Being an appeal from the judgment of Hon. M. Njangi dated 5.2.2025 and reviewed on 19.3.25 in Milimani MCCC E3282/23
This appeal arose from the finding of the trial court on the aspect of quantum awarded to the respondent in Milimani MCCC No. 3282 of 2023 (the primary suit). In the primary suit the respondent (plaintiff), vide a plaint dated 26.4.23, sought compensation for personal injuries sustained following a road traffic incident involving the appellant’s motor vehicle registration No. KDD 338U and the respondent, a pedestrian along Raila Odinga road.
The trial court in her judgment apportioned liability in the ratio of 80:20 in favour of the respondent against the appellant. The trial court awarded the respondent general damages assessed at Kshs. 1,200,000 and special damages of Kshs. 182,549, plus costs and interest.
The appeal herein is in respect to the quantum of damages. The finding on liability is not challenged.
The appellants in their memorandum of appeal dated 2.4.25, raised the following grounds:
a) That the learned magistrate erred in law and fact in relying on extraneous evidence in arriving at the decision on quantum
b) That the learned magistrate erred in law and in fact in the assessment of general damages leading to excessive award.
c) That the learned magistrate erred in law and in fact in failing to accord due regard to the appellant’s submissions and case law on quantum and the applicable principles for assessment of damages in similar circumstances
The appeal was disposed of by written submissions.
APPELLANT’S SUBMISSIONS
The appellant submitted that the learned magistrate erred in putting premium on injuries which were not pleaded. That the respondent did not plead in his plaint having sustained urethral stricture, fracture of the shoulder and fracture of L4 as these were only introduced during submissions. The appellant cited the case of Kenya Building, Construction, Timber and Furniture Industries Employees Union v Slumberland Kenya Ltd (2024) KEELRC (KLR) and the case of Hussein Sambur Hussein v Sheriff A. Abdulla Hussein & others (2022) eKLR.
The appellant submitted that the award of Kshs. 1,200,000 as general damages was inordinately high and that an award of between Kshs. 600,000 to Kshs. 800,000 would be sufficient. The appellant relied on the case of Barnabas v Ombati (2022) KEHC 12136 (KLR) where the appellate court upheld the trial court’s award of Kshs. 800,000 for a respondent who sustained fracture of the femur, humerus and pelvis together with soft tissue injuries and degree of permanent disability placed at 5%. The appellant also relied on the case of Joseph Njeru Luke & 3 others v Stellah Muki Kioko (2020) KEHC 9029 (KLR) where the plaintiff sustained pelvic fractures and multiple soft tissue injuries and the court awarded Kshs. 750,000.
The appellant submitted that the trial magistrate erred in law and fact by awarding special damages which had been paid by an insurer and in which the insurer had not granted its consent or authority to claim for such damages. The appellant cited the case of Mwaura & Another v Njoroge (2025) KEHC 12684 KLR and the case of John Mwangi Munyiri & Another v Paul Wachira Njuguna (2020) KEHC 4287 (KLR).
RESPONDENT’S SUBMISSIONS
The respondent submitted that there was no ground of appeal against special damages. The respondent further submitted that the trial magistrate correctly considered the law and the applicable principles for assessment of damages. The respondent’s case is that an appellate court should not disturb an award of damages except where it is too low or too high or the trial court took into account irrelevant matters or failed to take into account relevant factors. The respondent cited the case of Agnes Kamene Mulyali v Harvest Ltd and Sosines Orindo v Emkay Builders Ltd (2019) eKLR .
The respondent submitted that particulars of injuries are not the same as particulars of special damages and the failure to particularize injuries is not a fatal omission as long as the same is proved. That the injuries suffered by the respondent were apparent on the face of the record. The respondent maintained that the award of Kshs. 1,200,000 for general damages was not excessive.
ANALYSIS AND DETERMINATION
This being a first appeal, the duty of the court is well set down in the case of Selle & Another v Associated Motor Boat Co. Ltd (1986) EA 123 . This court must reappraise the evidence and reanalyze the same with a view of reaching its own conclusion while taking into account that unlike the trial court, it did not have the benefit of listening to and watching witnesses testify.
There is no dispute that the appeal is on assessment of damages by the trial court. Awards of damages of course lie in the discretion of the trial court but it is exercisable on settled principles. Appellate courts are slow to interfere with the same and will do so only in well-known circumstances.
