REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E002 OF 2024
CELESTINE EKIRAPA…….……………………………………APPELLANT
VERSUS
ALICE KHAYANGA…………….………………….………...RESPONDENT
(Being an appeal from the Judgement and Decree of the Principal Magistrate’s Court in Sirisia Civil Case No. 113 of 2019 delivered by Hon. R.K. Langat (PM) on 14th December 2023.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in Principal Magistrate’s Court in Bungoma Civil Case No. 113 of 2019 delivered by Hon. R.K. Langat (PM) on 14th December 2023 on both liability and quantum of damages. In the said case, the Appellant had sued the Respondent seeking recovery of general and special damages arising from a road accident that occurred on 14th August 2017, in which the Appellant sustained injuries.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Amended Plaint dated 10th March 2022, the Appellant averred that on or about the 26th November 2016, she was lawfully travelling as a fare paying passenger aboard Motor Vehicle Registration number KBG 199E along Moding-Cheptais Murram road, particularly at Korosiandeti area, when the Respondent’s agent driver and/or servant drove and controlled Motor Vehicle Registration number KBG 199E in such a reckless, negligent and careless manner resulting into the Motor Vehicle rolling several times thereby causing the Appellant to sustain bodily injuries.
5. The Respondent in his Statement of Defence dated 22nd February 2022, denied the occurrence of the accident, liability and alternatively attributed the accident, if the same occurred, to the Appellant’s negligence wholly or substantially.
6. The matter proceeded to hearing and was concluded. In his judgment dated and delivered on 14th December 2023, the trial Magistrate found that the Respondent had proved her case against the Appellant and entered judgment against the Appellant and proceeded to award the Appellant Kshs. 200,000/= as general damages, Kshs. 10, 574/= as special damages together with to costs and interest from date of filing suit.
D. EVIDENCE
7. PW1 was Alice Khayanga who testified that She is a businesswoman by profession and that on 26th November 2026, as she went about her business coming from Malaba heading to Cheptais on Motor Vehicle Registration number KBG 199E she was involved in an accident at Kurosaiandet and sustained bodily injuries. She told the Court that she was taken to the hospital for medical attention and produced her treatment notes from Moding Hospital in Court as PEXH1 and the ones from Cheptais District Hospital as PEXH2.
8. According to her, she reported the accident to the police station and was issued with a Police Abstract and P3 form. She told Court that the owner of the Motor Vehicle was the Appellant herein and the same was insured by INVESCO Insurance.
9. She blamed the Appellant for the accident as the driver of the Appellant operated the Motor Vehicle Registration Number KBG 199 E at high speed.
10. PW2 was No. 24376 P.C Kelvin Chaka who testified that he was the investigating officer in this matter and was based at Lwakhakha Police Station. According to him, the Respondent herein reported an accident occurrence involving Motor Vehicle Registration Number KBG 199 E. He presented to the Court the police file and indicated that the police abstract could not be traced. He testified that the investigations were not completed. He told the Court that the Appellant was indicated as the owner of Motor Vehicle Registration Number KBG 199 E and the information was availed by the driver of the Appellant, log book and the insurance policy.
11. DW1 was Celestine Ekirapa who testified that he was male and was not the owner of Motor Vehicle Registration Number KBG 199 E. According to him, the case was strange to him and that the Motor Vehicle Registration Number KBG 199 E is registered in his name, but denied been the owner to the same. He insisted that he did not file any defence with regards to this case and it was not his signature on the supplementary list of documents before the Court.
12. The trial Court established that the signature on the supplementary list of documents, the one on the Appellant’s ID were similar and the one signed on the paper were similar and established that they were signed by the Appellant herein. Further, the availed insurance policy number from the copy of insurance certificate indicted the same number as that captured on the police abstract as policy number 079/084/f/000669/20111/10/TPC.
E. APPEAL
13. It is the decision of the trial Magistrate that provoked the Appeal herein. In the memorandum of appeal dated 10th January 2024, the Appellant raised five (5) grounds of appeal.
