REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCA NO. E075 OF 2025
ABDUL ABDALLA …………………………………………1 ST APPELLANT
TAWAKAL AIRBUS LTD …………………………………2 ND APPELLANT
VERSES
ANN NZAUNI KIOKO ……………………………………… RESPONDENT
JUDGMENT
(1) On 12/2/2022, the Plaintiff/respondent was travelling in motor vehicle registration No. KBX 585N as a lawful fare paying passenger when the motor vehicle was carelessly driven that it collided into motor vehicle registration No. T697 CUT as a result of which the Plaintiff sustained injury and suffered loss and damage. The Plaintiff/respondent accused the driver of negligence set down the same in the plaint.
(2) The plaintiff/respondent filed a suit against the defendants/appellants whom she described as the registered owner and/a beneficial owner/insured and the owner in possession of the m/vehicle respectively at all material times.
(3) She set down the particulars of injuries and special damages in the plaint.
(4) The defendants/appellants filed defence, denied every particularized allegation of negligence, loss and damage, and put the plaintiff/respondent to strict proof thereof.
(5) The matter was heard. The plaintiff testified, adopting her recorded witness statement as evidence in chief. She did not call any witness she produced her medical reports in support of her claim for damages.
(6) The defence was closed without calling any evidence
(7) By a Judgment dated 8/8/2023, the learned trial Magistrate found in favour off the plaintiff/respondent; found the defendants/appellants 100% liable, and General Damages of Ksh. 900000/=, and special damages of Ksh. 5,550/= plus costs and interest.
(8) Aggrieved, the defendants/appellants filed this appeal on the following grounds:-
1) The Learned Magistrate erred in fact and in law in finding that the Respondent was entitled to Liability apportionment of 100%.
2) The Learned Magistrate erred in fact and in law in finding that the Respondent was entitled to General Damages of Kshs. 900,000/= and Special Damages of Kshs. 5550/=.
3) The Learned Magistrate erred in fact and in law in finding that the Respondent was entitled to General Damages that were too high in view of the evidence tendered. The same was too high and the same is not justified.
4) The Learned Magistrate erred in fact and in Law in failing to consider the Appellants’ evidence and Submissions.
5) The Learned Magistrate erred in fact and in Law in failing to consider conventional awards in cases of similar nature.
(9) The defendants/appellants seeks:-
a. This appeal be allowed with costs.
b. The Judgment delivered on 8 August, 2023 by the Honourable F. Makoyo (PM) in Kilungu in PMCC E282 OF 2022, be set aside and the Award made therein be re-assessed.
c. That costs of this Appeal be borne by the Respondent.
(10) The appeal was heard by way of written submissions.
Appellants Submissions
(11) For the appellant, it is submitted that the appeal is about Quantum – It is argued that the sum of Ksh. 900,000/= is excessive for soft tissue injuries. The appellant cites the Court of Appeal in Gitobu Imanyara & 2 Others vs A.G. [2016] eKLR where the court stated;
“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled…..’’
(12) This court is urged to be guided by the Court of Appeal in Odinga Jactone Ouma v Moureen Achieng Odera [2016] eKLR
where the court made the following analysis;
11] In this case, the nature and extent of injuries was not dispute, the issue is the level of compensation the appellant was entitled to. General damages are damages at large and the court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike as the Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru CA Civil Appeal No. 26 of 2013 [2014] eKLR thus:
The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.
This point has been emphasised by Lord Morris of Borth-y-Gest in West (H) & Son Ltd v Shepherd [1964] AC. 326,345, where he observed that:
But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.
[12] The principles were further summarised by the Court of Appeal in Jabane v Olenja [1986] KLR 661 as follows;
The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his court to an award of damages by a trial judge.
(1) Each case depends on its own facts;
(2) awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);
(3) comparable injuries should attract comparable awards.
(4) inflation should be taken into account; and
(5) unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone.
(13) That the injuries that the plaintiff/respondent sustained were soft injuries – and that the sum of Ksh. 500000/= would have been sufficient.
