REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E069 OF 2024
AGGREY MBAJAH OBONDO ……………..…………….…….…....... APPELLANT
VERSUS
PAUL KANYI MWANGI …………..…..…………….……………….. RESPONDENT
(Being an appeal from the Judgment and Decree of Hon J.A. Agonda (PM) delivered at Vihiga in the Senior Principal Magistrate’s Court Civil Case No E085 of 2023 on 26 th November 2024)
JUDGMENT
INTRODUCTION
1. In her decision of 26 th November 2024, the Learned Trial Magistrate, Hon J.A. Agonda, Principal Magistrate, found the Respondent fully liable for the injuries that the Appellant herein sustained and entered Judgment in favour of the Appellant against the Respondent in the following terms: -
General damages Kshs 400,000/=
Special damages Kshs 30,085/=
Grand Total Kshs 430,085/=
Plus costs of the suit and interest thereon.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 16 th December 2024 and filed on 19 th December 2024. He relied on three (3) grounds of appeal.
3. His Written Submissions were dated and filed on 2 nd October 2025 while those of the Respondent were dated and filed on 6 th November 2025. The Judgment herein is based on the said Written Submissions, which both parties relied upon in their entirety.
LEGAL ANALYSIS
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the Trial Court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify.
5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
6. Having considered the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that the grounds of appeal were related. The issue that had been placed before this court for determination was whether the award on quantum was inordinately low warranting interference by this court.
7. The Appellant submitted that the principles upon which courts acted on a first appeal were settled, that the appellate court could only interfere with an award of damages if the aggrieved party satisfied one of two conditions, namely, that the Trial Court took into account irrelevant factors or left out relevant factors when assessing damages, or that the amount of damages was so inordinately high or low that the quantum awarded was a wholly erroneous estimate of damages as was stated in Butt vs Khan (1977) KAR 1 .
8. He also relied on Selle vs Associated Motor Boat Co Ltd & Others (Supra), where it was held that an appeal was by way of retrial and that the appellate court had to reconsider the evidence, evaluate it itself and draw its own conclusions, though it was always required to bear in mind that it neither saw nor heard the witnesses and should make due allowance in that respect.
9. He further placed reliance on the cases of Loice Wanjiku Kagunda vs Julius Gachau Mwangi CA No. 142 of 2003 (KLR citation not given), Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini vs A.M. Lubia and Olive Lubia (1982–88) 1 KAR 727 amongst other cases where the common thread was that the assessment of damages was an exercise of judicial discretion and that an appellate court should not interfere with an award of damages unless it was satisfied that the trial court acted on wrong principles of law, or misapprehended the facts or that the trial judge took into account an irrelevant factor, or that the trial court left out of account a relevant factor or that the amount awarded was so inordinately low or so inordinately high that it amounted to a wholly erroneous estimate of the damage.
10. He also referred this court to the case of P. N. Mashru Limited vs Omar Mwakoro Makenge [2018] eKLR where the court stated that courts have a responsibility to keep themselves appraised of recent authorities and to take into consideration inflation, which has taken a toll on the value of the Kenya Shilling.
11. Turning to the evidence, he submitted that in his testimony and written statement, which he adopted as part of his evidence-in-chief, he stated that as a result of the accident that occurred on 14 th February 2022, he sustained a fracture on the right lower limb proximal femur bone, tenderness on the anterior chest, pain on the right limb, tenderness on the right knee and pain on the proximal thigh. He further submitted that he was admitted at Vihiga County Referral Hospital from 14 th February 2022 to 3 rd March 2022 where he was treated and issued with a Discharge Summary, P3 Form and X-ray films, all of which were produced in evidence.
12. He further submitted that Dr Obadiah Ndege ( hereinafter referred to as “PW 2”) produced the Discharge Summary, P3 Form, X-ray films and treatment notes from Vihiga County Referral Hospital and confirming the injuries that he sustained. He pointed out that the Respondent's second Medical Report dated 24 th August 2023, prepared by Dr Stephen Ondigo and produced as exhibit, equally confirmed that he sustained the said fracture and fixation was done with a plate. He averred that the said evidence proved on a balance of probabilities, that he sustained the aforementioned injuries.