14. Pursuant to directions given by the Court, parties filed their written submissions which I have duly considered.
F. DETERMINATION
15. Having considered the record of appeal, grounds of appeal, the submissions and the authorities relied on by the respective parties, I opine that the issues for determination are:
i. Whether the Appellant was the owner of the subject motor
Vehicle Registration Number KBG 199E;
ii. Whether the Appellant was liable for the accident that occurred on 26th November 2016; and
iii. Whether this Court should interfere with the award of the trial Court.
Whether the Appellant was the owner of the subject motor Vehicle Registration Number KBG 199E
16. Section 8 of the Traffic Act provides that the person indicated on the police abstract is the owner of the vehicle.
17. However, where ownership is dispute it is necessary to produce a copy of records to from the Registrar of Motor Vehicle.
18. In the case of Joel Muga Opija –Vs- East African Sea Foods Ltd [2013] eKLR the Court of Appeal was specific that the best way to prove ownership would be to produce to the Court a document from the Registrar of Motor Vehicles showing who the registered owner.
19. However, where the abstract is not challenged and is produced in Court without any objection, its contents cannot be later denied. Also see the case of Wellington Nganga Muthiora –Vs- Akamba Public Road Services Ltd & Another (2010) eKLR and Lochab Transport (K) Limited & another v Daniel Kariuki Gichuki [2016] Eklr.
20. In this case, proof of ownership was based on the police abstract form produced by the Respondent’s witness PW2. Further, the Appellant availed a copy of insurance certificate indicted the same number as that captured on the police abstract as policy number 079/084/f/000669/20111/10/TPC clearly proving that the Appellant was the owner of the Motor Vehicle Registration Number KBG 199 E, produced in Court as CE4
21. The burden of proof was on the Appellant to demonstrate that the ownership of the vehicle vested on a different party at the time of the accident. The evidence presented on copy of insurance policy was sufficient to discharge that burden. Appellant was the policy holder of the insurance for the Motor Vehicle Registration Number KBG 199 E as at the time of the accident goes to confirm and corroborate the evidence that he was the registered owner of the motor vehicle.
22. In the case of Jotham Mugalo vs. Telkom (K) Ltd, Kisumu HCCC No. 166 of 2001 Warsame J as he then was ruled that this burden is on a balance of probability and that mere denials in pleading was not sufficient.
“….Since a police abstract is a public document, it is incumbent upon the person disputing its contents to produce such evidence since in a civil dispute the standard of proof requires only balance of probabilities. Where the defendant alleges that the motor vehicle which caused the accident did not belong to him, it is up to them to substantiate that serious allegation by bringing evidence contradicting the documentary evidence produced by the plaintiff as required by section 106 and 107 of the Evidence Act .”
23. Further, the Appellant did not deny that she approached the Chief Magistrate’s Court as Bungoma with a declaratory suit against her insurance Company, INVESCO, acknowledging ownership of Motor Vehicle Registration Number KBG 199 E and sought to have the Court issue a declaratory order that her insurance is liable to settle any award that might be decreed against her. This evidence was not contested.
Whether the Appellant was liable for the accident that occurred on 26th November 2016
24. On whether the liability attached to the appellant, the doctrine of vicarious liability imposes liability on employers for the wrongful acts of their employees as such an employer will be held liable for torts committed while an employee is conducting their duties. The underpinning principles were addressed in the English case of Yewens –Vs- Noakes {1880} 6 QBD 530 where Bramwell LJ stated that:-
“...a servant is a person who is subject to the command of his master as to the manner in which he shall do his work.”
25. Further, in the case of Bachu v Wainaina (CA No. 14 of 1976 Nakuru Automobile House Ltd v Zavdin CA 63 of 1986), the Court of Appeal emphasized that :-
“In order to fix liability on the owner of a car for the negligence of his driver, it was necessary to second either that the driver was the owner’s servant or that at the material time, the driver was acting on the owner’s behalf as his agent. To establish, the existence of the agency relationship, it was necessary to show that the driver was using the car at the owner’s request express or implied or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.”
