Stejes Agencies Ltd v Makali (Civil Appeal E060 of 2021)

[2023] KEHC 22809 (KLR) (29 September 2023) (Judgment)

REPUBLIC OF KENYA
IN THE HIGH COURT AT MACHAKOS
CIVIL APPEAL E060 OF 2021
FROO OLEL, J
SEPTEMBER 29, 2023

BETWEEN
STEJES AGENCIES LTD ......................................................................... APPELLANT

AND
EDWARD NYANGI MAKALI ............................................................ RESPONDENT

(Being an appeal from the Judgment and/or decree of the Principal

JUDGMENT

A. Introduction
1. This appeal arises from the judgment of Hon. Bernard Kasavuli (PM) dated 1st April 2021 where he
awarded the respondent herein Ksh.400,000/= damages for injuries suered, Ksh.5,000/= as special
damages plus cost and interest of the suit.

2. The appellant being wholly aggrieved and dissatised with the judgment/decree did prefer this appeal
against the award on general damages and raised the following grounds of appeal;

a. That the learned trial magistrate erred in law and in fact in awarding the Respondent a sum of
Ksh.400,000/- on General damages which award is inordinately excessively high considering
the injuries sustained by the Respondent and existing court awards in comparable injuries.

b. That the learned trial magistrate misdirected himself by failing to consider suciently, the
appellants submissions, the medical reports on record, the treatment notes, the pleadings and
the evidence thereby arriving at the wrong decision on General damages which has occasioned
miscarriage of justice.

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 c. That the learned trial magistrate grossly misdirected himself by ignoring the principles
applicable and relevant authorities on general damages cited in the written submissions
presented and/or led by the appellant.

d. That the learned trial magistrate proceeded on wrong principles when assessing the general
damages to be awarded to the Respondent and failed to apply precedents and tenets of the law
applicable thereby arriving to a gure which is manifestly excessive.

e. That the learned trial magistrate erred in law and in fact in applying a high ination rate
thereby arriving at an erroneous award in general damages that is inordinately excessive for
such injuries.

f. That the learned trial magistrate erred in awarding a sum in respect of damages which was
inordinately high in the circumstances occasioning miscarriage and justice by deviating from
existing and established judicial principles on accident claim.

g. That the learned magistrate failed to adequately evaluate the evidence and exhibits and thereby
arrived at a decision unsustainable in law.

3. There was a test suit being Mavoko CMCC no.876 of 2019 where the issue of liability had been
determined and the appellant was held to be 100% liable. The Respondent herein thus only testied
as to his injuries and also called his doctor to give his professional assessment of the injuries suered.

B. Brief Facts
4. PW1 Edward Nyingi Makali did testify that on 16th September 2019 he was driving motor vehicle
KCM 074Z ( herein after referred to as the 1st suit motor vehicle ), along Nairobi – Mombasa road
when near National Oil or thereabout the appellants driver , agent, employee carelessly, recklessly and/
or negligently drove Motor vehicle KCQ 181Z (hereinafter referred to as the 2nd suit motor vehicle),
lost control and violently caused the 2nd suit motor vehicle to collide with the 1st suit motor vehicle as
a result of which he sustained severe injuries.

5. The respondent did testify that as a result of the said collusion he sustained the following injuries; cut
wound on the forehead right side/ bruises to the face, blunt injuries to the forehead with formation
of hematoma, deep cut wound on the anterior chest wall, blunt injuries on the lower back, fracture of
the proximal phalangeal bone of right little nger, multiple bruises on the lower limbs and bruises on
the upper limb. He was taken to Shalom Hospital and later to Machakos Level 5 Hospital. He had not
fully recovered from the injuries and his fractured nger needed to be operated on.

6. PW2 Dr. Titus Ndeti testied that he did examine the Respondent and also relied on the medical
treatment notes and P3 form provided to make his medical report which he produced as P-Exhibit 1(a)
and receipts P-exhibit 1(b). The nature of injuries suered by the respondent was main and skeletal.
The little nger was healing with diculty and required to be operated on. It was still deformed.

