Elizabeth Wangari Njuguna v Omar Kasim Mwanatumu

7. Aggrieved by the finding of the Trial Court, the Appellant lodged a Memorandum of Appeal hence this Appeal. Submissions on quantum 8. I the trial court, the Plaintiff/ Respondent in his submissions dated 02/12/2022 sought for Kshs. 250,000 as General Damages for pain and suffering. He relied on the case of G4S Security Service (K) Ltd v Jackline Nagome Barare [2017] eKLR where Kshs. 180,000 was awarded for soft tissue injuries. 9. The Defendant/ Appellant in her submissions dated 06/12/2022 submitted that Kshs. 30,000 was sufficient compensation for the injuries suffered by the Plaintiff/ Respondent. The case of JK (A minor suing through father and next friend NKM v Jasper Nchonga Magari & ano [2021] eKLR where Kshs. 30,000 was awarded for soft tissue injuries. 10. Upon filing this appeal, this court directed that the appeal be disposed of by way of written submissions and both parties complied by filing of rival submissions. The Appellant filed submissions dated 15/05/2024 submitted that the trial court’s award of Kshs. 300,000 as General Damages was manifestly excessive and prayed that this court do revise the quantum. 11. The Appellant relied on JK (A minor suing through father and next friend NKM v Jasper Nchonga Magari & ano [2021] eKLR where the High Court awarded Kshs. 100,000 for soft tissue injuries. It was submitted that an award of Ksh. 100,000 would be sufficient compensation for the injuries suffered. 12. The Respondent in his submissions dated 08/05/2024 submitted that the trial magistrate did not err by awarding Kshs. 300,000 as General Damages. He relied on the case of Poa Link Services Co. Ltd & ano v Sindani Boaz Bonzemo [2021] eKLR. Where Kshs. 350,000 was General Damages for similar injuries. Analysis 13. This being a first Appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a Trial Court, unlike the Appellate Court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. 14. In the cases of Peters v Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:“ It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 15. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus: “ ...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16905/eng@2024-09-20 2

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Quantum 16. The Appellant submitted that an award of Kshs. 100,000/= would be adequate compensation while the Respondent submitted that the trial court correctly assessed general damages for pain and suffering as commensurate compensation in the circumstances of this case at Kshs. 300,000/=. 17. The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd v Meru Express Service v A.M Lubia & Another 1957 KLR 27 as follows: “ The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.” 18. It is thus settled that for the Appellate court, to interfere with the award it is not enough to show that the award is high or had if I handled the case in the subordinate court, I would have awarded a different figure. Damages are said to be at large. They must be commensurate with similar injuries. 19. Fact finding is primarily the duty of the trial court and once evidence is presented before it on the basis of which it could arrive at a finding one way or the other, as was held in Job Obanda v Stage Coach International Services Limited & Another Civil Appeal No. 6 of 2001, it is not for the appellate court to set aside the trial court’s exercise of discretion and substitute its own simply because if it had been the trial court it would have exercised the discretion differently. 20. There is no dispute that the Respondent suffered the injuries as pleaded. In assessing injuries arising from a road traffic accident, consistency in the award of damages is necessary for judicial predictability and certainty. This is achieved through awarding similar injuries with similar or relatively similar damages. 21. The Court of Appeal in Odinga Jacktone Ouma v Maureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards” 22. The principle on the award of damages is settled. In Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; - 23. 1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. 2) The award should be commensurable with the injuries sustained. 3) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts. 4) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account. 5) The awards should not be inordinately low or high. Having taken into consideration the cases relied on by the parties, the nature of injuries sustained, and considering the loss of value for money, I find that an award of Kshs. 200,000/= in General Damages would be adequate compensation based comparable authorities cited by the parties. (See the case of https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16905/eng@2024-09-20 3

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Matunda (Fruits) Bus Services Ltd v Agnes Chemngeno Tuiya [2020] eKLR where Kshs. 250,000 was awarded for cut wound and multiple soft tissue injuries). The appeal on General Damages is partially successful. 24. On costs, I consider that the appeal was partially successful. Litigation must come to an end, and no further proceedings need to be entertained. I hereby exercise the discretion of the court and order that each party shall do bear its own costs. Determination 25. In the upshot, I make the following orders: a. The Appeal succeeds to the extent that the General Damages award of Kshs. 300,000 is hereby set aside and substituted with an award of Kshs. 200,000. b. Each party to bear its own costs. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA ON 20TH DAY OF SEPTEMBER, 2024. ……………………. F. WANGARI JUDGE In the presence of; Njuguna Advocate for the Appellant Azei Advocate h/b for Otuya Advocate for the Respondent Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2024/16905/eng@2024-09-20 4

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