( Being an appeal from the judgment and decree by Hon. Martin N. Mutua, Senior Resident Magistrate, in Makueni Magistrate’s Civil Suit No. E099 of 2022 delivered on 15 th day of December, 2023 )
JUDGMENT.
1. This is an appeal by Chris Munywoki Mutua (the Appellant) against the judgement of the Hon. Martin Mutua, Senior Resident Magistrate, dated and delivered on 15 th December, 2023 . The Respondent herein was the Plaintiff in the trial court file.
2. That the Respondent avers that vide a plaint dated the 28 th day of June, 2022 , the Respondent claimed for special damages in the sum of Kshs. 10,500.00 , general damages or pain, suffering and loss of amenities, costs and interests of all the item pleaded and any other relief the trial court felt deem to grant.
3. The Respondent pleaded that on or about the 17 th April, 2022 the Respondent was lawfully travelling as a pillion passenger on board motor cycle registration number KMCX 296B along Makueni – Makindu road when the motor vehicle registration number KCR 855F, which was negligently, dangerously and/or carelessly controlled and or driven either by himself, and/or his duly authorized duly authorized driver, agent, and or servant that the same dangerously attempted to overtake and collided head on with the motor cycle the Respondent was travelling on causing an accident and as a result the Respondent sustained bodily injuries and has suffered pain, damages and loss of amenities and/or carelessly
4. The Appellant filed its Defence in which the Appellant denied the averment and allegation put forth by the Respondent. That after the hearing, the trial court allowed the Respondent’s suit against the Appellant with costs and interests.
5. Being aggrieved by the judgement of the trial court, the Appellant filed a Memorandum of Appeal dated the 8 th January, 2024 on the following Eight (8) grounds: -
a) The learned trial magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which was inordinately high.
b) The learned trial magistrate erred in fact and law by failing to apply the correct legal principal in awarding general damages for injuries suffered which sum was inordinately high and not commensurate to the injuries sustained.
c) The learned trial magistrate erred in law and in fact by failing to consider the Appellants submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum.
d) The learned trial magistrate erred in law and in fact by failing to take into account the pertinent issues raised in the appellants’ submissions.
e) The learned trial magistrate erred in law and in fact in failing to pay regard to decisions relied upon in the defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar injuries as the case he was deciding.
f) That the learned trial magistrate erred in law and in fact in the assessment of quantum thereby giving an award on quantum on general damages of Kshs. 1,000,000.00 that was overly in excess in the circumstances of the case.
g) The learned trial magistrate’s judgement consequently occasioned a miscarriage of justice.
h) Any other ground to be adduced at the hearing.
6. Directions on the appeal were taken and the appeal was canvassed by way of written submissions. The Appellant filed an undated submissions in which the Appellant prayed that the award on liability and quantum payable as per the judgement of the court be set aside, quashed and substituted by this Court and/or re-assessment of the general damages and relied on the cases cited in the trial court submissions and equally relied in the case of Kenyatta University vs Isaac Karumba Nyuthe (2014) eKLR & Daniel Otieno Owino & Another vs Elizabeth Atieno Owuor (2020 ) and pleaded that an award of Kshs. 350,000.00 be substituted to the award of 1,000,000.00 awarded by the trial court.
7. The Respondent equally filed their written submissions dated the 30 th day of January, 2026 in which the Respondent sought for dismissal of appeal and upholding of the judgement of the trial court save for that the liability apportioned should be 100% against the Appellant and relied in the case of Mwangi v Wambugu (1984) KLR 453, Ireri v Owuor (Civil Appeal No. 82 of 2019) KEHC 15661 eKLR, Barclays Bank of Kenya Ltd vs Chege Mungai (2006) eKLR & Stapley vs Gypsum Mines Ltd (1953 ) .
Analysis & determination
8. The duty of an appellate court, especially when dealing with a first appeal, is to undertake a comprehensive and independent re-assessment of the evidence presented before the trial court and to arrive at its own conclusions. While it is not bound by the factual findings of the trial magistrate and may reach different conclusions where the trial court misapprehended the evidence or failed to consider relevant circumstances and probabilities, the appellate court must nonetheless remain mindful that the trial court had the distinct advantage of directly observing the witnesses’ demeanor and hearing their testimony firsthand as elucidated in the cases of Mbogo and Another v Shah [1968] EA 93 and Selle and Another Vs Associated Motor Boat Co. Ltd (1968) EA 123 .
