REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HIGH COURT CIVIL APPEAL NO.E092 OF 2024
ABEDNEGO KIVUVI NYAMU……………….………….. APPELLANT
VERSUS
SIMON MALIKA MBONDO……..…………….………… RESPONDENT
JUDGMENT
1. According to the amended plaint filed on 24/1/2023 Abednego Kivuvi Nyamu (plaintiff/respondent) was riding his motor cycle Reg. No. KMFL 584F on 1/1/2022 along Wote Machakos Road when at Hangini Area, motor vehicle Reg. No. KBC 680Y was carelessly and negligently driven that it lost control, left its lane, hit the motor cycle registration No. KMFL 584F causing an accident and occasioning the plaintiff injuries, loss and damage.
2. The plaintiff set out the particulars of injuries, negligence, loss and damage. The injuries set out as:-
- Bilateral wrist bruises
- Left shoulder dislocation
- Injuries on the left knee foot with swelling bruises.
- Comminuted fracture of the mid shaft femur left
- Blunt abrasion on the left forearm
- Blunt abrasion injuries on the right arm
3. He sought special damages of kshs. 1,050/=. That he suffered loss of income for 21 months. That he suffered 8% in capacity, that he would require future medical expenses at kshs. 80,000/= for removal of metal implants.
4. The plaintiff sought judgement against the defendant for general damages, special damages, future medical expenses, loss of earnings diminished, earning capacity interest on General and Special damages and costs of the suit.
5. The defendant filed defence denied all the particulars of negligence, injuries, loss and damage and put the plaintiff to strict proof thereof. The defendant sought that the plaintiff’s suit be dismissed with costs.
6. The plaintiff testified and called 2 witnesses, a police officer, and the doctor. The defendant called 2 witnesses, his driver and the doctor who wrote the 2 nd opinion on the plaintiff.
7. In its judgment the trial court found the defendant 100% liable and made the following awards
• General damages of kshs. 400,000/=
• Lack of earnings kshs. 60,000/=
• Diminished earning capacity kshs.168,000/=
• Special damages kshs. 16,050/=
Total kshs. 724,050/=
Plus, cost and interest
8. The plaintiff was aggrieved and filed this appeal on the following grounds:
1. The learned trial magistrate erred in law and in fact in awarding an amount of general damages to the tune of kshs. 400,000/= which amount was too low to warrant the interference by this Honourable Court.
2. The learned trial magistrate erred in law and in fact in awarding an amount of general damages which was not commensurate to the injuries sustained by the Appellant.
3. The Learned Trial Magistrate erred in law and in fact by failing to consider the appellant’s submissions and judicial authorities on general damages thereby arriving at an erroneous figure on general damages.
4. The Learned Trial Magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries.
9. The appellant seeks that the appeal be allowed with costs and that the judgment of the subordinate court be set aside, and this court re-assess the general damages.
Submissions
10. The appellant filed written submissions. He relied on Kemfro Africa Ltd & Another –vs- Lubia & Another [1985] eKLR on the principles applicable in exercise of the appellate court’s jurisdiction to interfere with the trial courts finding on quantum,
11. The appellant reiterated the injuries as pleaded in the plaint and made reference to the P3, the medical reports.
12. Before the subordinate court he submitted that the sum of kshs. 1,200,000/= as general damages would be sufficient. He relied on Peris Wanjiru Kahiga –vs- Moses Kabata Mwangi [2021] eKLR where court awarded general damages of kshs. 1,000,000/= for fracture of the left femur, degloving injuries of the leg, dislocation of the left hip joint (inability to walk), trauma to the left leg (shortening, inability to walk), trauma to chest, trauma to left shoulder.: on Kiutha –vs- Ntarangwi [2022] KEHC 10595(KLR) where the court awarded kshs. 800,000/= for bruises on right upper arm and right shoulder, left foot, tender upper back and swollen right thigh, mid shaft fracture of the femur. The court reduced the award of kshs. 1,400.000/= to 800,000/= in Pestony Limited & Another –vs- Samuel Itonye Kagoko [2022] eKLR for fracture of the femur.