(14) The defendant/appellants rely on Wahome v Lupran Manpower and HRM Services & another [2023] KEELRC 3091 (KLR)
where the claimant sustained fracture of the T12 and was awarded Ksh. 750000/=.
(15) The court is urged to set aside the award of Ksh 900000/= to Ksh. 500000/=, and the appellant to have costs of the appeal.
Respondents Submissions
(16) For the respondents – counsel submitted on both liability and quantum. However, the appellants abandoned the challenge to liability and only submitted on quantum of damages.
(17) On quantum the respondent cites Catholic Dioceses of Kisumu vs Tete [2004] 2 KLR 55 on the preposition that the appellate court will not be justified in substituting a figure of its own for that awarded by the lower court simply because it would have awarded a different figure had it tried the matter itself in the first instance.
(18) It is argued that for the appellate court to interfere – the trial court must have applied the wrong principles by taking into the same irrelevant factor or leaving out of amount some relevant factor, or mis-apprehended the evidence and arrived at a figure so manifestly high or low as to represent on currently erroneous estimate.
(19) It is submitted that the plaintiff/respondent sustained the following injuries:-
a) T12 anterior wedge compression fracture;
b) Swelling on the right foot;
c) Multiple bruises on the right leg;
d) Bruises on the left elbow;
e) Pain on the lower back;
f) Tenderness on the left neck region;
g) Deep cut on the left parietal scalp.
20. That these injuries were proved through the medical report as severe – the P3 said they were grievous harm , the Doctor, that she suffered 10% incapacitation. That such injuries would attract General Damages between 1,000,000 – 1,500,000/=.
21. The plaintiff/respondent cited the following:-
a. Board of Trustees Anglican Church of Kenya Diocese of Marsabit Galma Galgalo [2019] eKLR , where the claimant sustained less severe injuries of a single fracture of the pelvic and facial bruises with pain when walking or running, the court awarded Ksh. 1,400,000/=.
b. Daniel Makau Mutinda v Patrick Ngei Mutyetumo [2020] eKLR where an award of Kshs. 1,000,000/= was upheld on appeal for comparable injuries.
c. Richard Chepkwony Kipngetich vs Gusii Dulexe Ltd T/A Transluxe Bus Company & Another [2009] KEHC 3181 (KLR) where an award of Kshs. 1,500,000 was made for comparable injuries.
(20) It is argued that the trial court saw the plaintiff/respondent testify – something this court does not have the benefit of – and that this court should not disturb the award.
Analysis and Determination
(21) I have carefully considered the record, the oral submissions below, and here, the Judgment of the subordinate court – and the question is whether the award of General Damages ought to be disturbed.
(22) The duty of the 1 st appellate court is crystallised in Easy Coach v Njogu [2026] KECA 559 (KLR) where the court stated
This being a first appeal, it is well settled that this Court is notbound to accept the findings of fact made by the trial court. Afirst appeal proceeds by way of a rehearing, and the duty ofthis Court is to reconsider the evidence on record, evaluate itindependently, and draw its own conclusions. In doing so,however, the Court must bear in mind that it neither saw norheard the witnesses testify and must therefore make dueallowance for that limitation. See Selle and Another vAssociated Motor Boat Company Limited and others[1968] EA 123 and Williamson Diamonds Ltd. v. Brown[1970] EA1.
Plaintiffs Evidence
(23) The plaintiff/respondent statement reiterated the contents of the plaint, and set out the injuries she sustained. She produced a medical report from Dr. Cyprianus Okoth Okere who indicated that the complaints at the time of the examination on 24/8/22 – were recurrent head cites, pain on the thoracic spine. He concluded that the injuries were grievous harm, and 15% permanent incapacity.
(24) The Radiology report confirmed that there was a T12 anterior wedge fracture – the L5/S1 intervertebral disc height was reduced.
(25) The P3 completed on 1/3/2022 indicated that the degree of injury was harm – the injury on the neck had healed with a scar on left side of neck, pain on back and left arm region x-ray of spinal column was normal – bruises on the right leg, elbow joint, swelling right foot. The police abstract also indicates that she sustained injuries to the degree of maim.