26. In this case, the particulars of negligence against the Appellant had to be specifically pleaded and proved. The evidence (police abstract) did prove that the Appellant’s employee was acting under instructions of the Appellant and he was operating the Motor Vehicle Registration number KBG 199 E at very high speed according to the Respondent and the police abstract showed that the investigations were concluded, the driver of the Appellant was charged for driving under the influence and the Appellant was blamed for accident.
27. The Appellant’s only rebuttal evidence was on her ownership of the car and not the negligence on the part of its driver. The Respondent properly demonstrated that the negligent acts or omissions of the driver were permitted by the registered Appellant and the Appellant was 100% vicariously liable for the accident that occurred on 26th November 2016.
Whether this Court should interfere with the award of the trial Court.
28. As regards general damages, the lower Court awarded Kshs. 200,000/=. According to the Respondent’s Plaint dated 18th October 2019, the Respondent sustained the following injuries: blunt injury to the neck, blunt injury to the left arm and severe blunt injury to the left knee. The Respondent availed the medical report by Dr. Okubasu as PEXH7. According to the lower Court record, the Respondent sought an award of Kshs. 350,000/= and relied on the case of Equity & 2 Others vs Daniel Gitau Kuria (2020) eKLR. The Appellant herein did not submit on damages.
29. According to the Appellant, she deems the lower Court’s award of Kshs. 200,000/= as excessive and wishes for this Court to interfere with the same. In his written submissions before this Court she proposed an award of Kshs. 100,000/= and relied on the case of Ndungu Dennis vs Ann Wangari Ndirangu & Another (KEHC 8799) where the Court reassessed the ward of Kshs. 100,000/= for soft tissue injuries to lower leg and soft tissue injuries to the back.
30. It is established that general damages are damages at large. The award ought to reflect the nature and gravity of the injuries and compensate the claimant fairly in the sense that it puts him to the position, in so far as money can, he would have been before the accident took place. The general approach should be that comparable injuries should as far as possible be compensated by comparable awards bearing in mind that no two cases are exactly alike (see Stanley Maore v Geoffrey Mwenda [2004] eKLR). While the Court must also take into account the value of the shilling and inflation trends, the Court should eschew astronomical awards which injure the body politic and strive to ensure that awards make sense and result in fair compensation (see Ugenya Bus Service v Gachoki NKU CA Civil Appeal No. 66 of 1981 [1982] eKLR and Jabane v Olenja [1986] KLR 661).
31. In the case of Reamic Investment Limited vs Joaz Amenya Samuel (2021) eKLR wherein the Respondent sustained an open left femure fracture, abrasion on the left knees, face, neck, right upper limb, left lower lip as well as a contusion on the anterior chest and an award of Kshs. 600,000/= was revised to Kshs. 350,000/=.
32. Further, in the case of Continental Hauliers Ltd and 2 Others v Isack Kipkemei Bitok [2019] eKLR the Court reduced an award of Kshs. 600,000.00 to Kshs. 400,000.00 on account of a fracture of the left femur which led to Plaintiff walking with a limping gait and shortening of the leg and a cut wound on the left forearm.
33. Based on the above cases, it is clear that the Respondent’s injuries were of a lesser magnitude and seriousness to warrant similar awards. The reasoning of the trial magistrate was adequate, taking into account the nature of the injuries and the case as cited by the Respondent. I do not think the award of Kshs. 200,000.00/= was inordinately high considering the above decisions. The Respondent clearly suffered soft tissue injuries and bearing in mind the level of inflation, I am inclined to affirm the award of general damages. In Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 the Court of Appeal held that 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 or 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 inordinately high or low.