9. I have read and considered the Memorandum of Appeal and the parties’ submissions herein. I note that although the Appellant’s prayer in the Memorandum of Appeal seeks, inter alia, the setting aside and substitution of the judgment entered by the trial court, none of the specific grounds of appeal challenges the finding or apportionment of liability at 50:50. Further, the Appellant’s submissions are confined to the issue of quantum.
10. I have also considered the Respondent’s submissions which in addition to the quantum addresses the issue of liability and the award of special damages even though these issues were not raised in the grounds of appeal.
11. It is my considered view that if the Respondent wished to challenge or vary any aspect of the judgment on those issues, the same ought to have been raised by way of a cross-appeal or other appropriate appellate process and could not properly be introduced through submissions. The purpose is to allow the other party respond to them in their submissions.
12. It is critical to note that at the appellate stage, the Memorandum of Appeal constitutes the pleadings of the parties. Where a party wishes to challenge the determination of trial court on liability, they ought to include the same in the Memorandum of Appeal. That allows the Respondent to appropriately respond to the same. Equally, where the Respondent wishes to challenge any aspect of the trial courts determination, the same should be done by way of a Cross Appeal. To introduce an issue in submissions would then result in the appellate court considering an issue that should not be the subject of the appeal.
13. Accordingly, this Court shall confine itself to the issues properly raised in the Memorandum of Appeal and the finding on liability at 50:50 remains unchallenged and undisturbed making the only issue for determination before this court to be whether the award of Kshs. 1,000,000.00 in general damages was excessive and warrants interference by this Court.
Quantum of damages
14. The Respondent pleaded that as a result of the accident, he sustained the following injuries
a) Bruises on the forehead.
b) Bruised right and left elbow joint.
c) Open deep cut wound at right thigh.
d) Fractured right supracondylar femur .
15. Upon hearing the matter, the trial court apportioned liability at 50:50 and awarded the Respondent Kshs. 1,000,000.00 as general damages for pain and suffering. The Appellant challenges the said award as being inordinately high and urges this Court to interfere with the same.
16. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR is categorical that:
“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 that 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.”
17. Additionally, in the case of Butt v. Khan Civil Appeal No. 40 of 1997 it was held:
“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 arrive at a figure which was either inordinately high or low.”
18. The principles are therefore settled. Interference is warranted only where the award is manifestly excessive or inadequate, or where irrelevant considerations were applied. The question, then, is whether the award of Kshs. 1,000,000.00 was manifestly high and unjustified.
19. Further it is not sufficient for this court to substitute the trial court’s figure merely because it might have awarded a different amount had it been the trial court. There must be a demonstrable error in principle or a manifestly erroneous assessment. In the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 :
“It is trite law that the assessment of general 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 at 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 by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
20. From my perusal of the record, I note that the treatment notes produced in evidence confirm the nature of the injuries sustained and the treatment undertaken, while the P3 form similarly records the injuries arising from the accident. The medical report dated 16 th June 2022 , prepared by Dr. J.K. Biwott , further sets out the Respondent’s injuries, treatment and prognosis. The injuries sustained, namely bruises to the forehead, bruising of the right and left elbow joints, an open deep cut wound to the right thigh and a fracture of the right supracondylar femur, were grievous in nature.
21. It is trite that courts are guided by comparable past awards when considering the kind of award to make for general damages. I have considered the following similar decided cases:
a. In Hashim Mohamed Said & Another vs Lawrence Kibor Tuwei [2018] eKLR an award of Kshs 200,000.00 was given for the single injury of supracondylar fracture of the left femur. This award was reduced from Kshs. 300,000.00.
b. In Elizabeth Wamuyu Wanjohi vs John Muriithi Mbanya & 2 Others [2015] eKLR awarded the sum of Kshs 1,500,000.00 as a global award where the injuries were soft tissue injuries to the spinal region, dislocation of right elbow and fracture of right supracondylar knee.
c. In Continental Hauliers Ltd & 2 Others vs Isaack Kipkemei Bitok [2019] eKLR opined on almost similar injuries, and made the following references;
“14. Quantum of damages need not be a misery but realistic, reasonable and comparable to similar awards for comparable injuries though no injury can be completely similar to another - Rosaline Violet Akinyi -vs- Celestine Opiyo Wagwau (2017) eKLR .