(26) I noted that the Record of Appeal does not contain any submissions before the trial court but both counsel certified it as correct. However, in the Judgment learned trial court relied stated as follows:
…I have considered the following authorities in my determination of quantum
1. Abdi Haji Gulleid vs Auto Selection (K) Ltd & Another HCCA No. 114/2013 (at Machakos). The Plaintiff in that case had suffered a wedge compression fracture of the back, at L1, and had developed osteoarthritis of the back. The court awarded him Kshs 750,000/= in general damages.
2. Mburugu Fredrick Koome v Kenneth Ntoribi [2021] eKLR , the Respondent had suffered injuries to the cervical spine which necessitated treatment over a long period of time including admission for seven days and underwent a procedure the doctor described as posterior cervical decompression with lateral mass screw. The Court awarded Kshs.1,000,000.00 as general damages.
In the circumstances I hereby award general damages in the sum of Kshs. 900,000/= as I believe this to be a reasonable award given the 15% permanent incapacity suffered by the plaintiff. It is well settled law that special damages must be specifically pleaded and proved. The plaintiff pleaded and proved a claim for special damages to the tune of Kshs 5,550/= which shall be the sum awarded under this head. Finally, since costs follow the event, the plaintiff shall have costs of the suit with interest. It so ordered.
(27) The learned trial magistrate stated he also relied on Kenya Power and Lighting Company Ltd vs. Zakayo Saitoti Ningola Nairobi Civil Appeal No. 522 of 2004 where the Court stated that in assessing damages the court has to bear in mind the following principles:
i. Damages should not be inordinately too high or too low;
ii. They are meant to compensate a party, for the loss suffered but not to enrich a party, and each case depends on its own facts;
iii. Where pasts decision are taken into consideration, they should be taken as mere guidelines and each case depends on its own facts;
iv. Where past awards are taken into consideration as guides an element of inflation should be taken into consideration.
(28) The trial court noted that the proposal by the respondent of Ksh.70000/= was on the lowest because of the seriousness of the injuries. The court referred to 15% permanent incapacity – referred to by Dr. Okere . I have reviewed the evidence before the subordinate court and the submissions. Looking at the entirety of the medical evidence – there was the P3 – where the doctor said the degree of injury was harm, the spinal x-ray came back normal – the rest of the injuries were soft tissue injuries – multiple bruises to the lower and upper limbs. The authorities he cited one indicated a cervical injury that resulted in osteo - arthritis, and the claimant required “…Treatment over a long period of time including the admission for seven days and underwent a procedure – posterior cervical decompression with lateral mass screws” . Evidently, this is distinguishable. In the other one the claimant had developed osteoarthritis in the back. Again, the plaintiff/respondent did not suffer the same.
(29) In fact, the medical report indicates that the defendant/respondent complained of recurrent headaches, pain in the thoracic spine . I did not find in the report a connection between these present complaints and the 15% permanent incapacity awarded. – the report does not explain the connection between the injuries and the % in disability and that figure seems to appear from the air. There is no nexus established in the report between the injuries and the alleged permanent disability. The medical evidence was not considered in its entirety because all of it is an opinion and not binding.
(30) I have also noted that there is no reference to the demeanor/appearance of the plaintiff/respondent – in determining the general damages which would to some extent limit the hands of the appellate court.
(31) In the foregoing circumstances I find that the award was on the higher side. Taking into consideration all the guiding principles and the cited authorities I find that the award of Ksh 650,000 would suffice.
(32) In the circumstances – the appeal succeeds on quantum.
(33) The item on liability was abandoned.
Final Orders
(34) The Judgment of the subordinate court on the award of general damages be and is hereby set aside at substituted with the sum of Ksh 650,000 .
(35) The appellant will have 1/3 of the costs of the appeal.
(36) The defendant/respondent will have costs below and interest from the date of the Judgment by the subordinate court.
Orders Accordingly.
