REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCA NO. E099 OF 2023
DANIEL MUTISO ………………………………………………APPELLANT
VERSUS
LOLLECARP MUTUKU PETER ………………………… RESPONDENT
JUDGMENT
(1) According to the Plaint dated 26/9/2022 in MAKUENI MCCC 133/2022. ON 12/10/2021 Lollecarp Mutuku Peter was riding motor cycle Registration No. KMCX 308M Skygo along Wote Machakos and Nthangu area when the defendant’s (Daniel Mutiso) motor vehicle Registration No. KCM 607M was carelessly and negligently driven that it came into collision with plaintiff’s motor cycle KMCX 308M Skygo causing the plaintiff grievous harm .
(2) The Plaintiff filed suit and sought General Damages, for pain and suffering, Special Damages of Ksh. 6,520 costs and interest.
(3) It was the plaintiff’s case that he sustained the following injuries:-
- Blunt injuries to right lower limb distal aspect.
- Fractured distal right tibia bone.
- Fractured left metatarsal/phalangeal bones.
- Deep cut wound on left foot.
(4) The defendant filed statement of defence dated 14/11/2022 denied all particulars of injury, loss, and negligence and put the plaintiff to strict proof thereof.
(5) The defendant averred that if any accident happened, then the plaintiff was to blame. The court was urged to dismiss the plaintiff’s suit. On 2/2/2023, the parties entered into a consent on liability – at 30%:70% in favour of the plaintiff and against the defendant.
(6) On 27/7/2023, the parties agreed to proceed by way of written submissions on the issue of quantum damages.
(7) The learned trial magistrate by Judgment delivered on 27/9/2023 made the following awards:-
General Damages Ksh. 1,500,000/=
Les. 30% 450,000
1,050,000
Special damages Ksh. 6,520
1,056,520
(8) The trial Magistrate noted that the plaintiff filed submission seeking General Damages of Ksh 2,000,000/=. He indicated in the Judgment that the plaintiff relied on a case cited as Stanley Maore and Geoffrey Mwendo CA 147/07 & 2004 eKLR.(sic)
(9) He noted that the defence was asking for an award of Ksh. 300,000/=.
(10) Aggrieved, the defendant/appellant lodged this appeal vide Memorandum of appeal dated 16/10/2023 on the following grounds;
1. The Learned Magistrate erred and misdirected himself in law, principle and facts when he misapprehended and misunderstood the applicable principles and the law in assessing quantum thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the damages in the circumstances of the case.
2. The Learned Trial Court erred by overestimating, misapprehending and misunderstanding the extend of the injuries therein so as to reach an overly high and unreasonable award in general damages.
3. The learned Trial Court erred by failing to consider with a fair measure the submissions of the Defendant in writing the Judgment.
4. The Learned Trial Court erred in the evaluation of evidence before it and disregarded important elements of the evidence, principles and practice thus reaching an award on quantum so inordinately high in the circumstances.
(11) The appellant seeks:-
i) This appeal be allowed and the lower courts judgment be set aside in its entirety:
ii) The award of the quantum be set aside and vacated and a fresh award based on proper application of the law, evidence, facts and principles be entered.
iii) This court does award costs in this application and in the lower court to the Appellant .
(12) The appellant listed the respondent’s injuries thus:-
a) Blunt injuries to the right lower limb distal aspect.
b) Fracture distal right tibia bone.
c) Deep cut wound on the left foot.
d) Fractured left metatarsal/phalangeal bones.
The complainants present at the time of examination were found to be.
e) Inability to walk for long distance.
f) The metal implants were in situ.
g) Permanent disability at 10%.
The opinion and prognosis was
• Respondent will require removal of metal implants at a cost of Kshs 100,000.
• Permanent incapacity at 10 %.
(13) The issue for determination are whether the trial court erred in the award of General Damages.
(ii) Who should bear the costs of the appeal.
(14) The appellant relies on a raft of cases to support their submissions for an award of Ksh. 500,000/=.It is submitted that in assessing quantum of damages, the Courts have held that damages should not be too large to the extent of crippling the economy. The appellant cited:-
Jackline Syombua – vs- BOG & Ekalakala Secondary School Embu HCCC No. 118 of 2006 (UR) where the court held:-
“The task of assessing damages in a case such as this is a difficult one. The court must nonetheless be guided by relevant precedents… in assessing compensatory damages the court will always bear in mind that the purpose of awarding damages is not to pay as it were for the loss or injury the plaintiff has suffered. Damages only assuage the pain or loss suffered by the Plaintiff because no amount of money can replace a lost limb.”
