1.The Appellant was the Defendant in the primary suit, where he had been sued by the respondent as the registered owner and driver of Motor vehicle KBF 947D (hereinafter referred to as the 1st suit motor vehicle). It was alleged that on July 27, 2019, the respondent was lawfully travelling as a fare paying passenger in motor vehicle KCG 147A ( hereinafter referred to as the 2nd suit motor vehicle) along Njambini-Flyover Road at Karate Area, when the appellant, his driver, servant and /or agent negligently drove, managed and/or controlled the 1st suit motor vehicle causing it to veer off its left lane and encroach onto the right lane of the 2nd suit motor vehicle thus causing the said motor vehicles to collide on head on collision and due to the impact the Respondent sustained severe injuries.
2.The appellant herein did file his statement of defence dated January 28, 2019 where he denied the occurrence of the accident and stated in the alternative that if at all the accident occurred, (which was denied) then it was caused solely and/ or largely contributed to by the negligence of the Respondent which was particularized in the said statement of defence as filed.
3.After hearing the suit, the learned magistrate in her judgment delivered on June 30, 2021 apportioned Liability at 100% as against the Appellant and proceeded to award the Respondent Ksh 762,755/= as damages plus cost’s and interest.
4.The Appellant, being dissatisfied by the judgement did file his memorandum of Appeal on July 9, 2021 and raised several grounds of appeal namely:-
5.The Appellant herein is thus mainly aggrieved with the issue of quantum of damages as awarded.
Facts of the Case
6.The Respondent did testify that he was lawfully travelling as a fare paying passenger in Motor vehicle 2nd suit motor vehicle, which was being driven along Njabini- Flyover Road at Karate Area when the appellant, his driver, servant and or agent so negligently drove, managed and or controlled the 1st suit motor vehicle causing the said motor vehicle to veer off its left lane and encroach onto the right lane of the 2nd suit motor vehicle thus causing the said motor vehicles’ to collide head-on resulting in him sustaining severe injuries due to the impact.
7.The Respondent was then rushed to Engineer District Hospital where first Aid was administered and was later transferred to AIC Kijabe Hospital where he was admitted from August 2, 2019 to August 9, 2019. He reported the accident to Magumu Police Station where he was issued with an abstract and P3 form. The Respondent produced various documents to support his claim. On cross examination, the Respondent stated that the 1st suit motor vehicle left its lane and veered onto the path of the 2nd suit motor vehicle thus causing a collision to take place. He stated that he sustained a fracture on the leg and injuries to the neck.
8.Pw2 was PC John Kanini who testified that he was based at Magumu Police Station and produced the police abstract indicating an accident between the 1st suit motor vehicle and the 2nd suit motor vehicle had occurred and the Respondent got injured in the said accident. He testified that the 1st suit motor vehicle was to blame for the accident because it hit a pot hole causing the collision. On cross examination, PW2 stated that he was not the investigating officer and did not have the police file but it was recorded in the occurrence book that the 1st suit motor vehicle hit a pothole and veered off its lane. He stated that he did not know if the driver of the 1st suit motor vehicle was charged but he was to be blamed for the accident.
9.The appellant did not call any witness to testify on his behalf but by consent of counsel’s, he was allowed to produce the 2nd medical report as an exhibit. The trial magistrate proceeded to consider the evidence tendered by the appellant and the respondent and rendered her judgment allowing the suit. The appellant was found to be 100% liable for the accident and the court awarded the Respondent damages of Kshs 762,755/= plus costs and interest.
10.The appellant filed his submissions on March 8, 2023 and framed the issue for determination as to whether the general damages awarded to the Respondent for pain and suffering were inordinately high.
11.The appellant submitted that according to the plaint, as a result of the accident, the respondent sustained the following injuries: Fracture medical malleolar of the right ankle joint, dislocation of the right ankle joint, soft tissue injury of the face, blunt injury to the neck leading to soft tissue injuries and soft tissues injuries of the left hand. The appellant further submitted that the injuries had also been evidenced in the P3 form and the medical report by Dr.Obed Omuyoma. The injuries noted in the said documents, were similar to those stated in the plaint.
13.The court was urged to set aside the judgement of the trial court and reassess the quantum. The appellant prayed that the appeal be allowed and cost to be awarded to the appellant.
Respondent Written submission
14.The Respondent did file his written submission on March 27, 2023 in opposing the appeal. It was submitted that the award of the trial court was proper and consistent with the injuries sustained by the respondent.
15.It was submitted that the medical report by Dr. Obed Omuyoma produced during trial stated that the respondent sustained grievous harm injuries and assessed the permanent degree of incapacity at 20% thus the sum award of Kshs 750,000/= was not manifestly excessive as to warrant interference by the court. Reliance was placed on the following authorities: Metal Crowns Limited v Eliud Musembi Nthalika eKLR, Titus Nganga & Ano v Samuel Muchiri MbuguaeKLR.
Analysis and Determination
17.I have considered the pleadings, evidence presented and submissions of the parties in this appeal. This court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions. As held in Selle & Another v Associated Motor Boat Co ltd & others  EA 123 it was stated that;
18.In Coghlan v Cumberland  1 Ch, 704 , the court of appeal of England stated as follows;
20.The only issue for determination in this appeal is whether the quantum awarded was inordinately high to warrant interference of the same by this court.
21.As regards quantum, in Woodruff v Dupont  EA 404 it was held by the East African court of appeal that:
24.In Jane Chelagat Bor v Andrew Otieno Oduor  – 92] eKLR 288[1990-1994] EA47 the Court of Appeal held that:-
25.Since the decision on the quantum of damages is an exercise of discretion, barring the failure to adhere to the foregoing principles the decision whether or not to interfere with an award by the appellate court must necessarily be restricted.
26.The most that can be done is to consider carefully all the circumstances of the case in question, and to consider other reasonably similar cases when assessing the award. It need hardly be emphasized that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before comparison between the awards in the respective cases can fairly or profitably been made. If however it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion.
27.The appellant suffered various injuries which include, fracture medial malleolar of the right Ankle joint, dislocation of the right ankle, soft tissue injuries to the face, blunt and soft tissue injuries to the Neck and soft tissue injuries to the left hand. Both medical reports produced did confirm the nature of injuries suffered.
30.Having exhaustively analyzed all the issues raised in this appeal I find that the same is wholly unmerited and dismiss the same with costs to the Respondent.
31.The costs of this appeal are assessed at Ksh 180,000/= all inclusive.
32.It is so ordered.