G. CONCLUSION
34. In view of my findings on ownership of the Motor Vehicle Registration Number KBG 199 E, liability and award on general damages, the inevitable conclusion is that this appeal is unmerited and therefore it fails. I dismiss it and uphold the judgment of the learned Magistrate dated and delivered on 14th December 2023. Each party shall bear her own costs for this appeal.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 27Th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Ms Wanyama H/b for Bw Onchiri for the Appellant
Mr Mwebi for the Respondent
Peter Machoni – Court Assisatant
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E002 OF 2024
CELESTINE EKIRAPA…….……………………………………APPELLANT
VERSUS
ALICE KHAYANGA…………….………………….………...RESPONDENT
(Being an appeal from the Judgement and Decree of the Principal Magistrate’s Court in Sirisia Civil Case No. 113 of 2019 delivered by Hon. R.K. Langat (PM) on 14th December 2023.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in Principal Magistrate’s Court in Bungoma Civil Case No. 113 of 2019 delivered by Hon. R.K. Langat (PM) on 14th December 2023 on both liability and quantum of damages. In the said case, the Appellant had sued the Respondent seeking recovery of general and special damages arising from a road accident that occurred on 14th August 2017, in which the Appellant sustained injuries.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Amended Plaint dated 10th March 2022, the Appellant averred that on or about the 26th November 2016, she was lawfully travelling as a fare paying passenger aboard Motor Vehicle Registration number KBG 199E along Moding-Cheptais Murram road, particularly at Korosiandeti area, when the Respondent’s agent driver and/or servant drove and controlled Motor Vehicle Registration number KBG 199E in such a reckless, negligent and careless manner resulting into the Motor Vehicle rolling several times thereby causing the Appellant to sustain bodily injuries.
5. The Respondent in his Statement of Defence dated 22nd February 2022, denied the occurrence of the accident, liability and alternatively attributed the accident, if the same occurred, to the Appellant’s negligence wholly or substantially.
6. The matter proceeded to hearing and was concluded. In his judgment dated and delivered on 14th December 2023, the trial Magistrate found that the Respondent had proved her case against the Appellant and entered judgment against the Appellant and proceeded to award the Appellant Kshs. 200,000/= as general damages, Kshs. 10, 574/= as special damages together with to costs and interest from date of filing suit.
D. EVIDENCE
7. PW1 was Alice Khayanga who testified that She is a businesswoman by profession and that on 26th November 2026, as she went about her business coming from Malaba heading to Cheptais on Motor Vehicle Registration number KBG 199E she was involved in an accident at Kurosaiandet and sustained bodily injuries. She told the Court that she was taken to the hospital for medical attention and produced her treatment notes from Moding Hospital in Court as PEXH1 and the ones from Cheptais District Hospital as PEXH2.
8. According to her, she reported the accident to the police station and was issued with a Police Abstract and P3 form. She told Court that the owner of the Motor Vehicle was the Appellant herein and the same was insured by INVESCO Insurance.
9. She blamed the Appellant for the accident as the driver of the Appellant operated the Motor Vehicle Registration Number KBG 199 E at high speed.
10. PW2 was No. 24376 P.C Kelvin Chaka who testified that he was the investigating officer in this matter and was based at Lwakhakha Police Station. According to him, the Respondent herein reported an accident occurrence involving Motor Vehicle Registration Number KBG 199 E. He presented to the Court the police file and indicated that the police abstract could not be traced. He testified that the investigations were not completed. He told the Court that the Appellant was indicated as the owner of Motor Vehicle Registration Number KBG 199 E and the information was availed by the driver of the Appellant, log book and the insurance policy.
11. DW1 was Celestine Ekirapa who testified that he was male and was not the owner of Motor Vehicle Registration Number KBG 199 E. According to him, the case was strange to him and that the Motor Vehicle Registration Number KBG 199 E is registered in his name, but denied been the owner to the same. He insisted that he did not file any defence with regards to this case and it was not his signature on the supplementary list of documents before the Court.
12. The trial Court established that the signature on the supplementary list of documents, the one on the Appellant’s ID were similar and the one signed on the paper were similar and established that they were signed by the Appellant herein. Further, the availed insurance policy number from the copy of insurance certificate indicted the same number as that captured on the police abstract as policy number 079/084/f/000669/20111/10/TPC.
E. APPEAL
13. It is the decision of the trial Magistrate that provoked the Appeal herein. In the memorandum of appeal dated 10th January 2024, the Appellant raised five (5) grounds of appeal.
