' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KITALE
CIVIL APPEAL NO. E024 OF 2023
BRIAN NGARE NGUGI…………..………...………………..…………..APPELLANTT
VERSUS
BONIFACE MAYEKU……………………………………. ………..….RESPONDENT
(Being an appeal from the Judgment and Decree of Hon. Samuel K Mutai (SPM) in Kitale CMCC No. 28 of 2020 delivered on 3 rd April, 2023)
JUDGMENT
Background of the Appeal
The Respondent instituted the suit at trial seeking general and special damages for personal injuries sustained in a road traffic accident that occurred on November 5th, 2023, along the Kitale -Endebes road while the respondent was riding Motorcycle Reg KMET 791B. The accident involved the said motorcycle and Motor Vehicle Registration Number KBJ 610L
The claim was predicated on the alleged negligence of the Appellant, his servant, agent and or employee in the manner of controlling the said motor vehicle. The particulars of such negligence, injuries and special damages were duly set out.
On being served, the Appellants filed a Response denying the claim in its totality, specifically refuting the ownership of the motor vehicle, the occurrence of the accident, and any negligence attributed to them and insisted on strict proof of all allegations. In the alternative, the Appellants pleaded that if an accident did occur, it was wholly or substantially caused by the contributory negligence of the Respondent.
The matter proceeded for hearing before the trial court at which trial only the Respondent gave evidence, detailing the injuries he allegedly suffered by him. He then produced the relevant medical report and documentation to prove the special damages and was then cross-examined and her case closed.
After the close of the respondent’s case was closed, the appellant announced the desire not to call any evidence. He thus closed his case without calling any evidence hence his defence on record remained but allegation with no proof at all. Parties then entered a consent on liability at 80:20 in favour of the respondent thus relieving the court of the duty to determine that aspect of the case.
In its reserved judgment, the court assessed and awarded to the Respondent general damages in the sum of Kshs 2,000,000, damages for future medical expenses in the sum of Kshs 150,000, the pleaded special damages in the sum of Kshs 150,475, together with costs of the suit and interest on damages and costs.
The Appellant was aggrieved by the quantum of damages awarded and lodged the instant Appeal. Although the Memorandum of Appeal sets out five grounds of appeal, the substantive grievance is aggregable into a single issue; that the assessment of general damages was erroneous for failure to consider the evidence and submissions offered thereby deviating from the principle of assessment of damages, awarding remedies not pleaded and resulting in an award that was inordinately too high.
The Court directed that the Appeal be canvassed by way of written submissions. The record confirms the filing of submissions by both parties as ordered and the court has had the benefit of reading such submissions.
Mandate, issues, Analysis and Determination.
The mandate of this court sitting as a first appellate court is defined and established to entail the duty to subject the evidence adduced before the lower court to fresh scrutiny, re-evaluation, and reassessment towards drawing its own conclusions while acknowledging that it did not have the benefit of seeing or hearing the witnesses.
Having re-evaluated the record at the trial and the grounds of appeal set forth, the court isolates the only issue for determination to be whether there was an error by the trial court in the exercise of its judicial discretion in the duty of assessment of damages.
In an appeal where the contention is only on assessment of damages, the court reminds itself that the assessment of general damages is at the discretion of the trial court and that it takes a very strong case for an Appellant to interfere. The court in the case of Savanna Saw Mills Ltd vs Gorge Mwale Mudomo (2005) eKLR stated as follows:
“It is the 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 simply because it would have awarded a different figure if it had tried the case at the first instance ...”
On when an Appellate court can interfere with quantum, the court adopts for direction, the position by the Court of Appeal in its decision in the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR . In that decision it was reinstated the position that an appellate court would be disinclined to disturb the finding of a trial Judge as to the amounts of damages merely because it thinks that if it had tried the case in the first instance, it would have given a larger sum. In order to justify reversing the trial judge on the question of the amount of damages, it will generally be necessary that the Court should be convinced either that the judge acted upon some wrong principle of law or that the amount awarded was so extremely high or so very low as to make it, in the judgment of the Court, an entirely erroneous estimate of the damage to which the Plaintiff is entitled.
Being bound by the cited decision, for this Court to interfere with the subject award of damages by the trial court, it must be satisfied that the trial judge acted on the wrong principle of law, or misapprehended the fact, or for these or other reasons made a wholly erroneous estimate of the damage suffered.
