REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E086 OF 2024
ACHSAH JANE MASIKA (minor suing through her mother and next friend NIPHER USIDE MUDANYA) ….….………………... APPELLANT
- VERSUS -
WEBUYE T. JUNCTION JIWEZESHE SELF HELP GROUP.. 1 ST RESPONDENT
WANDERA DAVID BARASA ……….………………… 2 ND RESPONDENT
(Being an appeal from the judgment and decree of Hon. P.Y Kulecho PM delivered on 17/5/2024 in Webuye SPMCC No. E058 of 2023, )
JUDGMENT
1. The appellant filed the suit before the trial court vide a plaint dated 18/4/2023, claiming general and special damages for injuries sustained in a road traffic accident on 19/3/2023 at Malaha on the Webuye – Kitale road.
2. The respondents filed a statement of defence dated 3/5/2023, in which they denied the appellant’s claim and instead alleged contributory negligence on the appellant’s part, whilst also alleging fraud on the appellant’s part in bringing the suit.
3. The matter proceeded to trial, and by a judgment delivered on 17/5/2024, the trial court dismissed the suit against the 1st defendant and entered judgment against the 2nd defendant as follows: -
a) Liability at 100% for the appellant against the 1 st defendant.
b) General damages Kshs. 70,000/-
c) Special damages Kshs. 6,690/-
d) Total = Kshs. 76,690/-.
4. Dissatisfied with the said Judgment/decree, the appellant lodged this appeal by the Memorandum of Appeal dated 5/6/2024 and raised three (3) grounds of appeal as follows: -
a) That the learned trial magistrate erred in law and in fact in dismissing the appellant’s case against the 1 st respondent when the learned trial magistrate had already entered judgement for the appellant against both the respondents.
b) That the learned trial magistrate erred in law and in fact in dismissing the appellant’s case against the 1 st respondent, when the appellant’s evidence was uncontroverted and there was overwhelming evidence on record including the Motor Vehicle Copy of Records and the Certificate of Insurance
c) That the learned trial magistrate erred in law and in fact in awarding damages that were inordinately low given the injuries that were sustained by the appellant, the authorities cited by the appellant and the rate of inflation.
5. The appeal was disposed of by written submissions; however, only the appellant’s submissions are on record. The appellant submitted that the trial court erred and contradicted itself in dismissing the suit against the 1st respondent, the actual owner of the suit vehicle, having already found him liable and against the weight of the evidence on record.
6. That the award for general damages was inordinately low and ought to be replaced with an award of Kshs. 300,000/-. Reliance was placed on the cases of;
a) Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi 2005] eKLR, where the 3 rd plaintiff suffered multiple soft tissue injuries on the left elbow joint and injuries on both ankles and was awarded Kshs. 350,000/- as general damages.
b) Vincent Cheruiyot Rono v Mombasa Maize Millers, Nakuru HCCC No. 109 of 2005 where the court awarded Kshs. 400,000/- as general damages in 2006 for various soft tissue injuries without any fractures.
c) Poa Link Services Co. Ltd & Another v Sindani Boaz Bonzemo [2021] eKLR where the court awarded Kshs. 350,000/- for soft tissue injuries.
d) National Industrial Credit Ltd & 2 Others v MNO (Minor suing through Next of friend and mother FNM) (Civil Appeal E035 of 2023) [2024] where Justice W.A. Okwany upheld an award of Kshs. 300,000/- for soft tissue injuries.
e) Cheruiyot & Another v Onyisi (Civil Appeal E012 of 2021) [2024] where Justice R. Lagat Korir upheld an award of Kshs. 300,000/- for the plaintiff who sustained soft tissue injuries.
ANALYSIS AND DETERMINATION
7. As this is a first appeal, the Court is duty-bound to re-evaluate the trial evidence and reach its own independent findings and conclusions. (see Selle & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123).
