(Being an appeal from the judgment and decree of Hon. Mwicigi, Principal Magistrate, in Baricho Magistrate’s Court Civil Suit No. 83 of 2017 delivered on 13/5/2021)
Background
1. This appeal through the memorandum dated 9/6/2021 is on assessment of general damages only. In a judgment dated 13/5/2021 the trial court apportioned liability in the ratio 80:20 for the respondent (plaintiff in the trial court) against the appellants (1st and 2nd defendants in the trial court) and awarded general damages for pain, suffering and loss of amenities at KShs 1,500,000/= and special damages KShs 63,130/=. The appeal seeks to set aside the decree issued on 5/12/2023 arising out of the judgment with respect to assessment of damages only.
Grounds of appeal
2. The appellant was dissatisfied with the judgment and has filed this appeal based on several listed grounds but the gist of it is only one ground as captured in the appellants’ submissions that the award of KShs 1,500,000/= in general damages for pain, suffering and loss of amenities was inordinately high and excessive in the circumstances.
3. The appellants pray that the appeal be allowed and the judgment of the trial court be set aside.
Submissions
4. The appeal was disposed of by way of written submissions filed by learned counsels for the appellants and the respondent.
5. Learned counsel for the appellants submits that the damages are inordinately high in light of the injuries sustained by the respondent. Learned counsel submits that the injuries sustained by the respondent were multiple fractures of the facial bones, loss of sight to the right eye and blunt chest injury. He proposes an award of KShs 400,000/= for the same. At the trial learned counsel for the appellants had proposed an award of KShs 350,000/=. He cited authorities he thought were of comparable injuries which this court will consider in the analysis.
6. The respondent submits that the award of KShs 1,500,000/= by the trial court was commensurate to the injuries sustained. He urges this court not to disturb the award.
7. Learned counsel for the respondent distinguished the authorities relied upon by the appellants and said that the same involved less serious injuries than those sustained by the respondent herein. He urges the court to dismiss the appeal with costs to the respondent.
Duty of the appellate court on first appeal
8. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
Case before the trial court
9. The respondent sued the appellants through a plaint dated 29/6/2017 seeking general and special damages for injuries arising out of a road traffic accident that occurred on 12/9/2015 along the Sagana-Makutano road.
10. He was the only witness at the trial. He testified and produced various documents as exhibits. The appellants closed their case without calling a witness.
11. The respondent testified that he was a passenger in the appellants’ motor vehicle registration number KBN 082T when the accident happened. The respondent blamed the appellants for negligence for causing the said accident. As a result of the accident the respondent sustained various injuries as per the medical report of Dr. Wokabi dated 23/11/2015 and P3 form, treatment notes from Mwea Mission hospital and a consultant radiologist’s report on CT scan of the head. Dr. Wokabi captured the injuries as follows:
a. Multiple fractures of the facial bones being;
(i) displaced fracture left nasal bone.
(ii) fractured medial left maxillary sinus with hemsinus.
(iii) blow out fracture of inferior wall right orbit with mild herniation right inferior rectus and extraconal fat.
(iv) displaced fracture anterior and posterior walls of the right maxillary sinus with associated hemosinus.
(v) displaced fracture of the right posterolateral orbit wall,
(vi) fractured right zygomatic arch.
He was operated on and most of the bones were fixed using metal plates.
b. Loss of vision/total blindness right eye.
c. Blunt chest injuries.
d. Diminished sensation around the eye.
e. The eye was swollen.
f. He complained of headaches.
12. Upon considering the evidence, the submissions and authorities tendered by the parties on quantum of damages the learned trial magistrate awarded the respondent a sum of KShs 1,500,000/= as general damages for pain, suffering and loss of amenities.
Appellate court’s duty in assessment of damages
13. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR where the court pronounced itself on the issue as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
14. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
15. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award.
Analysis
16. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset by this court.
17. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
18. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
19. In the case of Michael Maina Gitonga v. Serah Njuguna [2012] eKLR, Ouko, J (as he then was) reiterated the principles to be borne in mind when assessing damages in personal injury claims as follows:
a. Assessment of damages is a matter of opinion and discretion and depends on the facts and circumstances of each case.
b. Money (an award) cannot renew a physical frame that has been battered and shattered. The award is only to give reasonable compensation.
c. Awards must be assessed with moderation.
d. It is desirable that so far as possible comparable injuries should be compensated with comparable awards.
e. In awarding damages fairness must be observed to both the Plaintiff and the Defendant as it is ultimately the taxpayers who have to pay, thereby injuring the body politic.
20. Similarly, in the case of John Kamore & another v. Simon Irungu Ngugi [2014] eKLR the High court adopted the lower court’s observations on the relevant factors considered in making awards thus:
“Normally courts consider the nature of injuries, the period of healing and whether the healing is full or partial, the residual incapacity if any, the inconvenience or deprivation encountered by the plaintiff, inflationary trends, cost of living and lapse of time from the time of any availed decided authorities.
The plaintiff is only entitled to what is fair, just and reasonable. Money cannot renew a physical frame that has been shattered and battered. Assessment must be done with moderation. The aim is not to enrich the plaintiff. It is not also the aim to punish the defendant.”
21. I have taken these factors into account in the assessment of damages herein.
22. The first issue to determine is what injuries were sustained by the respondent?
23. The respondent testified at the trial on 11/10/2019 and adopted his witness statement dated 29/6/2016 as his evidence in chief. He stated that he was admitted in hospital for 4 days following the accident. He fractured the right side of the facial bones. He had metal plates fixed to hold the facial bones together. He produced es exhibits, as are relevant to this appeal’ the medical report by Dr. Wokabi, report of CT, head/brain w/o contrast dated 9/12/2015 from Dr. Mutai consultant radiologist, treatment notes from Our Lady of Lourdes Mwea hospital and P3 form
24. The injuries pleaded in the plaint were as per the medical report of Dr. W.M. Wokabi, consultant surgeon dated 23/11/2015. The report gave the following history of the respondent’s injuries:
Head
He was noted to have facial swelling including the right eye.
CTscans done revealed multiple fractures of the facial bones.
He was operated on and most of the fractures of the facial bones were fixed with metal plates.
From the outset he noticed progressive loss of right eyesight
Chest
He had sustained blunt injuries on the chest causing him chest pains.
Dr. Wokabi’s opinion was that the respondent sustained very major facial injuries that caused multiple fractures of the facial bones. The blow out fractures of the right orbit were surgically operated on and reduced. The right eye was damaged to an extend it became totally irreversibly blind. This blindness will cause 30% (thirty percent) permanent disability.
He also suffered blunt soft tissue injuries to the chest. The doctor indicated that the chest pains that he has will disappear eventually.
25. Dr. Wokabi indicated that he had relied on discharge summary from Mwea hospital and consultant radiologist report on CT scan of the head both which were produced in evidence as exhibits.
26. There was no other medical report or evidence on the injuries sustained by the respondent. There is no dispute about the injuries sustained by the respondent save that the report of Dr. Wokabi detailed the facial fractures under the head of multiple fractures of the facial bones.
27. At the trial the appellants proposed as general damages for pain, suffering and loss of amenities an award of KShs 350,000/=. They relied on the following cases:
a. Firoze Construction Ltd v Benson Musyoka Musembi [2017] KEHC 8384 (KLR) where the respondent sustained total blindness in his right eye while at his place of work when a piece of bitumen hit his right eye. Dr. Cyprianus Okoth Okere’s’s evidence was that the respondent sustained a perforation of the right eye which lead to blindness of the said eye. Dr. Okere assessed the degree of incapacity at 50%. However, workmen’s compensation form LD104 reflected the degree of incapacity as 30%. The High Court in 2017 sustained an award by the trial court of KShs 400,000/= general damages for pain, suffering and loss of amenities made in 2004.
b. Caleb Onyango Uyogo v P A (a minor suing through W R K as next friend) [2014] KEHC 811 (KLR) where the respondent sustained: a) Soft tissue injuries with a swelling of the face, b) A fracture of the middle part of right femur, c) Soft tissue injuries of the pelvis following a road traffic accident. The High Court in 2014 sustained an award of KShs 300,000/= made by the trial court in 2012.