JUDGMENT dated, signed and delivered virtually this 8 th May 2026
Mumbua T Matheka
Judge
CA Chrispol
Ms. Lang’ at for the appellant
Ms. Mwende for the Respondent
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCA NO. E075 OF 2025
ABDUL ABDALLA …………………………………………1 ST APPELLANT
TAWAKAL AIRBUS LTD …………………………………2 ND APPELLANT
VERSES
ANN NZAUNI KIOKO ……………………………………… RESPONDENT
JUDGMENT
(1) On 12/2/2022, the Plaintiff/respondent was travelling in motor vehicle registration No. KBX 585N as a lawful fare paying passenger when the motor vehicle was carelessly driven that it collided into motor vehicle registration No. T697 CUT as a result of which the Plaintiff sustained injury and suffered loss and damage. The Plaintiff/respondent accused the driver of negligence set down the same in the plaint.
(2) The plaintiff/respondent filed a suit against the defendants/appellants whom she described as the registered owner and/a beneficial owner/insured and the owner in possession of the m/vehicle respectively at all material times.
(3) She set down the particulars of injuries and special damages in the plaint.
(4) The defendants/appellants filed defence, denied every particularized allegation of negligence, loss and damage, and put the plaintiff/respondent to strict proof thereof.
(5) The matter was heard. The plaintiff testified, adopting her recorded witness statement as evidence in chief. She did not call any witness she produced her medical reports in support of her claim for damages.
(6) The defence was closed without calling any evidence
(7) By a Judgment dated 8/8/2023, the learned trial Magistrate found in favour off the plaintiff/respondent; found the defendants/appellants 100% liable, and General Damages of Ksh. 900000/=, and special damages of Ksh. 5,550/= plus costs and interest.
(8) Aggrieved, the defendants/appellants filed this appeal on the following grounds:-
1) The Learned Magistrate erred in fact and in law in finding that the Respondent was entitled to Liability apportionment of 100%.
2) The Learned Magistrate erred in fact and in law in finding that the Respondent was entitled to General Damages of Kshs. 900,000/= and Special Damages of Kshs. 5550/=.
3) The Learned Magistrate erred in fact and in law in finding that the Respondent was entitled to General Damages that were too high in view of the evidence tendered. The same was too high and the same is not justified.
4) The Learned Magistrate erred in fact and in Law in failing to consider the Appellants’ evidence and Submissions.
5) The Learned Magistrate erred in fact and in Law in failing to consider conventional awards in cases of similar nature.
(9) The defendants/appellants seeks:-
a. This appeal be allowed with costs.
b. The Judgment delivered on 8 August, 2023 by the Honourable F. Makoyo (PM) in Kilungu in PMCC E282 OF 2022, be set aside and the Award made therein be re-assessed.
c. That costs of this Appeal be borne by the Respondent.
(10) The appeal was heard by way of written submissions.
Appellants Submissions
(11) For the appellant, it is submitted that the appeal is about Quantum – It is argued that the sum of Ksh. 900,000/= is excessive for soft tissue injuries. The appellant cites the Court of Appeal in Gitobu Imanyara & 2 Others vs A.G. [2016] eKLR where the court stated;
“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled…..’’
(12) This court is urged to be guided by the Court of Appeal in Odinga Jactone Ouma v Moureen Achieng Odera [2016] eKLR
where the court made the following analysis;
11] In this case, the nature and extent of injuries was not dispute, the issue is the level of compensation the appellant was entitled to. General damages are damages at large and the court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike as the Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru CA Civil Appeal No. 26 of 2013 [2014] eKLR thus:
The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.
This point has been emphasised by Lord Morris of Borth-y-Gest in West (H) & Son Ltd v Shepherd [1964] AC. 326,345, where he observed that:
But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.
[12] The principles were further summarised by the Court of Appeal in Jabane v Olenja [1986] KLR 661 as follows;
The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his court to an award of damages by a trial judge.
(1) Each case depends on its own facts;
(2) awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);
(3) comparable injuries should attract comparable awards.
(4) inflation should be taken into account; and
(5) unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone.
(13) That the injuries that the plaintiff/respondent sustained were soft injuries – and that the sum of Ksh. 500000/= would have been sufficient.
