Herbart Otara Marube v Dankan Ochora [2022] KEHC 1073 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISII

CIVIL APPEAL NO 52 OF 2021

HERBART OTARA MARUBE..................................................................APPELLANT

VERSUS

DANKAN OCHORA................................................................................RESPONDENT

(Being an appeal from the Judgment of the Honorable E.A Obina, P.M,

delivered on 28th April 2020 in Kisii CMCC NO 258 of 2020)

JUDGMENT

1. This claim relates to a road traffic accident that occurred on 21st November 2019 along the Kisii-Migori Road wherein the respondent was hit by the appellant who was the driver and owner of motor vehicle registration No. KBU 353U.

2. The appeal lodged before this court is against the damages awarded by the subordinate court.  Liability was settled at 70:30 against the appellant.

3. The trial magistrate at the conclusion of the hearing before him awarded the respondent general damages of Kshs 800,000/-, special damages of Kshs 57,410/-, costs of the suit and interest.

4. The appellant dissatisfied with the finding of the subordinate court filed a Memorandum of Appeal dated 27th May 2021 raising the following grounds:

1.  That the award of general damages awarded to the Respondent was manifestly and inordinately excessive in the circumstance.

2.  That the Learned Trial Magistrate acted in error when the same failed to properly evaluate the evidence on record thus reaching erroneous decision.

3.  The Learned Trial Magistrate erred when the same misapprehended the principle applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice.

4.  That the Learned trial Magistrate erred in law and fact when the same relied on extraneous issues as a basis of his determination on liability.

5. The appeal was dispensed by way of written submissions and the appellant through the firm of M/s O.M Otieno & Co Advocates filed his submissions on 11th November 2021 while the firm of Ochoki & Co Advocate being on record for the respondents filed his submissions on 26th October 2021.

6. In an appeal against assessment of damages an appellate court must be careful not to interfere with the trial court’s discretion unless certain conditions are met. These conditions were outlined in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v Lubia & Another (No 2) Civil Appeal No 21 of 1984 [1985] eKLR thus:

The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor, 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 the damage.

7. The guiding principle in the assessment of damages is that an award must reflect the trend of previous, recent and comparable awards.  This position finds support in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004]eKLR where the Court of Appeal held:

“Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”

8. The appellant submitted that the award on damages was manifestly and inordinately excessive. They cited the case of Naom Momanyi v G4S Security Services Kenya Limited [208] eKLR where the court awarded Kshs 300,000/-. The plaintiff therein had sustained soft tissue injuries and a fracture of the left-right condylar tibia

9. In Gogni Rajope Construction Company Ltd v Francis Ojuok Olewe 2015 eKLR, the plaintiff was awarded Kshs 350,000/- where the injuries sustained were a fracture of the radius and ulna and a dislocation of the elbow joint.

10. The court awarded Kshs 200,000/- in the case of Paul Kipsang Koech & Another v Titus Osole Osore [2013] eKLR. The plaintiff therein sustained the following injuries: soft tissue injuries, fracture of the right upper lateral incisor tooth, loosening of the right upper canine tooth and the right upper medial incisor tooth.

11. The respondent on the other hand submitted that the award by the trial magistrate was reasonable taking into consideration the injuries sustained by the respondent. The respondent argues that the amount awarded by the trial court was commensurate to the injuries sustained. They referred the court to their submissions before the trial court where they proposed a sum of Kshs 1,200,000/- as general damages. He relied on the case of Mwaura Muiruri v Suera Flowers Ltd & Another [2014] eKLR and Mary Pamela Oyioma v Yess Holdings Limited [2011] eKLR.

12. In the Mwaura Muiruri case (supra) the plaintiff sustained multiple lacerations on the face, soft tissue injuries on the chest cage, comminuted fractures of the right humerus upper and lower thirds   of the tibia and compound double fractures of the right leg upper and lower 1/3rd tibia fibula. The plaintiff was awarded general damages of Kshs 1,450,000/-. In the Mary Pamela Oyioma case (supra), the plaintiff suffered a compound fracture of the right tibia, a comminuted fracture of the right femur, soft tissue injuries of the right shoulder and multiple cut wounds over the whole body. The court awarded the plaintiff therein general damages of Kshs 900,000/-.

13. According to the plaint the respondent sustained fracture of right tibia, right ankle dislocation, chest contusion, laceration and cut wounds on the right lower limb. The injuries are captured in the P3 form and the report by Dr. Morebu.

14. Dr. Kumenda in his medical report, after looking at the respondent’s x-ray of the right ankle and chest, he noted that the respondent had a history of fracture of tibia and fibula as well as fracture of the 3rd, 4th, 5th ribs on the right.

15. According to the treatment notes from Kisii Teaching and referral hospital, the respondent was committed to 5 weeks of bed rest following the accident. Although the treatment notes had the name Festus Ochora, the respondent explained that the hospital erroneously captured the name of the person who took him to hospital instead of his name. In any event, the police abstract only captured one injured person as a result of the accident which was the plaintiff. There was no evidence of an accident involving the appellant and Festus Ochora. In fact, the appellant had entered consent that he was 70% liable for the accident. I therefore find that the plaintiff proved the injuries as pleaded in his plaint.

16. The appellant has proposed an award ranging from Kshs 200,000/- to Kshs 350,000/-. I find that the appellant’s proposal does not reflect awards of courts for similar injuries. In Civicon Limited v Richard Njomo Omwancha & 2 others [2019] eKLR the plaintiff therein suffered a single fracture of the tibia and fibula and dislocation of the hip joint and was awarded Kshs 450,000/-. The injuries are more comparable to the injuries sustained by the respondent herein and therefore the award by the trial magistrate was thus excessive in the circumstances. The special damages of Kshs 57,410/- that was pleaded was proved by the respondent.

17. I therefore set aside the award of general damages and substitute the same with an award of Kshs. 450,000/- as general damages. Special damages of Kshs 57,410/- was proved. The general damages shall accrue interest at court rates from the date of judgment in the lower court, while interest on special damages will accrue from the date of filing suit at court rates till payment in full.

18. The appellant shall have half the costs of this appeal.

DATED, SIGNED AND DELIVERED AT KISII THIS 17TH DAY OF MARCH 2022.

R. E. OUGO

JUDGE

IN THE PRESENCE OF:

MR.O.M OTIENO FOR THE APPELLANT

RESPONDENT ABSENT

APHLINE COURT ASSISTANT