13. He relied on several cases amongst them the case of Raphael Muthoka Mailu (a minor suing through his uncle and next friend Thomas Muoka Muthoka) vs Earnest Jacob Kisaka Nrb HCCC No 1132 of 2006 (Supra) (KLR citation not given) where awards between Kshs 1,000,000/= and Kshs 2,000,000/= were made. He submitted that the injuries sustained in those cases were comparable to those he sustained in the present case.
14. He further submitted that the award of Kshs 30,085/= as special damages was neither challenged nor a subject of the appeal and should, therefore, not be interfered with.
15. In the premises, he urged this court to allow the appeal, set aside the Trial Court's finding on quantum in respect of the award for general damages for pain, suffering and loss of amenities and substitute it with an award of Kshs 1,000,000/= which was commensurate with the injuries he sustained.
16. He further prayed for costs of both the Trial Court proceedings and the appeal together with interest. He urged the court to uphold liability at 100% against the Respondent and, making a total award of Kshs 1,030,085/=.
17. On his part, the Respondent maintained that the award made by the Trial Court was reasonable and fair having regard to the injuries sustained and urged this court to dismiss the appeal with costs.
18. He pointed out that this was a first appeal and relied on Kingoo & 2 Others vs Ntenge (Civil Appeal E798 of 2022) [2024] KEHC 7606 (KLR) (20 June 2024) (Judgment) and Selle and Another vs Associated Motor Boat Co Ltd and Others (Supra) where duty of the first appellate court was set out as shown hereinabove.
19. He stated that PW 2 produced documents which showed that the Appellant suffered a compound fracture on the right lower limb along the femur and tenderness along the anterior chest while the Medical Report of Dr Stephen Ondigo showed that the Appellant suffered a fracture of the right femur. He submitted that the damages awarded by the Trial Court of Kshs 400,000/= was on the higher side but was reasonably fair. He averred that he had proposed a sum of Kshs 200,000/= in the Trial Court.
20. He submitted that the general principle in awarding general damages is that, so far as possible, comparable injuries should attract comparable awards and in this regard, relied on the case of Swalleh C. Kariuki & Another vs Violet Owiso Okuyu [2021] eKLR amongst others.
21. It was therefore the Respondent's submission that the Trial Court did not abuse discretion and applied it in line with comparable awards. He contended that the Appellant was inviting the court to interfere with a reasonable award based on sound legal principles and comparable awards, an invitation which had no merit, and accordingly urged the court to dismiss the appeal with costs.
22. A perusal of the Plaint dated 5 th April 2023 and filed on 11 th April 2023 showed that the Appellant sustained the following injuries: -
a. Fracture on the right lower limb proximal bone.
b. Tenderness on the anterior chest.
c. Pain on the right limb.
d. Tenderness on the right knee.
e. Pain on the proximal thigh.
23. As the Appellant already set out the evidence that was adduced in his Written Submissions, it was not necessary to restate the same here. Suffice it to state that the Medical Report of Dr Stephen Ondigo estimated the cost of removal of the plate at approximately 60,000/= in a government hospital.
24. It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money can remove the pain that a person goes through no matter how small an injury may appear to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person has sustained. It is merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who has suffered an injury.
25. However, this assessment is not without limits. A court must have presence of mind to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court must therefore be guided by precedents.
26. Indeed, in the case of Kigaraari vs Aya (Supra) it was stated as follows: -
“Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.”
27. Taking into account the aspect of inflation and the injuries the Appellant sustained, it was the considered view of this court that the sum of Kshs 400,000/= awarded by the Trial Court was not fair and reasonable. It was inordinately low warranting interference by this court. It was the view of this court that a sum of Kshs 700,000/= general damages would be fair in the circumstances of the case herein.
28. In arriving a substituted figure of, this court had due regard to the following cases:-
1. Hydrolo Pipeline Limited vs Charo [2025] KEHC 10263 (KLR)
The court awarded a sum of Kshs 600,000/= where the claimant therein had suffered a fracture of the proximal femur bone.
2. In Wairimu vs Kinungi [2026] KEHC 2756 (KLR)
The court awarded a sum of Kshs. 600,000/= as general damages where the Respondent therein had suffered a fracture of the right femur, surgery with metal implants and visible surgical scar.