(14) The defendant/appellants rely on Wahome v Lupran Manpower and HRM Services & another [2023] KEELRC 3091 (KLR)
where the claimant sustained fracture of the T12 and was awarded Ksh. 750000/=.
(15) The court is urged to set aside the award of Ksh 900000/= to Ksh. 500000/=, and the appellant to have costs of the appeal.
Respondents Submissions
(16) For the respondents – counsel submitted on both liability and quantum. However, the appellants abandoned the challenge to liability and only submitted on quantum of damages.
(17) On quantum the respondent cites Catholic Dioceses of Kisumu vs Tete [2004] 2 KLR 55 on the preposition that the appellate court will not be justified in substituting a figure of its own for that awarded by the lower court simply because it would have awarded a different figure had it tried the matter itself in the first instance.
(18) It is argued that for the appellate court to interfere – the trial court must have applied the wrong principles by taking into the same irrelevant factor or leaving out of amount some relevant factor, or mis-apprehended the evidence and arrived at a figure so manifestly high or low as to represent on currently erroneous estimate.
(19) It is submitted that the plaintiff/respondent sustained the following injuries:-
a) T12 anterior wedge compression fracture;
b) Swelling on the right foot;
c) Multiple bruises on the right leg;
d) Bruises on the left elbow;
e) Pain on the lower back;
f) Tenderness on the left neck region;
g) Deep cut on the left parietal scalp.
20. That these injuries were proved through the medical report as severe – the P3 said they were grievous harm , the Doctor, that she suffered 10% incapacitation. That such injuries would attract General Damages between 1,000,000 – 1,500,000/=.
21. The plaintiff/respondent cited the following:-
a. Board of Trustees Anglican Church of Kenya Diocese of Marsabit Galma Galgalo [2019] eKLR , where the claimant sustained less severe injuries of a single fracture of the pelvic and facial bruises with pain when walking or running, the court awarded Ksh. 1,400,000/=.
b. Daniel Makau Mutinda v Patrick Ngei Mutyetumo [2020] eKLR where an award of Kshs. 1,000,000/= was upheld on appeal for comparable injuries.
c. Richard Chepkwony Kipngetich vs Gusii Dulexe Ltd T/A Transluxe Bus Company & Another [2009] KEHC 3181 (KLR) where an award of Kshs. 1,500,000 was made for comparable injuries.
(20) It is argued that the trial court saw the plaintiff/respondent testify – something this court does not have the benefit of – and that this court should not disturb the award.
Analysis and Determination
(21) I have carefully considered the record, the oral submissions below, and here, the Judgment of the subordinate court – and the question is whether the award of General Damages ought to be disturbed.
(22) The duty of the 1 st appellate court is crystallised in Easy Coach v Njogu [2026] KECA 559 (KLR) where the court stated
This being a first appeal, it is well settled that this Court is notbound to accept the findings of fact made by the trial court. Afirst appeal proceeds by way of a rehearing, and the duty ofthis Court is to reconsider the evidence on record, evaluate itindependently, and draw its own conclusions. In doing so,however, the Court must bear in mind that it neither saw norheard the witnesses testify and must therefore make dueallowance for that limitation. See Selle and Another vAssociated Motor Boat Company Limited and others[1968] EA 123 and Williamson Diamonds Ltd. v. Brown[1970] EA1.
Plaintiffs Evidence
(23) The plaintiff/respondent statement reiterated the contents of the plaint, and set out the injuries she sustained. She produced a medical report from Dr. Cyprianus Okoth Okere who indicated that the complaints at the time of the examination on 24/8/22 – were recurrent head cites, pain on the thoracic spine. He concluded that the injuries were grievous harm, and 15% permanent incapacity.
(24) The Radiology report confirmed that there was a T12 anterior wedge fracture – the L5/S1 intervertebral disc height was reduced.
(25) The P3 completed on 1/3/2022 indicated that the degree of injury was harm – the injury on the neck had healed with a scar on left side of neck, pain on back and left arm region x-ray of spinal column was normal – bruises on the right leg, elbow joint, swelling right foot. The police abstract also indicates that she sustained injuries to the degree of maim.
