( Being an appeal from the judgment and decree by Hon. E. Kemei, Resident Magistrate, in Makueni Magistrate’s Civil Suit No. E117 of 2022 delivered on 20 th February, 2024 )
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 20 th February, 2024 . That the Respondent herein was the Plaintiff in the trial court file.
2. That the Respondent avers that vide a plaint dated the 2 nd September, 2022 , the Respondent claimed for special damages in the sum of Kshs. 10,500.00, general damages for pain and suffering and loss of amenities, general damages for loss of earning capacity, special damages as pleaded, costs, interest and any other relief the court may grant.
3. The Respondent pleaded that on or about the 17 th May, 2022 , the Respondent was a lawful pillion passenger along Makueni - Makindu road when the motor vehicle registration number KCR 855F which was negligently managed and or controlled and it lost control and caused an accident as a result thereof the Respondent sustained serious injuries, loss and damage.
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 23 rd February, 2024 on the following Ten (10) grounds: -
1. The learned trial magistrate erred in law and in fact by failing to analyze all the relevant evidence availed at the trial on the award of general damages.
2. The learned trial magistrate erred in law and in fact by failing to consider comparable awards for general damages in cases of similar injuries and awarded inordinately high general damages.
3. The learned trial magistrate erred in law and fact by failing to apply the correct legal principles when awarding general damages which sum was inordinately high.
4. The learned trial magistrate erred in law and fact by failing to consider the appellant’s submissions and judicial authorities on general damages thereby arriving at an erroneous figure on quantum.
5. The learned trial magistrate erred in law and fact by failing to take into account the pertinent issues raised in the Appellant’s submissions.
6. The learned trial magistrate erred in law and fact by failing to appreciate the appellant’s contention and arguments.
7. The learned trial magistrate erred in law a d fact by disregarding the evidence on record thus arriving at an erroneous decision.
8. The learned trial magistrate erred in law and in fact by failing to take into consideration the nature of the injuries the Plaintiff sustained thus arrived at erroneous decision.
9. The learned trial magistrate misdirected herself by considering erroneous facts, evidence and judicial authorities hence reached at a wrong conclusion of law and general damages.
10. Consequently, the decision of the learned trial magistrate caused a miscarriage of justice.
6. Directions on the appeal were taken and the appeal was canvassed by way of written submissions. The Appellant filed submissions dated the 27 th day of February, 2026 in which the Appellant sought that the appeal be allowed and award on general damages be set aside, quashed and substituted by this Honourable Court and or a re-assessment and relied on the cases cited in the trial court submissions and equally relied on these cases, being Akamba Public Roads Services v Abdikadir Adan Galgado (2016) KEH 2339 (KLR), Gerald Ireri Harrison & 2 Others vs Danson Ngari (2018) KEHC 4926 (KLR), Kenya Power & Lighting Company Limited & Another versus Zakayo Saitoti Naingola & Another (2018) eKLR, Frankline Chilibasi Spii v Kirangi Liston (2017) eKLR, Stanley KIRWA Arusei vs John Mkwalafu Wanjofu (2020) eKLR & Atunga vs Mogambi (2022) KEHC 9854 (KLR ) and submitted that an award of 800,000/= would be commensurable for the injuries sustained as opposed to the Kshs. 2,000,000/= awarded by the trial court.
7. The Respondent equally filed their written submissions dated the 18 th day of March, 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 Khambi & Another vs Mahithi & Another (1968) EA 70, Lakhamishi vs Attorney General (1971) E.A 118, Zipporah Nangila vs Eldoret Express Limited & 2 Others (2016) eKLR, A.A.M v Justus Gisairo Ndarera & Another (2010) eKLR, Frankline Chilibasi Spii v Kirangi Liston (2017) eKLR, Kyoga Hauliers (k) v Philip Mahiu Nyangi (2013) eKLR, Isaac Waweru Mundia vs Kiilu Kakie Ndeti T/A Wikwatyo Services (2012) eKLR, Kyoga Hauliers (K) v Philip Mahiu Nyangi (2013) eKLR, John Joel Koskei v Kenya Power & Lighting Company (2013) eKLR, & Simba v Langat (Civil Appeal 84 of 2021)(2024) KEHC .
