(Being an Appeal from the decision of the Learned Honourable Senior Resident Magistrate S.N. MUCHUNGI in Nairobi CMCC No. E1369 of 2023 delivered on 8.8.2025)
JUDGMENT
The appellant filed Nairobi CMCC No. E1369 of 2023 seeking general damages and special damages in respect of injuries he sustained in a Road Traffic Accident (RTA).
The Appellant denied negligence, attributed negligence to the Respondent, and sought to have the suit dismissed.
The parties agreed on a consent judgement on liability in the ratio of 80:20 in favour of the appellant.
The trial court awarded judgement in favour of the appellant for Kshs 500,000 being general damages for suffering and special damages of Kshs 23,350. The trial magistrate declined to award damages for future medical expences.
The Appellant has appealed to this court against quantum on the following grounds: -
i. That the Learned Trial Magistrate erred in law and in fact by failing to appreciate the relevant principles, case law and submissions thereby leading to a very low award.
ii. That the Learned Trial Magistrate erred in law and misdirected herself in failing to give proper consideration to the pleadings and evidence on record.
The Appellant submitted that the Lower Court failed to appreciate the relevant principles, case law, and the submissions on record in assessing damages, and thereby arrived at a very erroneous award on damages.
The Appellant maintained that the appeal is strictly on quantum, contending that the trial Court made an erroneous judgment on damages.
The Appellant further pointed out from the Doctor’s opinion that the Plaintiff suffered a lot of pain from the injuries he sustained, which were confirmed and classified as Grievous Harm.
The Appellant argued that comparative case law supports a judgment in favor of the Appellant against the Respondents to increase the assessment.
The Appellant seeks that the judgment of the Lower Court be set aside and this court do re-assess the judgment on quantum based on the evidence on record. The appellant cited the case of Gideon Ndugu & Anothert v Michael Njagi Karimi (2017) eKLR
where the court awarded Khs.2,000,000. The appellant prayed that the court awards Kshs 3,000,000 as general damages for pain and suffering. The appellant further submitted that he was entitled to an award of Kshs1,000,000 for loss of future earning capacity.
The Respondent submitted that the appeal lacks merit and should be dismissed with costs.
The Respondent argued that the trial court’s award was reasonable, precedented, and within judicial discretion, urging the appellate Court not to disturb it. The respondent cited several decided cases including the case of Lamu Bus Services & Anor v Caren Adhiambo Okello (2018) eKLR
The respondent submitted that the claim for loss of future earning capacity was not proved and the same could not be awarded
LEGAL ANALYSIS AND DETERMINATION .
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.
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 must make due allowance in that respect.
Having looked at the grounds of appeal and the respective parties’ written submissions, it appears to this court that all the grounds of appeal are related and the issues that have been placed before it for determination are as follows: -
a) Whether or not the Learned Trial Magistrate failed to appreciate the relevant principles, case law, and the submissions on record in assessing damages, and thereby arrived at a very erroneous award on damages;
b) Whether or not the quantum that was awarded was manifestly low in the circumstances thus warranting interference by this court.
As I have stated herein above, the first appellate court acts as the last court of facts and must ensure a proper re-evaluation of evidence while correcting any errors in the trial court’s Judgment. The first appellate court must re-examine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law.
It cannot simply rely on the trial court’s findings but must apply its own mind to the record. The central issue for determination in this appeal is on quantum.
On the issue of quantum, it is the lower court’s finding that indeed an accident did occur on the material date and as a result of the accident, the respondent sustained injuries. The issue of liability having been resolved in the Lower Court; this court is confined to evaluating the propriety of the damages awarded.
The injuries sustained by the respondent include laceration and tenderness on the right temporal region, swelling of the left knee joint and patella dislocation of the left knee. I have noted from the medical report which was presented as evidence by the appellant that the injuries, though classified as severe left no permanent incapacitation on the appellant.
The test for interference with the decision of the lower court is not whether the award was generous or conservative, but rather whether it was manifestly excessive or based on wrong principles. The essence of awarding general damages is to compensate the victim for the injury suffered and try as much as possible to restore them to the position they were in before suffering the injury.
In the case of Nyambati Nyaswabu Erick Vs Toyota Kenya Limited & 2 Others (2019) eKLR , the court observed that while courts should consider comparable awards for comparable injuries, there is a fundamental need to consider each case on its own unique merits and peculiar circumstances.
I have carefully considered the respective submissions as well as the authorities relied on by both the respondent and the appellant. Equally, I have looked at the nature of the injuries suffered by the appellant.