15. Section 78(2) C.P.A enjoins the Court on appeal to exercise its original jurisdiction in dealing with an Appeal, in this case re-assessment of the damages. In Civil Appeal No.17 of 2017 Mwavita Jonathan –vs- Silivia Onunga (2017) eKLR , the court set aside an award of Kshs. 1,000,000.00 and substituted it with an award of Kshs. 400,000.00 for left knee commuted fracture, blunt chest injury, dislocated right knee and sprains to the cervical spine of the neck and lumber sacral spine.
16. In Ibrahim Kalema Lewa –vs- Esteel Co. Ltd Nairobi HCCA No. 475 of 2012 (2016) eKLR , the High Court upheld on award of Kshs. 300,000.00 in 2016 where injuries sustained were inter trochariteric fracture or left femur with physical disability assessed at 25%.
In Kenyatta University –vs- Isaac Kamau Nyuthe (Supra ) for fracture of right femur, soft tissue injuries to head and bruises of right knee, and with a permanent incapacitation of 20%. The court on appeal reduced an award of Kshs. 700,000.00 to Kshs. 350,000.00 in 2014.”
22. Having considered the foregoing authorities alongside the injuries sustained by the Respondent in the present case, I am of the view that the award of Kshs. 1,000,000.00 was inordinately high and while the fracture was a significant injury and the permanent disability being 10% as per the medical report, the authorities demonstrate that awards for comparable fractures and associated injuries have generally been lower, including the more recent decision in Laria v HJS [2025] KEHC 10373 (KLR ) where an award of Kshs. 650,000/= was upheld despite the claimant having suffered supracondylar fracture of the distal third of the femur, a cut wound on the leg and forehead and bruises, including to the elbow and additional complications. I am therefore satisfied that the trial magistrate's award did not accord with comparable awards for similar injuries and warrants interference by this Court.
23. Taking into account the nature and extent of the injuries sustained, the treatment undertaken, the comparable awards cited above and the fact that no two injuries are exactly similar, I find an award of Kshs. 700,000.00 to be fair and reasonable compensation for general damages. The award of Kshs. 1,000,000.00 is accordingly set aside and substituted with an award of Kshs. 700,000.00.
Final Disposition
24. The award of damages by the trial magistrate is set aside and is replaced with an award of Kshs. 700,000.00 general damages for pain and suffering.
25. Each party shall bear his own costs of the appeal .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026.
HCCA NO. E001 OF 2024 CHRIS MUNYWOKI MUTUA VS DANIEL MUTISO KIVILU JUDT Pg. 8
JUDGMENT.
1. This is an appeal by Chris Munywoki Mutua (the Appellant) against the judgement of the Hon. Martin Mutua, Senior Resident Magistrate, dated and delivered on 15 th December, 2023 . The Respondent herein was the Plaintiff in the trial court file.
2. That the Respondent avers that vide a plaint dated the 28 th day of June, 2022 , the Respondent claimed for special damages in the sum of Kshs. 10,500.00 , general damages or pain, suffering and loss of amenities, costs and interests of all the item pleaded and any other relief the trial court felt deem to grant.
3. The Respondent pleaded that on or about the 17 th April, 2022 the Respondent was lawfully travelling as a pillion passenger on board motor cycle registration number KMCX 296B along Makueni – Makindu road when the motor vehicle registration number KCR 855F, which was negligently, dangerously and/or carelessly controlled and or driven either by himself, and/or his duly authorized duly authorized driver, agent, and or servant that the same dangerously attempted to overtake and collided head on with the motor cycle the Respondent was travelling on causing an accident and as a result the Respondent sustained bodily injuries and has suffered pain, damages and loss of amenities and/or carelessly
4. The Appellant filed its Defence in which the Appellant denied the averment and allegation put forth by the Respondent. That after the hearing, the trial court allowed the Respondent’s suit against the Appellant with costs and interests.
5. Being aggrieved by the judgement of the trial court, the Appellant filed a Memorandum of Appeal dated the 8 th January, 2024 on the following Eight (8) grounds: -
a) The learned trial magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which was inordinately high.
b) The learned trial magistrate erred in fact and law by failing to apply the correct legal principal in awarding general damages for injuries suffered which sum was inordinately high and not commensurate to the injuries sustained.
c) The learned trial magistrate erred in law and in fact by failing to consider the Appellants submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum.
d) The learned trial magistrate erred in law and in fact by failing to take into account the pertinent issues raised in the appellants’ submissions.
e) The learned trial magistrate erred in law and in fact in failing to pay regard to decisions relied upon in the defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar injuries as the case he was deciding.
f) That the learned trial magistrate erred in law and in fact in the assessment of quantum thereby giving an award on quantum on general damages of Kshs. 1,000,000.00 that was overly in excess in the circumstances of the case.
g) The learned trial magistrate’s judgement consequently occasioned a miscarriage of justice.
h) Any other ground to be adduced at the hearing.