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 & 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 80:20 . 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.
12. Accordingly, this Court shall confine itself to the issues properly raised in the Memorandum of Appeal and the finding on liability at 80:20 remains unchallenged and undisturbed making the only issue for determination before this court to be whether the award of Kshs. 2,000,000/= in general damages was excessive and warrants interference by this Court.
Quantum
13. The Respondent pleaded that as a result of the accident, he sustained the following injuries
a) Major head injuries leading to loss of consciousness.
b) Brain contusion.
c) Brain swelling.
d) Multiple fractures of the skull.
e) Subdural hematoma
f) Multiple fragment fractures of the right tibia and fibula.
g) Major disorientation of time and place.
h) Possibility of developing epilepsy.
i) Severe pain from the multiple fractures of the right tibia and fibula.
j) Permanent disability of 8%
14. Upon hearing the matter, the trial court apportioned liability at 80:20 and awarded the Respondent Kshs. 2,000,000/= 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.
15. 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.”
16. Additionally, in Butt v. Khan Civil Appeal No. 40 of 1997, the court 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. 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.”
17. The principles are therefore well 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. 2,000,000 was manifestly high and unjustified.
18. 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 , the court stated thus:
“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 or 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.”
19. 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 sets out the Respondent’s injuries, treatment and prognosis. The injuries sustained, namely as a result of the accident, he sustained major head injuries leading to loss of consciousness, brain contusion, brain swelling, multiple fractures of the skull, subdural hematoma, multiple fragment fractures of the right tibia and fibula, major disorientation of time and place, a possibility of developing epilepsy, severe pain arising from the multiple fractures of the right tibia and fibula, and permanent disability assessed at 8% were grievous in nature.
20. 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 Mugo v Kagwima (Civil Appeal E021 of 2021) [2023] KEHC 21498 (KLR ), the injuries sustained were brain swelling/edema, subdural hematoma, brain contusion, fractures of the right tibia and fibula and other injuries, with permanent disability assessed at 8%, and the High Court upheld an award of Kshs. 500,000/= as general damages.
b) In Pestony Limited & Another v Samuel Itonye Kagoko [2022] eKLR , an award of Kshs. 800,000/= was made for unconsciousness, fractures of the tibia and fibula and soft-tissue injuries to the head.
c) Further, in Robert Jeriot v Geoffrey Nyakundi Abere [2021] eKLR , an award of Kshs. 1,500,000/= was upheld for head injury with loss of consciousness, fractures of the pelvic and acetabular bones, fractures of both radii and other injuries, with 8% permanent disability.
d) More recently, in Gachuhi & Another v Gachanja (Civil Appeals E020 & E021 of 2023) [2024] KEHC 11896 (KLR) , the High Court reduced an award of Kshs. 1,500,000/= to Kshs. 1,000,000/= for injuries involving fracture of the tibia and fibula, hip dislocation and other injuries.
21. In the circumstances, and bearing in mind the principle that comparable injuries ought to attract comparable awards, I am of the view that the award of Kshs. 2,000,000/= was inordinately high and that an award of Kshs. 1,500,000/= would constitute fair and reasonable compensation for the injuries proved.
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. 2,000,000/= was inordinately high and while the fracture was a significant injury and the permanent disability being 8% as per the medical report, the authorities demonstrate that awards for comparable fractures and associated injuries have generally been lower.
23. 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.
24. 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. 1,500,000/= to be fair and reasonable compensation for general damages. The award of Kshs. 2,000,000/= is accordingly set aside and substituted with an award of Kshs. 1,500,000/=.
Final Disposition
25. I order that the award of damages by the trial magistrate is set aside and is replaced with an award of Kshs. 1,500,000/- general damages for pain and suffering.
26. Each party shall bear its own costs of the appeal .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 13 th August 2026.