28. The respondent proposed an award of KShs 2,200,000/= general damages for pain, suffering and loss of amenities and relied on the following authorities:
a. Lions Eye & Blood Centre v James Kithuku Makau [2018] KEHC 5968 (KLR) where the respondent sustained total loss of vision (eyesight) with no eyeball in the left socket (anophlthalmus) due to professional negligence. The High Court sustained an award of KShs 2,000,000/= in 2018 awarded by the trial court.
b. Kenya Wildlife Service v Godfrey Kirimi Mwiti [2018] eKLR where on appeal, the High Court substituted the trial court’s award of Kshs. 3,500,000 with Kshs. 2,000,000. In order to appreciate the full extent of the injuries sustained by the respondent in that case, the findings of the High Court are reproduced below:
“The 2nd medical report is dated 20th September 2017 by Doctor W.M. WOKABI. The doctor’s report states as follows: -
Medical, clinic and radiological evidence confirms that he had sustained multiple fractures of the face namely left ethmoid, left maxilla, left zygoma, nasal septum and left orbit. He also lost a total of 9 front teeth. He underwent surgery and these fractures were reduced and fixed with facial implants. The lost teeth were replaced with permanent bridges. He was later assessed that he retires on medical grounds. He was also registered as a person living with disability. I can also confirm that he sustained fracture of the distal end of the left radius. This fracture was fixed with a metal plate.
Today his complaints that: -
a) He sees double with the left eye
b) He has deformity of the left thumb.
c) He cannot lift or carry heavy objects with the left upper limb.
d) He cannot grip or grasp tightly with the left hand.
Examination revealed that he had an obvious deformity. He is wearing spectacles whose left glass is opaque. He has an upper permanent bridge of teeth and lower permanent bridge of 3 teeth. There is a scar on the anterior left forearm. The movements of the left wrist are marginally restricted. There is a mallet finger deformity of left thumb due to out extension tendon. X-rays reviewed show presence of plated fracture of the distal end of the left radius.
The doctor assessed permanent incapacity at 15%. This incapacity is in relation to the double vision on the left eye. According to the doctor, double vision is very disturbing and affects eyesight to an extent that it affects reading and walking. There is no remedy for this problem. 30% incapacity is for total blindness of one’s eye. The doctor also assessed disability on the left hand at 8% and totaled all round incapacity at 23%. I see no much difference with the permanent incapacity assessed by Dr. Koome of 25%.”
c. Amazon Energy Limited v Magdaline Nthenya Mathias & another [2019] KEHC 5851 (KLR) the High Court substituted an award of KShs 3,500,000/= by the trial court with KShs 2,500,000/= in 2019 where the deceased had sustained the following injuries:
a. Comminuted fracture of the left femur thigh bone (intertrochanteric region and shaft)
b. Displaced fracture of the right femur thigh bone (mid shaft)
c. Skull fractures at
i. left eye socket – orbital floor
ii. left lamina propia
d. Fracture of the right clavicle shoulder blade bone.
e. Deep cut on the forehead extending to the left eye.
f. Bleeding in the skull air spaces (left orbit and left ethmoid haemosinus)
g. Total loss of vision in the left eye
The injuries described above amounted to a permanent incapacity of 50% in the opinion of the Dr. Adede.
Determination
29. It is discernible from the authorities cited that those submitted by learned counsel for the appellants involved less serious injuries. The case of Benson Musyoka Musembi is a lot older and it involved loss of vision in one eye but without any facial factures as in the present case. In the present case, Dr. Wokabi described the injuries as major facial injuries that caused multiple fractures of the facial bones. The second case has no comparable injuries to the present one. On the other hand, the cases submitted by counsel for the respondent involved loss of eye sight in one eye comparable but also other far more serious injuries.
30. The learned trial magistrate relied on these authorities in arriving at the award of KShs 1,500,000/=. He had with him authorities that involved loss of vision in one eye. In one case submitted by learned counsel for the appellants, there were no facial fractures as in the present case and it is an old case. The award was KShs 400,000/=. In two cases submitted by learned counsel for the respondent, they involved loss of vision in one eye but accompanied by other more serious injuries both facial and to the other parts of the bodies which was not like in the present case. The awards ranged between KShs 2,000,000/= and KShs 2,500,000/=.
