MICHAEL OUMA NYAOKE v CIRES NYANCHAMA NYASOKO [2010] KEHC 3433 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT KISUMU

Civil Appeal 104 of 2007

MICHAEL OUMA NYAOKE.............................APPELLANT

-VERSUS-

CIRES NYANCHAMA NYASOKO.................RESPONDENT

Coram:

Ali-Aroni, Judge.

Mr. Wanjala Advocate for the Plaintiff/Appellant

Mr. Onsongo Advocate for the Respondent

Mr. George Diang’a Court Clerk.

JUDGMENT

This is an appeal from the Judgment of Principal Magistrate, Honourable Mr. Abdul El Kindy (as he then was), dated and delivered on 13th of September 2007. The appellant has appealed against the Judgment on the grounds that the learned magistrate (as he then was) erred in fact and in law in awarding excessive general damages, failed to consider the appellant’s submissions in arriving at the quantum of damages and failing to consider awards made in cases similar to the one before court. The appellant seeks to have the Judgment and the decree set aside, re-assessment of damages downwards and costs of the appeal.

The appeal is opposed by the respondent on grounds that the Judgment was based on correct findings and was fair.

The brief facts of the case are; the respondent was involved in a road accident on the 28th of December 2003 while traveling in motor vehicle Registration number KAP 548 U Toyota Hiace, as a fare paying passenger along Kisumu – Kisii road. The respondent filed suit on the 7th of May, 2004 claiming damages against the appellant. The plaint was later amended on 7th of September, 2004. The appellant filed a defence on the 23rd of September, 2004 and an amended defence on the 4th of October, 2004. On the 19th of July, 2007 entered into a consent Judgment on liability in favour of the plaintiff at the ratio of 75% and 25%. In the Judgment the learned magistrate awarded the respondent the sum of Ksh 600,000/= as general less 25% liability which brought the amount to Ksh 450,000/=. The amount of Ksh 600,000/= is being challenged as being excessively high in view of the injuries sustained by the respondent, in comparison with authorities cited by the parties. The appellant’s counsel urged the court to assess damages at between Ksh 200,000 – 300,000/=.

On his part the respondent’s counsel urged the court not to interfere with the award and to consider the inflationary trend. Further that the court has not been given any good reason why it should interfere with the lower court Judgment.

I do agree with the counsel for the respondent that the court’s discretion should be used judiciously and any interference with the Judgment of the lower court should be for good reasons where the court has erred.

There is no doubt that the respondent received various injuries. Two medical reports were produced in court as P. Exhibit 4 and D. Exhibit 1. The first report was prepared on the 7th of February, 2005 by Dr. Manasseh O. Onyimbi. He summarized injuries sustained as follows:

1)Multiple contusions to the chest trunk with soft tissue injuries.

2)Dislocation of right thumb and metacarpo– phalangeal joint.

3)Fracture of pelvis at right Pubic Ramus.

4)Contusions with soft tissue injuries to the legs bilaterally.

The Doctor was of the opinion that the respondent would make satisfactory recovery albeit after at least 3 years.

The second medical report was prepared by Dr. V. V, Lodhia of Eldoret Hospital on 22nd June, 2006. He summarized injuries sustained as:

1)Dislocation of right thumb

2)Injury to pelvic area.

The doctor’s conclusion was that there was no post injury functional deficit and no permanent disability. In other words the respondent had fully recovered.

As indicated earlier the issue of liability had been agreed upon by the parties. The appeal before court is on the award of general damages. In arriving at my decision, I have been guided by the principle adopted in KEFRO AFRICA LTD T/A MERU EXPRESS SERVICE GATHOGO (1982 – 88) 1 KAR 728 at Page 730.

“ The principle to be observed by the 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 in so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”

The question for me to ask is here whether the amount is so inordinately high so as to give reason for me to disturb the award made by the learned magistrate. Counsels referred to several comparable authorities. In this judgment, I will adopt two comparable cases decided in the recent past namely:

1. JOSHUA MWANIKI NDUATI –VRS- SAMUEL   MUCHIRI NJUGUNA – HCCC NO. 6570 OF 1991 – Judgment of Angawa J. in 2005, where she awarded General Damages of Ksh 250,000/=.

2. PHILIP KIROREI -VRS- HASSAN NOOR ABILE – HCCC NO. 725 OF 1995 - Judgment of S. C. Ondeyo, in 2000 where she awarded General Damages of Ksh 200,000/=.

Having considered the similarity of injuries sustained in the above cases with injuries sustained by the respondent I am of the view that even if one is to factor in the inflationary factor the award is inordinately high.

I therefore set aside the judgment and decree of the lower court and make an award as follows:

Agreed Special Damages of:                     Ksh     54,190/= General Damages of Ksh 300,000 less

25% liability collected                               Ksh     225,000/=

________________

TOTAL   -                 KSH 279,190/=

============

Dated and delivered on 22. 01. 2010 at 2 pm.

ABIDA ALI-ARONI

JUDGE

AAA/hao