1.The Appellant herein sued the Respondents before the Lower Court seeking damages for pain and suffering arising out of a road traffic accident.
2.The Appellant’s case was that she was on or about December 11, 2020 lawfully travelling as a passenger in the Respondents’ motor vehicle Registration No KCL 915D along Keroka – Kisii Road when as a result of the negligence of the Respondents’ driver, the said vehicle lost control and rammed into an on-coming motor vehicle Registration No KCL 462G, trailer No ZC 8999. The Appellant averred that she sustained serious injuries in the said accident, to wit;a.Fracture of maxillae;b.Broken front teeth;c.Laceration of the gums;d.Loss of upper incisor tooth;e.Laceration of the lower lip;f.Fractures of the lower jaw;g.Blunt laceration on the scalp.
3.Default judgment was entered against the Respondents before the trial court on account of their failure to enter appearance or file a defence.
4.The matter then proceeded for formal proof and in a judgment delivered on April 6, 2022 the trial court entered judgment for the Plaintiff/Appellant as follows: -a.Liability at 80% to 20% in favour of the Appellantb.General damages of Kshs 300,000/=.c.Future medical expenses – Kshs 400,000/=.d.Special damages – Kshs 128,723.e.Costs of the suit.
5.The Appellant was aggrieved by the said Lower Court judgment and filed the instant appeal. She listed the following grounds in the Memorandum of Appeal: -1.That the Learned Trial Magistrate erred in law and fact by apportioning liability at 80:20 in favour of the Plaintiff and which apportionment was erroneous as it was made against the weight of the evidence adduced before the court.2.That the Learned Trial Magistrate erred in law and fact by adopting a higher standard of proof than required in Civil matters and which error led him to an erroneous determination on the issue of liability.3.That the Learned Trial Magistrate erred in law and fact in finding that the Appellant was entitled to general damages for pain and suffering at the amount of Kshs 300,000.00 which amounts are too low in view of the injuries sustained by the Appellant so as to amount to an erroneous assessment of the injuries suffered by the Appellant and an award that is inordinately low in the circumstances.
6.The appeal was canvassed by way of written submissions which I have considered.
7.On liability, the Appellant submitted that interlocutory judgment having been entered in her favour, it was not open for the trial court to reopen or deliberate on the said issue as the same had been settled through the said judgment. For this argument, the Appellant cited the decision in Adan Hussein Ali & Another vs Geoffrey Ndiku Mutisya A. H. Hameed Traders  eKLR where it was held: -
8.The Appellant further submitted that the apportionment of liability went against the weight of the evidence on record which was not controverted by any evidence or defence by the Respondents.
9.On quantum, the Appellant submitted that the award of Kshs 300,000/= general damages was too low when considered alongside the injuries that she suffered in the accident. She added that the trial court’s assessment of damages was erroneous as the award was too low.
10.The Appellant faulted the trial court for failing to consider the comparable authorities that she had cited, namely; -a.Kenya Wildlife Service versus Godfrey Kirimi Mwiti  eKLR where the court awarded the Plaintiff the sum of Kshs 2,000,000.00 as general damages for pain and suffering and loss of amenities in the year 2018 for similar injuries.b.Duncan Kimathi Karagania versus Ngugi David & 3 others  eKLR where the court awarded the Plaintiff Kshs 4,000,000/= as general damages for pain and suffering and loss of amenities.
12.I have considered the Record of Appeal and the Appellant’s submissions.
13.The duty of the first appellate court as was explained in Selle v Associated Motorboat Company (1968) EA 123, is to re-consider and re-evaluate the evidence tendered before the trial court in order to arrive at its own conclusion while bearing in mind the fact that it neither saw nor heard the witnesses testify.
14.This appeal is on twin issues of liability and quantum.
15.I agree with the submissions by the Appellant and find that in view of the fact that liability was settled the moment interlocutory judgment was entered against the Respondents, upon the entry of interlocutory judgment, formal proof was only to be undertaken for purposes of confirming the injuries. (See Moses Ochieng Owili vs Benard Githata Kamau  eKLR).
16.The Respondents did not defence the suit, and obviously, did not tender any evidence from which the trial court could come up with the notion that the Appellant contributed to the accident. Furthermore, it was not disputed that the Appellant was a passenger travelling in the Respondents’ motor vehicle and I find that there was no way she could have contributed to the occurrence of the accident. I find that in the circumstances of this case, liability should be 100% in favour of the Appellant. (See Rosemary Wanjiku Kungu vs Francis Mutua Mbuvi & Another (2014) eKLR.)
17.Turning to the issue of quantum, I note that the Appellant established that she sustained serious injuries in the accident which included loss of teeth, fractures of the maxillae and lower jaw. The Appellant presented medical evidence to show that she had not fully recovered from her injuries. The Medical Report showed that the Appellant would require to undergo specialized dental treatment at an estimated cost of Kshs 500,000/=. Dr. W. M. Wokabi, who examined the Appellant was of the opinion that she suffered pain from the major oral dental injuries that would require major expensive dental treatment.
18.As I have already noted in this judgment, the Appellant cited authorities wherein, for similar injuries, awards ranging between Kshs 2 million to 4 million were made.
22.Guided by the principles expressed in the above cited authorities and based on my re-evaluation of the evidence, I find that even though the learned trial magistrate made reference to the relevant evidence on record, the award of Kshs 300,000 general damages was not commensurate with the gravity of the injuries that the Appellant sustained in the accident. I am guided by comparable previous awards in the following cases:a.Mary Muthoni Ndichu vs Heshima Distributors, Nairobi HCCC No 4983 of 1989 decided on March 22, 1994 which was cited in Kenya Power Lighting Co. Ltd & Another vs Zakayo Saitoti Naingola where the claimant who sustained a fracture of the jaw right mandible, dislocation of the jaw left temporally mandible joint, broken and chipped left premolar tooth and loss of upper canine tooth was awarded Kshs 350,000/= general damages in 1994.b.Alphonse Mwatsuma Mwagamchi vs Joseph Mwanza Mwanzu & another  eKLR where an award of general damages of Ksh. 1,200,000/= was made in the year 2005 for injuries to the mandible with loss of six (6) teeth and seven (7) others broken, fracture of mandible, contusion chest and severe back injury which involved the spinal cord.
23.My finding is that looking at the above comparable authorities, the Lower Court award was too low considering the serious injuries that the Appellant suffered in the said accident and the age of the cited authorities. I find that an award of Kshs 800,000 general damages would be adequate compensation for the Appellant’s injuries.
24.Having regard to the findings and observations that I have made in this judgment, I find that this appeal is merited and I therefore allow it and quash the Lower Court’s findings on both liability and quantum and substitute it with a finding of 100% liability in favour of the Appellant and Kshs 800,000/= general damages.
25.In conclusion, I enter judgment for the Appellant as follows: -a.General damages – Kshs 800,000/=b.Future medical expenses – Kshs 400,000/=c.Special damages – Kshs 128,723Total – Kshs 1,328,723/=d.Interest on the above total sum at court rates from the date of this judgment till payment in full.
26.On costs of the appeal, it is trite that the same is at the discretion of the court and in any event, awarded to a party who is successful. However, in this case, I order make no orders as to costs as appeal was not defended or opposed.
27.It is so ordered.