1.The respondent was the plaintiff in Milimani CMCC 8561 of 2020 where he sued the appellant for general damages for injuries he sustained in a road traffic accident which occurred on October 29, 2017 involving the respondent and the appellant’s motor vehicle registration no xxxx.
2.The parties entered into a consent on liability and apportioned the same at 90:10% in favour of the respondent against the appellant.
3.The trial court assessed general damages as followsGeneral damages Kshs 1,200,000Special damages Kshs 2,000Total Kshs 1,202,000Less 10% contributory liability Kshs 120,000Net Kshs 1,081,800
4.The appellant is aggrieved on the award and has filed this appeal on the grounds that the assessment of general damages was too high and further that the same are not justified since the respondent did not suffer any disability.
5.Further, the Appellant raised the issue of the Trial court failing to consider the Appellant’s submissions in assessing damages and also failing to consider conventional awards in similar cases.
6.The appellants submitted that according to the plaint dated September 17, 2018, the respondent sustained pelvic injuries that the trial court awarded Kshs 1,200,000 which is inordinately high.
7.The appellant further submitted that Kshs 600,000 would be sufficient.
9.The appellants also referred to the following authoritiesa.Daneva heavy trucks & Another vs Chrispine Otieno – where Kshs 800,000 was substituted for 1,000,000 for fracture of the pelvis and fractures of the left tibia and fibula.b.Anthony Keriga Mogeni vs Florence Nyomenda Tumbo (2015) eKLR where 600,000 was awarded was substituted for 1,5000,000 for cut would on the left upper eye lid, open book fracture of pelvic bone and weak lower limb.c.Peter Gakere Ndiangui vs Sarah Wangeci Maina (2021) eKLR where an award of Kshs 1,300,000 was reduced to kshs 800,000 for fracture of the pelvic bone and cut wounds on ears with incapacity of incapacity of 40%.
10.The respondents did not file any submissions.
11.This being a first appeal, the duty of the first appellate court is to re-evaluate the evidence adduced before the trial court and reach at its own conclusion whether the support the findings of the trial court.
12.The sole issue for determination in this appeal is whether the quantum of damages is too high in view of the respondent’s failure to produce a medical report.
13.The appellant submitted that the respondent did not produce any medical report and the he did not suffer any disability.
14.Further that the trail court failed to consider the appellant’s submission.
15.I have considered the judgment at page 38 and it states as follows;
16.I have considered the authorities relied on by the Trial court and also those submitted by the Appellants and I find that the award of Kshs 1,200,000 is on the higher side.
17.I reduce the general damages to Kshs 800,000.
18.The special damages of Kshs 2,000 were not contested. The total award is 802,000 less 10% contributory negligence =721,800.
19.I set aside the award of the Trial court and I substitute it with an award of Kshs 721,800.
20.Judgment be and is hereby entered in favor of the respondent against the Appellant in the sum of Kshs 721,800 plus costs and interest from the date of judgment of the original suit.