This court is fortified that there are well-known principles for interference of an award of damages by a trial court as laid out in the case of Nance Vs British Columbia Electric Railway Co Ltd (1951) A.C 601, 613 where it was held that before an appellate court could intervene, it had to be satisfied that either the Judge, in assessing the damages, applied a wrong principle of law such as taking into account some irrelevant factor or left out of account some relevant one or that the amount awarded was so inordinately low or so inordinately high that it had to be a wholly erroneous estimate of the damage.
The appellant submitted that it is inescapably evident that the injuries herein subjected the appellant to untold pain, suffering, psychological torture and emotional distress whose effects will be felt throughout his life.
The case of Gideon Ndungu Nguribu and Anor v Michael Njagi Karimi (2017) eKLR, which has been cited by the appellant involved a claimant who had suffered a displaced fracture of the right humerus, deformity and swelling of the right forearm and fractures of the right radius and ulna with displacement, swelling and deformity of the left thigh with apparent shortening; x-ray revealed a segmental fracture of the left femur with marked improvement. The claimant in that case suffered other soft tissue injuries.
The trial court considered the above case and concluded rightly so, that the case involved a claimant who had suffered more serious injuries compared to the appellant’s injuries. The trial court further considered that the decided cases relied on by the respondent involved those with minor injuries compared to the appellant’s. She considered the inflation and cited a relevant case law.
This court places reliance on the case of Mwangi Vs Wambugu (1984) KLR 453 where it was held that an appellate court would not normally interfere with a finding of fact by the trial court unless such finding was not based on any evidence or it was based on a misapprehension of the evidence or where the court had clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of evidence.
It is trite law that an appellate court would not disturb an award of general damages unless the same was so manifestly high or inordinately excessive or manifestly or inordinately low or that a trial court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of Margaret T. Nyaga Vs Victoria Wambua Kioko (2004) eKLR .
It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money could remove the pain that a person went through no matter how small an injury appeared 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 had suffered an injury.
However, this assessment is not without limits. A court has to ascertain the sum of general damages that courts and especially appellate courts would ordinarily have awarded in respect of a particular injury.
A court therefore has to be guided by precedents. Indeed, in the case of Kigaraari Vs Aya (1982-88) 1 KAR 768 , it was stated that damages had to be within the limits set out by decided cases and also within the limits the Kenyan economy could afford.
This court also has due regard to the case of Lim Vs Camden HA (1980) AC 174 where it was held that even in assessing compensatory damages, the law sought to indemnify the victim for the loss suffered and not to punish the tortfeasor for the injury that he had caused.
Similar injuries ought to attract comparable awards. However, in the quest for consistency, courts also had to recognize that no case was exactly the same as the other. It must be noted that cases cannot contain exact injuries and they are merely for comparison purposes. Each case therefore had to be decided according to its own peculiar circumstances but keeping in mind that any monies awarded had to be sustainable.
An appellate court ought not to interfere with the discretion of a trial court merely because it could have awarded a lower or higher sum than that which was awarded by the trial court. It could only interfere where the award of general damages was so manifestly high or manifestly low or where a trial court had proceeded on the wrong principles or misapprehended the evidence as was held in the case of Margaret T. Nyaga Vs Victoria Wambua Kioko (supra). This court has to maintain fidelity to the doctrine of stare decisis and taking the inflationary trends into consideration, it is the considered view of this court that general damages in the sum of Kshs. 500,000/= that was awarded by the trial court was not unreasonable. This court will not disturb the same.
As regards the claim for future medical expences, it is settled that though it is a special damage within general damages, it needs to be specifically pleaded and proved before a court of law can award it. (See the case of Tracom Limited & Another v Hassan Mohammed Adan). The plaintiff failed to prove the claim and there was no basis upon which it could be awarded.
The claim for diminished earning capacity was neither pleaded nor proved as is required. The same was rightfully rejected. I have noted that the appellant pleaded a claim for loss of earning at the rate of Kshs 30,000. The same being in the nature of special damages ought to have been strictly proved. From the record, there is no evidence to show that the appellant was a licensed motor bike rider, leave alone that he earned Kshs 30,000 from the said trade. That claim was not proved and was therefore for rejection.
On the claim the claim of special damages, the record show that the court awarded what was strictly proved and there is no reason to fault the trial court.
DISPOSITION.
For the foregoing reasons, the upshot of this court’s decision is that the appellant’s appeal herein is devoid of merit.
Consequently, I dismiss this appeal but with no order as costs. Orders accordingly.