HCCA NO. E019 OF 2024 CHRIS MUNYWOKI MUTUA VS ERASTUS MUTISYA MUTUA JUDGMENT Pg. 7
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 20 th February, 2024 . That the Respondent herein was the Plaintiff in the trial court file.
2. That the Respondent avers that vide a plaint dated the 2 nd September, 2022 , the Respondent claimed for special damages in the sum of Kshs. 10,500.00, general damages for pain and suffering and loss of amenities, general damages for loss of earning capacity, special damages as pleaded, costs, interest and any other relief the court may grant.
3. The Respondent pleaded that on or about the 17 th May, 2022 , the Respondent was a lawful pillion passenger along Makueni - Makindu road when the motor vehicle registration number KCR 855F which was negligently managed and or controlled and it lost control and caused an accident as a result thereof the Respondent sustained serious injuries, loss and damage.
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 23 rd February, 2024 on the following Ten (10) grounds: -
1. The learned trial magistrate erred in law and in fact by failing to analyze all the relevant evidence availed at the trial on the award of general damages.
2. The learned trial magistrate erred in law and in fact by failing to consider comparable awards for general damages in cases of similar injuries and awarded inordinately high general damages.
3. The learned trial magistrate erred in law and fact by failing to apply the correct legal principles when awarding general damages which sum was inordinately high.
4. The learned trial magistrate erred in law and fact by failing to consider the appellant’s submissions and judicial authorities on general damages thereby arriving at an erroneous figure on quantum.
5. The learned trial magistrate erred in law and fact by failing to take into account the pertinent issues raised in the Appellant’s submissions.
6. The learned trial magistrate erred in law and fact by failing to appreciate the appellant’s contention and arguments.
7. The learned trial magistrate erred in law a d fact by disregarding the evidence on record thus arriving at an erroneous decision.
8. The learned trial magistrate erred in law and in fact by failing to take into consideration the nature of the injuries the Plaintiff sustained thus arrived at erroneous decision.
9. The learned trial magistrate misdirected herself by considering erroneous facts, evidence and judicial authorities hence reached at a wrong conclusion of law and general damages.
10. Consequently, the decision of the learned trial magistrate caused a miscarriage of justice.
6. Directions on the appeal were taken and the appeal was canvassed by way of written submissions. The Appellant filed submissions dated the 27 th day of February, 2026 in which the Appellant sought that the appeal be allowed and award on general damages be set aside, quashed and substituted by this Honourable Court and or a re-assessment and relied on the cases cited in the trial court submissions and equally relied on these cases, being Akamba Public Roads Services v Abdikadir Adan Galgado (2016) KEH 2339 (KLR), Gerald Ireri Harrison & 2 Others vs Danson Ngari (2018) KEHC 4926 (KLR), Kenya Power & Lighting Company Limited & Another versus Zakayo Saitoti Naingola & Another (2018) eKLR, Frankline Chilibasi Spii v Kirangi Liston (2017) eKLR, Stanley KIRWA Arusei vs John Mkwalafu Wanjofu (2020) eKLR & Atunga vs Mogambi (2022) KEHC 9854 (KLR ) and submitted that an award of 800,000/= would be commensurable for the injuries sustained as opposed to the Kshs. 2,000,000/= awarded by the trial court.
7. The Respondent equally filed their written submissions dated the 18 th day of March, 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 Khambi & Another vs Mahithi & Another (1968) EA 70, Lakhamishi vs Attorney General (1971) E.A 118, Zipporah Nangila vs Eldoret Express Limited & 2 Others (2016) eKLR, A.A.M v Justus Gisairo Ndarera & Another (2010) eKLR, Frankline Chilibasi Spii v Kirangi Liston (2017) eKLR, Kyoga Hauliers (k) v Philip Mahiu Nyangi (2013) eKLR, Isaac Waweru Mundia vs Kiilu Kakie Ndeti T/A Wikwatyo Services (2012) eKLR, Kyoga Hauliers (K) v Philip Mahiu Nyangi (2013) eKLR, John Joel Koskei v Kenya Power & Lighting Company (2013) eKLR, & Simba v Langat (Civil Appeal 84 of 2021)(2024) KEHC .