3. Macharia vs Ndungu [2026] KEHC 11147 (KLR)
The court awarded a sum of Kshs 650,000/= where the appellant therein had suffered an open fracture lower 1/3 left femur, femur mid 1/3 right femur necessitating installation of metal plates which would require removal after one year at an estimated cost of Kshs 600,000/=.
4. Orina vs Dorothy & Another [2024] KEHC 6498 (KLR)
The appellant upheld the sum of Kshs 550,000/= general damages that had been awarded by the Trial Court for right femur fracture, left femur fracture, blunt trauma to the back, chest contusion, bruises on the right and left upper limb.
29. In the premises foregoing, Grounds of Appeal Nos (1), (2) and (3) were all merited and the same be and are hereby allowed.
DISPOSITION
30. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal dated 16 th December 2024 and filed on 19 th December 2024, was merited and the same be and is hereby allowed. The effect of this decision is that the judgment of the Trial Court that was delivered by the Learned Trial Magistrate, Hon J.A. Agonda, Principal Magistrate in Vihiga in SPMCC No E085 of 2023 on 26 th November 2024 be and is hereby set aside to the extent of the award on quantum and substituted with an order that judgment be and is hereby entered in favour of the Appellant against the Respondent for the sum of Kshs 730,085/= made up as shown hereinbelow:-
General damages Kshs 700,000/=
Special damages Kshs 30,085/=
Kshs 730,085/=
Plus costs of the suit and interest thereon.
31. For the avoidance of doubt, interest on special damages will be at court rates from the date of filing the suit until payment in full while the interest on general damages will be at court rates from the date of the judgment of the Trial Court until payment in full.
32. It is hereby directed that each party will bear its own costs of this Appeal.
33. It is so ordered.
DATED and DELIVERED at VIHIGA this 17 th day of September 2026
J. KAMAU
JUDGE
HCCA NO E069 OF 20242
IN THE HIGH COURT OF KENYA AT VIHIGA
CIVIL APPEAL NO E069 OF 2024
AGGREY MBAJAH OBONDO ……………..…………….…….…....... APPELLANT
VERSUS
PAUL KANYI MWANGI …………..…..…………….……………….. RESPONDENT
(Being an appeal from the Judgment and Decree of Hon J.A. Agonda (PM) delivered at Vihiga in the Senior Principal Magistrate’s Court Civil Case No E085 of 2023 on 26 th November 2024)
JUDGMENT
INTRODUCTION
1. In her decision of 26 th November 2024, the Learned Trial Magistrate, Hon J.A. Agonda, Principal Magistrate, found the Respondent fully liable for the injuries that the Appellant herein sustained and entered Judgment in favour of the Appellant against the Respondent in the following terms: -
General damages Kshs 400,000/=
Special damages Kshs 30,085/=
Grand Total Kshs 430,085/=
Plus costs of the suit and interest thereon.
2. Being aggrieved by the said decision, the Appellant herein filed a Memorandum of Appeal dated 16 th December 2024 and filed on 19 th December 2024. He relied on three (3) grounds of appeal.
3. His Written Submissions were dated and filed on 2 nd October 2025 while those of the Respondent were dated and filed on 6 th November 2025. The Judgment herein is based on the said Written Submissions, which both parties relied upon in their entirety.
LEGAL ANALYSIS
4. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the Trial Court in order to arrive at its own independent conclusion, but bearing in mind that it neither saw nor heard the witnesses testify.
5. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
6. Having considered the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that the grounds of appeal were related. The issue that had been placed before this court for determination was whether the award on quantum was inordinately low warranting interference by this court.
7. The Appellant submitted that the principles upon which courts acted on a first appeal were settled, that the appellate court could only interfere with an award of damages if the aggrieved party satisfied one of two conditions, namely, that the Trial Court took into account irrelevant factors or left out relevant factors when assessing damages, or that the amount of damages was so inordinately high or low that the quantum awarded was a wholly erroneous estimate of damages as was stated in Butt vs Khan (1977) KAR 1 .