8. Before the trial court, the appellant testified as Pw1. She adopted her witness statement dated 18/4/2023 as her evidence in chief and her list of documents as P. Exhibits 1 – 11. She testified that she was travelling with the minor and witnessed the accident. In re-examination, she further stated that she had not fastened the seatbelt because she had two children on her lap. The appellant then closed its case.
9. The respondents did not call any witnesses in support of their defence and elected to close their case.
10. The grounds of appeal may be summarized as whether the trial court erred in dismissing the suit against the 1 st respondent and whether the trial court erred in awarding damages that were inordinately low given the injuries sustained .
11. As to whether the trial court erred in dismissing the appellant’s suit against the 1st respondent, the appellant’s claim was that the 2nd respondent was the negligent driver of the suit vehicle, while the 1st respondent was the beneficial owner of the suit vehicle and thus vicariously liable for the accident.
12. In its judgment, the trial court held that there was no evidence linking the 1st respondent to the claim, and therefore the claim against him failed. In my view, this was an error on the part of the trial court, as it had, in the same judgment, held that the appellant had proved its case against the 1st respondent as the beneficial owner of the suit vehicle, not the 2nd respondent.
13. What then was the status of the 2 nd respondent? It is trite law that he who alleges must prove. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya , provides that: -
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
14. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 , the Court of Appeal held that: -
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
15. Accordingly, it was the appellant’s duty to produce evidence that the 2nd respondent was liable for causing the accident that resulted in the injuries he sustained.
16. I have perused the documents adduced by the appellant in support of its case. None of the documents refer to the 2nd respondent as the driver of the suit vehicle. In fact, the Police Abstract adduced as P. Exhibit 6 only identified the owner of the vehicle as the 1st respondent.
17. Accordingly, the trial court’s judgment in favour of the appellant against the 2nd respondent was an error that the trial court ought to have corrected after passing judgment. In the circumstances, I find no reason to belabour this point. The trial court erred in entering judgment against the 2nd respondent for the sum of Kshs. 76690/-.In the circumstances, I find that this limb of the appeal succeeds.
18. As to whether the trial court erred in awarding general damages that were too low, the law on the circumstances under which the court will interfere with an award of quantum by the trial court is settled. The appellate court will only interfere with the award of damages if, in exercising its discretion, the trial court misdirected itself in some matters and arrived at an erroneous decision, or was clearly wrong in the exercise of that judicial discretion, resulting in injustice, as held in the cases of Mbogo & another Vs Shah (1968) EA and Mkube v Nyamuro 1983 KLR 403.
19. The principle was re-stated by the Court of Appeal in Kemfro Africa Ltd v A.M. Lubia and Another (1988) KAR 722, thus: -
“The Principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. The same position was taken in Denshire Muteti Wambui V. KPLC (2013) eKLR.”
20. In the present case, the appellant proved that the minor sustained blunt injuries to the head, neck, chest and back. These were soft tissue injuries. The trial court awarded Kshs. 76690/- as general damages.
21. I have considered the injuries sustained by the appellant. They were minor soft tissue injuries. Looking at the authorities relied on by the appellant, I note that in Vincent Cheruiyot Rono (supra), in addition to soft tissue injuries, the plaintiff also sustained injuries to the cervical and lumbosacral spine, whereas in the remaining authorities cited, the plaintiffs sustained multiple soft tissue injuries that were far more severe than those sustained by the appellant herein.