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 & 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 80:20 . 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.
12. Accordingly, this Court shall confine itself to the issues properly raised in the Memorandum of Appeal and the finding on liability at 80:20 remains unchallenged and undisturbed making the only issue for determination before this court to be whether the award of Kshs. 2,000,000/= in general damages was excessive and warrants interference by this Court.
Quantum
13. The Respondent pleaded that as a result of the accident, he sustained the following injuries
a) Major head injuries leading to loss of consciousness.
b) Brain contusion.
c) Brain swelling.
d) Multiple fractures of the skull.
e) Subdural hematoma
f) Multiple fragment fractures of the right tibia and fibula.
g) Major disorientation of time and place.
h) Possibility of developing epilepsy.
i) Severe pain from the multiple fractures of the right tibia and fibula.
j) Permanent disability of 8%
14. Upon hearing the matter, the trial court apportioned liability at 80:20 and awarded the Respondent Kshs. 2,000,000/= 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.
15. 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.”
16. Additionally, in Butt v. Khan Civil Appeal No. 40 of 1997, the court 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. 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.”
17. The principles are therefore well 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. 2,000,000 was manifestly high and unjustified.
18. 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 , the court stated thus:
“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 or 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.”
19. 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 sets out the Respondent’s injuries, treatment and prognosis. The injuries sustained, namely as a result of the accident, he sustained major head injuries leading to loss of consciousness, brain contusion, brain swelling, multiple fractures of the skull, subdural hematoma, multiple fragment fractures of the right tibia and fibula, major disorientation of time and place, a possibility of developing epilepsy, severe pain arising from the multiple fractures of the right tibia and fibula, and permanent disability assessed at 8% were grievous in nature.
20. 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 Mugo v Kagwima (Civil Appeal E021 of 2021) [2023] KEHC 21498 (KLR ), the injuries sustained were brain swelling/edema, subdural hematoma, brain contusion, fractures of the right tibia and fibula and other injuries, with permanent disability assessed at 8%, and the High Court upheld an award of Kshs. 500,000/= as general damages.
b) In Pestony Limited & Another v Samuel Itonye Kagoko [2022] eKLR , an award of Kshs. 800,000/= was made for unconsciousness, fractures of the tibia and fibula and soft-tissue injuries to the head.
c) Further, in Robert Jeriot v Geoffrey Nyakundi Abere [2021] eKLR , an award of Kshs. 1,500,000/= was upheld for head injury with loss of consciousness, fractures of the pelvic and acetabular bones, fractures of both radii and other injuries, with 8% permanent disability.
d) More recently, in Gachuhi & Another v Gachanja (Civil Appeals E020 & E021 of 2023) [2024] KEHC 11896 (KLR) , the High Court reduced an award of Kshs. 1,500,000/= to Kshs. 1,000,000/= for injuries involving fracture of the tibia and fibula, hip dislocation and other injuries.
21. In the circumstances, and bearing in mind the principle that comparable injuries ought to attract comparable awards, I am of the view that the award of Kshs. 2,000,000/= was inordinately high and that an award of Kshs. 1,500,000/= would constitute fair and reasonable compensation for the injuries proved.
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. 2,000,000/= was inordinately high and while the fracture was a significant injury and the permanent disability being 8% as per the medical report, the authorities demonstrate that awards for comparable fractures and associated injuries have generally been lower.
23. 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.
24. 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. 1,500,000/= to be fair and reasonable compensation for general damages. The award of Kshs. 2,000,000/= is accordingly set aside and substituted with an award of Kshs. 1,500,000/=.
Final Disposition
25. I order that the award of damages by the trial magistrate is set aside and is replaced with an award of Kshs. 1,500,000/- general damages for pain and suffering.
26. Each party shall bear its own costs of the appeal .
It is so ordered.
Dated, signed and delivered virtually via Microsoft Teams this 13 th August 2026.
HCCA NO. E019 OF 2024 CHRIS MUNYWOKI MUTUA VS ERASTUS MUTISYA MUTUA JUDGMENT Pg. 7