31. Without counsel’s assistance, this court has considered other cases such as Kenya Power and Lighting Company Limited v Bernard Mutuku Kilonzo, [2015] eKLR where the High Court in 2015 sustained the award of Kshs.1,500,000 made by the trial court being general damages for pain and suffering to the respondent who had suffered severe burns on the scalp and forehead with loss of sight in the left eye. The decision is ten years old now. In a more recent case of Ufanisi Freighters (K) Limited v Aburiri [2023] KEHC 22218 (KLR) the High Court in 2023 substituted an award of KShs 1,000,000/= with an award of KShs 500,000/= where the respondent sustained the following injuries;
a. Severe head injuries involving injury to the right eye resulting to loss of vision
b. Cut wound on the right upper eye lid
c. bruise on the left lower back
d. large bruises on the calf of the right leg
e. bruises on the left leg and thigh
32. In comparison with the present case, I find that the first case involved more severe injuries considering the cosmetic significance of the burn scars on the face and head while the second case involved less severe injuries. Taking into account the principles of assessment of damages, I find as correct the submission by learned counsel for the appellant that the award made by the learned trial court was excessive and so inordinately high that it should be disturbed. The learned trial magistrate, without offering any explanation went beyond the awards that the courts have made for comparable injuries. I find that an award of KShs 1,000,000/= general damages for pain, suffering and loss of amenities would be adequate compensation for the respondent’s injuries.
33. Consequently, the decision by learned trial magistrate on assessment of general damages at KShs 1,500,000/= is hereby set aside and substituted with an award of KShs 1,000,000/=.
34. The appeal is successful to that extent and each party will bear its own costs.
35. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 9th day of June 2025 in the presence of:
……. for the appellants.
……..for the respondent.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE
Note: Ms Rigaga for the appellants and Ms Nyoro for the respondents appeared on 5/6/2025 when the judgment herein was initially set for delivery. A fresh date of 9/6/2025 was given. On this date the court had to deliver judgments at 8.30 a.m. as I was attending a training on Tax Law for the day. It was thus delivered in their absence. In case there is any issue any of them wishes to raise with the court, let her do so, with notice to the other and the court on 25/6/2025 when I will be back at my base station. Otherwise the file is closed.
Background
1. This appeal through the memorandum dated 9/6/2021 is on assessment of general damages only. In a judgment dated 13/5/2021 the trial court apportioned liability in the ratio 80:20 for the respondent (plaintiff in the trial court) against the appellants (1st and 2nd defendants in the trial court) and awarded general damages for pain, suffering and loss of amenities at KShs 1,500,000/= and special damages KShs 63,130/=. The appeal seeks to set aside the decree issued on 5/12/2023 arising out of the judgment with respect to assessment of damages only.
Grounds of appeal
2. The appellant was dissatisfied with the judgment and has filed this appeal based on several listed grounds but the gist of it is only one ground as captured in the appellants’ submissions that the award of KShs 1,500,000/= in general damages for pain, suffering and loss of amenities was inordinately high and excessive in the circumstances.
3. The appellants pray that the appeal be allowed and the judgment of the trial court be set aside.
Submissions
4. The appeal was disposed of by way of written submissions filed by learned counsels for the appellants and the respondent.
5. Learned counsel for the appellants submits that the damages are inordinately high in light of the injuries sustained by the respondent. Learned counsel submits that the injuries sustained by the respondent were multiple fractures of the facial bones, loss of sight to the right eye and blunt chest injury. He proposes an award of KShs 400,000/= for the same. At the trial learned counsel for the appellants had proposed an award of KShs 350,000/=. He cited authorities he thought were of comparable injuries which this court will consider in the analysis.
6. The respondent submits that the award of KShs 1,500,000/= by the trial court was commensurate to the injuries sustained. He urges this court not to disturb the award.
7. Learned counsel for the respondent distinguished the authorities relied upon by the appellants and said that the same involved less serious injuries than those sustained by the respondent herein. He urges the court to dismiss the appeal with costs to the respondent.
Duty of the appellate court on first appeal
8. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
Case before the trial court
9. The respondent sued the appellants through a plaint dated 29/6/2017 seeking general and special damages for injuries arising out of a road traffic accident that occurred on 12/9/2015 along the Sagana-Makutano road.
