suing through mother & next friend DKM) v Jasper Nchonga Magari & another [2021] eKLR where the court upheld an award of Kshs. 60,000/- for blunt object injury to the head and neck, thorax, abdomen and limbs.ii.Kipkere Limited vs Peterson Ondieki Tai [2016] eKLR where an award of KES. 100,000/- was reduced on appeal to Kshs 30,000/- for deep cut wound on the left leg, chest contusion and bruises on the left shoulder.iii.Buds and Bloom Ltd Vs Lawrence Emusugut Obwa(2016) eKLR where the sum of KES. 70,000/- was on appeal enhanced reduced to KES. 50,000/- for deep cut wound on the left leg and soft tissue injuries on the leg.
8.The Court of Appeal in Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR settled the principles to be applied in assessing damages and stated that:
9.Looking at the cases cited before the trial court, I find that the one cited by Respondent relate to comparable injuries to the ones suffered by the Respondent in this case.
10.From the foregoing, I find that Appellant has not been demonstrated that the trial court proceeded on wrong principles or that it misapprehended the evidence or that the award Kshs. 300,000/- is excessive in the circumstances of the injuries sustained by the Respondent.
11.In the end, the appeal is found to be unmerited and it is dismissed will costs to the Respondent.
DATED AT MERU THIS 25RD DAY OF APRIL 2024WAMAE. T. W. CHEREREJUDGEAppearancesCourt Assistants - Kinoti/MuneneFor Appellant - Mr. Njuguna for Kimondo & Gachoka AdvocatesFor Respondent - Ms. Asuma for Mutembei & Kimathi & Co. Advocates