Klinton Productions & Engineering Limited & 1 other v Godfrey Muigai

4. The trial court delivered the judgement on 31/8/2023 as follows: ·General damages- Kshs. 350,000/= Special damages- Kshs. 3,550/= Less 20% liability- Kshs. 70,710/= Total Kshs.282,840.00/= 5. The Appellant being aggrieved by the said award lodged a Memorandum of appeal dated 25/09/2023 has raised 11 grounds of appeal which basically challenge the judgment of the trial court on award of damages which it considers to be manifestly excessive as to be erroneous in the circumstances having regard to the nature and extent of the injuries. 6. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to reevaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) EA 123, (1958) EA page 424 7. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. 8. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion. 9. I have anxiously and carefully considered the grounds of appeal, the pleadings in the lower court, the evidence in the medical report adduced on the injuries before the trial court, the written submissions filed by respective counsels and the authorities cited as well as the trial court’s judgment. 10. From the treatments notes from Mama Lucy Kibaki Hospital and the medical report by Dr. G. K. Mwaura confirm that the Respondent sustained deep cut wound on the right ankle, cut wound on the left thumb and cut wound on the right elbow which injuries were classified as harm. 11. The Respondent’s counsel submitted for Kshs.500,000/= as general damages and cited cases whose award was between Kshs. 350,000/= to Kshs. 380,000/=. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16748/eng@2024-09-19 2

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12. The Appellant submitted for Kshs.100,000/= and pointed out that the injuries sustained in the authorities cited by the Respondent were more severe compared to those sustained by the Respondent. 13. In her judgment, the learned Magistrate stated as follows: “ I have considered proposals by rival parties and though the defendants did not offer an alternative case law to guide this court in assessing an award under this head, I share their sentiments that, the Plaintiff cited authorities in which the injuries therein were more serious and as a result, do not assist the court here.” 14. The court upon analysis of the above and considering inflationary trends prevailing, proposals made by the parties and nature of the injuries sustained by the Respondent and being guided by the case of Joseph Wambura V Joseph Mwangi Oba (2018) 9 CA No. 9 of 2017 where Justice Mrima on 28/2/2018 upheld an award of Ksh.300,000/= by the lower court where the Plaintiff had sustained:a cut wound on the left orbit side,deep laceration on the left gluteal area,multiple lacerations left elbow,deep lacerations on the left hand,cut wound on right palm,multiple cut wounds on both knees with stitches in place,deep cut on the left leg, left ankle; andcut on right toe 15. For an Appellant Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied. 16. In the case of Maraga V Musila (1984) 1 KLR 251, where the Court of Appeal when addressing its mind to this issue expressed itself thus; “ The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”. 17. The approach taken by courts in the assessment of damages is that comparable injuries should as far as possible be compensated by comparable awards although the court should bear in mind that no two cases are exactly the same. The court will also consider factors such as the state of the economy and the rate of inflation in its assessment of damages. (See Stanley Maore v Geoffrey Mwenda [2004] eKLR and Ugenya Bus Service v Gachoki [1982] eKLR). 18. In the circumstances, it is my considered finding that the authority of Joseph Wambura v Joseph Mwangi Oba (2018) CA No. 9 of 2017 relied on by learned magistrate appear to be for more serious injuries than those sustained by the Respondent in this appeal. 19. Having given due consideration to the injuries sustained by the Respondent, I find the following more recent authorities to be more comparable on the aspect of general damages in this case:1. Francis Omari Ogaro v JAO (minor suing through next friend and father GOD [2021] eKLR an award of Kshs.180,00.00 was given for the following injuries: i. Multiple cut wounds on the right lower limb. ii. Bruises on the right lower limb. https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16748/eng@2024-09-19 3

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iii. Bruises on both elbows. iv Bruises on the right iliac region. v Bruises on the frontal region. vi. Bruises on the temporal region. vii. Lacerations on the frontal region. viii. Cut wounds on the left iliac region. ix. Cut wounds on the frontal region. x. Cut wounds on the temporal region. xi. Blunt trauma to the abdomen. 2. In Daniel Gatana Ndungu & Another v Harrison Angore Katana [2020] eKLR where the court substituted the lower court judgment of Kshs. 350,000/= and awarded Kshs. 140,000/ = for cut on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee. 3. In Nanyuki Express Cabs Savings and Credit Cooperative Society v Ikungu (Civil Appeal 67 of 2020) [2023] KEHC 23652 (KLR) (17 October 2023) (Judgment) where the plaintiff sustained a) Lacerations and muscle contusion on the left forearm and dorsum of the hand b) Deep laceration on the right anteromedial aspect of the shin c)Small multiple lacerations on the scalp the court found that it had a reason to interfere with the decision of the Learned Trial Magistrate in awarding Kshs. 300,000/= in general damages which was manifestly excessive. I am satisfied that an award of Kshs. 200,000/= would be sufficient compensation. 20. Hence, from the foregoing comparison, the lower court’s award of Kshs.350,000/= as general damages for pain suffering and loss of amenities can be said to be manifestly excessive as to amount to a wrong assessment. In the premises, there is sufficient cause, in my view, for disturbing the award made by the lower court under the general damages head. 21. I set aside the award by the trial court and substitute it with an award of Kshs.200,000.00 general damages subject to 20% apportioned liability which is Ksh.160,000 . 22. The award on special damages will not be disturbed save that the save that it will not be subjected to apportionment of liability. The award of special damages does not need to be subjected to apportionment of liability. I agree with the holding of the court in Hashim Mohamed Said & another v Lawrence Kibor Tuwei [2018] eKLR where the court stated that special damages should not be subjected to the apportionment. 23. In the end the Respondent is awarded Ksh.160,000/- in general damages and Kshs.3,550/ special damages plus costs and interest. 24. Each party will bear their own costs of the appeal. It is so ordered. DATED, SIGNED & DELIVERED VIRTUALLY AT MACHAKOS THIS 19TH DAY OF SEPTEMBER 2024 NOEL I. ADAGI https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16748/eng@2024-09-19 4

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JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16748/eng@2024-09-19 5

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