1.The judgement subject of this appeal is as follows: -i.Liability 20:80 in favour of the respondent against the appellantii.General damages kshs.300,000/=iii.Special damages kshs.5,105/=iv.Costs and interest
2.The appeal disposed of by way of written submissions. Both parties filed their respective submissions.
3.The appellant submitted that the appellate court is not under any obligation to accept and follow the trial courts findings on both facts and evidence if it appears that the trial court failed to take into account crucial issues.
4.The appellant submitted that the learned trial magistrate proceeded on wrong principles or misapprehended the evidence in this case.
5.The appellant submitted that a sum of Kshs. 80,000 would suffice as general damages with respect to the injuries sustained by the respondent.
6.The appellant urged this court to allow this appeal and re assess the general damages and do award costs to the appellant.
The Respondent’s Submissions.
8.The respondent submitted that the trial court’s award of Kshs. 300,000 in general damages was appropriate in light of the injuries sustained by the respondent and the resultant effects.
9.The respondent submitted that the appeal herein lacks merit. He urged the court to dismiss the same with costs to the respondent and interest from the date of delivery of judgment before trial court.
Analysis and Determination
Duty of court
11.The duty of this court as a first appellate court is to re-evaluate the evidence and draw its own conclusions, but always bearing in mind that it did not have the opportunity to see or hear the witnesses testify. See Selle and Another v Associated Motor Boat Co. Limited and Others (1968) EA 123
12.The 3 grounds of appeal relate to quantum of damages. Thus, the issue here is: -Whether the trial magistrate made an award of general damages that was inordinately and excessively high in the circumstances, having regard to the injuries sustained by the Respondent.
14.The appellant contended that the quantum of damages awarded by the lower court, is inordinately high or unjustified in light of the injuries sustained by the respondent.
15.The Respondent’s evidence was that he sustained injuries particularized to be bruises on the face all over, blunt trauma on the left thigh, swollen of the left hand due to blunt trauma and contusion of the chest. See the medical report by Dr. E. Ogando (P. Exh. 1) dated 15.02.2018 prepared about four months after the accident and treatment notes from Transmara West Sub County Hospital (P. Exh. 2) and a P3 form - (P. Exh. 3).
17.The injuries sustained in the Muhunzi case were; pricked wound on the left foot (dorsal aspect) which was tender and severe pains incurred during and after injury.
18.In the Godwin Ireri case, the plaintiff sustained two cuts on the forehead, cuts on the scalp to the occipital region, bruises on the left ankle and bruises on the right knee.
20.Having had due regard to the aforesaid cases together with the inflationary trends, and having considered the appeal herein and the policy goal of this court to try to compensate injuries as far as possible by comparable awards, I am persuaded the award of Kshs. 300,000/= was excessive. Accordingly, there is lawful justification to interfere with the exercise of discretion by the trial court in the assessment of damages. I set aside the award of Kshs. 300,000 by the trial court.
21.Being guided by the case of Michael Okello v Priscilla Atieno  eKLR I award Kshs 250,000/= as reasonable compensation of the injuries sustained by the respondent.
22.The amount awarded on special damages was not challenged. I so award.
23.In the upshot, I allow this appeal on quantum in the terms following: -i.General damages…….Kshs. 250,000/= less 20% contributions leaving a balance of Kshs. 200,000/=ii.Special damages……… Kshs. 5,105/=.iii.Costs and interest on the award.iv.As the appeal was only on quantum, I order each party to bear their own costs of the appeal.v.It is so ordered.