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High CourtPartially AllowedCivil Appeal No 61 of 2017· [2019] KEHC 9742 (KLR)

THOMAS NJENGA KIARIE v VERSUSISACK KIPKEMEI BITOK

High Court of Kenya
28 February 2019
JMJ.N. Mulwa
1,159 words in judgment
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The bottom line

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When claiming compensation for injuries, the court will review the amount awarded for pain and suffering to ensure it is realistic and comparable to similar cases.

What this practically means

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Executive summary

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This was a first appeal against the quantum of general damages in a road traffic accident claim arising from an accident along the Nakuru-Eldoret road on 28th June 2012. Liability had been settled by consent dated 11th January 2017 at 80:20 in favour of the Respondent. The trial magistrate awarded the Respondent general damages for pain and suffering of Kshs.900,000/=. The Appellants, owners of the motor vehicles, appealed, contending the trial magistrate failed to consider Dr. Wambugu's medical report and their submissions, and that the award was inordinately high; they proposed Kshs.350,000/=. The Respondent defended the award as reasonable and realistic, relying on Elizabeth Wamuyu Wanjohi where Kshs.1.5M was awarded. J.N. Mulwa J. restated the classic principles for appellate interference with quantum (Butt v Khan, Kemfro Africa Ltd v Lubia, Mwanasokoni v Kenya Bus Services Ltd) and invoked Section 78(2) of the Civil Procedure Act to re-assess damages. Comparing the injuries — fracture of the left femur, cut wound on the left forearm, limping gait, shortening of limb, predisposition to early osteoarthritis, and permanent disability assessed variously at 40% and 7% — the court held injuries must be considered cumulatively, not singly. It found the trial magistrate's award excessive and not a fair estimate, set it aside, and substituted Kshs.600,000/=, which after the Respondent's 20% contribution came to Kshs.480,000/=. The award accrues interest at court rates from the date of the subordinate court's judgment, and costs of the appeal were awarded to the Appellants.

Key legal issues

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01

Whether the trial magistrate's award of Kshs.900,000/= in general damages was excessive

Holding

The award was excessive and not a fair estimate of the damage; it was set aside and substituted with Kshs.600,000/=.

Reasoning

The court compared the injuries in the two medical reports with injuries in comparable authorities. The trial court had relied on awards of Kshs.350,000/= and Kshs.420,000/= from 2013 and 2014 and adjusted for inflation. The appellate court found the Respondent's injuries comparable to those in Elizabeth Wamuyu Wanjohi (Kshs.1.5M) but noted those injuries were more serious and that case was decided ex parte. Balancing the authorities, Kshs.600,000/= was held to be more realistic and comparable.

p. 2
02

The standard for appellate interference with an award of general damages

Holding

The appellate court will not readily interfere unless an irrelevant factor was considered, a relevant one omitted, or the award is an entirely erroneous estimate.

Reasoning

The court applied the classic principles from Butt v Khan, Kemfro Africa Ltd v Lubia and Mwanasokoni v Kenya Bus Services Ltd. It then exercised its original jurisdiction under Section 78(2) of the Civil Procedure Act to re-assess the damages on appeal.

p. 2

Legal principles established

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  • An appellate court will not readily interfere with a trial court's discretion in the assessment of damages unless an irrelevant factor was taken into account, a relevant one left out, or the award is an entirely erroneous estimate of the damage.
  • Injuries must be considered cumulatively rather than singly; the totality and post-injury effects must be considered together in assessing damages.
  • Quantum of damages need not be a misery but must be realistic, reasonable and comparable to similar awards for comparable injuries.

Court orders

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  1. 1.Set aside the trial magistrate's award of general damages of Kshs.900,000/= for pain and suffering
  2. 2.Substituted an award of Kshs.600,000/= as general damages, which after the Respondent's 20% contribution on liability comes to Kshs.480,000/= to the Respondent
  3. 3.Award to accrue interest at court rates from the date of the subordinate court's judgment
  4. 4.Costs of the appeal awarded to the Appellants

Authorities

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Legislation

  • Civil Procedure ActSection 78(2)

Cases cited (9)

  • Butt v Khan
    (1977) I KAR

    Principles for appellate interference with assessment of damages

  • Kemfro Africa Ltd v Lubia
    (1987) e KLR 257

    Principles for appellate interference with assessment of damages

  • Mwanasokoni v Kenya Bus Services Ltd
    (1985) KLR 931

    Principles for appellate interference with assessment of damages

  • Kenyatta University v Isaac Kamma Nyuthe
    NBI HCCA No.193/2012 (2014) e KLR

    Comparator award of Kshs.350,000/= for fracture of femur with permanent incapacitation of 20%

  • Ann Muriithi v The Headmistress Machakos Girls and others

    Comparator award of Kshs.420,000/= in 2013 for similar injuries

  • Elizabeth Wamuyu Wanjohi v John Muriithi Mbaya & 2 Others
    (2015) e KLR

    Comparator award of Kshs.1.5M for comparable but more serious injuries decided ex parte

  • Rosaline Violer Akinyi v Celestine Opiyo Wagwau
    (2017) e KLR

    Proposition that quantum of damages need not be a misery but realistic, reasonable and comparable

  • Mwavita Jonathan v Silivia Onunga
    Civil Appeal No.17 of 2017 (2017) e KLR

    Illustration of appellate court setting aside and substituting an award of damages

  • Ibrahim Kalema Lewa v Esteel Co. Ltd
    Nbi HCCA No. 475 of 2012 (2016) e KLR

    Upheld award of Kshs.300,000/= for inter trochanteric fracture of left femur with 25% physical disability

On appeal from
Subordinate court (magistrates' court)
Not stated
Jurisdiction invoked
Section 78(2) of the Civil Procedure Act (first appellate court exercising original jurisdiction on 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, "THOMAS NJENGA KIARIE v VERSUSISACK KIPKEMEI BITOK", Case Analysis (2019). Civil Appeal No 61 of 2017. Source: https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/9742/eng@2019-02-28

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