On Loss of Earnings
13. It was submitted that the doctor assessed that the appellant would not be able to work from about 12 months. It was submitted that he was earning about kshs. 1,000/= per day, and cited Matigari General Merchants Ltd & Another –vs- Nelly Wairimu Muthoni & Another; Rose Wamuyu Wandaka (interested Party) [2019] eKLR where the court dealing with the issue of loss of dependency it was found that a boda earnings of kshs. 1,000/= per month (sic) as submitted in oral evidence in that case was not unreasonable.
14. He also relied on James Gathirwa Ngungi –vs- Multiple Hauliers (EA) Ltd & Another [2015] eKLR for the proposition that it was not necessary for him to produce any documents to prove that he was earning the amount he was claiming, that the court could assess the same from the evidence.
On Diminished Earning Capacity
15. He submitted that this was supported by the evidence of Dr. Wokabi, that he had suffered 8% permanent in capacity:
16. Relying on on Crown Bus Services Ltd & 2 Others –vs- Jamila Nyongesa & Amida Nyongesa (Legal Representative of Alvin Nanjala (deceased) [2020] eKLR where court used a multiplier of 35 years in a case where the deceased was aged 21 years old and would have worked to 60 years old, he argued that he was self-employed and would have worked to the age of 70. The plaintiff proposed a multiplier of 47 years as the plaintiff was 23 years old at the time of the accident.
17. The defendant submitted the plaintiff sustained
o Left shoulder dislocation
o Bilateral wrist bruises
o Swollen & bruised left knee
o Left mid shaft femur fracture
18. Relying on Koyi –vs- Obanga & 2 Others [2022] KEHC 9772 (KLR) where an award of kshs. 400,000/= was awarded to the appellant for displaced fracture of the left tibia, fracture of the left femur, laceration of the left leg, STI on the chest – degree of permanent disability assessed at 40%; Stanley Kirwa Arusei –vs- John Mwakalafu Wanjohi [2020] eKLR – where the court reduced an award of kshs. 1,800,000/= to kshs. 500,000/= for injuries blunt injury with bruises to right hand, fracture of left femur proximal, open segmental fracture of the right tibia (proximal) with knee dislocation, degree of incapacitation – 10%; The defendant proposed kshs. 350,000/= general damages.
19. In this appeal the court is urged to find that the trial court failed to consider relevant factors in arriving at the general damages.
20. For the respondent it is submitted that this court be guided by Butt –vs- Khan (1977) KAR 1 on when an appellate court may interfere with an award for damages – where the award is inordinately low on inordinately high leading to an erroneous estimate; where the court has applied wrong principles/misapprehended the evidence in some material respect arriving at a figure either inordinately high or low.
21. So, three questions:-
1. Was the award too low?
2. Did the trial court apply using principles?
3. Did the trial court misapprehend the evidence hence leading to law award of damages?
22. This court is reminded that in answering these questions to keep in mind the guiding principles in the assessment of damages:
23. the court is referred to: Coastal Kenya Enterprises Limited –vs- Muchiri (Civil Appeal No. 84/2017) [2024] KECA 879 (KLR) 24/7/2023) Bonface Waiti & Another –vs- Michael Kariuki Kamau [2007] eKLR & Sofia Yusuf Kanyare –vs- Ali Badi Sabre & Another Nairobi HCCC No. 478/2007 ; for the proposition that – award of general damages is an exercise of discretion by the court seized of the matter; should not be too low or too high but should try to restore the claimant to the position they were before as much as is possible and are not meant to enrich the claimant; that precedents are guidelines; in considering past cases the court should take into account their age, rate of inflation and the power of Kenya Shilling and that money cannot renew a physical frame that has been battered and shattered and courts can only give reasonable compensation.
24. The respondent reiterates the submissions before the subordinate court and considers that they presented comparable injuries, but with severe permanent disability assessed as between 10% and 40%.
25. This court is urged not to interfere with the award of kshs. 400,000/= awarded as general damages. Reliance is placed on Loice Wanjiku Kagunda –vs- Julius Gachau Mwangi CA 142/2003.
Analysis: Determination
26. I have carefully considered the record, and the submissions by counsel. The plaintiff/appellant’s submissions that the awards were too low looking at the injuries sustained.