7. The appellant did not call any witness and closed their case.

C. Appellants Submissions
8. The appellant did le their submissions on 20th February 2023 and stated that the trial court did
err in law and in fact t0 award the respondent a sum of Kshs 400,000/= as General damage for the
injuries sustained as the same was inordinately excessive considering the injuries sustained by the
respondent and also while comparing the same with comparable awards. Both the medical reports
had conrmed the extend of the injuries suered and the second medical report by Dr Jaob Bodo

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 had further conrmed that the respondents nger had healed well and it had no permanent disability.
Reliance was placed in Odinga Jacktone Ouma Vs Moureen odera(2016)Eklr , Hassan Farid & Another
Vs Sataiya Ene Mepukori & 6 others ( 2018) eKLR& Mara Tea Factory ltd Vs Joshua Makworo onkoba
( 2021)

9. The appellate court was to be careful not to interfere with the trial courts discretion unless the said
decision was arrived at in error. i.e it was inordinately high or low in the estimate of damages. From
the pleadings and evidence adduced it was submitted that an award of Ksh.200,000/= would be fair
compensation, considering comparable awards and thus the award of Kshs 400,000/= was excessive
and ought to be reduced.

D. Respondents Submissions
10. The Respondent did le their submission on 20th February 2023 and faulted the appellant for
attempting to introduce new issues through the backdoor. Parties were bound by their pleadings and
as liability was not contested the court could not consider any submissions made as regards the same.
The Respondent had suered severe soft tissue injuries and the medical report of Dr T. Ndeti had
conrm the seriousness of the injuries suered and thus the award of Ksh 400,000/= was justied.

11. The respondent did further submit that it had not been shown the error in principal which the court
failed to consider or the irrelevant factor considered which made the court arrive at a wrong decision
or estimate. Reliance was placed on Ahmed Butt Vs Uwais Ahmed Khan (1982 -88) KAR . The appeal
as led was totally devoid of merit and the same ought to be dismissed with costs.

E. Analysis & Determination

13. As held in Selle & Another Vs Associated Motor Boat Co ltd & others (1968) EA 123 where it was
stated that;

“ I accept counsel for the respondent’s proposition that this court is not bound necessarily to
accept the ndings of fact by the court below. An appeal to this court from a trial by the high
court Is by way of retrial and the principals upon which this court acts in such an appeal
are well settled. Briey put they are that this court must reconsider the evidence, evaluate it
itself and draw its own conclusion 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,
this court is not bound necessarily to follow the trial judge’s ndings 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 demeanor
of a witness is inconsistent with the evidence in the case generally. ( Abduk Hammed saif V
Ali Mohammed Sholan(1955), 22 E.A.C.A 270

14. The same position was also appreciated in Peters –vs- Sunday Post Limited [1958] EA 424:

“ Apart from the classes of case in which the powers of the Court of Appeal are limited
to deciding a question of law an appellate court has jurisdiction to review the record of
the evidence in order to determine whether the conclusion originally reached upon that
evidence should stand; but this jurisdiction has to be exercised with caution. If there is no
evidence to support particular conclusion (and this really is a question of law) the appellate

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 court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded
as justifying the conclusion arrived at on conicting testimony by a tribunal which saw
and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this
opportunity and that the view of the trial Judge as to where credibility lies is entitled to
great weight. This is not to say that the Judge of rst instance can be treated as infallible
in determining which side is telling the truth or is refraining from exaggeration. Like other
tribunals, he may go wrong on a question of fact, but it is a cogent circumstances that a judge
of rst instance, when estimating the value of verbal testimony, has the advantage (which is
denied to the court of appeal) of having the witnesses before him and observing the manner
in which their evidence is given… Where a question of fact has been tried by a Judge without
a jury, and there is no question of misdirection of himself, and appellate court which is
disposed to come to a dierent conclusion on the printed evidence, should not do so unless
it is satised that any advantage enjoyed by the trial Judge by reason of having seen and heard
the witnesses, could not be sucient to explain or justify the trial Judge’s conclusion. The
appellate court may take the view that, without having seen or heard the witnesses it is not
in a position to come to any satisfactory conclusion on the printed evidence. The appellate
court, either because the reasons given by the trial Judge are not satisfactory, or because it
unmistakably so appears form the evidence, may be satised that he has not taken proper
advantage of his having seen and heard the witnesses, and the matter will then become at
large for the appellate court. It is obvious that the value and importance of having seen and
heard the witnesses will vary according to the class of case, and, it may be, the individual
case in question….it not infrequently happens that a decision either way may seem equally
open and when this is so, then the decision of the trial Judge who has enjoyed the advantages
not available to the appellate court, becomes of paramount importance and ought not be
disturbed. This is not an abrogation of the powers of a Court of Appeal on questions of fact.
The judgment of the trial Judge on the facts may be demonstrated on the printed evidence
to be aected by material inconsistencies and inaccuracies, or he may be show to have failed
to appreciate the weight or bearing of circumstances admitted or proved or otherwise to
have gone plainly wrong.”

