Guard loses appeal after being knocked by vehicle while manning gate

The High Court at Kiambu has dismissed an appeal challenging a Sh500,000 general damages award to a guard who was knocked down by a vehicle while manning a gate at his workplace.

 In his judgment, Justice Kennedy Kandet affirmed the decision of the trial court in the case arising from a road traffic accident on January 8, 2023 along the Ruaka-Ndenderu Road.

 Douglas Ndete Akula, the appellant, had been employed as a gatekeeper at Ruaka Cytonn Limited when a motor vehicle struck him.

 “The subject motor vehicle was negligently, recklessly and carelessly driven and/or controlled by the defendants, their servant, agent and/or driver, causing it to knock down the appellant, Douglas Ndete Akula, who was then manning a gate at his place of work, Ruaka Cytonn Limited. As a result of the collision, the appellant sustained serious bodily injuries and suffered loss and damage,” court records show.

 He sustained a blunt head injury, facial lacerations, a fractured left clavicle, bruises on both limbs, a pelvic blunt injury and an open chest wound among others.

 The trial court had awarded Akula Sh500,000 in general damages, Sh163,500 in special damages and costs.

 Liability was apportioned at 80 per cent against the respondents, David Muthama and Ann Wairimu Kabutu, who were the registered owner and driver of the vehicle.

 Dissatisfied, the appellant moved to the High Court arguing that the award was low.

 The appellant’s counsel submitted that the trial magistrate had failed to evaluate the evidence properly and had ignored comparable authorities.

 He sought to have the judgment set aside and reassessed, or in the alternative that the High Court delivers a fresh judgment awarding higher general damages.

 Citing cases where Sh650,000 and Sh800,000 had been upheld for similar injuries including clavicle fractures, the appellant argued that the Sh500,000 award was “manifestly low”.

 His counsel urged the court to interfere, relying on the principle that an appellate court may disturb an award that is based on wrong principles or is so low as to represent an erroneous estimate.

 The respondents countered that the award was fair and reasonable.

 Their counsel submitted that “the award of damages is a matter within the discretion of the trial court”.

 They contended that no basis had been established “to warrant interference with the exercise of that discretion”.

 They noted that the medical report by Dr Namu Kimunguyi had classified the injuries as soft tissue injuries of moderate severity, with an expectation of complete recovery and no permanent incapacity.

 Justice Kennedy Kandet observed that prior medical examinations indicated Akula was in a fair general condition with healed bruises and that his fractures and blunt trauma ultimately constituted soft tissue injuries of moderate severity without any permanent disability.

 “Comparable awards serve only as a guide and each case must be determined on its own facts. In the present case, the absence of permanent incapacity and the favourable prognosis justified a more moderate award,” the judge said.

 In dismissing the appeal, the judge held that the trial court had not erred.

 “In my view, having considered the material placed before me and the cited authorities and going by the injuries sustained by the appellant, I am not persuaded that the award of Sh500,000 is inordinately low so as to attract intervention by this court.”

 He quoted the Court of Appeal’s guidance that “unless an award is inordinately low or high, an appellate court should be slow to interfere with an award of damages by the trial court”.

 He emphasised the trial judge “has the advantage of seeing the victim of the accident assess the impact of the injuries, even as they consider the medical reports”.

 He concluded that the trial court’s award fell within a reasonable range and dismissed the appeal in its entirety. The award of special damages was not contested.

 The appellant would bear the costs of this appeal.