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High CourtPartially Allowed· [2020] KEHC 3222 (KLR)

Mohamed Muyunga v Vinoth Abwolot Eshebet

High Court of Kenya
21 July 2020
4,741 words in judgment
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·~19 min to read original · ~4 min brief

The bottom line

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If a court awards damages based on injuries more severe than yours, you can appeal to get a more realistic compensation amount.

What this practically means

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Executive summary

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The respondent sued the appellant in the magistrate's court for general and special damages arising from a road traffic accident on 3rd May 2016 along the Kimilili-Bukoli road, in which the appellant's lorry KBQ 767R rammed into a matatu KBA 745V in which the respondent was a fare-paying passenger. The trial magistrate found the appellant's driver wholly liable and awarded Ksh.2,000,000/- general damages and Ksh.116,000/- special damages. The appellant appealed on liability and quantum. On the first appeal, S N Riechi J re-evaluated the evidence under section 78 of the Civil Procedure Act. On liability, the court found the collision occurred on the matatu's correct lane after the lorry swerved into it, corroborated by the police traffic file, and affirmed 100% liability. The appellant's plea for apportionment with the matatu owner failed because no third-party proceedings were taken under Order 1 Rule 15 of the Civil Procedure Rules, 2010. On quantum, the court found the trial magistrate had relied on authorities involving more serious injuries (pulmonary embolism and above-knee amputation) than the respondent's multiple leg fractures with deformity, making the award excessive. The court set aside the Ksh.2,000,000/- award and substituted Ksh.1,200,000/- general damages, upheld the special damages as proved, and ordered each party to bear its own costs. Judgment dated, signed and delivered at Bungoma on 21st July 2020.

Key legal issues

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01

Liability for the road traffic accident

Holding

The appellant's driver was 100% liable; the collision occurred on the matatu's correct lane after the lorry swerved into it, which was negligent driving

Reasoning

The respondent (a passenger) and the police traffic file both placed the collision on the matatu's lane. The appellant's driver's own statement admitted the lorry swerved to its right into the matatu's lane. The trial magistrate's finding of total liability was supported by credible evidence and was affirmed.

p. 4
02

Whether liability should have been apportioned with the matatu owner

Holding

No apportionment; the matatu owner was not a party and the appellant never invoked the third-party procedure

Reasoning

Order 1 Rule 15 of the Civil Procedure Rules, 2010 requires a defendant seeking contribution or indemnity from a non-party to apply for leave to issue a third-party notice within fourteen days of close of pleadings. The appellant only pleaded particulars of negligence against the matatu driver without enjoining the owner, so the court could not bind that person.

p. 3
03

Whether the award of Ksh.2,000,000/- general damages was excessive

Holding

The award was set aside and substituted with Ksh.1,200,000/- because the trial magistrate based his assessment on authorities involving more serious injuries (pulmonary embolism and above-knee amputation) than those sustained by the respondent

Reasoning

Comparable injuries should attract comparable awards. The trial magistrate relied on Charles Mathenge Wahome (pulmonary embolism, ICU) and Jackson Mutuku Ndetei (above-knee amputation), both more serious than the respondent's multiple leg fractures with deformity. The award was therefore based on wrong comparators and was reduced.

p. 6
04

Whether special damages of Ksh.116,000/- were proved

Holding

The special damages were proved and upheld

Reasoning

The judgment records the finding without detailed analysis; the court simply upheld the special damages award as proved.

p. 6

Legal principles established

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  • On a first appeal the court must re-evaluate the evidence and reach its own conclusions while making due allowance for not having seen or heard the witnesses
  • A defendant who fails to enjoin a third party under Order 1 Rule 15 cannot complain that the court failed to apportion liability with that non-party
  • An appellate court may disturb a trial court's award of general damages only where an irrelevant factor was considered, a relevant one omitted, or the amount is so inordinately low or high as to be a wholly erroneous estimate

Court orders

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  1. 1.Set aside the award of Ksh.2,000,000/- general damages
  2. 2.Substitute therefor the sum of Ksh.1,200,000/- general damages
  3. 3.Uphold the special damages of Ksh.116,000/- as proved
  4. 4.Each party to bear its own costs

Authorities

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Legislation

  • Civil Procedure ActSection 78
  • Civil Procedure Rules, 2010Order 1 Rule 15

Cases cited (12)

  • Selle v Associated Motor Boat Co. Ltd
    (1968) EA 123

    Duty of first appellate court to re-evaluate evidence and draw its own conclusions while making allowance for not hearing witnesses

  • Abdul Hammad Sarif v Ali Mohammed Solan
    (1955) 22 EACA 270

    When an appellate court need not follow trial judge's findings of fact

  • Kemfro Africa Limited t/a Meru Express Services Gathogo Kanini A. Jubia and Olive Lubia
    [1982-88] 1 KAR 727

    Principles for disturbing a trial court's assessment of damages

  • Kigaragari Vs Axn
    (1985) KLR 273

    Consistency in awards and grounds for appellate interference with general damages

  • Tayab Vs Kinau
    (1983) KLR 114

    Reasonable compensation, moderation and comparable awards in personal injury cases

  • H. West and Sons Ltd Vs Shepherd
    (1964) AC 326

    Money cannot renew a battered and shattered physical frame; reasonable compensation

  • Lim Poh Choo V Camden and Islington Area Health Authority
    [1979] IAILER 332

    Fair compensation to both parties; danger of excessive awards raising insurance premiums

  • Bhogal V Burbidge
    [1975] EA 285

    Award wrong in principle when measured against awards in comparable cases

  • Charles Mathenge Wahome & another Vs Fina Bank Ltd
    Civil Appeal No. 87 of 2005 (2011) eKLR

    Award of Ksh.1,500,000/- for broken right upper leg with pulmonary embolism

  • Jackson Mutuku Ndetei Vs Buyusuf & Sons
    Civil Appeal No. 6 of 2003 (2007) eKLR

    Award of Ksh.2,000,000/- in 2007 for leg injuries including above-knee amputation

  • Rosemary Wanjiru Kungu Vs Elijah Macharia Githinji & another
    (2014) eKLR

    Comparable injuries compensated by comparable awards; avoiding excessive awards

  • Simon Tarete Vs Mercy Mulitu Njeri
    (2014) eKLR

    Comparable injuries compensated by comparable awards

On appeal from
Magistrate's Court
Not stated in the judgment
Jurisdiction invoked
First appeal under section 78 of the Civil Procedure Act

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, "Mohamed Muyunga v Vinoth Abwolot Eshebet", Case Analysis (2020). . Source: 

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