15. Guided by the above cases, and having carefully gone through the entire record of appeal, pleadings
led in the primary suit, the decree appealed against and the submissions led herein I do nd that the
only issue for determination in this appeal is whether the quantum awarded was sucient.

16. As regards quantum, in Woodru vs. Dupont [1964] EA 404 it was held by the East African court
of appeal that:

“ The question as to quantum of damage is one of fact for the trial Judge and the principles
of law enunciated in the decided case are only guides. When those rules or principles are
applied, however, it is essential to remember that in the end what has to be decided is a
question of fact. Circumstances are so innitely various that, however carefully general rules
are framed, they must be construed with some liberality and too rigidly applied. The court
must be careful to see that the principles laid down are never so narrowly interpreted as to
prevent a judge of fact from doing justice between the parties. So to use them would be to
misuse them...The quantum of damages being a question of fact for the trial Judge the sole
question for determination in this appeal is not whether he followed any particular rules or
the orthodox method in computing the damage claimed by the plainti, but whether the
damages awarded are “such as may fairly and reasonable be considered as a rising according
to the usual course of things, from the breach of the contract itself.” The plainti is not

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 entitled to be compensated to such an extent as to place him in a better position than that
in which he would have found himself had the contract been performed by the defendant.”

17. The Court of Appeal in Southern Engineering Company Ltd. vs. Musingi Mutia [1985] KLR 730 also
restated these principles which should guide the court in awarding damages, where it was held that:

“ It is trite law that the measurement of the quantum of damages is a matter for the discretion
of the individual Judge, which of course has to be exercised judicially and with regard to the
general conditions prevailing in the country generally, and prior decisions which are relevant
to the case in question to principles behind the award of general damages enumerated…
The dicult task of awarding money compensation in a case of this kind is essentially a
matter of opinion judgement and experience. In a sphere in which no one can predicate
with complete assurance that the award made by another is wrong the best that can be done
is to pay regard to the range and limits of current thought. In a case such as the present it
is natural and reasonable for any member of the appellate tribunal to pose for himself the
question as to award he, himself would have made. Having done so, and remembering that
in this sphere there are invariably dierences of view and of opinion, he does not however
proceed to dismiss as wrong a gure of an award merely because it does not correspond
with the gure of his own assessment…It is inevitable in any system of law that there will
be disparity in awards made by dierent courts for similar injuries since no two cases are
precisely the same, either in the nature of the injury or in age, circumstances of, or other
conditions relevant to the person injured.

18. Similarly, in Jane Chelagat Bor vs Andrew Otieno Oduor [1988] – 92] eKLR 288[1990-1994] EA47
the Court of Appeal held that:-

“ In eect, the court before it interferes with an award of damages, should be satised that the
judge acted on wrong principle of law, or has misapprehended the fact, or has for these or
other reasons made a wholly erroneous estimate of the damages suered. It is not enough
that there is a balance of opinion or preference. The scale must go down heavily against the
gure attacked, If the Appellate Court is to interfere, whether on the ground of excess or
insuciency.”

19. In Mbaka Nguru and Another vs. James George Rakwar NRB CA Civil Appeal No. 133 of 1998
[1998] eKLR, the court of appeal held that that:

“ The award must however reect the trend of previous, recent, and comparable awards.
Considering the authorities cited and also considering all other relevant factors this court
has to take into account, and keeping in mind that the award should fairly compensate the
injured within Kenyan conditions.”