The court has perused the record and taken into account the complaint that the court ignored the evidence and submissions thus arrived at an inordinately high award including an award of a sum not pleaded. Upon examining the judgment of the learned Magistrate, it is evident that the court did, in fact, base its decision on comparable precedents. The trial court expressly considered the decisions cited to it by the parties; one by the respondent and five by the appellant on assessment alone. It is of note to court that the decision cited by the respondent isn’t far from the description of a comparable injuries to case at hand. In it the high court on appeal affirmed an award of Kshs 1,600,000 made by the trial court. That was in 2017, some six years before the judgment subject of this appeal was passed
Furthermore, the decisions cited by the appellant at the trial were also made between the years 2016 and 2018 and the awards ranged between 600,000 and 800,000. The principle that comparable injuries should attract comparable awards does not mean that the awards made ten years back remain to constrict the discretion of the trial court.
Having been cited to, the decision of 2017 affirming an award of 1,600,00, there was no error by the trial court in awarding a sum higher by just 400,000. The court merely exercised a discretion against which there is no demonstration that an outright error in assessment of damages was done. The court therefore finds that the threshold of upsetting the judicial discretion of the trial court in assessment of damages has not been made. Instead, the court finds that the assessment was well informed relevant decisions on comparable injuries. Consequently, the challenge against the assessment of general damages lack merit and is thus dismissed.
The other complaint in ground 3 of the memorandum of appeal appears to vaguely allege that an award was made of a remedy not pleaded. That ground clearly affront the mandatory demands of order 42 Rule 1(2) that the memorandum of appeal sets out the grounds in a concise manner. That notwithstanding, the court has read the plaint at trial and discerns that the respondent expressly pleaded and prayed for three heads of damages; general damages for pains and suffering, damages for future medical costs and special damages. Those are the awards the trial court made. Even for that vague ground, which the court would have declined to consider, lacks merit when scrutinised against the record before the court.
The upshot is that the court finds that there is no demonstration that there was an error in principle which resulted in an award demonstrating an outright error in assessment of damages.
The consequence of the foregoing findings is that the appeal is determined to be bereft of merit and is thus dismissed with costs.
Orders accordingly.
Dated, signed and delivered virtually this 7 th day of November, 2025
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IN THE HIGH COURT OF KENYA AT KITALE
CIVIL APPEAL NO. E024 OF 2023
BRIAN NGARE NGUGI…………..………...………………..…………..APPELLANTT
VERSUS
BONIFACE MAYEKU……………………………………. ………..….RESPONDENT
(Being an appeal from the Judgment and Decree of Hon. Samuel K Mutai (SPM) in Kitale CMCC No. 28 of 2020 delivered on 3 rd April, 2023)
JUDGMENT
Background of the Appeal
The Respondent instituted the suit at trial seeking general and special damages for personal injuries sustained in a road traffic accident that occurred on November 5th, 2023, along the Kitale -Endebes road while the respondent was riding Motorcycle Reg KMET 791B. The accident involved the said motorcycle and Motor Vehicle Registration Number KBJ 610L
The claim was predicated on the alleged negligence of the Appellant, his servant, agent and or employee in the manner of controlling the said motor vehicle. The particulars of such negligence, injuries and special damages were duly set out.
On being served, the Appellants filed a Response denying the claim in its totality, specifically refuting the ownership of the motor vehicle, the occurrence of the accident, and any negligence attributed to them and insisted on strict proof of all allegations. In the alternative, the Appellants pleaded that if an accident did occur, it was wholly or substantially caused by the contributory negligence of the Respondent.
The matter proceeded for hearing before the trial court at which trial only the Respondent gave evidence, detailing the injuries he allegedly suffered by him. He then produced the relevant medical report and documentation to prove the special damages and was then cross-examined and her case closed.
After the close of the respondent’s case was closed, the appellant announced the desire not to call any evidence. He thus closed his case without calling any evidence hence his defence on record remained but allegation with no proof at all. Parties then entered a consent on liability at 80:20 in favour of the respondent thus relieving the court of the duty to determine that aspect of the case.
In its reserved judgment, the court assessed and awarded to the Respondent general damages in the sum of Kshs 2,000,000, damages for future medical expenses in the sum of Kshs 150,000, the pleaded special damages in the sum of Kshs 150,475, together with costs of the suit and interest on damages and costs.