22. I found the following cases quite helpful in terms of comparison: -
a) In Daniel Gatana Ndungu & another v Harrison Angore Katana (2020) eKLR the respondent sustained a cut wound on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee. The court set aside the finding by the subordinate court that awarded Kshs 350,000 on general damages and substituted it with an award of Kshs 140,000.
b) In Justine Nyamweya Ochoki & another v Jumaa Karisa Kipingwa (2020) eKLR, the respondent suffered a blunt object injury to the lower lip, blunt object injury to the chest and blunt object injury to the left wrist and was awarded Kshs 300,000 On appeal Nyakundi J. set aside that amount and awarded Kshs 150,000.
c) In John Wambua v Mathew Makau Mwololo & another (2020) eKLR, the Plaintiff sustained blunt injury to the right shoulder and a blunt injury to the right big toe. The trial court assessed general damages for pain and suffering in the sum of Kshs. 120,000 and this was affirmed by the High Court.
d) In Charles Gichuki v Emily Kawira Mbuba & another (2018) eKLR, the respondent suffered a blunt injury (tender) on the right side of the face, a blunt injury (tender) on the shoulders, a blunt injury (tender) on the chest and a blunt injury (tender) to the left thigh. Sergon J. (as he was then) substituted the trial court’s award of Kshs 400,000 with Kshs 300,000.
23. On reviewing the decisions on comparable injuries, although no two injuries can be exactly the same, I find that the trial court erred in the manner in which it assessed general damages for the injuries sustained. The trend demonstrated above is to award general damages in the range of Kshs 150,000 to Kshs 000. Taking into account inflation and the time lapse since the earlier awards were made, it is my view that an award of Kshs 70,000 was inordinately low and warranted my interference with the trial court’s award.
24. I am therefore persuaded that I should interfere with the trial court’s award of general damages. As a consequence, I hereby set aside the trial court’s award of general damages and replace it with an award of Kshs. 150,000/-.
25. The upshot of the above is that I hereby set aside the trial court’s judgement and hold as follows;
a) Judgement is entered against the 1 st respondent for the sum of Kshs. 156,690/-
b) The appellant is granted costs of this appeal.
Dated, signed and delivered virtually on the 28 th Day of April 2026.
R. E. OUGO
JUDGE
In the presence:
Miss Oriko h/b Mr. Okara -For the Appellant
Respondent- Absent
Wilkister/ Adan C/A
HCCA NO. E086 OF 2024 – JUDGMENT 2
IN THE HIGH COURT OF KENYA AT BUNGOMA
CIVIL APPEAL NO. E086 OF 2024
ACHSAH JANE MASIKA (minor suing through her mother and next friend NIPHER USIDE MUDANYA) ….….………………... APPELLANT
- VERSUS -
WEBUYE T. JUNCTION JIWEZESHE SELF HELP GROUP.. 1 ST RESPONDENT
WANDERA DAVID BARASA ……….………………… 2 ND RESPONDENT
(Being an appeal from the judgment and decree of Hon. P.Y Kulecho PM delivered on 17/5/2024 in Webuye SPMCC No. E058 of 2023, )
JUDGMENT
1. The appellant filed the suit before the trial court vide a plaint dated 18/4/2023, claiming general and special damages for injuries sustained in a road traffic accident on 19/3/2023 at Malaha on the Webuye – Kitale road.
2. The respondents filed a statement of defence dated 3/5/2023, in which they denied the appellant’s claim and instead alleged contributory negligence on the appellant’s part, whilst also alleging fraud on the appellant’s part in bringing the suit.
3. The matter proceeded to trial, and by a judgment delivered on 17/5/2024, the trial court dismissed the suit against the 1st defendant and entered judgment against the 2nd defendant as follows: -
a) Liability at 100% for the appellant against the 1 st defendant.
b) General damages Kshs. 70,000/-
c) Special damages Kshs. 6,690/-
d) Total = Kshs. 76,690/-.
4. Dissatisfied with the said Judgment/decree, the appellant lodged this appeal by the Memorandum of Appeal dated 5/6/2024 and raised three (3) grounds of appeal as follows: -
a) That the learned trial magistrate erred in law and in fact in dismissing the appellant’s case against the 1 st respondent when the learned trial magistrate had already entered judgement for the appellant against both the respondents.
b) That the learned trial magistrate erred in law and in fact in dismissing the appellant’s case against the 1 st respondent, when the appellant’s evidence was uncontroverted and there was overwhelming evidence on record including the Motor Vehicle Copy of Records and the Certificate of Insurance
c) That the learned trial magistrate erred in law and in fact in awarding damages that were inordinately low given the injuries that were sustained by the appellant, the authorities cited by the appellant and the rate of inflation.
