Automated Summary
Key Facts
On July 17, 2018, Tom Odeny (respondent) was riding a motorcycle on the Kibos-Kondele road when he was rear-ended by Bernard Kigada's Toyota matatu (KAT 451R), causing multiple injuries including displaced fractures of the right leg's distal fibula and tibia, shoulder swelling, chest/lower back/hip tenderness, and a deformed ankle. The respondent was hospitalized for five days and presented medical evidence (P3 form, police report). Liability was settled at 15% for the respondent and 85% for the appellants. The trial court awarded Kshs 600,000 general damages, but the appellate court reduced this to Kshs 425,000 after comparing to similar cases (e.g., 400,000-500,000 range for comparable fractures) and applying the 15% contribution.
Issues
The primary issue was whether the trial court's award of Kshs 600,000 in general damages to the respondent was excessive, given the nature of his injuries and comparable awards in similar cases. The appellate court reviewed the medical evidence, the respondent's uncontested testimony, and precedents involving comparable injuries (e.g., Paul N Njoroge v Abdul Sabuni Sabonye [2015] eKLR, Thomas Ombina v Samson Anindo Mwenje [2018] eKLR) to determine that the original award was on the higher side and adjusted it to Kshs 425,000 after accounting for the respondent's 15% contribution to the accident.
Holdings
- The court found the trial magistrate's award of Kshs 600,000 in general damages to be excessive given the respondent's injuries and comparable awards in similar cases. After reviewing precedents involving comminuted fractures and other injuries, the court reduced the award to Kshs 500,000, further adjusted to Kshs 425,000 to account for the 15% contribution from the respondent under the liability settlement. This adjustment aligns with established principles requiring appellate courts to disturb quantum awards only if based on erroneous legal principles or manifestly unreasonable amounts.
- The court determined that the parties should each bear their own costs of the appeal. This decision followed the absence of a compelling argument from either side to shift the cost burden, as required by the principles of equitable cost allocation in civil appeals.
Remedies
- Each party is to bear their own costs on this appeal.
- The court set aside the original award of Kshs 600,000 and substituted it with an award of Kshs 500,000, which was further adjusted to Kshs 425,000 after applying the 15% contribution. Interest is to be paid from the date of judgment in the subordinate court until full payment.
Monetary Damages
425000.00
Legal Principles
The court applied judicial review principles to assess whether the trial court's damage award was based on sound legal reasoning or was an erroneous estimate. It emphasized that appellate courts must be convinced that the trial judge acted on a wrong principle or that the award was an entirely erroneous estimate to justify reversal. The court also considered comparable awards in similar cases to ensure uniformity in damage assessments.
Precedent Name
- Robert Kithinji Kithaka v Attorney General
- Thomas Ombina v Samson Anindo Mwenje
- Daniel Otieno Owino & another v Elizabeth Atieno Owuor
- Catherine Gatwiri v Peter Mwenda Karaai
- Gitobu Imanyara & 2 others v Attorney General
- Elisha Akello Raga v Shajan and Holdings Limited & anor
- Kenya Power and Lighting Company Limited & another v Zakayo Saitoti Naingola
- Paul N Njoroge v Abdul Sabuni Sabonye
- Abok James Odera t/a A.J Odera Associates v John Patrick Machira t/a Machira & Co Advocates
Cited Statute
Civil Procedure Act
Judge Name
R.E. Aburili
Passage Text
- "...I find the award of kshs 600,000/= to be on the higher side and hereby set aside the award and substitute it with an award of kshs 500,000/= This sum shall be subjected to the 15% contribution bringing the sum awardable to the respondent to kshs 425,000/= with interest from the date of judgment in the subordinate court until payment in full."
- "The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango v Manyoka [1961] EA 705, 709, 713; Lukenya Ranching and Farming Co-operatives Society Ltd v Kavoloto [1970] EA, 414, 418, 419. This court follows the same principles."
- "In Paul N Njoroge v Abdul Sabuni Sabonye [2015] eKLR the appellant sustained multiple comminuted fracture of the right femur causing severance of major vessels to the right leg and shortening of leg by 5 centimeters, displaced fracture of the left shoulder blade, Swelling and stiffened knee. He was awarded kshs 500,000/="