8. He also relied on Selle vs Associated Motor Boat Co Ltd & Others (Supra), where it was held that an appeal was by way of retrial and that the appellate court had to reconsider the evidence, evaluate it itself and draw its own conclusions, though it was always required to bear in mind that it neither saw nor heard the witnesses and should make due allowance in that respect.
9. He further placed reliance on the cases of Loice Wanjiku Kagunda vs Julius Gachau Mwangi CA No. 142 of 2003 (KLR citation not given), Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini vs A.M. Lubia and Olive Lubia (1982–88) 1 KAR 727 amongst other cases where the common thread was that the assessment of damages was an exercise of judicial discretion and that an appellate court should not interfere with an award of damages unless it was satisfied that the trial court acted on wrong principles of law, or misapprehended the facts or that the trial judge took into account an irrelevant factor, or that the trial court left out of account a relevant factor or that the amount awarded was so inordinately low or so inordinately high that it amounted to a wholly erroneous estimate of the damage.
10. He also referred this court to the case of P. N. Mashru Limited vs Omar Mwakoro Makenge [2018] eKLR where the court stated that courts have a responsibility to keep themselves appraised of recent authorities and to take into consideration inflation, which has taken a toll on the value of the Kenya Shilling.
11. Turning to the evidence, he submitted that in his testimony and written statement, which he adopted as part of his evidence-in-chief, he stated that as a result of the accident that occurred on 14 th February 2022, he sustained a fracture on the right lower limb proximal femur bone, tenderness on the anterior chest, pain on the right limb, tenderness on the right knee and pain on the proximal thigh. He further submitted that he was admitted at Vihiga County Referral Hospital from 14 th February 2022 to 3 rd March 2022 where he was treated and issued with a Discharge Summary, P3 Form and X-ray films, all of which were produced in evidence.
12. He further submitted that Dr Obadiah Ndege ( hereinafter referred to as “PW 2”) produced the Discharge Summary, P3 Form, X-ray films and treatment notes from Vihiga County Referral Hospital and confirming the injuries that he sustained. He pointed out that the Respondent's second Medical Report dated 24 th August 2023, prepared by Dr Stephen Ondigo and produced as exhibit, equally confirmed that he sustained the said fracture and fixation was done with a plate. He averred that the said evidence proved on a balance of probabilities, that he sustained the aforementioned injuries.
13. He relied on several cases amongst them the case of Raphael Muthoka Mailu (a minor suing through his uncle and next friend Thomas Muoka Muthoka) vs Earnest Jacob Kisaka Nrb HCCC No 1132 of 2006 (Supra) (KLR citation not given) where awards between Kshs 1,000,000/= and Kshs 2,000,000/= were made. He submitted that the injuries sustained in those cases were comparable to those he sustained in the present case.
14. He further submitted that the award of Kshs 30,085/= as special damages was neither challenged nor a subject of the appeal and should, therefore, not be interfered with.
15. In the premises, he urged this court to allow the appeal, set aside the Trial Court's finding on quantum in respect of the award for general damages for pain, suffering and loss of amenities and substitute it with an award of Kshs 1,000,000/= which was commensurate with the injuries he sustained.
16. He further prayed for costs of both the Trial Court proceedings and the appeal together with interest. He urged the court to uphold liability at 100% against the Respondent and, making a total award of Kshs 1,030,085/=.
17. On his part, the Respondent maintained that the award made by the Trial Court was reasonable and fair having regard to the injuries sustained and urged this court to dismiss the appeal with costs.
18. He pointed out that this was a first appeal and relied on Kingoo & 2 Others vs Ntenge (Civil Appeal E798 of 2022) [2024] KEHC 7606 (KLR) (20 June 2024) (Judgment) and Selle and Another vs Associated Motor Boat Co Ltd and Others (Supra) where duty of the first appellate court was set out as shown hereinabove.
19. He stated that PW 2 produced documents which showed that the Appellant suffered a compound fracture on the right lower limb along the femur and tenderness along the anterior chest while the Medical Report of Dr Stephen Ondigo showed that the Appellant suffered a fracture of the right femur. He submitted that the damages awarded by the Trial Court of Kshs 400,000/= was on the higher side but was reasonably fair. He averred that he had proposed a sum of Kshs 200,000/= in the Trial Court.
