1.By a plaint dated 10th March, 2017, Respondent sought damages as against the Respondent for injuries he suffered on 05th April, 2014 when she says she was attacked by a hyena.
2.Appellant in a statement of defence dated 15th June, 2017 denied the claim and blamed the Appellant for moving too close to the wild animals.
3.A consent judgment on liability at 80:20 % in favour of the Respondent as against the Appellant was entered on 24th May, 2017. Thereafter, Respondent testified and Respondent closed its case without calling any witness.
4.By a judgment delivered on 09th May, 2022, Respondent was awarded damages in the sum of KES. 900,000/- and special damages in the sum of KES. 14,761/- which sums were subject to 20% contribution.
5.The Appellant being dissatisfied has appealed on the grounds that:a.The trial court award of general damages in the sum of Kshs. 900,000 is inordinately excessive and a wholly erroneous estimate of damages payable.b.That the trial court enhanced general damages on account of inflation without setting out the rate of inflationc.The award on genera; damages was erroneous and inflated
Submissions By The Parties
6.On 07th July, 2022, this court directed that the appeal be canvassed by way of written submission which both parties dutifully filed.
7.Appellant by submissions dated and filed on 07th July, 2022 holds the view that the court the award of KES. 900,000 is excessive and urged the court to reconsider it downwards to KES. 400,000/- or KES. 500,000/- which they submit would be adequate compensation in the circumstances of this case. Appellant relied on the following authorities which were the same ones cited during the trial.i.Tabro Transporters Ltd v Absalom Dova Lumbasi  eKLR where the court on appeal set aside an award for KES. 500,000/- and substituted it with KES. 400,000/- for Blunt trauma to the chest, Blunt trauma to the back, Blunt trauma to the spinal column, Injury to the left leg and Fracture of the left tibia and fibulaii.Soren Peterson & Another vs Charles Muhavi Singa  Eklr where the court was of the view that injuries sustained were compound fracture of the libia and fibula. The rest of the injuries were soft tissue injuries but were extensive. On appeal court reduced the award from KES. 500,000/- KES. 400,000/-.iii.Odinga Jactone Ouma v Moureen Achieng Odera  eKLR where the court addressed itself to application of reasonable inflation in awarding damages.
8.It was submitted for the Respondent that the award of general damages was well founded and court was urged not to interfere with the findings of the trial court. Reliance was placed on Selle & another v Associated Motor Boat Co. Limited & others  E.A. 123 and Margaret T. Nyaga v Victoria Wambua Kioko  eKLR and Butt v Khan  KLR 349 where the courts stated an appellate court can only disturb an award of damages if it is inordinately high or low as to represent an entirely erroneous estimate.
9.Concerning inflation, Respondent relied on Idi Ayub Omari Shabani v City Council of Nairobi  eKLR and Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja  eKLR where the court stated that it was perfectly proper, and right, for a court to take inflation into account when comparing other cases in making an award of damages.
Analysis and Determination
10.I have considered this appeal in the light of evidence on record, submissions and cited authorities.
11.A report by Dr. Nicholas Koome dated 28.10.2016 reveals that Appellant suffered multiple bites on upper limbs, face, torso, lower limbs, fracture of left tibia and fibula and lacerations on back and upper limbs. The doctor noted that the injuries are disfiguring.
12.As was rightly observed by the trial magistrate, the Respondent suffered comparable injuries to those in the cited authorities.
13.Quantum is a matter of judicial discretion which can only be interfered with if the court is satisfied that a decision is clearly wrong, because the court has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. (See Mbogo v Shah (1968) EA 93 and Kemfro Africa Limited t/a Meru Express Services  & Anor. v Lubia & Anor, No. 2  KLR 30).
14.The Court of Appeal in Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002  eKLR settled the principles to be applied in assessing damages and stated that:Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases. (Emphasis added).
15.Whereas I agree that the trial magistrate was entitled to take inflation into account, I agree with the submission by the Appellant that an increase in the award by about 50% to take account of inflation was not within reasonable limits and a proper estimate of the damage in the circumstances.
16.Accordingly, I am persuaded that this is a suitable case for exercise of discretion to interfere with the trial court’s finding. It is therefore hereby ordered:1)The award of Kshs. 900,000/- is substituted with an award of Kshs. 500,000/- less 20% contributory negligence.2)Special damages remain as awarded by the trial court.3)Appellant is awarded costs of the appeal.