(Appeal from the Judgment and decree of Hon. S. K. Mutai, Senior Principal Magistrate, in Kitale CMCC No. E171 of 2021 delivered on the 19 th June 2023)
JUDGMENT
Brief facts
1. This appeal arises from the judgment in Kitale CMCC No. E171 of 2021, David Emong Okedi vs Benjamin Mwangi , delivered on the 19 th June 2023 . The suit arose from a road traffic accident that occurred on the 17 th February 2021 and involved the Respondent, then a passenger in motor vehicle registration number KDA 771D along the Eldoret – Kitale road. Ii was s elf involving accident and the Appellant was the registered owner of the said motor vehicle.
2. Upon hearing the matter, the trial court made the following determination:
a. Liability 100%
b. General damages Kshs. 350,000.00 .
c. Special damages Kshs. 8,930.00
It is this judgment that has ignited the present appeal by the Defendant/Appellant. From the Memorandum of appeal, and the submissions of the parties, the same is on sole issue of quantum of damages.
Analysis and determination .
3. The duty of the first appellate court is to review the facts and evidence adduced in the primary suit and reach its own conclusion on whether the trial court correctly evaluated the evidence and arrived at the correct determination. The decisions in Selle & Another vs Associated Motor Boat Co. Ltd & Others (1968) EA 123 and Okeno vs Republic, are relevant.
4. As the issue is one of quantum, the courts have previously guided that the appellate court should be careful not to upset the award of the trial court, only because the appellate court could have made a different award. Determination of the award while at the discretion of the court, the same must be guided by the established principles and consider the severity of the injuries in each case. The appellate court is under an obligation to only disturb the award if the same is ordinately low or high or the trial court applied the wrong principles in arriving at the award, or left out a relevant factor in making the award. The determination in Catholic Diocese of Kisumu vs Sophia Achieng Tete, CA No. 284 of 2001 (2004) 2 KLR 55 , is relevant. The court stated thus:
“ It is trite law that the assessment of damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case in the first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at figure so inordinately high or low as to represent an entirely erroneous estimate ”.
5. Was the quantum of damages awarded by the trial court so high as to warrant interference by the appellate court? From the pleadings and medical report of the Plaintiff in the primary suit, the Plaintiff suffered the following injuries:
i. Blunt injury to the forehead.
ii. Blunt injury to the chest
iii. Bruises to the left loin
iv. Blunt injury to the back
v. Blunt injury to the right thumb
vi. Blunt injury to the right elbow joint
vii. Blunt injury to the right hip
viii. Blunt injury to the right leg .
From the medical report of Dr. J.C. Sokobe dated 26 th March 2021 , the Plaintiff/Respondent had suffered mainly soft tissue injuries and was expected to fully recover.
6. In the primary suit, the Respondent/Plaintiff proposed general damages of Kshs. 350,000.00 and cited the decisions in POA Link Services Ltd & Another vs Sindani Boaz Bonzemo (2021) eKLR, Charles Gichuki vs Emily Kawira Mbuba & Another (2018) eKLR and Catherine Wanjiru Kingori & 3 Others vs Gibson Theuri Gichubi (2005) eKLR .
7. The Defendant/Appellant did propose Kshs. 80,000.00 in general damages and cited the determinations in LNK (A minor suing through CNK as Next Friend) and 2 Others vs Simon Gatuni Njukia (2022) eKLR, Edward Mutevu Maithya & Another vs Daniel Nyamumbo (2022) eKLR, Manase & Another vs Ochieng (Civil Appeal E038 of 2020) (2022) KEHC 10487 (KLR) (28 July 2022), Nyambati Nyaswabu Erick vs Toyota Kenya Limited % 2 Others (2019) eKLR and John Muchiri Nderitu & Another vs Grace Njoki Njuguna (2021) eKLR .
8. In determining the award in personal injury claims, the court is therefore guided by the injuries and the comparable awards made for similar injuries, but being cognisant of inflationary trends. The Appellant has correctly cited the dicta in Derrick Munroe vs Gordon Robertson (2015) JMCA CIV 38 and the Respondent cited KIM PGO Choo vs Cameon & Slington Area Health Authority and Hest (H) & Sons Ltd vs Shepherd (1964) AC 326 . In the Derrick Munroe case , the court stated thus:
“ There are established principles and a process to be employed in arriving at awards in personal injury matters. In determining quantum, Judges are not entitled to simply phial a figure from the air. Regard must therefore be had to comparable cases in which complaints have suffered similar injuries ”.
9. There is no doubt that the Respondent suffered soft tissue injuries. They were multiple and moderate and the Respondent was expected to fully recover from the injuries with no long term challenges expected. Both parties both in the primary suit and in the submissions made in the appeal have sought to rely on additional comparable authorities. Am grateful for the industry of the respective Counsel.
10. Noting the injuries of the Respondent and the cited authorities including recent decisions on comparable injuries and awards, I am inclined to review the award of the trial court. I find the award of the trial court to have been inordinately high for the current injuries. I will thus substitute the award of Kshs. 350,000.00 with an award of Kshs. 200,000.00 .
11. Special damages remain as awarded by the trial court.
12. Each party to beat their costs of the appeal .
Dated, signed and delivered virtually via Microsoft Teams this 20 th Day of August 2026.