27. A perusal of the Judgment of the trail court indicates that the trial court relied on Zachariah Mwangi NJeru (Above) where the High Court reduced an award of kshs. 800,000/= to kshs.400,000/=.However, it is submitted by the appellant that this authority was misleading. That the trial court did not appreciate that the reduction was because in Zachariah’s case – he had sustained fracture of tibia fibula- yet the trial court had relied on Bethwel Mutai –vs- Chana Road & Bridge Corporation (Mombasa) HCC 10 of 2007 where the plaintiff had sustained fractures of the left clavicle, humerus and right femur, and it was for that reason that the award was reduced. Meaning that the injuries in Bethwel Mutai were more serious than those in Zachariah Njeru hence not comparable. That the court ignored Peris Wanjiru Kahiga where plaintiff sustained fracture of the left femur among other injuries and was awarded Ksh. 1,000,000/= and Kiautha above where there was a fracture of the mid shaft femur where the court set aside the award of kshs. 2,000,000/= for kshs. 800,000/=. In that case the court reviewed several authorities where the plaintiff had sustained fracture of the femur, the award was kshs. 800,000/=.
28. Evidently despite the authorities cited by the respondent for kshs. 350,000/= that award appears to be drawn from older authorities, as that was a 2017 case, and was determined in an accordance with the authorities as at time. It is clear that Koyi is distinguishable, if one takes into account the inflationary rates.
29. Clearly the trial court misapprehended the authority cited vis a vis the injuries sustained by the appellant.
Having found that, I find that the award of general damages is on the lower side as a result of the trail court not considering authorities with similar injuries , The same is set aside and substituted with the award of kshs. 800,000/=.
The rest of the awards remain as awarded by the trial court.
In the circumstances;
The final Orders:-
Liability – 100%
Loss of earnings ksh.60,000/=
Diminished earning capacity kshs. 168,000/=
Future medicals ksh.80,000/=
Special damages ksh.16,050/=
Total kshs.1,124,050/=
Plus, cost and interest
The appellant will have costs of the appeal.
JUDGMENT Dated, signed and delivered virtually on 22 nd May 2026
Mumbua T. Matheka
Judge
In the presence of:-
CA Chrispol
Ms. Masika holding brief for Ms. Mutuku for the appellant
Ms. Mjambili for the Respondent
Judgment HCCA E092 of 2024 Page 2 of 2
IN THE HIGH COURT OF KENYA AT MAKUENI
HIGH COURT CIVIL APPEAL NO.E092 OF 2024
ABEDNEGO KIVUVI NYAMU……………….………….. APPELLANT
VERSUS
SIMON MALIKA MBONDO……..…………….………… RESPONDENT
JUDGMENT
1. According to the amended plaint filed on 24/1/2023 Abednego Kivuvi Nyamu (plaintiff/respondent) was riding his motor cycle Reg. No. KMFL 584F on 1/1/2022 along Wote Machakos Road when at Hangini Area, motor vehicle Reg. No. KBC 680Y was carelessly and negligently driven that it lost control, left its lane, hit the motor cycle registration No. KMFL 584F causing an accident and occasioning the plaintiff injuries, loss and damage.
2. The plaintiff set out the particulars of injuries, negligence, loss and damage. The injuries set out as:-
- Bilateral wrist bruises
- Left shoulder dislocation
- Injuries on the left knee foot with swelling bruises.
- Comminuted fracture of the mid shaft femur left
- Blunt abrasion on the left forearm
- Blunt abrasion injuries on the right arm
3. He sought special damages of kshs. 1,050/=. That he suffered loss of income for 21 months. That he suffered 8% in capacity, that he would require future medical expenses at kshs. 80,000/= for removal of metal implants.
4. The plaintiff sought judgement against the defendant for general damages, special damages, future medical expenses, loss of earnings diminished, earning capacity interest on General and Special damages and costs of the suit.
5. The defendant filed defence denied all the particulars of negligence, injuries, loss and damage and put the plaintiff to strict proof thereof. The defendant sought that the plaintiff’s suit be dismissed with costs.
6. The plaintiff testified and called 2 witnesses, a police officer, and the doctor. The defendant called 2 witnesses, his driver and the doctor who wrote the 2 nd opinion on the plaintiff.
7. In its judgment the trial court found the defendant 100% liable and made the following awards
• General damages of kshs. 400,000/=
• Lack of earnings kshs. 60,000/=
• Diminished earning capacity kshs.168,000/=
• Special damages kshs. 16,050/=
Total kshs. 724,050/=
Plus, cost and interest
8. The plaintiff was aggrieved and filed this appeal on the following grounds:
1. The learned trial magistrate erred in law and in fact in awarding an amount of general damages to the tune of kshs. 400,000/= which amount was too low to warrant the interference by this Honourable Court.
