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Modern Coast Coaches Limited v Odhiambo (Civil Appeal E068 of 2021) [2022] KEHC 15681 (KLR) (22 November 2022) (Judgment)
Neutral citation:
[2022] KEHC 15681 (KLR)
Republic of Kenya
Civil Appeal E068 of 2021
GMA Dulu, J
November 22, 2022
Between
Modern Coast Coaches Limited
Appellant
and
George Otieno Odhiambo
Respondent
(Being an Appeal from the judgment of Hon. C.A Mayamba (P.M) in Kilungu Principal Magistrate’s Court Civil Case No.162 of 2020, delivered on 3rd September, 2021)
Judgment
1.In a judgment delivered September 3, 2021, the magistrate found in favour of the respondent who was plaintiff and made the following orders –
2.Dissatisfied with the award of damages, the appellant who was the defendant in the trial court, has come to this court on appeal through counsel on the following grounds –
3.The appeal was canvassed through filing of written submissions. In this regard, I have perused and considered the submissions filed by Wambua Kilonzo & Company for the appellant and the submissions filed by Achieng Owuor & Company for the respondent.
4.This is an appeal on the quantum of damages awarded; as liability was recorded in court by consent of the parties at 80% against the appellant and 20% against the respondent.
5.It is trite that the assessment of damages is exercise of discretionary power by a trial court and the principles on which an appellate court will interfere have been consistently stated by courts including the English case of Nance v British Columbia Electric Railway Co Ltd (1951) AC 601, applied in the case of Mbogo v Shah (1968) E A 93 in which it was stated that –
6.In our present case, no oral evidence was tendered in court. After recording a consent on liability, counsel for the parties agreed to go by the documents filed by the plaintiff (now respondent) as exhibits. Counsel on both sides then filed written submissions.
7.I note that, in the appellant’s counsel submissions before the trial court, they sought general damages of Kshs 100,000/= relying especially on the case of Hassan Falid & Another v Sataiya Mepukori & 7 Others Makueni HC Civil Appeal No 12B of 2017.
8.On the other hand, counsel for the respondent asked for general damages of Kshs 700,000/= relying mainly on the case of Easy Coach Ltd v Emily Nyangasi Kisumu Civil Appeal No 20 of 2015.
9.The injuries sustained by the respondent herein are not disputed. They were described by the trial magistrate in the judgment as deep cut wound on the forehead leading to soft tissue injuries, blunt injury to the nose leading to epistaxis, ovulsion two upper incisor teeth, blunt injury to exterior chest wall, blunt injury to the lumbar sacral region, and blunt injury to the right leg leading to soft tissue injuries, scars were visible but no permanent incapacity.
10.In the judgment, the trial magistrate considered the cases cited and amounts of awards of damages sought by both sides. It cannot thus be said that the magistrate did not consider the submissions of the counsel for the parties.
11.With regard to the injuries suffered herein, in my view the cases relied upon by the appellant’s counsel related to much milder injuries suffered, while the cases relied upon by the respondent’s counsel were for much more serious injuries suffered than those suffered by the respondent in this case.
12.In my view therefore, taking into account that no two cases will be exactly the same with regard to injuries suffered, I find that the magistrate exercised his discretion properly in assessing the quantum of damages, both under the general damages head, and the special damages head.
13.I thus find no merits in the appeal. I dismiss the appeal and uphold the award of damages made by the trial court. The appellant will pay the respondent’s costs of appeal. Interest will accrue until payment in full.
DELIVERED, SIGNED & DATED THIS 22ND DAY OF NOVEMBER, 2022, VIRTUALLY AT MAKUENI...................................GEORGE DULUJudge
