3.By way of an Amended plaint dated 5th August 2019, the Respondent alleged that on or about 29th June 2017, he was driving a motor vehicle Registration Number KBS 214K, Isuzu canter along Nyeri-Karatina Road. At the Tumu Tumu junction, the 3rd Defendant who was driving a motor vehicle Registration number KBA 979G Isuzu lorry negligently steered and/or controlled his vehicle causing it to collide with the Respondents Isuzu canter. That as a result of the accident the respondent sustained serious injuries, loss and harm.
4.The Respondent stated in his plaint that he sustained the following injuries:-i.Fracture of the right clavicle bone (collar bone)ii.Blunt injuries to the right elbow with a small deep fractureiii.Blunt injury to left footiv.Bruises on the back
5.The Respondent then filed in the lower court a suit seeking general and special damages as well as loss of user of the vehicle for a period of ninety (90) days.
6.The Appellant filed a joint statement of defence dated 2nd October, 2008 in which they denied liability for the accident and denied any liability for the injuries suffered by the Respondent.
7.The suit was herd inter partes and on 18th May 2021 the Honourable V.S Kosgei Resident Magistrate, delivered a judgement in favour of the Respondents and against the Appellant as follows:-
8.Being aggrieved by the judgement the Appellants filed the Memorandum of Appeal dated 17th June 2021 in which the following grounds were raised.
Analysis and Determination
9.I have carefully considered the Appeal before this court as well as the written submissions filed by both parties.
10.This being a first appeal, the court is obliged to reconsider and re-evaluate the entire evidence and to draw its own conclusions on the same.(see Selle & Another –vs- Associated Motor Boat Company Limited  [E.A]. This position was emphasized in the case Abok James Odera & Associates Vs John Machira t/a Machira & Co. Advocate  eKLR (Civil Appeal No. 161 of 1999) in the following manner:-
11.The Appellants do not take issue with the finding of the trial court on liability which was asses at 100% against the Appellants. The appellants do however take issue with the amounts awarded in general damages which they submit is excessive. Thus the only issue for determination in this appeal is that of Quantum.
12.As a general rule the award of general damages lies at the sole discretion of the trial court. The court in determining quantum will be guided by the evidence adduced as well as legal precedents, Comparable injuries ought to attract comparable (not necessarily identical) awards. The court must also take into account rising inflationary trends.
13.In the case of Bashir Ahmed Butt –vs- Uwais Ahmed Khan [1982-88]KAR, the Court of Appeal stated thus:-
14.Further in Jabane –vs- Olenja KLR the Court of Appeal stated as follows:-
15.Finally on this point the court in Price And Another –vs- Hilder KLR held that:-
16.I have considered the injuries sustained by the Respondent in light of the above principles. The medical report produced gave disability at 8%.
17.I have also taken into accounts similar cases. In JOseph Kimanthi Nzau –vs- Johnson Macharia EKLR where the victim sustained fracture of the skull bone, fractures of two ribs and fracture of the clavicle bone, the court of Appeal reduced the award of Kshs.1,000,0000/= made by the trial court to Kshs.800,000/=.
18.Again in Catherine Gatwiri –vs- Peter Mwenda KaraaiEKLR where the victim sustained a fracture of the left scapular, fracture of right clavicle and fracture of 3 ribs with compound fracture of tibia and fibula, the court made an award of Kshs.500,000/= as general damages.
19.The injuries which the Respondent in this matter sustained were far less severe than those cited above. Even taking into account inflationary trends the award of Kshs. 1,200,000/= was in my view excessive.
20.Considering the nature of injuries sustained by the Respondent and current economic trends I surmise that an award of Kshs.700,000/= would be more appropriate.
21.The appellants also challenge the award made by the trial court on loss of user being Kshs.540,000/=.
22.In the case of Jimnah Munene Macharia Vs John Erera Civil Appeal NO. 218 OF 1998 it was stated:-
23.The Respondent claimed loss of use for three months following accident which happened on 29th June 2017. The lower court relied on the receipts tendered by the Respondent. The lower court has not shown how it arrived at Kshs.6,000/= per day yet the receipts in court which span from 11th July 2017 to 29th July 2017 total to Kshs.122,000/=.
24.On a 30 day calendar month this would average Kshs.4066/= per day. Of note is the testimony of the 1st Respondent who stated in cross-examination “ …..I would get an average of Kshs.6,000/= monthly or so the basis of Kshs.6,000/= would be for about a month it could be less or more in average. In business there is no constant earning."
25.It is trite law that parties are to be bound by their pleadings. In his plaint the respondent claims for loss of user at Kshs.6,000/= per day yet in cross-examination he states that he was earning Kshs.6,000/= per month. Clearly the testimony of the Respondents in court does not support what he had pleaded in his plaint.
26.In the circumstances, I find that the trial court erred in awarding Kshs.6,000/= per day yet the Respondent himself testified that his earnings amounted to Kshs.6,000/= per month.
27.Taking into account the receipts produced by the respondent which showed that the average amount earned in July 2017, was Kshs.122,000/= this would amount to Kshs.4,066 per day (taking a month to have thirty (30) days). Therefore the amount for loss of user should be 4,066x90(three months) which comes to 366,000/=.
28.I therefore reduce the amount awarded for loss of user downwards from Kshs.540,000/= to Kshs.366,000/=. The awards made for special damages will remain the same.
29.Finally this appeal partially succeeds and I hereby make the following orders:-(1)The judgement delivered on 18th May 2021 in Karatina PMCC No. 76 of 2018 be and is hereby varied as follows:-a)The award made for general damages is revised downward from Kshs.1,200,000/= to Kshs.700,000/=.b)The Award for loss of user is similarly revised downward from Kshs.540,000/= to Kshs.366,000/=c)All other awards will remain as made by the trial court.(2)Each party to bear their own costs.(3)It is so ordered