5. The appeal was disposed of by written submissions; however, only the appellant’s submissions are on record. The appellant submitted that the trial court erred and contradicted itself in dismissing the suit against the 1st respondent, the actual owner of the suit vehicle, having already found him liable and against the weight of the evidence on record.
6. That the award for general damages was inordinately low and ought to be replaced with an award of Kshs. 300,000/-. Reliance was placed on the cases of;
a) Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi 2005] eKLR, where the 3 rd plaintiff suffered multiple soft tissue injuries on the left elbow joint and injuries on both ankles and was awarded Kshs. 350,000/- as general damages.
b) Vincent Cheruiyot Rono v Mombasa Maize Millers, Nakuru HCCC No. 109 of 2005 where the court awarded Kshs. 400,000/- as general damages in 2006 for various soft tissue injuries without any fractures.
c) Poa Link Services Co. Ltd & Another v Sindani Boaz Bonzemo [2021] eKLR where the court awarded Kshs. 350,000/- for soft tissue injuries.
d) National Industrial Credit Ltd & 2 Others v MNO (Minor suing through Next of friend and mother FNM) (Civil Appeal E035 of 2023) [2024] where Justice W.A. Okwany upheld an award of Kshs. 300,000/- for soft tissue injuries.
e) Cheruiyot & Another v Onyisi (Civil Appeal E012 of 2021) [2024] where Justice R. Lagat Korir upheld an award of Kshs. 300,000/- for the plaintiff who sustained soft tissue injuries.
ANALYSIS AND DETERMINATION
7. As this is a first appeal, the Court is duty-bound to re-evaluate the trial evidence and reach its own independent findings and conclusions. (see Selle & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123).
8. Before the trial court, the appellant testified as Pw1. She adopted her witness statement dated 18/4/2023 as her evidence in chief and her list of documents as P. Exhibits 1 – 11. She testified that she was travelling with the minor and witnessed the accident. In re-examination, she further stated that she had not fastened the seatbelt because she had two children on her lap. The appellant then closed its case.
9. The respondents did not call any witnesses in support of their defence and elected to close their case.
10. The grounds of appeal may be summarized as whether the trial court erred in dismissing the suit against the 1 st respondent and whether the trial court erred in awarding damages that were inordinately low given the injuries sustained .
11. As to whether the trial court erred in dismissing the appellant’s suit against the 1st respondent, the appellant’s claim was that the 2nd respondent was the negligent driver of the suit vehicle, while the 1st respondent was the beneficial owner of the suit vehicle and thus vicariously liable for the accident.
12. In its judgment, the trial court held that there was no evidence linking the 1st respondent to the claim, and therefore the claim against him failed. In my view, this was an error on the part of the trial court, as it had, in the same judgment, held that the appellant had proved its case against the 1st respondent as the beneficial owner of the suit vehicle, not the 2nd respondent.
13. What then was the status of the 2 nd respondent? It is trite law that he who alleges must prove. Section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya , provides that: -
“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist.”
14. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334 , the Court of Appeal held that: -
“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.”
15. Accordingly, it was the appellant’s duty to produce evidence that the 2nd respondent was liable for causing the accident that resulted in the injuries he sustained.
16. I have perused the documents adduced by the appellant in support of its case. None of the documents refer to the 2nd respondent as the driver of the suit vehicle. In fact, the Police Abstract adduced as P. Exhibit 6 only identified the owner of the vehicle as the 1st respondent.
17. Accordingly, the trial court’s judgment in favour of the appellant against the 2nd respondent was an error that the trial court ought to have corrected after passing judgment. In the circumstances, I find no reason to belabour this point. The trial court erred in entering judgment against the 2nd respondent for the sum of Kshs. 76690/-.In the circumstances, I find that this limb of the appeal succeeds.
