1.The respondent herein Emmanuel Sidani OngurA filed suit against the appellants for general and special damages as well as costs of the suit arising from the injuries that he sustained following a road traffic accident that occurred on the 18.3.2018 along the Ahero-Awasi road.
2.The appellants filed their statement of defence denying the averments made in the plaint and put the respondent to strict proof thereof. The parties herein entered consent on liability in the ratio of 85:15 in favour of the respondent against the appellants.
3.The court heard evidence on quantum of damages and entered judgment for the respondent against the appellants, awarding the respondent general damages of Kshs. 400,000 and special damages of Kshs. 5,550 less 15% contribution leaving Kshs. 344,718, plus costs of the suit and interest.
4.Aggrieved by the said award on quantum of damages, the Appellants filed this appeal vide a memorandum of appeal dated December 16, 2019and filed on the December 17, 2019raising the following grounds of appeal:
5.The parties agreed to canvass the appeal by way of written submissions.
Analysis and Determination
17.I have considered the grounds of appeal and submissions by both counsel for the parties. It is trite law that the duty of the first appellate court is to re-evaluate the evidence in the subordinate court both on points of law and facts and come up with its findings and conclusions as was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited  EA 424 and reiterated by the Court of Appeal in several cases including the case of Gitobu Imanyara & 2 others v Attorney General  eKLR.
18.The issue for determination is whether the appeal on quantum of damages is merited.
19.I shall first address the issue raised by the appellants that the award made by the trial court was in regard to injuries not pleaded by the respondent.
20.From the record, the respondent sustained injuries in the nature of soft tissue injuries to the scalp of the head, chest, back and right shin. Though the appellants have refuted the aforementioned injuries, and further stated that the trial court erred by considering the same, it is noteworthy that by a consent entered by the parties herein on the 22.10.2019, the parties agreed on the documents listed in the list of documents dated 8.8.2018 to be adopted without calling the makers as PEX 1 – 7.
21.PEX6a was a medical report dated 29.8.2018 prepared by one Dr. Wokabi listing the respondent’s injuries as soft tissue injuries to the scalp of the head, chest, back and right shin.
22.The law on variation of a consent is now settled to the effect that the variation of a consent can only be on grounds that would allow for a contract to be vitiated. These grounds include but are not limited to fraud, collusion, illegality, mistake, an agreement being contrary to the policy of the Court, absence of sufficient material facts and ignorance of material facts. See the cases of Flora Wasike v. Destimo Wamboko (1982 -1988)1 KAR 625
24.The Court further held that:
25.Accordingly, the appellants are estopped from claiming that the injuries referred to by the trial court were not pleaded.
26.With the above position, and having reconsidered the evidence and the submissions by the parties’ advocates, I now restate the legal principle on exercise of discretion by a superior court over jurisdiction of a subordinate court or inferior tribunal on appeal. This principle is best summed up in Mbogo v Shah  EA 93, where he held as follows:
27.Regarding the circumstances under which an appellate court will disturb a lower court’s assessment of damages, the court in the case of Butt v Khan (1982 -1988) 1 KAR pronounced itself as follows:
29.In this appeal, the Respondent suffered injuries of the nature soft tissue injuries to the scalp of the head, chest, back and right shin.
30.I have considered the authorities relied on by both parties. The authorities relied on by the appellant are rather old while those relied on by the respondent involve injuries that are far more serious than those that he sustained.
31.In more recent decision with comparable injuries, the Courts have held as follows: In Jyoti Structures Limited & another v Truphena Chepkoech Too & another  eKLR, where the Respondent had sustained blunt injury to the head, neck, chest, back, both thighs, the trial court assessed general damages at Kshs. 250,000/=; and for the Respondent that had sustained bruises on the parietal scalp, blunt injury to chest, deep cut wound on right forearm and right hand, general damages were assessed at Kshs. 200,000/=. On appeal, the court set aside both awards and substituted them with Ksh. 125,000/= each.
32.In John Wambua v Mathew Makau Mwololo & another  eKLR the Plaintiff sustained blunt injury to the right shoulder and a blunt injury to the right big toe. He was treated as an outpatient and was put on painkillers. The trial court assessed general damages for pain and suffering in the sum of Ksh. 120,000/- and this was affirmed by the High Court.
33.Taking a cue from the above, and even taking into consideration the effects of inflation and time lapse, I agree with Counsel for the Appellants that the award of damages by the trial magistrate was on the higher side and did not take into consideration the fact that the Respondent sustained soft tissue injuries, which according to the medical report, had healed without causing any form of disability and did not affect the Respondent’s ability to work.
34.In the premises, this court is inclined to interfere with the discretion of the learned trial magistrate and does so by setting aside the award of Ksh. 400,000 as general damages and substituting it with an award of Ksh. 200,000.
35.The upshot of the above is the appeal herein is merited. It is allowed as follows:General damages Kshs. 200,000Less 15% contribution (30,000) Kshs 170,000Add Special damages Kshs. 5,550Total Kshs. 175,550
36.The general damages shall attract interest at court rates from the date of judgment until payment in full. Special Damages will attract interest at court rates from date of filing suit until payment in full. The respondent shall have costs of the suit in the lower court.
37.As costs on appeal are likely to subsume the award of damages leaving the respondent with very little yet he sustained injuries in the accident, I order that each party shall bear their own costs of this appeal.
38.This file is closed.