6. Directions on the appeal were taken and the appeal was canvassed by way of written submissions. The Appellant filed an undated submissions in which the Appellant prayed that the award on liability and quantum payable as per the judgement of the court be set aside, quashed and substituted by this Court and/or re-assessment of the general damages and relied on the cases cited in the trial court submissions and equally relied in the case of Kenyatta University vs Isaac Karumba Nyuthe (2014) eKLR & Daniel Otieno Owino & Another vs Elizabeth Atieno Owuor (2020 ) and pleaded that an award of Kshs. 350,000.00 be substituted to the award of 1,000,000.00 awarded by the trial court.
7. The Respondent equally filed their written submissions dated the 30 th day of January, 2026 in which the Respondent sought for dismissal of appeal and upholding of the judgement of the trial court save for that the liability apportioned should be 100% against the Appellant and relied in the case of Mwangi v Wambugu (1984) KLR 453, Ireri v Owuor (Civil Appeal No. 82 of 2019) KEHC 15661 eKLR, Barclays Bank of Kenya Ltd vs Chege Mungai (2006) eKLR & Stapley vs Gypsum Mines Ltd (1953 ) .
Analysis & determination
8. The duty of an appellate court, especially when dealing with a first appeal, is to undertake a comprehensive and independent re-assessment of the evidence presented before the trial court and to arrive at its own conclusions. While it is not bound by the factual findings of the trial magistrate and may reach different conclusions where the trial court misapprehended the evidence or failed to consider relevant circumstances and probabilities, the appellate court must nonetheless remain mindful that the trial court had the distinct advantage of directly observing the witnesses’ demeanor and hearing their testimony firsthand as elucidated in the cases of Mbogo and Another v Shah [1968] EA 93 and Selle and Another Vs Associated Motor Boat Co. Ltd (1968) EA 123 .
9. I have read and considered the Memorandum of Appeal and the parties’ submissions herein. I note that although the Appellant’s prayer in the Memorandum of Appeal seeks, inter alia, the setting aside and substitution of the judgment entered by the trial court, none of the specific grounds of appeal challenges the finding or apportionment of liability at 50:50. Further, the Appellant’s submissions are confined to the issue of quantum.
10. I have also considered the Respondent’s submissions which in addition to the quantum addresses the issue of liability and the award of special damages even though these issues were not raised in the grounds of appeal.
11. It is my considered view that if the Respondent wished to challenge or vary any aspect of the judgment on those issues, the same ought to have been raised by way of a cross-appeal or other appropriate appellate process and could not properly be introduced through submissions. The purpose is to allow the other party respond to them in their submissions.
12. It is critical to note that at the appellate stage, the Memorandum of Appeal constitutes the pleadings of the parties. Where a party wishes to challenge the determination of trial court on liability, they ought to include the same in the Memorandum of Appeal. That allows the Respondent to appropriately respond to the same. Equally, where the Respondent wishes to challenge any aspect of the trial courts determination, the same should be done by way of a Cross Appeal. To introduce an issue in submissions would then result in the appellate court considering an issue that should not be the subject of the appeal.
13. Accordingly, this Court shall confine itself to the issues properly raised in the Memorandum of Appeal and the finding on liability at 50:50 remains unchallenged and undisturbed making the only issue for determination before this court to be whether the award of Kshs. 1,000,000.00 in general damages was excessive and warrants interference by this Court.
Quantum of damages
14. The Respondent pleaded that as a result of the accident, he sustained the following injuries
a) Bruises on the forehead.
b) Bruised right and left elbow joint.
c) Open deep cut wound at right thigh.
d) Fractured right supracondylar femur .
15. Upon hearing the matter, the trial court apportioned liability at 50:50 and awarded the Respondent Kshs. 1,000,000.00 as general damages for pain and suffering. The Appellant challenges the said award as being inordinately high and urges this Court to interfere with the same.
16. The Court of Appeal in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR is categorical that:
“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 that 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.”
17. Additionally, in the case of Butt v. Khan Civil Appeal No. 40 of 1997 it was held:
“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 arrive at a figure which was either inordinately high or low.”
18. The principles are therefore settled. Interference is warranted only where the award is manifestly excessive or inadequate, or where irrelevant considerations were applied. The question, then, is whether the award of Kshs. 1,000,000.00 was manifestly high and unjustified.
