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High CourtPartially AllowedCivil Appeal No. 28 of 2016· [2019] KEHC 9371 (KLR)

Vincent Mogaka Mokaya v James A. Nyagaka

High Court of Kenya
7 March 2019
EME. N. Maina
939 words in judgment
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The bottom line

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An appeal can increase a damages award if it is too low, but the final amount must be justifiable based on the specific injuries sustained.

What this practically means

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Executive summary

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This was a first appeal to the High Court at Nyamira against the quantum of general damages awarded by the Keroka Principal Magistrate's Court (Hon. N. Kahara, RM) in Civil Case No. 160 of 2013. The appellant had sustained a deep cut wound on the head, bruises on both hands, a fracture of the left femur, deep cuts on both ankles and on the right mid-3rd, and had spent 12 days in the ICU at Tenwek Hospital. The trial magistrate awarded Kshs. 200,000/=; counsel for the appellant sought enhancement to Kshs. 3,000,000/=, citing the nature of the injuries, prevailing economic conditions and precedents. The respondent did not respond to the appeal or file submissions despite proof of service. E. N. Maina J restated the principles in Paul Kipsang Koech v Titus Osule Osore: an appellate court may disturb a discretionary award where the trial court took into account an irrelevant factor, left out a relevant factor, or the award is so inordinately low or high as to be a wholly erroneous estimate. The court agreed the award was inordinately low but held the proposed Kshs. 3,000,000/= was too high because the appellant's injuries were not comparable to those in the cited precedents, where plaintiffs suffered fits, inability to work, and severe cognitive and behavioural impairment. Noting the appellant's coherent testimony and apparent healing, the court set aside the Kshs. 200,000/= award and substituted Kshs. 800,000/= for pain, suffering and loss of amenities, with costs of the appeal to the appellant.

Key legal issues

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01

Whether the trial court's award of general damages was inordinately low

Holding

Yes - given the nature and extent of the injuries (fractured femur, head wound, ICU stay of 12 days), the award of Kshs. 200,000/= was inordinately low and was enhanced to Kshs. 800,000/=.

Reasoning

The court restated the principles from Paul Kipsang Koech v Titus Osule Osore on when an appellate court may disturb a discretionary award. It found the injuries serious but not comparable to the more severe injuries in the precedents cited, noting the appellant's coherent testimony and considerable healing, and fixed Kshs. 800,000/= as adequate compensation.

p. 2
02

Whether the appellant's proposed figure of Kshs. 3,000,000/= was justified by the precedents cited

Holding

No - the injuries were not comparable with those of the plaintiffs in the cited cases.

Reasoning

In the cited cases the plaintiffs suffered far more disabling sequelae: recurring fits, inability to do hard labour, ongoing drug costs, forgetfulness, staggering walk, inability to write and abnormal behaviour. The appellant, by contrast, gave coherent testimony and had healed well, so a lower award was appropriate.

p. 2

Legal principles established

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  • An appellate court may interfere with a trial court's assessment of general damages where the trial court took into account an irrelevant factor, left out a relevant factor, or the award is so inordinately low or high as to be a wholly erroneous estimate of the damage.

Court orders

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  1. 1.Set aside the Kshs. 200,000/= award of the lower court and substitute it with an award of Kshs. 800,000/= for pain, suffering and loss of amenities
  2. 2.Costs of the appeal awarded to the appellant

Authorities

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Cases cited (3)

  • Paul Kipsang Koech & Another Vs. Titus Osule Osore
    [2013] eKLR

    Principles for interfering with a trial court's assessment of general damages

  • Sophinaf Company Limited and James Gatiku Ndolo Vs. Daniels Ng'ang'a Kanyi
    [2006] eKLR

    Comparative award of Kshs. 2,000,000/= for more severe injuries (fits, inability to work, ongoing drug costs)

  • Reins Onduso Omondi Vs. Tectura International Ltd & Another
    [2012] eKLR

    Comparative award where plaintiff suffered forgetfulness, staggering walk, inability to write and abnormal behaviour

On appeal from
Keroka Principal Magistrate's Court
Civil Case No. 160 of 2013
Jurisdiction invoked
First appellate jurisdiction over the Principal Magistrate's Court (quantum of damages appeal)

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Vincent Mogaka Mokaya v James A. Nyagaka", Case Analysis (2019). Civil Appeal No. 28 of 2016. Source:

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.