John Mburu Gachau v Lawrence Kimanthi Kawelu [2022] KEHC 2785 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MAKUENI

HCCA NO. 24 OF 2018

JOHN MBURU GACHAU.................................................................... APPELLANT

-VERSUS-

LAWRENCE KIMANTHI KAWELU...............................................RESPONDENT

(Being an appeal from the judgment of Hon. C.O Nyawiri (SRM) in Makueni Chief Magistrate’s Court CMCC Case No.150 of 2014 pronounced on 28th February 2018).

JUDGMENT

1. In a judgment delivered on 28/02/2018 the magistrates’ court awarded the respondent (who was plaintiff) general damages of Kshs.480,000/= and special damages of Kshs.26,700/=,  together with costs and interest.

2. Aggrieved, by the decision of the trial court, the appellant (who was the defendant in the trial court) has come to this court on appeal through counsel M/s Wangari Muchemi & Company on the following grounds –

1) That the learned magistrate erred in law and fact and ended up misdirecting himself in awarding exorbitant quantum of damages of Kshs.480,000/= for pain and suffering by failing to appreciate and be guided by the prevailing range of comparable awards granted the injuries allegedly sustained by the respondent herein.

2) The learned magistrate erred in law in making such high award as to show that the magistrate acted on a wrong principle of law.

3) The learned magistrate’s award on damages was so high as to be entirely erroneous.

4) The learned magistrate’s award was made without considering the medical evidence before the court and failed to appreciate the nature of injuries sustained by the plaintiff and failed to be guided by authorities on comparable awards and hence ended up making an excessive award in view of the medical evidence presented before the court.

5) The learned magistrate erred in law and fact in failing to consider the defendant’s submissions and authorities in making a finding on quantum.

6) The learned magistrate erred in law and fact by awarding special damages of Kshs.26,700/= which were not specifically pleaded and proved in evidence.

7) The whole judgment on quantum and special damages was against the weight of evidence before court.

3. The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the written submissions of the appellant filed by counsel Wangari Muchemi & company as well as the submissions of the respondent filed by counsel Mutuku Wambua & company. Both counsel relied on case authorities.

4. This is an appeal only on quantum of damages awarded, as liability was recorded by consent in the trial court at 85%:15%.

5. The legal principle is that the determination of the quantum of damages, is an exercise of discretionary power by trial courts. Thus appellate courts are slow to interfere in the exercise of that discretion except on very limited conditions. There are several decided cases on this principle, such as the famous case of Butt –vs- Khan (1982 – 88) KAR 5. In the later case of Gitobu Imanyara –vs- Attorney General (2016) e KLR the Court of Appeal  restated this principle and said as follows –

“It is firmly established that this court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of amount of damages it will generally be necessary that this court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so extremely low as to make it, in the judgment of this court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.

6. The appellant counsel’s contention herein is that the magistrate did not rely on the correct injuries suffered and also did not consider the comparative awards from courts which were referred to at the trial court. I note that it is not in dispute that

on general damages the respondent’s counsel asked for an award of Kshs.500,000/=, while the appellant’s counsel asked  for an award figure of Kshs.100,000/=.

7. The appellant’s counsel has argued on appeal that the court erroneously relied on more serious injuries than those contained in the medical reports. I have perused the medical reports. I note that from the medical report signed by Dr. Daniella Makena, which was admitted in the case, by consent the injuries suffered were described as deep cut wound of the scalp, left clavicular deformity, and soft tissue, as well as  injuries to the left shoulder.

8. I note also that in the judgment, the magistrate referred to the injuries suffered as “deep cut wound of the scalp, clavicular deformity, and soft tissue injuries to the left shoulder.

9. Thus though the appellant’s counsel contends that the magistrate referred to more serious injuries in the judgment than what was contained in the medical reports, that contention is not correct. Thus I dismiss that contention by counsel.

10. Turning to the authorities relied upon, the case authorities relied upon by the appellant’s counsel were Nairobi HCC No. 360 of 1989 – Joyce Wanjiru Kamau –vs- Kenya Canners ltd wherein Kshs.100,000/= and  the case of Harrison Muchoki Kimani –vs- Dennis Kimeu Gachoka (2004) e KLR where Kshs.200,000/= was awarded. On the other hand, the case

cited by the respondent’s counsel was  Anne Githure Marungo (2014) eKLR wherein general damages of  Kshs.500,000/= was awarded. I note that the cases relied by counsel for appellant were more than 14 years old while the case cited by the respondent’s counsel was a more recent case 4 years old.

11. Further though counsel for the appellant has argued that the magistrate relied on irrelevant factors, I find that the fact that the magistrate referred to the nature of injuries, inflation rate, and the age of the respondent in my view did not amount to taking into account irrelevant factors in determining quantum of general damages.

12. From the above factors therefore, I find no reason to interfere with the award of general damages herein and I will thus uphold the amount awarded.

13. With regard to the award of special damages indeed special damages have to be specifically pleaded and proved as contended by the appellant’s counsel. The appellant’s counsel has relied on the case of Simon Taveta –vs- Mercy Mwitu Njeru – Nyeri Civil Appeal No. 26 of 2016 in which the Court of Appeal cited with approval the case of Kenya Bus Services Ltd –vs- Gituma (2004) E.A 91, and argued that the respondent herein only pleaded special damages of Kshs.2,500/= in the plaint and should not have been awarded Kshs.26,700/= as special damages by the trial court.

14. I have perused the pleadings. From the contents of the plaint, the special damages as pleaded are (a) medical expenses – to be adduced at the hearing, (b) motor vehicle search Kshs.500/=, (c) medical report Kshs.2,000/= - total Kshs.2,500/=.

15. From the contents of the above pleading on special damages in the plaint, special damages for medical expenses were pleaded but the specific amount was to be proved at the hearing of the case.  It cannot thus be said that such special damages were not pleaded. I note also that from the documents relied upon by the respondent in the case, which were admitted by consent of both parties counsel without objection, the medical reports and medical fee notes were among the said documents. There was no claim for future medical expenses as alleged by the appellant’s counsel in this appeal, but merely claims for medical expenses already incurred, even if some of those expenses  might not have been settled by the time of hearing of the case.

16. I observe from the contents of the judgment, that the trial court merely added the items of medical expenses incurred and awarded the total figure as at the time of judgment, and in my view, the amount of special damages awarded thus by the trial court was not an erroneous figure, but was what was specifically pleaded and proved as special damages. I will thus uphold the amount of special damages awarded.

17. Consequently, and for the above reasons, I find no merits in the appeal and dismiss the appeal of the appellant and uphold the awards of the trial court. I award cost of appeal to the respondent.

DELIVERED, SIGNED & DATED THIS 1ST DAY OF FEBRUARY, 2022, IN OPEN COURT AT MAKUENI.

.............................

GEORGE DULU

JUDGE