Dated, Signed and delivered at KAKAMEGA virtually this 9 th day of July 2026.
D. O. ONYANGO
JUDGE.
2
JUDGMENT
The appellant filed Nairobi CMCC No. E1369 of 2023 seeking general damages and special damages in respect of injuries he sustained in a Road Traffic Accident (RTA).
The Appellant denied negligence, attributed negligence to the Respondent, and sought to have the suit dismissed.
The parties agreed on a consent judgement on liability in the ratio of 80:20 in favour of the appellant.
The trial court awarded judgement in favour of the appellant for Kshs 500,000 being general damages for suffering and special damages of Kshs 23,350. The trial magistrate declined to award damages for future medical expences.
The Appellant has appealed to this court against quantum on the following grounds: -
i. That the Learned Trial Magistrate erred in law and in fact by failing to appreciate the relevant principles, case law and submissions thereby leading to a very low award.
ii. That the Learned Trial Magistrate erred in law and misdirected herself in failing to give proper consideration to the pleadings and evidence on record.
The Appellant submitted that the Lower Court failed to appreciate the relevant principles, case law, and the submissions on record in assessing damages, and thereby arrived at a very erroneous award on damages.
The Appellant maintained that the appeal is strictly on quantum, contending that the trial Court made an erroneous judgment on damages.
The Appellant further pointed out from the Doctor’s opinion that the Plaintiff suffered a lot of pain from the injuries he sustained, which were confirmed and classified as Grievous Harm.
The Appellant argued that comparative case law supports a judgment in favor of the Appellant against the Respondents to increase the assessment.
The Appellant seeks that the judgment of the Lower Court be set aside and this court do re-assess the judgment on quantum based on the evidence on record. The appellant cited the case of Gideon Ndugu & Anothert v Michael Njagi Karimi (2017) eKLR
where the court awarded Khs.2,000,000. The appellant prayed that the court awards Kshs 3,000,000 as general damages for pain and suffering. The appellant further submitted that he was entitled to an award of Kshs1,000,000 for loss of future earning capacity.
The Respondent submitted that the appeal lacks merit and should be dismissed with costs.
The Respondent argued that the trial court’s award was reasonable, precedented, and within judicial discretion, urging the appellate Court not to disturb it. The respondent cited several decided cases including the case of Lamu Bus Services & Anor v Caren Adhiambo Okello (2018) eKLR
The respondent submitted that the claim for loss of future earning capacity was not proved and the same could not be awarded
LEGAL ANALYSIS AND DETERMINATION .
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.
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 must make due allowance in that respect.
Having looked at the grounds of appeal and the respective parties’ written submissions, it appears to this court that all the grounds of appeal are related and the issues that have been placed before it for determination are as follows: -
a) Whether or not the Learned Trial Magistrate failed to appreciate the relevant principles, case law, and the submissions on record in assessing damages, and thereby arrived at a very erroneous award on damages;
b) Whether or not the quantum that was awarded was manifestly low in the circumstances thus warranting interference by this court.
As I have stated herein above, the first appellate court acts as the last court of facts and must ensure a proper re-evaluation of evidence while correcting any errors in the trial court’s Judgment. The first appellate court must re-examine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law.
It cannot simply rely on the trial court’s findings but must apply its own mind to the record. The central issue for determination in this appeal is on quantum.
On the issue of quantum, it is the lower court’s finding that indeed an accident did occur on the material date and as a result of the accident, the respondent sustained injuries. The issue of liability having been resolved in the Lower Court; this court is confined to evaluating the propriety of the damages awarded.
The injuries sustained by the respondent include laceration and tenderness on the right temporal region, swelling of the left knee joint and patella dislocation of the left knee. I have noted from the medical report which was presented as evidence by the appellant that the injuries, though classified as severe left no permanent incapacitation on the appellant.
The test for interference with the decision of the lower court is not whether the award was generous or conservative, but rather whether it was manifestly excessive or based on wrong principles. The essence of awarding general damages is to compensate the victim for the injury suffered and try as much as possible to restore them to the position they were in before suffering the injury.
In the case of Nyambati Nyaswabu Erick Vs Toyota Kenya Limited & 2 Others (2019) eKLR , the court observed that while courts should consider comparable awards for comparable injuries, there is a fundamental need to consider each case on its own unique merits and peculiar circumstances.
I have carefully considered the respective submissions as well as the authorities relied on by both the respondent and the appellant. Equally, I have looked at the nature of the injuries suffered by the appellant.