20. He submitted that the general principle in awarding general damages is that, so far as possible, comparable injuries should attract comparable awards and in this regard, relied on the case of Swalleh C. Kariuki & Another vs Violet Owiso Okuyu [2021] eKLR amongst others.
21. It was therefore the Respondent's submission that the Trial Court did not abuse discretion and applied it in line with comparable awards. He contended that the Appellant was inviting the court to interfere with a reasonable award based on sound legal principles and comparable awards, an invitation which had no merit, and accordingly urged the court to dismiss the appeal with costs.
22. A perusal of the Plaint dated 5 th April 2023 and filed on 11 th April 2023 showed that the Appellant sustained the following injuries: -
a. Fracture on the right lower limb proximal bone.
b. Tenderness on the anterior chest.
c. Pain on the right limb.
d. Tenderness on the right knee.
e. Pain on the proximal thigh.
23. As the Appellant already set out the evidence that was adduced in his Written Submissions, it was not necessary to restate the same here. Suffice it to state that the Medical Report of Dr Stephen Ondigo estimated the cost of removal of the plate at approximately 60,000/= in a government hospital.
24. It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money can remove the pain that a person goes through no matter how small an injury may appear to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person has sustained. It is merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who has suffered an injury.
25. However, this assessment is not without limits. A court must have presence of mind to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court must therefore be guided by precedents.
26. Indeed, in the case of Kigaraari vs Aya (Supra) it was stated as follows: -
“Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.”
27. Taking into account the aspect of inflation and the injuries the Appellant sustained, it was the considered view of this court that the sum of Kshs 400,000/= awarded by the Trial Court was not fair and reasonable. It was inordinately low warranting interference by this court. It was the view of this court that a sum of Kshs 700,000/= general damages would be fair in the circumstances of the case herein.
28. In arriving a substituted figure of, this court had due regard to the following cases:-
1. Hydrolo Pipeline Limited vs Charo [2025] KEHC 10263 (KLR)
The court awarded a sum of Kshs 600,000/= where the claimant therein had suffered a fracture of the proximal femur bone.
2. In Wairimu vs Kinungi [2026] KEHC 2756 (KLR)
The court awarded a sum of Kshs. 600,000/= as general damages where the Respondent therein had suffered a fracture of the right femur, surgery with metal implants and visible surgical scar.
3. Macharia vs Ndungu [2026] KEHC 11147 (KLR)
The court awarded a sum of Kshs 650,000/= where the appellant therein had suffered an open fracture lower 1/3 left femur, femur mid 1/3 right femur necessitating installation of metal plates which would require removal after one year at an estimated cost of Kshs 600,000/=.
4. Orina vs Dorothy & Another [2024] KEHC 6498 (KLR)
The appellant upheld the sum of Kshs 550,000/= general damages that had been awarded by the Trial Court for right femur fracture, left femur fracture, blunt trauma to the back, chest contusion, bruises on the right and left upper limb.
29. In the premises foregoing, Grounds of Appeal Nos (1), (2) and (3) were all merited and the same be and are hereby allowed.
DISPOSITION
30. For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal dated 16 th December 2024 and filed on 19 th December 2024, was merited and the same be and is hereby allowed. The effect of this decision is that the judgment of the Trial Court that was delivered by the Learned Trial Magistrate, Hon J.A. Agonda, Principal Magistrate in Vihiga in SPMCC No E085 of 2023 on 26 th November 2024 be and is hereby set aside to the extent of the award on quantum and substituted with an order that judgment be and is hereby entered in favour of the Appellant against the Respondent for the sum of Kshs 730,085/= made up as shown hereinbelow:-
General damages Kshs 700,000/=
Special damages Kshs 30,085/=
Kshs 730,085/=
Plus costs of the suit and interest thereon.
31. For the avoidance of doubt, interest on special damages will be at court rates from the date of filing the suit until payment in full while the interest on general damages will be at court rates from the date of the judgment of the Trial Court until payment in full.
32. It is hereby directed that each party will bear its own costs of this Appeal.
33. It is so ordered.
DATED and DELIVERED at VIHIGA this 17 th day of September 2026
J. KAMAU
JUDGE
HCCA NO E069 OF 20242