19. Further it is not sufficient for this court to substitute the trial court’s figure merely because it might have awarded a different amount had it been the trial court. There must be a demonstrable error in principle or a manifestly erroneous assessment. In the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 :
“It is trite law that the assessment of general 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 at 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 by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
20. From my perusal of the record, I note that the treatment notes produced in evidence confirm the nature of the injuries sustained and the treatment undertaken, while the P3 form similarly records the injuries arising from the accident. The medical report dated 16 th June 2022 , prepared by Dr. J.K. Biwott , further sets out the Respondent’s injuries, treatment and prognosis. The injuries sustained, namely bruises to the forehead, bruising of the right and left elbow joints, an open deep cut wound to the right thigh and a fracture of the right supracondylar femur, were grievous in nature.
21. It is trite that courts are guided by comparable past awards when considering the kind of award to make for general damages. I have considered the following similar decided cases:
a. In Hashim Mohamed Said & Another vs Lawrence Kibor Tuwei [2018] eKLR an award of Kshs 200,000.00 was given for the single injury of supracondylar fracture of the left femur. This award was reduced from Kshs. 300,000.00.
b. In Elizabeth Wamuyu Wanjohi vs John Muriithi Mbanya & 2 Others [2015] eKLR awarded the sum of Kshs 1,500,000.00 as a global award where the injuries were soft tissue injuries to the spinal region, dislocation of right elbow and fracture of right supracondylar knee.
c. In Continental Hauliers Ltd & 2 Others vs Isaack Kipkemei Bitok [2019] eKLR opined on almost similar injuries, and made the following references;
“14. Quantum of damages need not be a misery but realistic, reasonable and comparable to similar awards for comparable injuries though no injury can be completely similar to another - Rosaline Violet Akinyi -vs- Celestine Opiyo Wagwau (2017) eKLR .
15. Section 78(2) C.P.A enjoins the Court on appeal to exercise its original jurisdiction in dealing with an Appeal, in this case re-assessment of the damages. In Civil Appeal No.17 of 2017 Mwavita Jonathan –vs- Silivia Onunga (2017) eKLR , the court set aside an award of Kshs. 1,000,000.00 and substituted it with an award of Kshs. 400,000.00 for left knee commuted fracture, blunt chest injury, dislocated right knee and sprains to the cervical spine of the neck and lumber sacral spine.
16. In Ibrahim Kalema Lewa –vs- Esteel Co. Ltd Nairobi HCCA No. 475 of 2012 (2016) eKLR , the High Court upheld on award of Kshs. 300,000.00 in 2016 where injuries sustained were inter trochariteric fracture or left femur with physical disability assessed at 25%.
In Kenyatta University –vs- Isaac Kamau Nyuthe (Supra ) for fracture of right femur, soft tissue injuries to head and bruises of right knee, and with a permanent incapacitation of 20%. The court on appeal reduced an award of Kshs. 700,000.00 to Kshs. 350,000.00 in 2014.”
22. Having considered the foregoing authorities alongside the injuries sustained by the Respondent in the present case, I am of the view that the award of Kshs. 1,000,000.00 was inordinately high and while the fracture was a significant injury and the permanent disability being 10% as per the medical report, the authorities demonstrate that awards for comparable fractures and associated injuries have generally been lower, including the more recent decision in Laria v HJS [2025] KEHC 10373 (KLR ) where an award of Kshs. 650,000/= was upheld despite the claimant having suffered supracondylar fracture of the distal third of the femur, a cut wound on the leg and forehead and bruises, including to the elbow and additional complications. I am therefore satisfied that the trial magistrate's award did not accord with comparable awards for similar injuries and warrants interference by this Court.
23. Taking into account the nature and extent of the injuries sustained, the treatment undertaken, the comparable awards cited above and the fact that no two injuries are exactly similar, I find an award of Kshs. 700,000.00 to be fair and reasonable compensation for general damages. The award of Kshs. 1,000,000.00 is accordingly set aside and substituted with an award of Kshs. 700,000.00.
Final Disposition
24. The award of damages by the trial magistrate is set aside and is replaced with an award of Kshs. 700,000.00 general damages for pain and suffering.
25. Each party shall bear his own costs of the appeal .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026.
HCCA NO. E001 OF 2024 CHRIS MUNYWOKI MUTUA VS DANIEL MUTISO KIVILU JUDT Pg. 8