Onyango v Okeyo [2024] KEHC 15077 (KLR)

Onyango v Okeyo (Civil Appeal E179 of 2023) [2024] KEHC 15077 (KLR) (21 November 2024) (Judgment)

Neutral citation: [2024] KEHC 15077 (KLR)

Republic of Kenya

In the High Court at Kisumu

Civil Appeal E179 of 2023

RE Aburili, J

November 21, 2024

Between

Michael Onyando Onyango

Appellant

and

Samuel Otieno Okeyo

Respondent

(An appeal from judgment and decree in Kisumu CMCC No. E71 of 2021 delivered on 29th September, 2023 by Hon. K. Cheruiyot, SPM)

Judgment

Introduction 1. The appellant Michael Onyando Onyango was sued by the respondent Samuel Otieno Okeyo vide a plaint dated 5th March 2021 for general and special damages following injuries sustained by the respondent in a road traffic accident that occurred on 24th February 2021 involving the appellant’s motor vehicle registration number KCN 854L and a motor cycle registration number KMEX 308T.

2. The respondent averred that he was a pillion passenger on the suit motor cycle that was being ridden along the Kisumu – Nairobi Road when at Nyamasaria, the appellant’s suit vehicle was carelessly and recklessly driven, managed and/or controlled causing it to enter the highway from the feeder road and collide with the suit motorcycle.

3. The appellant filed his statement of defence dated 26th July 2021 denying the respondent’s allegations and putting him to strict proof. The appellant further alleged contributory negligence on the part of the respondent.

4. The parties entered into a consent on the issue of liability on the 6th April 2023 in the ratio 80:20% in favour of the respondent. In his judgement which is impugned on quantum of damages, the trial magistrate awarded the respondent general damages of Kshs. 400,000.

5. Aggrieved by the said decision, the appellant filed a memorandum of appeal dated 19th October 2023 raising the following grounds of appeal:a.The learned trial magistrate grossly misdirected himself in treating the evidence and submissions on quantum before her superficially and consequently coming to a wrong conclusion on the same.b.The learned trial magistrate misdirected himself in ignoring the principles applicable in awarding quantum of damages and the relevant authorities on quantum cited in the written submissions presented and filed by the appellants.c.The learned trial magistrate proceeded on wrong principles when assessing the damages to be awarded to the respondent (if any) and failed to apply precedents and tenets of law applicable.d.The learned trial magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstance that it represented an entirely erroneous estimate vis-à-vis the respondent’s claim.e.The learned trial magistrate failed to apply himself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arriving at a decision unsustainable in law.

6. The parties prosecuted the appeal by way of written submissions.

The Appellant’s Submissions 7. The appellant submitted that the award by the trial court was inordinately high and unreasonable as to represent an entirely erroneous estimate on the general damages awarded. The appellant urged the court to re-evaluate the submissions made by the parties and the authorities supplied and reduce the trial court’s award on quantum to Kshs. 100,000 which is line with the precedent law.

8. The appellant relied on the following cases:a.FM (Minor, Suing Through Mother and Next Friend MWN) vs JDK & Another [2020] eKLR where the learned judge awarded Kshs. 100,000 as general damages, as compensation for blunt soft tissue injuries to the head, neck, thorax, abdomen and neck.b.Ndungu Dennis v Ann Wangari & Another Kiambu HCCA 54/2016 decided in February 2018 where the High Court awarded Kshs. 100,000 general damages to the plaintiff who sustained injuries involving a blunt head injury, head concussion (brief consciousness), blunt injuries to the chest and both hands.c.Godwin Ireri v Francline Gitonga Meru HCCA 47/2015 2018] eKLR decided in May 2018 where the plaintiff was awarded Kshs. 90,000 for injuries involving two cuts on the forehead, cuts on the scalp to the occipital region, bruises on the left ankle and bruises on the right knee.

The Respondent’s Submissions 9. The respondent submitted that the Appellant had not shown how the trial magistrate acted upon some wrong principle of law, or that the amount awarded was so extremely high in the judgment of this Court, an entirely erroneous estimate of the damage to which the Respondent was entitled.

10. The respondent relied on the following cases:a.Poa Link Services Co. Ltd & Another v Sindano Boaz Bonzemo, HCCA NO. 17 OF 2019, where Riechi J upheld the general damages of Kshs. 350,000 for the plaintiff, who had sustained the following injuries: - Blunt injury to the chest, Bruises to lower abdomen, Bruises of the right hip joint, Bruises of the thigh and Bruises on the knee.b.Charles Gichuki v Emily Kawira Mbuba & another (2018) eKLR, where the respondent suffered a blunt injury (tender) on the right side of the face, a blunt injury (tender) on the shoulders, a blunt injury (tender) on the chest and a blunt injury (tender) to the left thigh. Sergon J. substituted the trial court’s award of Kshs 400,000 with Kshs 300,000.