10. He was the only witness at the trial. He testified and produced various documents as exhibits. The appellants closed their case without calling a witness.
11. The respondent testified that he was a passenger in the appellants’ motor vehicle registration number KBN 082T when the accident happened. The respondent blamed the appellants for negligence for causing the said accident. As a result of the accident the respondent sustained various injuries as per the medical report of Dr. Wokabi dated 23/11/2015 and P3 form, treatment notes from Mwea Mission hospital and a consultant radiologist’s report on CT scan of the head. Dr. Wokabi captured the injuries as follows:
a. Multiple fractures of the facial bones being;
(i) displaced fracture left nasal bone.
(ii) fractured medial left maxillary sinus with hemsinus.
(iii) blow out fracture of inferior wall right orbit with mild herniation right inferior rectus and extraconal fat.
(iv) displaced fracture anterior and posterior walls of the right maxillary sinus with associated hemosinus.
(v) displaced fracture of the right posterolateral orbit wall,
(vi) fractured right zygomatic arch.
He was operated on and most of the bones were fixed using metal plates.
b. Loss of vision/total blindness right eye.
c. Blunt chest injuries.
d. Diminished sensation around the eye.
e. The eye was swollen.
f. He complained of headaches.
12. Upon considering the evidence, the submissions and authorities tendered by the parties on quantum of damages the learned trial magistrate awarded the respondent a sum of KShs 1,500,000/= as general damages for pain, suffering and loss of amenities.
Appellate court’s duty in assessment of damages
13. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR where the court pronounced itself on the issue as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
14. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
15. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award.
Analysis
16. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset by this court.
17. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
18. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
19. In the case of Michael Maina Gitonga v. Serah Njuguna [2012] eKLR, Ouko, J (as he then was) reiterated the principles to be borne in mind when assessing damages in personal injury claims as follows:
a. Assessment of damages is a matter of opinion and discretion and depends on the facts and circumstances of each case.
b. Money (an award) cannot renew a physical frame that has been battered and shattered. The award is only to give reasonable compensation.
c. Awards must be assessed with moderation.
d. It is desirable that so far as possible comparable injuries should be compensated with comparable awards.
e. In awarding damages fairness must be observed to both the Plaintiff and the Defendant as it is ultimately the taxpayers who have to pay, thereby injuring the body politic.
20. Similarly, in the case of John Kamore & another v. Simon Irungu Ngugi [2014] eKLR the High court adopted the lower court’s observations on the relevant factors considered in making awards thus:
“Normally courts consider the nature of injuries, the period of healing and whether the healing is full or partial, the residual incapacity if any, the inconvenience or deprivation encountered by the plaintiff, inflationary trends, cost of living and lapse of time from the time of any availed decided authorities.
The plaintiff is only entitled to what is fair, just and reasonable. Money cannot renew a physical frame that has been shattered and battered. Assessment must be done with moderation. The aim is not to enrich the plaintiff. It is not also the aim to punish the defendant.”
21. I have taken these factors into account in the assessment of damages herein.
22. The first issue to determine is what injuries were sustained by the respondent?
23. The respondent testified at the trial on 11/10/2019 and adopted his witness statement dated 29/6/2016 as his evidence in chief. He stated that he was admitted in hospital for 4 days following the accident. He fractured the right side of the facial bones. He had metal plates fixed to hold the facial bones together. He produced es exhibits, as are relevant to this appeal’ the medical report by Dr. Wokabi, report of CT, head/brain w/o contrast dated 9/12/2015 from Dr. Mutai consultant radiologist, treatment notes from Our Lady of Lourdes Mwea hospital and P3 form
24. The injuries pleaded in the plaint were as per the medical report of Dr. W.M. Wokabi, consultant surgeon dated 23/11/2015. The report gave the following history of the respondent’s injuries:
Head
He was noted to have facial swelling including the right eye.
CTscans done revealed multiple fractures of the facial bones.
He was operated on and most of the fractures of the facial bones were fixed with metal plates.
From the outset he noticed progressive loss of right eyesight
Chest
He had sustained blunt injuries on the chest causing him chest pains.