(26) I noted that the Record of Appeal does not contain any submissions before the trial court but both counsel certified it as correct. However, in the Judgment learned trial court relied stated as follows:
…I have considered the following authorities in my determination of quantum
1. Abdi Haji Gulleid vs Auto Selection (K) Ltd & Another HCCA No. 114/2013 (at Machakos). The Plaintiff in that case had suffered a wedge compression fracture of the back, at L1, and had developed osteoarthritis of the back. The court awarded him Kshs 750,000/= in general damages.
2. Mburugu Fredrick Koome v Kenneth Ntoribi [2021] eKLR , the Respondent had suffered injuries to the cervical spine which necessitated treatment over a long period of time including admission for seven days and underwent a procedure the doctor described as posterior cervical decompression with lateral mass screw. The Court awarded Kshs.1,000,000.00 as general damages.
In the circumstances I hereby award general damages in the sum of Kshs. 900,000/= as I believe this to be a reasonable award given the 15% permanent incapacity suffered by the plaintiff. It is well settled law that special damages must be specifically pleaded and proved. The plaintiff pleaded and proved a claim for special damages to the tune of Kshs 5,550/= which shall be the sum awarded under this head. Finally, since costs follow the event, the plaintiff shall have costs of the suit with interest. It so ordered.
(27) The learned trial magistrate stated he also relied on Kenya Power and Lighting Company Ltd vs. Zakayo Saitoti Ningola Nairobi Civil Appeal No. 522 of 2004 where the Court stated that in assessing damages the court has to bear in mind the following principles:
i. Damages should not be inordinately too high or too low;
ii. They are meant to compensate a party, for the loss suffered but not to enrich a party, and each case depends on its own facts;
iii. Where pasts decision are taken into consideration, they should be taken as mere guidelines and each case depends on its own facts;
iv. Where past awards are taken into consideration as guides an element of inflation should be taken into consideration.
(28) The trial court noted that the proposal by the respondent of Ksh.70000/= was on the lowest because of the seriousness of the injuries. The court referred to 15% permanent incapacity – referred to by Dr. Okere . I have reviewed the evidence before the subordinate court and the submissions. Looking at the entirety of the medical evidence – there was the P3 – where the doctor said the degree of injury was harm, the spinal x-ray came back normal – the rest of the injuries were soft tissue injuries – multiple bruises to the lower and upper limbs. The authorities he cited one indicated a cervical injury that resulted in osteo - arthritis, and the claimant required “…Treatment over a long period of time including the admission for seven days and underwent a procedure – posterior cervical decompression with lateral mass screws” . Evidently, this is distinguishable. In the other one the claimant had developed osteoarthritis in the back. Again, the plaintiff/respondent did not suffer the same.
(29) In fact, the medical report indicates that the defendant/respondent complained of recurrent headaches, pain in the thoracic spine . I did not find in the report a connection between these present complaints and the 15% permanent incapacity awarded. – the report does not explain the connection between the injuries and the % in disability and that figure seems to appear from the air. There is no nexus established in the report between the injuries and the alleged permanent disability. The medical evidence was not considered in its entirety because all of it is an opinion and not binding.
(30) I have also noted that there is no reference to the demeanor/appearance of the plaintiff/respondent – in determining the general damages which would to some extent limit the hands of the appellate court.
(31) In the foregoing circumstances I find that the award was on the higher side. Taking into consideration all the guiding principles and the cited authorities I find that the award of Ksh 650,000 would suffice.
(32) In the circumstances – the appeal succeeds on quantum.
(33) The item on liability was abandoned.
Final Orders
(34) The Judgment of the subordinate court on the award of general damages be and is hereby set aside at substituted with the sum of Ksh 650,000 .
(35) The appellant will have 1/3 of the costs of the appeal.
(36) The defendant/respondent will have costs below and interest from the date of the Judgment by the subordinate court.
Orders Accordingly.
JUDGMENT dated, signed and delivered virtually this 8 th May 2026
Mumbua T Matheka
Judge
CA Chrispol
Ms. Lang’ at for the appellant
Ms. Mwende for the Respondent