11. The respondent thus submitted that this appeal should be dismissed with costs to the Respondent.

Analysis and Determination 12. This appeal is against quantum only. This being a first appeal, parties are entitled to expect a rehearing, re-evaluation and reconsideration of the evidence afresh and a determination of this court with reasons for such determination. In other words, a first appeal is by way of retrial and this court, as the first appellate court, has a duty to re-evaluate, re-analyse and re-consider the evidence and draw its own conclusions, of course bearing in mind that it did not see witnesses testifying and therefore give due allowance for that.

13. In Selle vs. Associated Motor Boat Co. [1968] EA 123 it was held that:“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”

14. In Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, the Court of Appeal restated the principles established in the above case of Selle v Associated Motor Boat Co. Ltd that:“[A]n appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect.”

15. With the above guidance in mind, and having considered the grounds of appeal and written submissions by the respective parties’ counsel, I find that the only issue for determination is whether the quantum of general damages awarded by the trial court was manifestly excessive.

16. The contest herein is not about the nature of injuries sustained by the respondent but rather the amount awarded by the trial magistrate in general damages.

17. The appellant pleaded that he sustained the following injuries:a.Tender neckb.Swollen left hand bruised and tenderc.Tender chest wall on right sided.Tender hip joint with bruisese.Swollen left knee joint and tender

18. The injuries pleaded match with those stated in the P3 form that was filed on the 26. 2.2021 as well as the treatment notes stamped 24. 2.2021 from St. Georges Medical Centre in Kondele Kisumu.

19. Taking into account the evidence adduced before the trial court it is clear that the respondent sustained soft tissue injuries to the neck, hand, chest, hips and knees.

20. In the case of Mbogo and Another vs. Shah [1968] EA 93 the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

21. The Circumstances in which an Appellate court will interfere with the quantum of damages awarded by a trial Court were clearly laid out in the case of Kenya Bus Services Limited vs. Jane Karambu Gituma Civil Appeal Case No. 241 of 2000 where the Court of Appeal stated as follows:“…in this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account of some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low so as to represent a wholly erroneous estimate of the damages.”

22. In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR, the Court of Appeal pronounced itself succinctly on the principles of disturbing awards of damages as follows:“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 that 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.”

23. The following cases are helpful in terms of comparison:a.In Daniel Gatana Ndungu & another v Harrison Angore Katana (2020) eKLR the respondent sustained a cut wound on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee. The court set aside the finding by the subordinate court that awarded Kshs 350,000/-on general damages and substituted it with an award of Kshs 140,000/-b.In Justine Nyamweya Ochoki & another v Jumaa Karisa Kipingwa (2020) eKLR, the respondent suffered a blunt object injury to the lower lip, blunt object injury to the chest and blunt object injury to the left wrist and was awarded Kshs 300,000/=. On appeal Nyakundi J. set aside that amount and awarded Kshs 150,000/=.c.In John Wambua v Mathew Makau Mwololo & another (2020) eKLR, the Plaintiff sustained blunt injury to the right shoulder and a blunt injury to the right big toe. The trial court assessed general damages for pain and suffering in the sum of Kshs. 120,000/= and this was affirmed by the High Court.

24. In the West (H) & Son Ltd (1964) A.C. 326 at page 341, Lord Denning stated as follows on excessive awards on damages:“I may add, too, that if these sums get too large, we are in danger of injuring the body politic, just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and they are passed to the public in the shape of higher and higher fees for medical attention. By contrast we have a National Health Service. But the health authorities cannot stand huge sums without impending their service to the community. The funds available come out of the pockets of the taxpayers. They have to be carefully husbanded and spent on essential services. They should not be dissipated in paying more than fair compensation.”

25. In the earlier case of Kigaragari v Aya [1985] eKLR, Nyarangi J restated the principle in the above cited case of West (H) & Son as follows:“I would express firmly the opinion that awards made in this type of cases or in any other similar ones must be seen not only to be within the limits set by decided cases but also to be within what Kenya can afford. That must bear heavily upon the court. The largest application should be given to that approach. As large amounts are awarded, they are passed on to members of the public, the vast majority of whom cannot just afford the burden, in the form of increased costs for insurance cover (in the case of accident cases) or increased fees.”

26. Finally, it is not lost to this Court that astronomical awards may lead to increased insurance premiums thus hurting the insurance industry as well as the economy. See the case of H. West and Son Ltd v. Shepherd (supra) where it was stated that:“…but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional...”

27. Guided by the comparable cases above, I find that the award of Kshs 400,000/= for the soft tissue injuries sustained by the respondent was manifestly high. It is my further finding that an award of Kshs 150,000/= was sufficient and just. I set aside the award of Kshs 400,000/= and substitute therefore an award of Kshs 150,000/= less 20% contribution.

28. In the end, I find this appeal merited. It is hereby allowed as stated above. As the damages have substantially been reduced, I order that each party bear their own costs of this appeal.

29. This file is closed.

DATED, SIGNED AND DELIVERED AT KISUMU THIS 21ST DAY OF NOVEMBER, 2024R.E. ABURILIJUDGE