Dr. Wokabi’s opinion was that the respondent sustained very major facial injuries that caused multiple fractures of the facial bones. The blow out fractures of the right orbit were surgically operated on and reduced. The right eye was damaged to an extend it became totally irreversibly blind. This blindness will cause 30% (thirty percent) permanent disability.
He also suffered blunt soft tissue injuries to the chest. The doctor indicated that the chest pains that he has will disappear eventually.
25. Dr. Wokabi indicated that he had relied on discharge summary from Mwea hospital and consultant radiologist report on CT scan of the head both which were produced in evidence as exhibits.
26. There was no other medical report or evidence on the injuries sustained by the respondent. There is no dispute about the injuries sustained by the respondent save that the report of Dr. Wokabi detailed the facial fractures under the head of multiple fractures of the facial bones.
27. At the trial the appellants proposed as general damages for pain, suffering and loss of amenities an award of KShs 350,000/=. They relied on the following cases:
a. Firoze Construction Ltd v Benson Musyoka Musembi [2017] KEHC 8384 (KLR) where the respondent sustained total blindness in his right eye while at his place of work when a piece of bitumen hit his right eye. Dr. Cyprianus Okoth Okere’s’s evidence was that the respondent sustained a perforation of the right eye which lead to blindness of the said eye. Dr. Okere assessed the degree of incapacity at 50%. However, workmen’s compensation form LD104 reflected the degree of incapacity as 30%. The High Court in 2017 sustained an award by the trial court of KShs 400,000/= general damages for pain, suffering and loss of amenities made in 2004.
b. Caleb Onyango Uyogo v P A (a minor suing through W R K as next friend) [2014] KEHC 811 (KLR) where the respondent sustained: a) Soft tissue injuries with a swelling of the face, b) A fracture of the middle part of right femur, c) Soft tissue injuries of the pelvis following a road traffic accident. The High Court in 2014 sustained an award of KShs 300,000/= made by the trial court in 2012.
28. The respondent proposed an award of KShs 2,200,000/= general damages for pain, suffering and loss of amenities and relied on the following authorities:
a. Lions Eye & Blood Centre v James Kithuku Makau [2018] KEHC 5968 (KLR) where the respondent sustained total loss of vision (eyesight) with no eyeball in the left socket (anophlthalmus) due to professional negligence. The High Court sustained an award of KShs 2,000,000/= in 2018 awarded by the trial court.
b. Kenya Wildlife Service v Godfrey Kirimi Mwiti [2018] eKLR where on appeal, the High Court substituted the trial court’s award of Kshs. 3,500,000 with Kshs. 2,000,000. In order to appreciate the full extent of the injuries sustained by the respondent in that case, the findings of the High Court are reproduced below:
“The 2nd medical report is dated 20th September 2017 by Doctor W.M. WOKABI. The doctor’s report states as follows: -
Medical, clinic and radiological evidence confirms that he had sustained multiple fractures of the face namely left ethmoid, left maxilla, left zygoma, nasal septum and left orbit. He also lost a total of 9 front teeth. He underwent surgery and these fractures were reduced and fixed with facial implants. The lost teeth were replaced with permanent bridges. He was later assessed that he retires on medical grounds. He was also registered as a person living with disability. I can also confirm that he sustained fracture of the distal end of the left radius. This fracture was fixed with a metal plate.
Today his complaints that: -
a) He sees double with the left eye
b) He has deformity of the left thumb.
c) He cannot lift or carry heavy objects with the left upper limb.
d) He cannot grip or grasp tightly with the left hand.
Examination revealed that he had an obvious deformity. He is wearing spectacles whose left glass is opaque. He has an upper permanent bridge of teeth and lower permanent bridge of 3 teeth. There is a scar on the anterior left forearm. The movements of the left wrist are marginally restricted. There is a mallet finger deformity of left thumb due to out extension tendon. X-rays reviewed show presence of plated fracture of the distal end of the left radius.