14. Pursuant to directions given by the Court, parties filed their written submissions which I have duly considered.
F. DETERMINATION
15. Having considered the record of appeal, grounds of appeal, the submissions and the authorities relied on by the respective parties, I opine that the issues for determination are:
i. Whether the Appellant was the owner of the subject motor
Vehicle Registration Number KBG 199E;
ii. Whether the Appellant was liable for the accident that occurred on 26th November 2016; and
iii. Whether this Court should interfere with the award of the trial Court.
Whether the Appellant was the owner of the subject motor Vehicle Registration Number KBG 199E
16. Section 8 of the Traffic Act provides that the person indicated on the police abstract is the owner of the vehicle.
17. However, where ownership is dispute it is necessary to produce a copy of records to from the Registrar of Motor Vehicle.
18. In the case of Joel Muga Opija –Vs- East African Sea Foods Ltd [2013] eKLR the Court of Appeal was specific that the best way to prove ownership would be to produce to the Court a document from the Registrar of Motor Vehicles showing who the registered owner.
19. However, where the abstract is not challenged and is produced in Court without any objection, its contents cannot be later denied. Also see the case of Wellington Nganga Muthiora –Vs- Akamba Public Road Services Ltd & Another (2010) eKLR and Lochab Transport (K) Limited & another v Daniel Kariuki Gichuki [2016] Eklr.
20. In this case, proof of ownership was based on the police abstract form produced by the Respondent’s witness PW2. Further, the Appellant availed a copy of insurance certificate indicted the same number as that captured on the police abstract as policy number 079/084/f/000669/20111/10/TPC clearly proving that the Appellant was the owner of the Motor Vehicle Registration Number KBG 199 E, produced in Court as CE4
21. The burden of proof was on the Appellant to demonstrate that the ownership of the vehicle vested on a different party at the time of the accident. The evidence presented on copy of insurance policy was sufficient to discharge that burden. Appellant was the policy holder of the insurance for the Motor Vehicle Registration Number KBG 199 E as at the time of the accident goes to confirm and corroborate the evidence that he was the registered owner of the motor vehicle.
22. In the case of Jotham Mugalo vs. Telkom (K) Ltd, Kisumu HCCC No. 166 of 2001 Warsame J as he then was ruled that this burden is on a balance of probability and that mere denials in pleading was not sufficient.
“….Since a police abstract is a public document, it is incumbent upon the person disputing its contents to produce such evidence since in a civil dispute the standard of proof requires only balance of probabilities. Where the defendant alleges that the motor vehicle which caused the accident did not belong to him, it is up to them to substantiate that serious allegation by bringing evidence contradicting the documentary evidence produced by the plaintiff as required by section 106 and 107 of the Evidence Act .”
23. Further, the Appellant did not deny that she approached the Chief Magistrate’s Court as Bungoma with a declaratory suit against her insurance Company, INVESCO, acknowledging ownership of Motor Vehicle Registration Number KBG 199 E and sought to have the Court issue a declaratory order that her insurance is liable to settle any award that might be decreed against her. This evidence was not contested.
Whether the Appellant was liable for the accident that occurred on 26th November 2016
24. On whether the liability attached to the appellant, the doctrine of vicarious liability imposes liability on employers for the wrongful acts of their employees as such an employer will be held liable for torts committed while an employee is conducting their duties. The underpinning principles were addressed in the English case of Yewens –Vs- Noakes {1880} 6 QBD 530 where Bramwell LJ stated that:-
“...a servant is a person who is subject to the command of his master as to the manner in which he shall do his work.”
25. Further, in the case of Bachu v Wainaina (CA No. 14 of 1976 Nakuru Automobile House Ltd v Zavdin CA 63 of 1986), the Court of Appeal emphasized that :-
“In order to fix liability on the owner of a car for the negligence of his driver, it was necessary to second either that the driver was the owner’s servant or that at the material time, the driver was acting on the owner’s behalf as his agent. To establish, the existence of the agency relationship, it was necessary to show that the driver was using the car at the owner’s request express or implied or on his instructions and was doing so in performance of the task or duty thereby delegated to him by the owner.”