This court is fortified that there are well-known principles for interference of an award of damages by a trial court as laid out in the case of Nance Vs British Columbia Electric Railway Co Ltd (1951) A.C 601, 613 where it was held that before an appellate court could intervene, it had to be satisfied that either the Judge, in assessing the damages, applied a wrong principle of law such as taking into account some irrelevant factor or left out of account some relevant one or that the amount awarded was so inordinately low or so inordinately high that it had to be a wholly erroneous estimate of the damage.
The appellant submitted that it is inescapably evident that the injuries herein subjected the appellant to untold pain, suffering, psychological torture and emotional distress whose effects will be felt throughout his life.
The case of Gideon Ndungu Nguribu and Anor v Michael Njagi Karimi (2017) eKLR, which has been cited by the appellant involved a claimant who had suffered a displaced fracture of the right humerus, deformity and swelling of the right forearm and fractures of the right radius and ulna with displacement, swelling and deformity of the left thigh with apparent shortening; x-ray revealed a segmental fracture of the left femur with marked improvement. The claimant in that case suffered other soft tissue injuries.
The trial court considered the above case and concluded rightly so, that the case involved a claimant who had suffered more serious injuries compared to the appellant’s injuries. The trial court further considered that the decided cases relied on by the respondent involved those with minor injuries compared to the appellant’s. She considered the inflation and cited a relevant case law.
This court places reliance on the case of Mwangi Vs Wambugu (1984) KLR 453 where it was held that an appellate court would not normally interfere with a finding of fact by the trial court unless such finding was not based on any evidence or it was based on a misapprehension of the evidence or where the court had clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of evidence.
It is trite law that an appellate court would not disturb an award of general damages unless the same was so manifestly high or inordinately excessive or manifestly or inordinately low or that a trial court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of Margaret T. Nyaga Vs Victoria Wambua Kioko (2004) eKLR .
It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money could remove the pain that a person went through no matter how small an injury appeared 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 had suffered an injury.
However, this assessment is not without limits. A court has to ascertain the sum of general damages that courts and especially appellate courts would ordinarily have awarded in respect of a particular injury.
A court therefore has to be guided by precedents. Indeed, in the case of Kigaraari Vs Aya (1982-88) 1 KAR 768 , it was stated that damages had to be within the limits set out by decided cases and also within the limits the Kenyan economy could afford.
This court also has due regard to the case of Lim Vs Camden HA (1980) AC 174 where it was held that even in assessing compensatory damages, the law sought to indemnify the victim for the loss suffered and not to punish the tortfeasor for the injury that he had caused.
Similar injuries ought to attract comparable awards. However, in the quest for consistency, courts also had to recognize that no case was exactly the same as the other. It must be noted that cases cannot contain exact injuries and they are merely for comparison purposes. Each case therefore had to be decided according to its own peculiar circumstances but keeping in mind that any monies awarded had to be sustainable.
An appellate court ought not to interfere with the discretion of a trial court merely because it could have awarded a lower or higher sum than that which was awarded by the trial court. It could only interfere where the award of general damages was so manifestly high or manifestly low or where a trial court had proceeded on the wrong principles or misapprehended the evidence as was held in the case of Margaret T. Nyaga Vs Victoria Wambua Kioko (supra). This court has to maintain fidelity to the doctrine of stare decisis and taking the inflationary trends into consideration, it is the considered view of this court that general damages in the sum of Kshs. 500,000/= that was awarded by the trial court was not unreasonable. This court will not disturb the same.
As regards the claim for future medical expences, it is settled that though it is a special damage within general damages, it needs to be specifically pleaded and proved before a court of law can award it. (See the case of Tracom Limited & Another v Hassan Mohammed Adan). The plaintiff failed to prove the claim and there was no basis upon which it could be awarded.
The claim for diminished earning capacity was neither pleaded nor proved as is required. The same was rightfully rejected. I have noted that the appellant pleaded a claim for loss of earning at the rate of Kshs 30,000. The same being in the nature of special damages ought to have been strictly proved. From the record, there is no evidence to show that the appellant was a licensed motor bike rider, leave alone that he earned Kshs 30,000 from the said trade. That claim was not proved and was therefore for rejection.
On the claim the claim of special damages, the record show that the court awarded what was strictly proved and there is no reason to fault the trial court.
DISPOSITION.
For the foregoing reasons, the upshot of this court’s decision is that the appellant’s appeal herein is devoid of merit.
Consequently, I dismiss this appeal but with no order as costs. Orders accordingly.
Dated, Signed and delivered at KAKAMEGA virtually this 9 th day of July 2026.
D. O. ONYANGO
JUDGE.
2