20. Since the decision on the quantum of damages is an exercise of discretion, barring the failure to adhere
to the foregoing principles the decision whether or not to interfere with an award by the appellate court
must necessarily be restricted.

21. The most that can be done is to consider carefully all the circumstances of the case in question, and
to consider other reasonably similar cases when assessing the award. It need hardly be emphasized
that caution has to be exercised when paying heed to the gures of awards in other cases. This is
particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main
essentials the facts of one case bear comparison with the facts of another before comparison between

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 the awards in the respective cases can fairly or protably been made. If however it is shown that cases
bear a reasonable measure of similarity then it may be possible to nd a reection in them of a general
consensus of judicial opinion.

22. The appellant was the driver of the rst suit motor vehicle and suered sever bodily injuries which
he pleaded as follows; cut wound on the forehead right side/ bruises to the face, blunt injuries to the
forehead with formation of hematoma, deep cut wound on the anterior chest wall, blunt injuries on the
lower back, fracture of the proximal phalangeal bone of right little nger, multiple bruises on the lower
limbs and bruises on the upper limb. He had not fully recovered from the injuries and his fractured
nger needed to be operated on.

23. The Respondents injuries was conrmed by the medical reports adduced into evidence especially Dr
Titus Ndeti medical report marked as Exhibit P 1(a). The appellants on the other hand relied on the
report of Dr Bodo. Though they submitted it was admitted by consent on 28th January 2021, the court
proceedings of the said date do not conrm the same.

24. In the case of Samuel Kariuki Kinya Vs Makenzie & Another HCC 520 of 1987, the plainti suered
soft tissue injury, a fractured his right index nger and had deep abrasions of the arm and was awarded
Kshs 100,000/=. While in Mogaka Sydney Vs Faith Ndunge Nyundo H.C.C.A No 29 of 2017 for
similar injuries the award was reduced from Ksh.450,000/= to 300,000/=. In Micheal Okello Vs
Priscilla Atieno H.C.C.A NO 45 of 2019 the appellant was awarded Ksh.250,000/= for sever soft tissue
injuries.

25. In Patrick Odhiambo obiro Vs The catholic Diocese of Nakuru HCCC No 177 of 1995 the plainti
sustained a cut on the thumb, cut on the 3rd and 4th ring left hand, fracture of the middle Phalanx of
the left hand and soft tissue injuries and was awarded Ksh.400,000/=.

26. In Duncan Mwenda & 2 others v Silas Kinyua Kithela [2018] eKLR the Plainti sustained the
following injuries; severe blunt head injury with intracerebral hematoma, damage to the extensor
tendon of the left middle nger, soft tissue injuries on the chest wall. The trial court made an award of
Ksh.600,000/= which was reduced to Ksh.350,000/= on appeal.

27. The Respondent was the driver of the 1st suit motor vehicle, and on impact of the accident did suer
severe injuries all over the body. Apart from the soft tissue injuries, which would have attracted less
quantum, the Respondent suered head injuries with him sustaining injuries to the forehead with
formation of haematoma, cut would on anterior chest wall, fracture of the proximal phalangeal of the
right little nger.

E. Deposition
28. While the appellant did submit that an award of Ksh.200,000/= would have been appropriate,
considering similar injuries for similar awards and inationary trends I do nd that the award of Kshs
400,000/= was slightly on the higher side and reduce the same to Kshs 350,000/=.

29. The award of general damages of Hon Bernard Kasavuli (PM) in Mavoko CMCC NO 957 OF 2019
is reduced from Ksh.400,000/= to Ksh.350,000/=. Special damages were not challenged and remains
as awarded at Ksh.5,000/=.

30. The appellant will bear costs of the primary suit, but each party shall bear their own costs of this
Appeal.

31. It is so ordered.
DATED AND SIGNED AT MACHAKOS THIS 29TH DAY OF SEPTEMBER, 2023.

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FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Teams this 29th day of September, 2023.
In the presence of;
………………………………….for Appellant
………………………………….for Respondent
………………………………….Court Assistant

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