Amos Njagi Emurasi & Maina Hiram v Alex Muriithu Njogu [2016] KEHC 2111 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MURANG’A

CIVIL APPEAL NO 94 OF 2013

(FORMERLY NYERI HCCA NO 12 OF 2012)

(Appeal against Quantum only from the Decree passed on 23/01/2012 in Murang’a CMCC No 373 of 2010 – A K Kaniaru, SPM)

1.     AMOS NJAGI EMURASI

2.     MAINA HIRAM…………………………..………………APPELLANTS

VERSUS

ALEX MURIITHU NJOGU……..…………………………… RESPONDENT

J U D G M E NT

1.   This appeal is against quantum only in respect of general damages awarded by the lower court for pain, suffering and loss of amenities on account of personal injuries sustained in a road traffic accident.  Judgment on liability was entered by consent.  The lower court awarded general damages of KShs 500,000/00.  The Appellants argue that award was too high and manifestly excessive in the circumstances.

2.  The appeal was canvassed by way of written submissions.  I have read the submissions of both sides.  I have also perused the record of the trial court.

3.   It is trite that an appellate court will interfere with an award of damages only if, on the facts of the case, the award is manifestly low or excessive and not a proper representation of the loss suffered.  An appellate court will also interfere with an award if it is based on wrong principle, or if, in arriving at it, the trial court considered a matter that it should not have, or failed to consider a matter it should have.

4.     The award challenged in this appeal was made on 23/01/2012.  The Respondent’s injuries, as set out in 3 medical reports, were –

(i)     Fracture of the left femur.

(ii)    Dislocation of the right knee joint.

The trial court noted that the prognosis was good and that the Respondent had a permanent incapacity of 8% of the total person.

5.   The Respondent suggested to the trial court an award of KShs 800,000/00 as general damages.  The court thought that sum was too high.  The Appellants on the other hand had suggested an award of KShs 200,000/00 which the trial court thought was on the lower side.  In support of their position they used authorities that were more than ten years old.  They have used the same authorities in this court.  I have perused them and others.

6.   I have carefully read through the judgment of the trial court.  The learned trial magistrate properly addressed his mind to all relevant factors when considering what award to make.  He did not consider any factor he should not have; nor did he fail to consider anything he should have.  He took into account inflation and the prevailing cost of living.  He committed no error of principle.

7.  It is not enough that that I would probably have made a slightly lower award had I been the trial magistrate.  I do not find the award manifestly excessive as submitted by the Appellants.

8.  In the event there is no merit in this appeal and the same is hereby dismissed with costs to the Respondent.  It is so ordered.

DATED AND SIGNED AT MURANG’A THIS 10TH DAY OF NOVEMBER 2016

H P G WAWERU

JUDGE

DELIVERED AT MURANG’A THIS 11TH DAY OF NOVEMBER 2016