The doctor assessed permanent incapacity at 15%. This incapacity is in relation to the double vision on the left eye. According to the doctor, double vision is very disturbing and affects eyesight to an extent that it affects reading and walking. There is no remedy for this problem. 30% incapacity is for total blindness of one’s eye. The doctor also assessed disability on the left hand at 8% and totaled all round incapacity at 23%. I see no much difference with the permanent incapacity assessed by Dr. Koome of 25%.”
c. Amazon Energy Limited v Magdaline Nthenya Mathias & another [2019] KEHC 5851 (KLR) the High Court substituted an award of KShs 3,500,000/= by the trial court with KShs 2,500,000/= in 2019 where the deceased had sustained the following injuries:
a. Comminuted fracture of the left femur thigh bone (intertrochanteric region and shaft)
b. Displaced fracture of the right femur thigh bone (mid shaft)
c. Skull fractures at
i. left eye socket – orbital floor
ii. left lamina propia
d. Fracture of the right clavicle shoulder blade bone.
e. Deep cut on the forehead extending to the left eye.
f. Bleeding in the skull air spaces (left orbit and left ethmoid haemosinus)
g. Total loss of vision in the left eye
The injuries described above amounted to a permanent incapacity of 50% in the opinion of the Dr. Adede.
Determination
29. It is discernible from the authorities cited that those submitted by learned counsel for the appellants involved less serious injuries. The case of Benson Musyoka Musembi is a lot older and it involved loss of vision in one eye but without any facial factures as in the present case. In the present case, Dr. Wokabi described the injuries as major facial injuries that caused multiple fractures of the facial bones. The second case has no comparable injuries to the present one. On the other hand, the cases submitted by counsel for the respondent involved loss of eye sight in one eye comparable but also other far more serious injuries.
30. The learned trial magistrate relied on these authorities in arriving at the award of KShs 1,500,000/=. He had with him authorities that involved loss of vision in one eye. In one case submitted by learned counsel for the appellants, there were no facial fractures as in the present case and it is an old case. The award was KShs 400,000/=. In two cases submitted by learned counsel for the respondent, they involved loss of vision in one eye but accompanied by other more serious injuries both facial and to the other parts of the bodies which was not like in the present case. The awards ranged between KShs 2,000,000/= and KShs 2,500,000/=.
31. Without counsel’s assistance, this court has considered other cases such as Kenya Power and Lighting Company Limited v Bernard Mutuku Kilonzo, [2015] eKLR where the High Court in 2015 sustained the award of Kshs.1,500,000 made by the trial court being general damages for pain and suffering to the respondent who had suffered severe burns on the scalp and forehead with loss of sight in the left eye. The decision is ten years old now. In a more recent case of Ufanisi Freighters (K) Limited v Aburiri [2023] KEHC 22218 (KLR) the High Court in 2023 substituted an award of KShs 1,000,000/= with an award of KShs 500,000/= where the respondent sustained the following injuries;
a. Severe head injuries involving injury to the right eye resulting to loss of vision
b. Cut wound on the right upper eye lid
c. bruise on the left lower back
d. large bruises on the calf of the right leg
e. bruises on the left leg and thigh
32. In comparison with the present case, I find that the first case involved more severe injuries considering the cosmetic significance of the burn scars on the face and head while the second case involved less severe injuries. Taking into account the principles of assessment of damages, I find as correct the submission by learned counsel for the appellant that the award made by the learned trial court was excessive and so inordinately high that it should be disturbed. The learned trial magistrate, without offering any explanation went beyond the awards that the courts have made for comparable injuries. I find that an award of KShs 1,000,000/= general damages for pain, suffering and loss of amenities would be adequate compensation for the respondent’s injuries.
33. Consequently, the decision by learned trial magistrate on assessment of general damages at KShs 1,500,000/= is hereby set aside and substituted with an award of KShs 1,000,000/=.
34. The appeal is successful to that extent and each party will bear its own costs.
35. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 9th day of June 2025 in the presence of:
……. for the appellants.
……..for the respondent.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE
Note: Ms Rigaga for the appellants and Ms Nyoro for the respondents appeared on 5/6/2025 when the judgment herein was initially set for delivery. A fresh date of 9/6/2025 was given. On this date the court had to deliver judgments at 8.30 a.m. as I was attending a training on Tax Law for the day. It was thus delivered in their absence. In case there is any issue any of them wishes to raise with the court, let her do so, with notice to the other and the court on 25/6/2025 when I will be back at my base station. Otherwise the file is closed.