The Appellant was aggrieved by the quantum of damages awarded and lodged the instant Appeal. Although the Memorandum of Appeal sets out five grounds of appeal, the substantive grievance is aggregable into a single issue; that the assessment of general damages was erroneous for failure to consider the evidence and submissions offered thereby deviating from the principle of assessment of damages, awarding remedies not pleaded and resulting in an award that was inordinately too high.
The Court directed that the Appeal be canvassed by way of written submissions. The record confirms the filing of submissions by both parties as ordered and the court has had the benefit of reading such submissions.
Mandate, issues, Analysis and Determination.
The mandate of this court sitting as a first appellate court is defined and established to entail the duty to subject the evidence adduced before the lower court to fresh scrutiny, re-evaluation, and reassessment towards drawing its own conclusions while acknowledging that it did not have the benefit of seeing or hearing the witnesses.
Having re-evaluated the record at the trial and the grounds of appeal set forth, the court isolates the only issue for determination to be whether there was an error by the trial court in the exercise of its judicial discretion in the duty of assessment of damages.
In an appeal where the contention is only on assessment of damages, the court reminds itself that the assessment of general damages is at the discretion of the trial court and that it takes a very strong case for an Appellant to interfere. The court in the case of Savanna Saw Mills Ltd vs Gorge Mwale Mudomo (2005) eKLR stated as follows:
“It is the 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 simply because it would have awarded a different figure if it had tried the case at the first instance ...”
On when an Appellate court can interfere with quantum, the court adopts for direction, the position by the Court of Appeal in its decision in the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR . In that decision it was reinstated the position that an appellate court would be disinclined to disturb the finding of a trial Judge as to the amounts of damages merely because it thinks that if it had tried the case in the first instance, it would have given a larger sum. In order to justify reversing the trial judge on the question of the amount of damages, it will generally be necessary that the Court should be convinced either that the judge acted upon some wrong principle of law or that the amount awarded was so extremely high or so very low as to make it, in the judgment of the Court, an entirely erroneous estimate of the damage to which the Plaintiff is entitled.
Being bound by the cited decision, for this Court to interfere with the subject award of damages by the trial court, it must be satisfied that the trial judge acted on the wrong principle of law, or misapprehended the fact, or for these or other reasons made a wholly erroneous estimate of the damage suffered.
The court has perused the record and taken into account the complaint that the court ignored the evidence and submissions thus arrived at an inordinately high award including an award of a sum not pleaded. Upon examining the judgment of the learned Magistrate, it is evident that the court did, in fact, base its decision on comparable precedents. The trial court expressly considered the decisions cited to it by the parties; one by the respondent and five by the appellant on assessment alone. It is of note to court that the decision cited by the respondent isn’t far from the description of a comparable injuries to case at hand. In it the high court on appeal affirmed an award of Kshs 1,600,000 made by the trial court. That was in 2017, some six years before the judgment subject of this appeal was passed
Furthermore, the decisions cited by the appellant at the trial were also made between the years 2016 and 2018 and the awards ranged between 600,000 and 800,000. The principle that comparable injuries should attract comparable awards does not mean that the awards made ten years back remain to constrict the discretion of the trial court.
Having been cited to, the decision of 2017 affirming an award of 1,600,00, there was no error by the trial court in awarding a sum higher by just 400,000. The court merely exercised a discretion against which there is no demonstration that an outright error in assessment of damages was done. The court therefore finds that the threshold of upsetting the judicial discretion of the trial court in assessment of damages has not been made. Instead, the court finds that the assessment was well informed relevant decisions on comparable injuries. Consequently, the challenge against the assessment of general damages lack merit and is thus dismissed.
The other complaint in ground 3 of the memorandum of appeal appears to vaguely allege that an award was made of a remedy not pleaded. That ground clearly affront the mandatory demands of order 42 Rule 1(2) that the memorandum of appeal sets out the grounds in a concise manner. That notwithstanding, the court has read the plaint at trial and discerns that the respondent expressly pleaded and prayed for three heads of damages; general damages for pains and suffering, damages for future medical costs and special damages. Those are the awards the trial court made. Even for that vague ground, which the court would have declined to consider, lacks merit when scrutinised against the record before the court.
The upshot is that the court finds that there is no demonstration that there was an error in principle which resulted in an award demonstrating an outright error in assessment of damages.
The consequence of the foregoing findings is that the appeal is determined to be bereft of merit and is thus dismissed with costs.
Orders accordingly.
Dated, signed and delivered virtually this 7 th day of November, 2025
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