18.Directions were given that the appeal be disposed of by way of written submissions. The appellant and the 1st respondent filed their respective written submissions, which I have considered.
19.A single issue arises for determination in this appeal; whether the damages awarded was inordinately low as to warrant its being set aside.
20.An appellate court would interfere with the discretion of the trial court in assessment of damages only where; i) the trial court committed an error in principle; or ii) the damages are too high or low as to be completely erroneous estaimate of damages (Kemfro Africa Ltd T/A “Meru Express Service Gathogo Kanini Vs A.M Lubia and olive (1982-88) l KAR 727 at page 73)
21.The trial magistrate awarded Kshs 400,000/=as general damages; the appellant regards the award as inordinately low. The 1st Respondent considers it fair compensation for the injuries sustained.
22.Damages are awarded in accordance with the nature of injuries sustained. The appellant herein sustained the following injuries-i.Compound fracture of the right tibia and fibula.
23.There are two medical reports produced as exhibits. There is a medical report by Dr. Okere dated 22.03.2017 which assessed the permanent incapacity at 30%. The doctor noted recurrent pains in the right lower leg, and inability to lift heavy load. He classified the injury as grievous harm. The right upper and lower leg had a lacerated scar and healed fracture site is palpable, tender on a deep palpation. He walks with a limp.
24.According to the medical report by Dr. Wokabi dated 27.11.2018 he assessed permanent incapacity at 8% and projected the removal of the k-nail would cost Kshs. 120,000/=. He confirmed the compound fracture of the right tibia and fibula. He noted complaints that the said leg swolls, cannot walk or stand for long hours or carry heavy loads. Upon examination he found that she was walking normally, obvious moderate swelling of the leg, trauma and surgical scars on the right shin, no deformity of the leg, clinically, the fracture is united and healed well and in good position.
25.From the medical reports it is discernible the injuries sustained by the appellant were severe. The post-traumatic effects of these injuries on her life and health are severe also as she may not walk long distances or carry heavy objects or stand for long due to the pain in the right leg. The leg is still swollen and the swelling is obvious- see Dr. Wokabi’s report. In light of these injuries, is the award of Kshs. 400,000 inordinately low?
26.The Appellant cited authorities with the awards ranging from Kshs1,800, 000/= to Kshs. 900,000/=. The respondent relied on an authority where the court awarded Ksh. 300,000/=.
27.The court notes that the injuries in the authorities cited by the appellant entails either fracture on right distal tibia and fibula among other injuries, or compound fracture of the right tibia fibula, comminuted fractures of the right humerus and soft tissue injuries. The authority has the injuries suffered by the appellant along with other severe injuries. But as no injury is exactly like the other, these previously decided cases act as a general guide. The injury has severe post-traumatic effects on her life as well as health in a significant way to the extent that permanent incapacity has been assessed at 30% and 8% by Dr. Okere and Wokabi, respectively.
28.The authority by the 1st respondent does not offer any pointed guidance and carry very low award.
29.The case of Stephen Kamau Wanderi & Ano vs. Gladys Wanjiku Kungu (supra) is appropriate. It awarded Kshs. 600,000 for comparable injuries.
30.Accordingly, in light of the injuries sustained, inflationary trends and the comparable authorities, the award of Kshs. 400,000 is inordinately low. It is set aside. And, in lieu thereof, the court makes an award of Kshs. 600,000 in general damages, costs and interest. All the other awards remain as awarded by the trial court.
31.The appeal therefore succeeds. Costs of the appeal goes to the appellant.
32.It is so ordered.