George Kinuthia Ngure v Joseph Mwangi Murage

which are manifestly low. This is not an edifying way to raise an appeal. A memorandum of appeal is not supposed to be a thesis. Advocates must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric. It is provided for under Order 42 Rule 1 of the Civil Procedure Rules as follows: “ Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading. (2) 4. The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively. The Court of Appeal had this to say about compliance with Rule 86 [now rule 88] of the Court of Appeal Rules (which is pari materia with Order 42 Rule 1 of the Civil Procedure Rules) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: “ We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented: “ We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…” 5. The court abhors repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the court. In the case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] eKLR , the court of appeal observed that : “ Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated: “ The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12940/eng@2025-09-18 2

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efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.” Pleadings and Evidence 6. Vide a further amended plaint, the Appellant pleaded that she suffered fracture of the right superior pubic ramii, fracture of the right knee, deep lacerations on both leg(sic), injury on the head, and injury on the right foot. She has an agree scar on the left thigh. there is no dispute on any other form of damages other than general damages. 7. The injuries set out in the report by protection surgical clinic was blunt and laceration injuries on the head, fracture right superior pubic ramus and deep lacerations on both legs. The x- ray showed fracture of both pubic ramii.a report dated 31.03.2021, by Dr Wokabi, showed the following injuries: 8. 9. a. Right infra and superior pubic ramii Fracture (pelvis) b. right displaced lateral femoral condyle fracture c. injury to the head with wounds on the forehead d. deep large ugly lacerations on the left forehead e. deep lacerations on the right foot. f. deep lacerations on both knee(sic) The said ugly scar could be operated at a cost of Ksh. 100,000/=. A permanent disability of 20% was indicated. By a report dated 25.10.2021, Dr Wambugu P. M examined the appellant and found that the following injuries were suffered: a. Fracture pelvis involving the Right inferior and superior pubic ramus. b. fracture of right femur involving lateral condyle. c. forehead and upper lip laceration. d. laceration wounds left thighs, both knees and right foot. The remnant scar could be operated to reduce the risk of Keloid formation at a cost of Ksh. 55,000/= at a medium cost private hospital. injuries suffered. the decree of permanent disability was awarded at 2%. however, the doctor indicated that the appellant was disposed to early right knee joint osteoarthritic changes. Appellant’s submissions 10. The Appellant filed submissions on 24.1.2025. They submitted that the injuries suffered were major. Therefore, reducing the amount of Ksh by 20% leads to a mere 460,000/=. This is an extremely difficult argument to follow given that 15% contribution is not in contention. It is recalled that they submitted a sum of Ksh 4,000,000/= in the lower court. The authorities relied on are however completely out of range and irrelevant. there is no need of regurgitating the same herein. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12940/eng@2025-09-18 3

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Respondent's submissions 11. The respondent filed submissions defending the judgment as reasonable. they relied on the case of Butt v Khan [1978] KECA 24 (KLR) and Simon Taveta v Mercy Mutitu Njeru (2014)JELR 95061 (61). In the later case, the court of appeal posited as follows: The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past. 12. They also referred to the case of Kenya Breweries Ltd v Saro [1991] KECA 12 (KLR), where the court of appeal [Gachuhi,Masime JJ A & Omolo Ag JA] stated as follows: It is now well established that the Court of Appeal can only interfere with a trial judge’s assessment of damages where it is shown that the judge has applied wrong principles or where the damages awarded are so inordinately high or low that an application of wrong principles must be inferred. 13. Further reference was made to the duty of the court as set out in the case of Butt v Khan [1978] KECA 24 (KLR), where law JA posited as follows: An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low. 14. They also stated that the entire decretal sum had been paid and the appeal is a sign of bad faith. They stated that there was no basis for Ksh 4,000,000/= submitted by the appellant. they stated that the appellant is decrying award after contribution when liability is not in dispute. Reliance was placed also on the case of Simon Taveta Vs. Mercy Mutitu Njeru [2014] eKLR. Analysis. 15. 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 the trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. 16. In the case of Mbogo v Shah [1968] EA 93, the Court of Appeal held that an appellate court should not interfere with a trial court’s finding unless it is shown that the court misdirected itself in some matter and as a result arrived at a wrong decision, or that it is manifestly wrong. The duty of the first appellate Court was discussed by Clement De Lestang, VP, Duffus and Law JJA, in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the law looks in their usual gusto, held by as follows;“ .. 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 re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12940/eng@2025-09-18 4