2. The learned trial magistrate erred in law and in fact in awarding an amount of general damages which was not commensurate to the injuries sustained by the Appellant.
3. The Learned Trial Magistrate erred in law and in fact by failing to consider the appellant’s submissions and judicial authorities on general damages thereby arriving at an erroneous figure on general damages.
4. The Learned Trial Magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries.
9. The appellant seeks that the appeal be allowed with costs and that the judgment of the subordinate court be set aside, and this court re-assess the general damages.
Submissions
10. The appellant filed written submissions. He relied on Kemfro Africa Ltd & Another –vs- Lubia & Another [1985] eKLR on the principles applicable in exercise of the appellate court’s jurisdiction to interfere with the trial courts finding on quantum,
11. The appellant reiterated the injuries as pleaded in the plaint and made reference to the P3, the medical reports.
12. Before the subordinate court he submitted that the sum of kshs. 1,200,000/= as general damages would be sufficient. He relied on Peris Wanjiru Kahiga –vs- Moses Kabata Mwangi [2021] eKLR where court awarded general damages of kshs. 1,000,000/= for fracture of the left femur, degloving injuries of the leg, dislocation of the left hip joint (inability to walk), trauma to the left leg (shortening, inability to walk), trauma to chest, trauma to left shoulder.: on Kiutha –vs- Ntarangwi [2022] KEHC 10595(KLR) where the court awarded kshs. 800,000/= for bruises on right upper arm and right shoulder, left foot, tender upper back and swollen right thigh, mid shaft fracture of the femur. The court reduced the award of kshs. 1,400.000/= to 800,000/= in Pestony Limited & Another –vs- Samuel Itonye Kagoko [2022] eKLR for fracture of the femur.
On Loss of Earnings
13. It was submitted that the doctor assessed that the appellant would not be able to work from about 12 months. It was submitted that he was earning about kshs. 1,000/= per day, and cited Matigari General Merchants Ltd & Another –vs- Nelly Wairimu Muthoni & Another; Rose Wamuyu Wandaka (interested Party) [2019] eKLR where the court dealing with the issue of loss of dependency it was found that a boda earnings of kshs. 1,000/= per month (sic) as submitted in oral evidence in that case was not unreasonable.
14. He also relied on James Gathirwa Ngungi –vs- Multiple Hauliers (EA) Ltd & Another [2015] eKLR for the proposition that it was not necessary for him to produce any documents to prove that he was earning the amount he was claiming, that the court could assess the same from the evidence.
On Diminished Earning Capacity
15. He submitted that this was supported by the evidence of Dr. Wokabi, that he had suffered 8% permanent in capacity:
16. Relying on on Crown Bus Services Ltd & 2 Others –vs- Jamila Nyongesa & Amida Nyongesa (Legal Representative of Alvin Nanjala (deceased) [2020] eKLR where court used a multiplier of 35 years in a case where the deceased was aged 21 years old and would have worked to 60 years old, he argued that he was self-employed and would have worked to the age of 70. The plaintiff proposed a multiplier of 47 years as the plaintiff was 23 years old at the time of the accident.
17. The defendant submitted the plaintiff sustained
o Left shoulder dislocation
o Bilateral wrist bruises
o Swollen & bruised left knee
o Left mid shaft femur fracture
18. Relying on Koyi –vs- Obanga & 2 Others [2022] KEHC 9772 (KLR) where an award of kshs. 400,000/= was awarded to the appellant for displaced fracture of the left tibia, fracture of the left femur, laceration of the left leg, STI on the chest – degree of permanent disability assessed at 40%; Stanley Kirwa Arusei –vs- John Mwakalafu Wanjohi [2020] eKLR – where the court reduced an award of kshs. 1,800,000/= to kshs. 500,000/= for injuries blunt injury with bruises to right hand, fracture of left femur proximal, open segmental fracture of the right tibia (proximal) with knee dislocation, degree of incapacitation – 10%; The defendant proposed kshs. 350,000/= general damages.
19. In this appeal the court is urged to find that the trial court failed to consider relevant factors in arriving at the general damages.
