IN THE COURT OF EAST AFRICA
AT NAIROBI
CORAM: (LAW, LUTTA AND MUSTAFA, JJ.A.)
CIVIL APPEAL NO 37 OF 1971
BETWEEN
MOHANED SALIM s/o EBRAHIM PIRANDITTA……………..APPELLANT
AND
ZAINAB BIBI widow of MOHAMED SODAGAR………..RESPONDENT
[Appeal from a judgment of the High Court of Kenya at Nairobi (Simpson. J.) dated 24th May 1 1971, in Civil Case No. 820 of 1970]
1st February, 1972.
REASONS FOR JUDGMENT OF THE COURT
LUTTA, J.A.
On 24th January, 1972, we dismissed the appeal. We now give our reasons. The respondent, (to whom we shall refer as “the plaintiff”) brought an action against the appellant (to whom we shall refer as “the defendant”) for shs.2, 390/- as special damages and for general damages for unlawful assault by the defendant on 23rd March) 1969, as a result of which the plaintiff's right arm was fractured.
Briefly the facts are that the plaintiff, who is a widow, received a letter from her brother-in-law living in England in which he repeated allegations he had heard about the plaintiff's four daughters, from one Mohamed Ashiq, the defendant's brother.
On 23rd March, 1969, at about 11 a.m. Mohamed Ashiq went to the plaintiff's house at her request and there he was shown the said letter by her in the presence of Mohamed Rafiq, Mohamed Akram and Shahd. A fight appears to have taken place. Mohamed Ashiq then left but according to the plaintiff returned soon after with the defendant one Baker and two Africans the defendant held a bolt and the two Africans had long chains while Baker held an iron rod.
When the plaintiff's landlady threatened to call the police they drove away. At about 2.30 p.m. on the same day the plaintiff, with her daughter Nargeis went to Firoz Din's house to show him (Firoz Din) the said letter. Firoz Din's house is “just in front of" the defendant's house. However, before they could reach Firoz Din's house, they met the defendant's wife Inayat and another lady with six or seven children. The defendant's wife called the plaintiff a prostitute and a bastard.The plaintiff answered in similar language.
The children started shouting and a crowd gathered. The defendant came out of his house holding a hockey stick. When the plaintiff saw the defendant's wife seize Nargeis by the hair and pull her down towards the ground, she (the plaintiff) took off a slipper and was about to strike the defendant's wife with it when the defendant struck her on the wrist with the hockey stick he was holding.
She fell down owing to pain and shock. She was removed from the scene by the Police who took her to Radiant Health Clinic. Dr Haq (P.W.1l) found that she was severely shocked and in great pain and had a Colles fracture of the right forearm. She was hospitalised for about 14 days.
The defendant denied assaulting the plaintiff. His case supported by the evidence of three police officers, is that the plaintiff broke her arm when she tripped and fell. The learned judge found that the fight took place as described by the plaintiff and her witnesses and that the defendant intervened using a hockey stick as a weapon when he could have merely pushed the women apart.
He also found that the defendant had no intention of breaking the plaintiff's arm but that he (the defendant) struck her without justification which owing to the plaintiff's age resulted in the Calles fracture described by Dr Haq (P.W.l). The learned judge then awarded damages for shs.4.500/- and gave judgment for the plaintiff for that amount plus shs.1,740/- being the proved special damages, making a total of shs.6,240/-.
The defendant appealed against that decision to this Court.
Mr. Gautama for the defendant has attacked the findings of the learned judge and has submitted that this Court is in as good a position as the court below to evaluate evidence and draw its own inferences and that therefore in this case this Court should review the evidence and make its own findings. Mr. Gautama conceded that there was a fight but he has submitted that it was provoked and instigated by the plaintiff who went to the defendant's house and used abusive language.
Mr. Gautama argued that the trial judge erred in disbelieving Francis Kathiiri (D.W.l) 1 Peter Mukwani,(D.W.2) and Joash Orieko (D.W.3) three police officers, as their evidence was more consistent with the entries in the Occurrence Book, kept at the Pangani Police Station than was the evidence of the plaintiff and her witnesses. He also submitted that the trial judge gave undue emphasis to the question of criminal proceedings which had been brought against the defendant and ended in reconciliation, as this was pre judicial to the defendant.
It is true that it would have been open to the learned judge, on the evidence, to have found in favour of the defendant.
However he had the advantage, which we have not had, of seeing and hearing the witnesses. His findings of fact, and the inferences which he drew there from, are reasonable and are supported by evidence. In such circumstances this Court will hesitate to go against the trial judge's findings.
We are satisfied that the trial judge was entitled, on the evidence before him to find that the defendant struck the plaintiff a blow without justification which resulted in the Calles fracture to her right forearm.
For these reasons we stated that we did not wish to hear Mr. Khanna on the question of liability. With regard to damages, Mr. Gautama submitted that the amount of shs 24, 500/- general damages was manifestly excessive in relation to this type of injury, and in the circumstances of this case.
Dr Khanna contended that the plaintiff suffered a great deal of pain and although she was hospitalised for about 14 days, the pain continued for six months, and that there is still the danger of osteo-arthritis occurring.
It is not necessary to repeat here the principles on which this Court will intervene in the case of assessment of damages by a trial judge.
It has not been shown to us that the assessment was based on any error in principle or that it was so clearly erroneous that it should be altered.We are satisfied that the damages awarded represent a reasonable assessment.
As all the members of the Court were of the same opinion we dismissed the appeal.