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17. In the case of Peters v Sunday Post Limited [1958] EA 424, the court of appeal for the former eastern Africa emphasized the restraint with which an appellate court should exercise its power to re-evaluate evidence and interfere with factual findings of the trial court. This principle underscores the deference owed to the trial court’s advantage in observing the demeanour and credibility of witnesses. However, it does not absolve the appellate court of its duty to independently evaluate the evidence where necessary, particularly where it is alleged that the trial court erred in law or fact. The court stated: “ 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…” 18. There is no dispute on the injuries suffered. The only question is whether there is a valid question for determination by the court. a fact that amounts are diminished by contribution is not a question for determination. the submissions by the appellant are not only traumatizing but an exercise in skullduggery and subterfuge. first, the question of liability was settled by consent. it cannot be set aside by fiat. in the case of Flora N. Wasike v Destimo Wamboko[1988] eKLR, the court of Appeal stated as follows: “ It is now settled law that a consent judgment or order has contractual effect and can only be set side on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled, which are not carried out: see the decision of this court in J M Mwakio v Kenya Commercial Bank Ltd Civil Appeals 28 of 1982 and 69 of 1983. In Purcell v F C Trigell Ltd [1970] 2 All ER 671, Winn LJ said at 676; “ It seems to me that, if a consent order is to be set aside, it can really only be set aside on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons, and I see no suggestion here that any matter that occurred would justify the setting aside or rectification of this order looked at as a contract.” 19. The question of whether, the amount was meagre after contribution is otiose. In Ali Malik Brothers Motor (K) Limited and Another v Emmanuel Oduor Onyango NRB HCCA No. 252 of 2016 [2018] eKLR, the plaintiff sustained a fracture of the pelvic sprain hymen and cuts of the right knee and was awarded Ksh. 700,000/- which was affirmed by the High Court. 20. In Joseph Njeru Luke & 3 others v Stellah Muki Kioko [2020] eKLR, the Plaintiff sustained pelvic fractures and soft tissue injuries, the High Court reduced the Lower Court’s award of Ksh. 1,700,000 to Ksh. 750,000. 21. In this case was Muthamiah Isaac vs Leah Wangui Kanyingi (2016) eKLR, the plaintiff sustained fracture of right superior pubic ramii, fracture of the right inferior ramii and blunt injury to the left leg and awarded Ksh 400,000/- on appeal. 22. All these authorities pose similar and comparable injuries and suggest that the award by the lower court of Ksh. 600,000/= was not inordinately high in the circumstances. the appeal therefore lacks merit and is dismissed. 23. The issue of costs is governed by section 27 of the Civil Procedure Act, which provides as follows: https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12940/eng@2025-09-18 5

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24. (1) Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. The position in law is that costs lie at the discretion of the court seized of the matter, subject always to the caveat that such discretion must be exercised judiciously. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say: “ It is our finding that the position in law if that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 25. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: “ (18) 26. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases. In the circumstances, the appeal is hereby dismissed in limine with costs assessed at Ksh. 65,000/=. Determination 27. In the upshot, I make the following orders: a. The appeal is dismissed with costs of Ksh 65,000/=. b. 30 days stay of execution. c. The file is closed. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12940/eng@2025-09-18 6

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DELIVERED, DATED AND SIGNED AT NYERI ON THIS 18TH DAY OF SEPTEMBER, 2025. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM. KIZITO MAGARE JUDGE Represented by: Ombuna Ongeri & Co. Advocates for the Appellant Gertrude Matata, Waithaka Advocates for the Respondents Court Assistant – Michael https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12940/eng@2025-09-18 7

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