20. For the respondent it is submitted that this court be guided by Butt –vs- Khan (1977) KAR 1 on when an appellate court may interfere with an award for damages – where the award is inordinately low on inordinately high leading to an erroneous estimate; where the court has applied wrong principles/misapprehended the evidence in some material respect arriving at a figure either inordinately high or low.
21. So, three questions:-
1. Was the award too low?
2. Did the trial court apply using principles?
3. Did the trial court misapprehend the evidence hence leading to law award of damages?
22. This court is reminded that in answering these questions to keep in mind the guiding principles in the assessment of damages:
23. the court is referred to: Coastal Kenya Enterprises Limited –vs- Muchiri (Civil Appeal No. 84/2017) [2024] KECA 879 (KLR) 24/7/2023) Bonface Waiti & Another –vs- Michael Kariuki Kamau [2007] eKLR & Sofia Yusuf Kanyare –vs- Ali Badi Sabre & Another Nairobi HCCC No. 478/2007 ; for the proposition that – award of general damages is an exercise of discretion by the court seized of the matter; should not be too low or too high but should try to restore the claimant to the position they were before as much as is possible and are not meant to enrich the claimant; that precedents are guidelines; in considering past cases the court should take into account their age, rate of inflation and the power of Kenya Shilling and that money cannot renew a physical frame that has been battered and shattered and courts can only give reasonable compensation.
24. The respondent reiterates the submissions before the subordinate court and considers that they presented comparable injuries, but with severe permanent disability assessed as between 10% and 40%.
25. This court is urged not to interfere with the award of kshs. 400,000/= awarded as general damages. Reliance is placed on Loice Wanjiku Kagunda –vs- Julius Gachau Mwangi CA 142/2003.
Analysis: Determination
26. I have carefully considered the record, and the submissions by counsel. The plaintiff/appellant’s submissions that the awards were too low looking at the injuries sustained.
27. A perusal of the Judgment of the trail court indicates that the trial court relied on Zachariah Mwangi NJeru (Above) where the High Court reduced an award of kshs. 800,000/= to kshs.400,000/=.However, it is submitted by the appellant that this authority was misleading. That the trial court did not appreciate that the reduction was because in Zachariah’s case – he had sustained fracture of tibia fibula- yet the trial court had relied on Bethwel Mutai –vs- Chana Road & Bridge Corporation (Mombasa) HCC 10 of 2007 where the plaintiff had sustained fractures of the left clavicle, humerus and right femur, and it was for that reason that the award was reduced. Meaning that the injuries in Bethwel Mutai were more serious than those in Zachariah Njeru hence not comparable. That the court ignored Peris Wanjiru Kahiga where plaintiff sustained fracture of the left femur among other injuries and was awarded Ksh. 1,000,000/= and Kiautha above where there was a fracture of the mid shaft femur where the court set aside the award of kshs. 2,000,000/= for kshs. 800,000/=. In that case the court reviewed several authorities where the plaintiff had sustained fracture of the femur, the award was kshs. 800,000/=.
28. Evidently despite the authorities cited by the respondent for kshs. 350,000/= that award appears to be drawn from older authorities, as that was a 2017 case, and was determined in an accordance with the authorities as at time. It is clear that Koyi is distinguishable, if one takes into account the inflationary rates.
29. Clearly the trial court misapprehended the authority cited vis a vis the injuries sustained by the appellant.
Having found that, I find that the award of general damages is on the lower side as a result of the trail court not considering authorities with similar injuries , The same is set aside and substituted with the award of kshs. 800,000/=.
The rest of the awards remain as awarded by the trial court.
In the circumstances;
The final Orders:-
Liability – 100%
Loss of earnings ksh.60,000/=
Diminished earning capacity kshs. 168,000/=
Future medicals ksh.80,000/=
Special damages ksh.16,050/=
Total kshs.1,124,050/=
Plus, cost and interest
The appellant will have costs of the appeal.
JUDGMENT Dated, signed and delivered virtually on 22 nd May 2026
Mumbua T. Matheka
Judge
In the presence of:-
CA Chrispol
Ms. Masika holding brief for Ms. Mutuku for the appellant
Ms. Mjambili for the Respondent
Judgment HCCA E092 of 2024 Page 2 of 2