In the case of Kenya Bus Services & Another v Mayende (1992) 2 EA 232 of 235 , the court of appeal put it thus:
“The principles on which an appellate court will interfere with a trial court’s assessment of damages are now settled in Kenya. Kneller J.A. as he then was, put it thus in Kitavi v Coastal Bottlers Ltd (1984) LLR 213 (CAK); The court of appeal in Kenya then should as its frontrunners did, only disturb an award of damages, when the trial judge has taken into account a factor he ought not to have taken into account or the award is so high or so low that it amounts to an erroneous estimate”
The question that I have to decide on is whether the award of general damages granted by the trial court was so high as to amount to an erroneous estimate of the damage or injuries suffered and thus call for my interference. I must also decide whether the special damages were proved as required by law.
As regards general damages, the respondent pleaded injuries in paragraph 4 of his plaint as follows:
a) Major head injuries that consisted of:
- Loss of consciousness
- Brain contusion
- Left subarachnoid hemorrhage
- Fracture of the left lower jaw
b) Sprain of the neck
c) Fracture of the right 2 nd rib
d) Fracture of the right iliac bone of the pelvis
During hearing, an x-ray report from Nairobi West hospital indicated that the respondent had urethral stricture. X-ray report from Kenyatta National hospital indicated that the respondent had left temporomandibular or joint fracture-dislocation with left mandibular ramus fracture. The report also confirmed that the respondent suffered urethral stricture.
The reports and the x-ray reports were produced as exhibits with the consent of the appellant’s advocates. In the absence of an objection to the documents, the appellant was deemed to have admitted the contents and authenticity of the documents.
While it is true that parties are bound by their pleadings and that evidence which is at variance with pleadings is for rejection, it is important to appreciate that the function of pleadings is to give fair notice of the case which has to be met by the opposing party so that the latter may direct evidence to the issue disclosed by them, however, pleadings do not include evidence. Pleadings should include facts and not evidence. From an examination of the record, the respondent did not depart from pleadings but appeared to have disclosed more details of the injuries as detailed in the medical documents placed before court. The appellant made a big issue of the fact that the injuries in the medical report were ‘more’ than those pleaded in the plaint. There is however no dispute that the pleaded injuries are reflected in the medical documents produced in exhibits. This court takes judicial notice that pleadings are prepared by advocates who are not trained in the technical language of medics. I have found no contradiction in the medical documents that affect the credibility to be attached to the respondent’s case as concerned her injuries.
I have considered the case of Barnabas v Ombati (2022) KEHC 12136 (KLR) where an award of Kshs. 800,000 was made for a claimant who suffered fracture of the femur, humerus and pelvis and that of Joseph Njeru Luke & 3 others v Stellah Muki Kioko (2020) KEHC 9029 (KLR) where the court awarded Kshs. 750,000 for a claimant who suffered pelvic fracture and multiple soft tissue injuries. I have also considered the case of Ogao v Masorori (2025) KEHC 3031 (KLR) where the claimant sustained contusion to the head, chest contusion, fracture of the ribs, contusion to the pelvis, fracture of the pelvic, dislocation of the left knee joint, contusion to the left lung, fracture of the left tibia/fibula bones, abrasion to both knees, anteriorly and abrasion to both palms. The appellate court substituted an award of Kshs. 1,200,000 made by trial court with Kshs. 850,000 as general damages for pain and suffering.
Having considered the case law cited and the rate of inflation, it is my finding that the award made by the trial court was inordinately high and therefore an erroneous estimate of damages. An award of Kshs 800,000 would suffice as general damages for pain and suffering.
As regards special damages, the respondent admitted on cross examination that part of what he had pleaded as special damages amounting to Kshs 100,000 was paid by NHIF. Though the respondent contended that the issue was not pleaded as a ground of appeal, grounds (a) and (c) captures this question. The respondent is only entitled to special damages which he actually paid for. The respondent is not entitled to payment which were catered for by NHIF. See the case of Mwaura & Another v Njoroge (2025) KEHC 12684 (KLR) and John Mwangi Munyiri & Another v Paul Wachira Njunguna (2020) KEHC 4287 (KLR). The sum of Kshs. 100,000 by NHIF shall therefore be deducted from the special damages awarded.
In conclusion, the orders of this court are as follows:
i) The appeal dated 2.4.25 is allowed and the sum of Kshs. 187,000 awarded as special damages is reduced by a sum of Kshs. 100,000
ii) The award of Kshs 1,200,000 for general damages is reduced to Kshs 850,000
iii) The appellants shall have costs of the appeal. The respondent shall have costs before the trial court.
