CIVIL APPEAL NO. E027 OF 2024 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT VOI CIVIL APPEAL NO. E027 OF 2024 EXPORT CONSOLIDATION SERVICES LIMITED..…………...…… APPELLANT =VERSUS= PETER LOPUONYANG KERISO………………….……………… RESPONDENT (Being an appeal from the Judgment of Hon. A. M. Obura (CM) in Voi CMCC No. E013 of 2023 delivered on 29th February 2024) JUDGMENT 1. The Respondent PETER LOPUONYANG KERISO sued the Appellant in Voi CMCC No. E013 of 2023 seeking general damages and special damages for injuries the Appellant sustained on or about 7th November 2022 while lawfully travelling as a passenger in motor vehicle registration KDJ 710C. Page 1 of 7
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CIVIL APPEAL NO. E027 OF 2024 2. The accident occurred at Man Eaters area along the Nairobi – Mombasa road. 3. The parties entered into a consent judgment on liability and apportioned the same at 15% in favour of the Appellant and 80% in favour of the Respondent. 4. The trial court assessed damages as follows:General damages for pain and suffering Kshs. 1,000,000/= Special damages Kshs. 60,735/= Future medical expenses Kshs. 18,000/= Total Kshs. 1,078,735/= Subject to 15% liability = Kshs. 916,924.75 5. The Appellant filed this appeal on the following grounds:(i) THAT the Learned Trial Magistrate erred in law and in fact and misdirected herself by failing to consider at all the submissions made before her by the Defendant and reached an erroneous Page 2 of 7
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CIVIL APPEAL NO. E027 OF 2024 conclusion thereby occasioning a miscarriage of justice. (ii) THAT the Learned Trial Magistrate erred in law and in fact by not considering the legal authorities cited by the Defendant on general damages and future medical costs and thereby reaching an erroneous conclusion on the award of general damages and future medical costs. (iii) THAT the Learned Trial Magistrate’s award under the headings of general damages and future medical cost is inordinately high and grossly exaggerated taking into account the cited authorities by the Defendant on similar matters. (iv) THAT the award on general damages and future medical costs fails to recognize the submissions by the Defendant and the binding authorities cited therein and ought to be set aside and/or award adjusted downward. (v) THAT the Learned Trial Magistrate in assessing quantum of damages took into account irrelevant factors and wrong principles and arrived at a Page 3 of 7
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CIVIL APPEAL NO. E027 OF 2024 wrong decision and excessive award on quantum of damages. 6. The parties filed written submissions as follows:Julie please summarize the same here 7. This being a first appeal, the duty of the first appellate court is as follows:Julie please state the duty here and put any case 8. The sole issue for determination is whether the award of damages was excessive. 9. I have considered the submissions filed herein and the authorities relied on by the trial court. 10. The Respondent sustained the following according to Doctor Kiema:(i) Multiple rib fracture. (ii) Mid scapula fracture. (iii) Mid head injury with loss of consciousness. Page 4 of 7 injuries
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CIVIL APPEAL NO. E027 OF 2024 11. The doctor assessed permanent injuries at 4%. 12. However, Doctor Gaya’s report stated that the Respondent sustained the following injuries:(i) Soft tissue injuries of the head. (ii) Soft tissue injuries of both shoulders. (iii) Soft tissue injuries to the chest with right side rib fracture. (iv) Soft tissue injuries to the back. (v) Fracture of the right scapula. (vi) Soft tissue injuries of both lower limbs. 13. Doctor Gaya assessed permanent incapacity at 5%. I find that both doctors found that the Respondent suffered permanent disability of 4 – 5%. 14. E06 The trial court relied on the case of Kisumu HCCA NO. OF 2021 SWIFT RIDERS LOGISTICS LIMITED =VERSUS= CLARICE AKINYI OGAMBO (2022) eKLR where the court awarded Kshs. 1,400,000/= in a case where the Plaintiff sustained very serious injuries than in the current case. Page 5 of 7
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CIVIL APPEAL NO. E027 OF 2024 15. I find that the authority relied upon by the trial court was compensable. 16. The Appellant did not file submissions in the trial court and this appeal is an attempt to sneak in their submissions which were not availed at the trial court. 17. However, I find that the future medical expenses in respect of pain killers worth Kshs. 18,000/= is not justified and the same is struck off. 18. The total award is Kshs. 1,060,735/= less 15% contributory negligence = 901,624.75 19. Judgment be and is hereby entered in favour of the Respondent against the Appellant in the sum of Kshs. 90,624.75 plus costs in respect of special damages from the date of filing suit and in respect of general damages from the date of the trial court’s judgment. Orders to issue accordingly. Dated, signed and delivered this 31 st day of January 2025 in open court at Voi. Page 6 of 7
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CIVIL APPEAL NO. E027 OF 2024 ASENATH ONGERI JUDGE In the presence of:Court Assistant: Maina Page 7 of 7
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