Mukuna Augustus & Thomas Kitonga Muteti v Bibian Mumbua Ndangili [2017] KEHC 2603 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. 202 OF 2013

1. MUKUNA AUGUSTUS

2. THOMAS KITONGA MUTETI..............................APPELLANT

VERSUS

BIBIAN MUMBUA NDANGILI...............................RESPONDENT

(Being an Appeal against the judgment and decree of Hon. P.M. Mugure (RM) dated 17th September, 2013 in Machakos CMCC No. 157 of 2012)

JUDGEMENT

1. The Appellants herein have filed this appeal challenging the assessment of general damages by the trial court. The appellants essentially contended that the award of Kshs. 500,000/- was excessive considering the nature of injuries suffered by the respondent. It was argued that medical report was that the respondent was treated adequately and was expected to make full recovery. That at the trial the respondent testified that she had fully recovered from the injuries she sustained. The appellants held the opinion that Kshs. 180,000/- sufficed as general damages. They cited Odinga Jacktone Ouma v. Moureen Achieng Odera (2016) e KLR, Parodi Giorgio v. John Kuria Macharia (2014) e KLR, Lenson Products Limited & another v. Njeri Mburu (2014) e KLR, Chaabhadiya Enterprises v. David Wambutsi Wambukoya (2017) e KLR and Harun Muyoma Boge v. Daniel Otieno (2015) e KLR in support thereof. The awards in the said cases range between Kshs. 180,000/- and 300,000 for injuries the appellant say are similar to those of the Respondent.

2. The medical report reveals that the respondent suffered fracture 6th 7th and 8th ribs, lung contusion, bilateral hemothorax, head injury-blunt force trauma, right eye injury, blunt trauma to the left jaw consequently lost molar tooth, left knee blunt force injury and blunt trauma to the right hip. The respondent was admitted at Shalom Hospital from 13th August, 2011 to 2nd September, 2011.

3. The principles that guide an appellate court in deciding whether or not to interfere with the award of damages made by the trial court have been established in various judicial pronouncements among them Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another v. Lubia & Another (1987) KLR 30where the Court of Appeal held that in order to disturb the quantum of damages awarded by a trial judge an Appellate Court:

“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…”

4. Similarly in Butt v. Khan (1977) 1 KAR the Court of Appeal held as follows;

“An appellate court will not disturb an award of damages unless it is inordinately high or low as to represent an entirely erroneous estimate.  It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low.”

5. The injuries sustained by Respondent were more severe.  The aspect of implantation had to be factored as well by the trial court.  The sums awarded are reasonable in my considered view.  I find the trial court did not consider irrelevant factors and estimate was not erroneous in any way.

6. The authorities cited by the Appellant are in my view distinguishable bearing in mind that the injuries suffered therein were less severe compared to those suffered by the respondent herein. I therefore find that the appellant has not satisfied this court that the award by the trial court was excessive. I find that the award of the trial magistrate was reasonable. In the end this appeal is not merited and is hereby dismissed with costs to the respondent.

Dated, signed and delivered at Machakos this 2ndday of November,2017.

D.K. KEMEI

JUDGE

In the presence of:

No appearance for Chirchir for the Appellants

No appearance for Mwanzia for the Respondent

Kituva - Court Assistant