26. In this case, the particulars of negligence against the Appellant had to be specifically pleaded and proved. The evidence (police abstract) did prove that the Appellant’s employee was acting under instructions of the Appellant and he was operating the Motor Vehicle Registration number KBG 199 E at very high speed according to the Respondent and the police abstract showed that the investigations were concluded, the driver of the Appellant was charged for driving under the influence and the Appellant was blamed for accident.
27. The Appellant’s only rebuttal evidence was on her ownership of the car and not the negligence on the part of its driver. The Respondent properly demonstrated that the negligent acts or omissions of the driver were permitted by the registered Appellant and the Appellant was 100% vicariously liable for the accident that occurred on 26th November 2016.
Whether this Court should interfere with the award of the trial Court.
28. As regards general damages, the lower Court awarded Kshs. 200,000/=. According to the Respondent’s Plaint dated 18th October 2019, the Respondent sustained the following injuries: blunt injury to the neck, blunt injury to the left arm and severe blunt injury to the left knee. The Respondent availed the medical report by Dr. Okubasu as PEXH7. According to the lower Court record, the Respondent sought an award of Kshs. 350,000/= and relied on the case of Equity & 2 Others vs Daniel Gitau Kuria (2020) eKLR. The Appellant herein did not submit on damages.
29. According to the Appellant, she deems the lower Court’s award of Kshs. 200,000/= as excessive and wishes for this Court to interfere with the same. In his written submissions before this Court she proposed an award of Kshs. 100,000/= and relied on the case of Ndungu Dennis vs Ann Wangari Ndirangu & Another (KEHC 8799) where the Court reassessed the ward of Kshs. 100,000/= for soft tissue injuries to lower leg and soft tissue injuries to the back.
30. It is established that general damages are damages at large. The award ought to reflect the nature and gravity of the injuries and compensate the claimant fairly in the sense that it puts him to the position, in so far as money can, he would have been before the accident took place. The general approach should be that comparable injuries should as far as possible be compensated by comparable awards bearing in mind that no two cases are exactly alike (see Stanley Maore v Geoffrey Mwenda [2004] eKLR). While the Court must also take into account the value of the shilling and inflation trends, the Court should eschew astronomical awards which injure the body politic and strive to ensure that awards make sense and result in fair compensation (see Ugenya Bus Service v Gachoki NKU CA Civil Appeal No. 66 of 1981 [1982] eKLR and Jabane v Olenja [1986] KLR 661).
31. In the case of Reamic Investment Limited vs Joaz Amenya Samuel (2021) eKLR wherein the Respondent sustained an open left femure fracture, abrasion on the left knees, face, neck, right upper limb, left lower lip as well as a contusion on the anterior chest and an award of Kshs. 600,000/= was revised to Kshs. 350,000/=.
32. Further, in the case of Continental Hauliers Ltd and 2 Others v Isack Kipkemei Bitok [2019] eKLR the Court reduced an award of Kshs. 600,000.00 to Kshs. 400,000.00 on account of a fracture of the left femur which led to Plaintiff walking with a limping gait and shortening of the leg and a cut wound on the left forearm.
33. Based on the above cases, it is clear that the Respondent’s injuries were of a lesser magnitude and seriousness to warrant similar awards. The reasoning of the trial magistrate was adequate, taking into account the nature of the injuries and the case as cited by the Respondent. I do not think the award of Kshs. 200,000.00/= was inordinately high considering the above decisions. The Respondent clearly suffered soft tissue injuries and bearing in mind the level of inflation, I am inclined to affirm the award of general damages. In Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 the Court of Appeal held that 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 or 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 inordinately high or low.
G. CONCLUSION
34. In view of my findings on ownership of the Motor Vehicle Registration Number KBG 199 E, liability and award on general damages, the inevitable conclusion is that this appeal is unmerited and therefore it fails. I dismiss it and uphold the judgment of the learned Magistrate dated and delivered on 14th December 2023. Each party shall bear her own costs for this appeal.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 27Th day of February 2026.
Mwanaisha.S. Shariff
Judge
In the presence of:
Ms Wanyama H/b for Bw Onchiri for the Appellant
Mr Mwebi for the Respondent
Peter Machoni – Court Assisatant