DATED, SIGNED AND DELIVERED THIS 15 th JULY 2026
D.O. ONYANGO
JUDGE
1
This appeal arose from the finding of the trial court on the aspect of quantum awarded to the respondent in Milimani MCCC No. 3282 of 2023 (the primary suit). In the primary suit the respondent (plaintiff), vide a plaint dated 26.4.23, sought compensation for personal injuries sustained following a road traffic incident involving the appellant’s motor vehicle registration No. KDD 338U and the respondent, a pedestrian along Raila Odinga road.
The trial court in her judgment apportioned liability in the ratio of 80:20 in favour of the respondent against the appellant. The trial court awarded the respondent general damages assessed at Kshs. 1,200,000 and special damages of Kshs. 182,549, plus costs and interest.
The appeal herein is in respect to the quantum of damages. The finding on liability is not challenged.
The appellants in their memorandum of appeal dated 2.4.25, raised the following grounds:
a) That the learned magistrate erred in law and fact in relying on extraneous evidence in arriving at the decision on quantum
b) That the learned magistrate erred in law and in fact in the assessment of general damages leading to excessive award.
c) That the learned magistrate erred in law and in fact in failing to accord due regard to the appellant’s submissions and case law on quantum and the applicable principles for assessment of damages in similar circumstances
The appeal was disposed of by written submissions.
APPELLANT’S SUBMISSIONS
The appellant submitted that the learned magistrate erred in putting premium on injuries which were not pleaded. That the respondent did not plead in his plaint having sustained urethral stricture, fracture of the shoulder and fracture of L4 as these were only introduced during submissions. The appellant cited the case of Kenya Building, Construction, Timber and Furniture Industries Employees Union v Slumberland Kenya Ltd (2024) KEELRC (KLR) and the case of Hussein Sambur Hussein v Sheriff A. Abdulla Hussein & others (2022) eKLR.
The appellant submitted that the award of Kshs. 1,200,000 as general damages was inordinately high and that an award of between Kshs. 600,000 to Kshs. 800,000 would be sufficient. The appellant relied on the case of Barnabas v Ombati (2022) KEHC 12136 (KLR) where the appellate court upheld the trial court’s award of Kshs. 800,000 for a respondent who sustained fracture of the femur, humerus and pelvis together with soft tissue injuries and degree of permanent disability placed at 5%. The appellant also relied on the case of Joseph Njeru Luke & 3 others v Stellah Muki Kioko (2020) KEHC 9029 (KLR) where the plaintiff sustained pelvic fractures and multiple soft tissue injuries and the court awarded Kshs. 750,000.
The appellant submitted that the trial magistrate erred in law and fact by awarding special damages which had been paid by an insurer and in which the insurer had not granted its consent or authority to claim for such damages. The appellant cited the case of Mwaura & Another v Njoroge (2025) KEHC 12684 KLR and the case of John Mwangi Munyiri & Another v Paul Wachira Njuguna (2020) KEHC 4287 (KLR).
RESPONDENT’S SUBMISSIONS
The respondent submitted that there was no ground of appeal against special damages. The respondent further submitted that the trial magistrate correctly considered the law and the applicable principles for assessment of damages. The respondent’s case is that an appellate court should not disturb an award of damages except where it is too low or too high or the trial court took into account irrelevant matters or failed to take into account relevant factors. The respondent cited the case of Agnes Kamene Mulyali v Harvest Ltd and Sosines Orindo v Emkay Builders Ltd (2019) eKLR .
The respondent submitted that particulars of injuries are not the same as particulars of special damages and the failure to particularize injuries is not a fatal omission as long as the same is proved. That the injuries suffered by the respondent were apparent on the face of the record. The respondent maintained that the award of Kshs. 1,200,000 for general damages was not excessive.
ANALYSIS AND DETERMINATION
This being a first appeal, the duty of the court is well set down in the case of Selle & Another v Associated Motor Boat Co. Ltd (1986) EA 123 . This court must reappraise the evidence and reanalyze the same with a view of reaching its own conclusion while taking into account that unlike the trial court, it did not have the benefit of listening to and watching witnesses testify.
There is no dispute that the appeal is on assessment of damages by the trial court. Awards of damages of course lie in the discretion of the trial court but it is exercisable on settled principles. Appellate courts are slow to interfere with the same and will do so only in well-known circumstances.
