Rege v Otieno (Civil Appeal E115 of 2021) [2022] KEHC 16636 (KLR) (20 December 2022) (Judgment)

Key Facts

Issues

• The learned trial magistrate erred in law and fact by awarding the plaintiff an inordinately high quantum as damages in the circumstances of this case.
• The learned magistrate's decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law.
• The learned magistrate erred in law and fact in failing to consider conventional awards in cases of similar nature.
• The learned magistrate erred in law and misdirected herself when she failed to consider the appellants submissions on both points of law and facts.
• The learned magistrate erred in law and fact in failing to consider the appellant's submissions on quantum and liability and legal authorities relied upon in support thereof.
• The learned magistrate erred in law and fact by overly relying on the respondent's submissions which were not relevant and without addressing his mind to the circumstances of the case.
• The learned magistrate erred in law and misdirected herself when she failed to consider the provisions set out in the Insurance (Motor Vehicle Third Party Risks) (Amendment) Act, 2013 Cap 405.
• The learned magistrate erred in law and fact in awarding the plaintiff a sum that was excessive as to an amount that is erroneous as to the estimate of general damages suffered.
• The learned magistrate erred in law and fact in finding the defendant/appellant 100% liable in view of the evidence produced before the trial court.
• The learned magistrate erred in law and fact in awarding the plaintiff/respondent Kshs 400,000/- for general damages, arriving at a wrong finding regarding the nature of injuries sustained.

Holdings

• The appellate court set aside the trial court's award of Kshs 400,000 in general damages and substituted it with Kshs 150,000, considering comparable cases and the nature of the respondent's injuries.
• The court upheld the trial magistrate's finding that the appellant was 100% liable for the accident, as there was no evidence of the respondent's contribution and the evidence of the driver's fault was not contested.

Remedies

• The appellate court substituted the general damages award from Kshs 400,000 to Kshs 150,000 in favor of the respondent.
• The special damages of Kshs 6,605 awarded by the trial court were upheld by the appellate court.
• The appeal was partially successful with half the costs awarded to the appellant.

Monetary Damages

Legal Principles

• The court cited Butt vs Khan [1981] KLR 349, establishing that appellate courts must only overturn trial court damage awards when the award is so inordinately high or low as to represent an entirely erroneous estimate, typically due to the trial judge proceeding on wrong principles or misapprehending material evidence.
• The court referenced Stanley Maore v Geoffrey Mwenda [2004] eKLR, emphasizing that comparable injuries should be compensated by comparable awards while maintaining appropriate damage levels in similar cases.

Precedent Name

• Daniel Odhiambo Ngesa vs Daniel Otieno Owino & another
• Kipkere Limited vs Peterson Ondieki Tai
• Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichubi
• Lucy Nibuka v Bernard Muwiri & others
• George Mugo & another v A K M (Minor)
• Stanley Maore v Geoffrey Mwenda

Cited Statute

Judge Name

Passage Text

• "...an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived a figure which was either inordinately high or low."
• The respondent sustained the following injuries: a. Bruises on the right ear; b. Deep cut wound on the left hand; and c. Bruises on the left hand. These injuries were classified by Dr Morebu Peter Momanyi as severe soft tissue injuries.
• Certainly the authorities cited varied in the awards for injuries that were equally varied. I am persuaded to interfere with the said award. I set aside the award by the trial court and substitute it with an award of Kshs 150,000.00 general damages.