1.Theappellants were defendants in the lower court. The court delivered its decision on September 22, 2020 in Kangundo SPMCC 232 OF 2019.
2.The appellants being aggrieved by the decision of the court filed this appeal on quantum only. They set out 3 grounds.
3.The three grounds are in essence once issue, that is whether the damages were arrived at using wrong principles and or are inordinately high as to amount to erroneous estimate of damages.
4.The respondent filed suit on October 16, 2019arising from an accident on November 2, 2017at Joska Shopping Centre, along Nairobi- Kangundo Road involving motor vehicle registration number KBY 087 H Isuzu Lorry.
5.The respondent suffered the following injuries: -a.Crashed left hand;b.Degloving on the left thumb with total loss of soft tissue cover exposing the bones;c.Degloving on the left index finger with total loss of soft tissue cover exposing the bones with a fracture of the distal phalanx;d.Bruises on the dorsum of the left hand;e.Bruises on the posterior forearm; andf.Deep cut hand on the left palm.
Present Complaintsa.Persistent pains on the left hand;b.Unable to meaningfully use his left hand;c.Amputated left thumb stumps;d.Amputated left index finger stumps;e.Permanent estimated disability of 35%.
6.Therespondent testified that he was injured on November 2, 2017. The doctor, James Muoki examined the Respondent on November 12, 2018. The injuries enumerated are not seriously objected to. The only issue is that the court awarded excessive damages.
7.The doctor had relied on the p3 form, treatment noted X Ray and physical examination. He assessed the Respondent at 35% liability. The lefty thumb and index finger were amputated, degloving injuries to the same finger, exposing the bones, with a fracture of the distal phalanx, among other injuries.
8.The respondent adopted his statement and was not cross examined on injuries. For these injuries, the court below awarded Kes. 1,700,000/-, hence the Appeal. The court also awarded Kes.4,550/= as special damages.
Duty of the appellate court
9.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.
10.This was aptly stated in the cases of Selle vs Associated Motor Boat Company Ltd EA 123 where the court of Appeal rendered itself as follows: -
11.I will therefore re-evaluate the evidence and come up with my own conclusions but also bear in mind that I should not interfere with the findings of the trial court unless the same were based on no evidence or on misapprehension of the evidence or the trial court applied the wrong principles in reaching its findings. This is also in tandem with Peters v Sunday Post Limited (1958) EA at Pg. 424, it was held as follows:
13.This buttresses the decision in Mbogo v Shah 1968 EA 93, where the court of Appeal the held as follows:
14.Damages are dealt under 2 limbs, that is general and special damages.
15.The court awarded Kes.4,550/- as pleaded. In The case of David Bagine v Martin Bundi  eKLR settles what is required of special damages. The court posited as follows: -
16.The court did nor err in award of special damages.
17.General damages awarded are the subject of ground one of appeal. In awarding the damages, the court relied on the authority of B A J v Roadstar Limited & 2 others  eKLR, where the court awarded Kes. 1,500,000/- for injuries including facial and leg injuries which necessitated two weeks of admission and five operations to correct her disfigured face, scarred legs and to remove some of the metal implants. Her further evidence was that a metal plate below her left eye and in her chin were still in situ and required to be removed at an estimated costs Kes.150,000/-. She had pain in her right ankle if she stood for long. That the right leg also swelled if she walked for long and was unable to lift heavy objects. The scars caused her embarrassment and she could not wear skirts, do modelling or swim as she used to do before.
18.The authority thus covered more serious injuries than suffered by the respondent herein. The court thus fell into error by relying on a wrong precedent, unrelated to the injuries.
19.The court ought to use similar precedents for similar injuries. For example in the case of Kaluworks Limited v Nicholus Ngome Kombo  eKLR. A knife dropped and chopped off three of the Respondent’s fingers. The court awarded Kes.800,000/= as general damages for pain suffering and loss of Amenities on October 1, 2020.
21.In Kenya Power & Lighting Company Limited v Margaret Wanjiku Njunge  eKLR, the court, T. W. CHERERE reduced an award of 800,000/= to 500,000/= for a Respondent who lost distal phalanx of the right thumb and left little finger whereas the right index finger healed with a deformity and left ring finger healed with surgical scars.
22.In Peter Kibe Waweru v Moses Maina  eKLR, Justice Mumbua T. Matheka, awarded Kes.600,000 stating that an award of Kes.750,000/= in Pietro Canobbio vs Joseph Amani Hinzano  eKLR was based on amputation of three fingers with 18% disability. In that case, the court relied on the Court of Appeal Decision in Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No 284 of 2001  2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:-
23.In contrast the Appellant herein was given 35% permanent disability. This means that the award should be far below that of BA J v Roadstar Limited & 2 others eKLR, and above Peter Kibe Waweru v Moses Maina  Eklr. The award herein is far excessive. It is out of range with similar authorities. Doing the best I can, the award of Kes. 900,000/-, will be sufficient, taking into consideration the nature of injuries, permanent disability of 35%, similar awards and loss of amenities. The loss of the thump makes the left hand virtually useless.
24.I therefore allow the appeal and set aside the award of Kes.1,700,000/- and in lieu thereof substitute with a sum of Kes.900,000/-
25.The upshot is that I allow the appeal in the following terms: -a.The award of general damages are set aside and in lieu thereof enter judgment for Kes.900,000/-b.Special damages of Kes.4,550/- remainsc.Total 904,550d.Less 50% liability Ksh 452,275/-e.Total award Ksh 452,275/=f.Each party to bear their costs herein. The appellant to bear costs in the court below.g.This file is closed.