Authorities For Civil Appeal of Soft Tissue Injury.pdf - Ndungu Dennis v Ann Wangari Ndirangu another[2018 eKLR REPUBLIC OF KENYA IN THE HIGH COURT OF

Authorities For Civil Appeal of Soft Tissue Injury.pdf -...

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Ndungu Dennis v Ann Wangari Ndirangu & another [2018] eKLR REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU CIVIL APPEAL NO. 54 OF 2016 NDUNGU DENNIS .................................... APPELLANT VERSUS ANN WANGARI NDIRANGU ................ 1ST RESPONDENT EDDAH MWIHAKI ................................. 2ND RESPONDENT (Being an appeal from the judgment and decree of the Chief Magistrate’s Court at Kiambu (Hon. S.K. Arome) Delivered on 10/12/2015 in Kiambu CM Civil Case No. 48 of 2015) JUDGMENT 1. This Appeal arises from a judgment and decree entered in Kiambu CMCC No. 48 of 2015. In that suit, the Respondent sued the Appellants for both general and special damages respecting a road traffic accident in which the Respondent sustained some personal injuries. 2. The 1st Appellant was the driver and registered co-owner of the Motor Vehicle Registration No. KBJ 941A which allegedly hit the Respondent while the 2nd Appellant was the registered co-owner of the Motor Vehicle. 3. The claim was fully contested in the lower Court and the Learned Trial Magistrate rendered a judgment on 10/12/2015 in which he found the Appellants 100% liable for the accident and awarded general damages of Kshs. 300,000/= and special damages of Kshs. 7,040/=. 4. The Appellants are aggrieved with the judgment of the Learned Trial Magistrate on quantum for general damages only and have filed four grounds of appeal against it. Naturally, the appeal is opposed. 5. I directed the parties to file Written Submissions and appear for oral highlighting if necessary. The parties filed Written Submissions but did not find it necessary to orally highlight. 6. Both parties agreed that all the grounds of appeal can be grouped into a single ground against the award of quantum in general damages. 7. I have read and considered the respective arguments in the parties’ written submissions. - Page 1/6
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Ndungu Dennis v Ann Wangari Ndirangu & another [2018] eKLR 8. As a first appellate court, this Court’s duty is to subject the whole of the evidence to a fresh and exhaustive scrutiny and make my own conclusions about it, bearing in mind that I did not have the opportunity of seeing and hearing the witnesses first hand. The duty of the court in a first appeal such as this one was stated in Selle & another –vs- Associated Motor Boat Co. Ltd. & others (1968) EA 123 in the following terms: I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular
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