In the case of Kenya Bus Services & Another v Mayende (1992) 2 EA 232 of 235 , the court of appeal put it thus:
“The principles on which an appellate court will interfere with a trial court’s assessment of damages are now settled in Kenya. Kneller J.A. as he then was, put it thus in Kitavi v Coastal Bottlers Ltd (1984) LLR 213 (CAK); The court of appeal in Kenya then should as its frontrunners did, only disturb an award of damages, when the trial judge has taken into account a factor he ought not to have taken into account or the award is so high or so low that it amounts to an erroneous estimate”
The question that I have to decide on is whether the award of general damages granted by the trial court was so high as to amount to an erroneous estimate of the damage or injuries suffered and thus call for my interference. I must also decide whether the special damages were proved as required by law.
As regards general damages, the respondent pleaded injuries in paragraph 4 of his plaint as follows:
a) Major head injuries that consisted of:
- Loss of consciousness
- Brain contusion
- Left subarachnoid hemorrhage
- Fracture of the left lower jaw
b) Sprain of the neck
c) Fracture of the right 2 nd rib
d) Fracture of the right iliac bone of the pelvis
During hearing, an x-ray report from Nairobi West hospital indicated that the respondent had urethral stricture. X-ray report from Kenyatta National hospital indicated that the respondent had left temporomandibular or joint fracture-dislocation with left mandibular ramus fracture. The report also confirmed that the respondent suffered urethral stricture.
The reports and the x-ray reports were produced as exhibits with the consent of the appellant’s advocates. In the absence of an objection to the documents, the appellant was deemed to have admitted the contents and authenticity of the documents.
While it is true that parties are bound by their pleadings and that evidence which is at variance with pleadings is for rejection, it is important to appreciate that the function of pleadings is to give fair notice of the case which has to be met by the opposing party so that the latter may direct evidence to the issue disclosed by them, however, pleadings do not include evidence. Pleadings should include facts and not evidence. From an examination of the record, the respondent did not depart from pleadings but appeared to have disclosed more details of the injuries as detailed in the medical documents placed before court. The appellant made a big issue of the fact that the injuries in the medical report were ‘more’ than those pleaded in the plaint. There is however no dispute that the pleaded injuries are reflected in the medical documents produced in exhibits. This court takes judicial notice that pleadings are prepared by advocates who are not trained in the technical language of medics. I have found no contradiction in the medical documents that affect the credibility to be attached to the respondent’s case as concerned her injuries.
I have considered the case of Barnabas v Ombati (2022) KEHC 12136 (KLR) where an award of Kshs. 800,000 was made for a claimant who suffered fracture of the femur, humerus and pelvis and that of Joseph Njeru Luke & 3 others v Stellah Muki Kioko (2020) KEHC 9029 (KLR) where the court awarded Kshs. 750,000 for a claimant who suffered pelvic fracture and multiple soft tissue injuries. I have also considered the case of Ogao v Masorori (2025) KEHC 3031 (KLR) where the claimant sustained contusion to the head, chest contusion, fracture of the ribs, contusion to the pelvis, fracture of the pelvic, dislocation of the left knee joint, contusion to the left lung, fracture of the left tibia/fibula bones, abrasion to both knees, anteriorly and abrasion to both palms. The appellate court substituted an award of Kshs. 1,200,000 made by trial court with Kshs. 850,000 as general damages for pain and suffering.
Having considered the case law cited and the rate of inflation, it is my finding that the award made by the trial court was inordinately high and therefore an erroneous estimate of damages. An award of Kshs 800,000 would suffice as general damages for pain and suffering.
As regards special damages, the respondent admitted on cross examination that part of what he had pleaded as special damages amounting to Kshs 100,000 was paid by NHIF. Though the respondent contended that the issue was not pleaded as a ground of appeal, grounds (a) and (c) captures this question. The respondent is only entitled to special damages which he actually paid for. The respondent is not entitled to payment which were catered for by NHIF. See the case of Mwaura & Another v Njoroge (2025) KEHC 12684 (KLR) and John Mwangi Munyiri & Another v Paul Wachira Njunguna (2020) KEHC 4287 (KLR). The sum of Kshs. 100,000 by NHIF shall therefore be deducted from the special damages awarded.
In conclusion, the orders of this court are as follows:
i) The appeal dated 2.4.25 is allowed and the sum of Kshs. 187,000 awarded as special damages is reduced by a sum of Kshs. 100,000
ii) The award of Kshs 1,200,000 for general damages is reduced to Kshs 850,000
iii) The appellants shall have costs of the appeal. The respondent shall have costs before the trial court.
DATED, SIGNED AND DELIVERED THIS 15 th JULY 2026
D.O. ONYANGO
JUDGE
1