18. As to whether the trial court erred in awarding general damages that were too low, the law on the circumstances under which the court will interfere with an award of quantum by the trial court is settled. The appellate court will only interfere with the award of damages if, in exercising its discretion, the trial court misdirected itself in some matters and arrived at an erroneous decision, or was clearly wrong in the exercise of that judicial discretion, resulting in injustice, as held in the cases of Mbogo & another Vs Shah (1968) EA and Mkube v Nyamuro 1983 KLR 403.
19. The principle was re-stated by the Court of Appeal in Kemfro Africa Ltd v A.M. Lubia and Another (1988) KAR 722, thus: -
“The Principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. The same position was taken in Denshire Muteti Wambui V. KPLC (2013) eKLR.”
20. In the present case, the appellant proved that the minor sustained blunt injuries to the head, neck, chest and back. These were soft tissue injuries. The trial court awarded Kshs. 76690/- as general damages.
21. I have considered the injuries sustained by the appellant. They were minor soft tissue injuries. Looking at the authorities relied on by the appellant, I note that in Vincent Cheruiyot Rono (supra), in addition to soft tissue injuries, the plaintiff also sustained injuries to the cervical and lumbosacral spine, whereas in the remaining authorities cited, the plaintiffs sustained multiple soft tissue injuries that were far more severe than those sustained by the appellant herein.
22. I found the following cases quite helpful in terms of comparison: -
a) In Daniel Gatana Ndungu & another v Harrison Angore Katana (2020) eKLR the respondent sustained a cut wound on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee. The court set aside the finding by the subordinate court that awarded Kshs 350,000 on general damages and substituted it with an award of Kshs 140,000.
b) In Justine Nyamweya Ochoki & another v Jumaa Karisa Kipingwa (2020) eKLR, the respondent suffered a blunt object injury to the lower lip, blunt object injury to the chest and blunt object injury to the left wrist and was awarded Kshs 300,000 On appeal Nyakundi J. set aside that amount and awarded Kshs 150,000.
c) In John Wambua v Mathew Makau Mwololo & another (2020) eKLR, the Plaintiff sustained blunt injury to the right shoulder and a blunt injury to the right big toe. The trial court assessed general damages for pain and suffering in the sum of Kshs. 120,000 and this was affirmed by the High Court.
d) In Charles Gichuki v Emily Kawira Mbuba & another (2018) eKLR, the respondent suffered a blunt injury (tender) on the right side of the face, a blunt injury (tender) on the shoulders, a blunt injury (tender) on the chest and a blunt injury (tender) to the left thigh. Sergon J. (as he was then) substituted the trial court’s award of Kshs 400,000 with Kshs 300,000.
23. On reviewing the decisions on comparable injuries, although no two injuries can be exactly the same, I find that the trial court erred in the manner in which it assessed general damages for the injuries sustained. The trend demonstrated above is to award general damages in the range of Kshs 150,000 to Kshs 000. Taking into account inflation and the time lapse since the earlier awards were made, it is my view that an award of Kshs 70,000 was inordinately low and warranted my interference with the trial court’s award.
24. I am therefore persuaded that I should interfere with the trial court’s award of general damages. As a consequence, I hereby set aside the trial court’s award of general damages and replace it with an award of Kshs. 150,000/-.
25. The upshot of the above is that I hereby set aside the trial court’s judgement and hold as follows;
a) Judgement is entered against the 1 st respondent for the sum of Kshs. 156,690/-
b) The appellant is granted costs of this appeal.
Dated, signed and delivered virtually on the 28 th Day of April 2026.
R. E. OUGO
JUDGE
In the presence:
Miss Oriko h/b Mr. Okara -For the Appellant
Respondent- Absent
Wilkister/ Adan C/A
HCCA NO. E086 OF 2024 – JUDGMENT 2