HCCA NO. E038 OF 2023 BENJAMIN MWANGI VS DAVIC EMONG OKEDI JUDGMENT Pg. 4
JUDGMENT
Brief facts
1. This appeal arises from the judgment in Kitale CMCC No. E171 of 2021, David Emong Okedi vs Benjamin Mwangi , delivered on the 19 th June 2023 . The suit arose from a road traffic accident that occurred on the 17 th February 2021 and involved the Respondent, then a passenger in motor vehicle registration number KDA 771D along the Eldoret – Kitale road. Ii was s elf involving accident and the Appellant was the registered owner of the said motor vehicle.
2. Upon hearing the matter, the trial court made the following determination:
a. Liability 100%
b. General damages Kshs. 350,000.00 .
c. Special damages Kshs. 8,930.00
It is this judgment that has ignited the present appeal by the Defendant/Appellant. From the Memorandum of appeal, and the submissions of the parties, the same is on sole issue of quantum of damages.
Analysis and determination .
3. The duty of the first appellate court is to review the facts and evidence adduced in the primary suit and reach its own conclusion on whether the trial court correctly evaluated the evidence and arrived at the correct determination. The decisions in Selle & Another vs Associated Motor Boat Co. Ltd & Others (1968) EA 123 and Okeno vs Republic, are relevant.
4. As the issue is one of quantum, the courts have previously guided that the appellate court should be careful not to upset the award of the trial court, only because the appellate court could have made a different award. Determination of the award while at the discretion of the court, the same must be guided by the established principles and consider the severity of the injuries in each case. The appellate court is under an obligation to only disturb the award if the same is ordinately low or high or the trial court applied the wrong principles in arriving at the award, or left out a relevant factor in making the award. The determination in Catholic Diocese of Kisumu vs Sophia Achieng Tete, CA No. 284 of 2001 (2004) 2 KLR 55 , is relevant. The court stated thus:
“ It is trite law that the assessment of damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case in the first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at figure so inordinately high or low as to represent an entirely erroneous estimate ”.
5. Was the quantum of damages awarded by the trial court so high as to warrant interference by the appellate court? From the pleadings and medical report of the Plaintiff in the primary suit, the Plaintiff suffered the following injuries:
i. Blunt injury to the forehead.
ii. Blunt injury to the chest
iii. Bruises to the left loin
iv. Blunt injury to the back
v. Blunt injury to the right thumb
vi. Blunt injury to the right elbow joint
vii. Blunt injury to the right hip
viii. Blunt injury to the right leg .
From the medical report of Dr. J.C. Sokobe dated 26 th March 2021 , the Plaintiff/Respondent had suffered mainly soft tissue injuries and was expected to fully recover.
6. In the primary suit, the Respondent/Plaintiff proposed general damages of Kshs. 350,000.00 and cited the decisions in POA Link Services Ltd & Another vs Sindani Boaz Bonzemo (2021) eKLR, Charles Gichuki vs Emily Kawira Mbuba & Another (2018) eKLR and Catherine Wanjiru Kingori & 3 Others vs Gibson Theuri Gichubi (2005) eKLR .
7. The Defendant/Appellant did propose Kshs. 80,000.00 in general damages and cited the determinations in LNK (A minor suing through CNK as Next Friend) and 2 Others vs Simon Gatuni Njukia (2022) eKLR, Edward Mutevu Maithya & Another vs Daniel Nyamumbo (2022) eKLR, Manase & Another vs Ochieng (Civil Appeal E038 of 2020) (2022) KEHC 10487 (KLR) (28 July 2022), Nyambati Nyaswabu Erick vs Toyota Kenya Limited % 2 Others (2019) eKLR and John Muchiri Nderitu & Another vs Grace Njoki Njuguna (2021) eKLR .
8. In determining the award in personal injury claims, the court is therefore guided by the injuries and the comparable awards made for similar injuries, but being cognisant of inflationary trends. The Appellant has correctly cited the dicta in Derrick Munroe vs Gordon Robertson (2015) JMCA CIV 38 and the Respondent cited KIM PGO Choo vs Cameon & Slington Area Health Authority and Hest (H) & Sons Ltd vs Shepherd (1964) AC 326 . In the Derrick Munroe case , the court stated thus:
“ There are established principles and a process to be employed in arriving at awards in personal injury matters. In determining quantum, Judges are not entitled to simply phial a figure from the air. Regard must therefore be had to comparable cases in which complaints have suffered similar injuries ”.
9. There is no doubt that the Respondent suffered soft tissue injuries. They were multiple and moderate and the Respondent was expected to fully recover from the injuries with no long term challenges expected. Both parties both in the primary suit and in the submissions made in the appeal have sought to rely on additional comparable authorities. Am grateful for the industry of the respective Counsel.
10. Noting the injuries of the Respondent and the cited authorities including recent decisions on comparable injuries and awards, I am inclined to review the award of the trial court. I find the award of the trial court to have been inordinately high for the current injuries. I will thus substitute the award of Kshs. 350,000.00 with an award of Kshs. 200,000.00 .
11. Special damages remain as awarded by the trial court.
12. Each party to beat their costs of the appeal .
Dated, signed and delivered virtually via Microsoft Teams this 20 th Day of August 2026.
HCCA NO. E038 OF 2023 BENJAMIN MWANGI VS DAVIC EMONG OKEDI JUDGMENT Pg. 4