4) It is also submitted that Courts have held that authorities are a guide to the amount of damages to be awarded, caution must be exercised as was stated in Kigaraari v. Aya (1982 – 88) IKAR 768 that:-
“Damages must be within the limits set out by the decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to the members of the public, the vast majority of whom cannot afford the burden in the form of increases insurance and increased fees.”
7) The appellant submitted that an award of Kshs. 500,000 would be adequate as general damages for pain and suffering on the following authorities:-
I. WAINAINA V WAGACHA (CIVIL APPEAL 16 OF 2019) [2023] KEHC 26226 (KLR) (9 NOVEMBER 2023) (JUDGMENT) where the appellate court set aside an award of Kshs 700,000/- for general damages awarded by the Trial Court and substituted this with an award of Ksh 500,000/- general damages where the Respondent had sustained fracture of the left hand necessitating him to be admitted and operated on.
II. NJENGA & ANOTHER V KINYANJUI (CIVIL APPEAL E117 OF 2021) [2024] KEHC 3810 (KLR) (12 APRIL 2024) (JUDGMENT), where the appellate court dismissed an appeal where the Respondent had been awarded Kshs 400,000/- general damages. The Respondent had sustained soft tissue injury to the Right forearm, fractured right ulna bone, fractured right radius bone, multiple bruises on the right leg from the thigh extending to the right knee and multiple bruises on left thigh.
III. JULIE AKOTH ONYANGO V DANIEL OTIENO OWINO & ANOTHER [2020] EKLR where the appellate court found the award of Kshs. 500,000/= general damages for pain suffering and loss of amenities sufficient compensation for the appellant who sustained injuries involving fracture of tibia-fibular of left leg.
IV. JUSTINE NYAMWEYA OCHOKI & ANOTHER V FRANCIS NDURYA THOYA & ANOTHER [2020] EKLR where the appellate court affirmed the lower court’s award of Kshs. 500,000/= as general damages for pain suffering and loss of amenities sufficient compensation where the respondent had sustained fracture of the chest center bone (manubrium sternum), blunt object injury to the chest and bruises on the neck.
V. SELENITS CONTRACTORS LIMITED V JOHN MUTHAMA MULONZI [2021] eKLR , where the High Court dismissed an appeal and cross appeal against an award of Kshs 300,000/- general damages in a case where the Respondent had sustained fractures of middle metatarsal bone 4 th toe, fracture middle metatarsal bone 5 th toe, and soft tissue injuries on 4 th and 5 th toe.
VI. ISAAC KATAMBANI IMINYA V FIRESTONE EAST AFRICA (1969) LIMITED [2015] eKLR where the Appellant suffered a fracture of the 5 th metacarpal in the year 2002 and the court awarded Kshs. 250,000/= in general damages.
VII. SILPHANUS KUMBE MURONDO V LAMEK MBAKA MOTEGI & ANOTHER [2013[ eKLR , where the Appellant had a fracture of the 5 th Metacarpal bone of the right hand and soft tissue injuries to the chest, right thigh and blunt injury to the right hip-joint, the court awarded Kshs. 220,000/= in general damages.
(15) On issue of costs the appellant relies on section 27 of the Civil Procedure Act which states;
(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
Respondents
(16) For the respondent 2 issues are set out for determination –
i) Whether the sum of Ksh. 1,500,000 General Damages is inordinately high?
ii) Who should bear the costs of the appeal?
(17) The respondent cites Dr. Titus Ndeti Nzina’s report.
(18) On whether the sum of Kshs. 1,500,000/= awarded by the trial court as general damages to the Respondent was inordinately high.
the respondent submitted that the medical report by Dr Titus Ndeti Nzina dated 3 rd August, 2022 together with the pleadings filed by the Respondent before this Honourable Court, showed that the Respondent had sustained the following injuries;
1. Blunt injuries to the right lower limb distal aspect
2. Fractured distal right tibia borne
3. Deep cut wound on the left foot
4. Fractured left metatarsal/phalangeal bones
(19) The Respondent relied on James Gathirwa Ngungi vs Multiple Hauliers (EA) Limited & Another [2015] eKLR , where the court stated;
“the plaintiff suffered compound comminuted fracture of the right tibia compound communited fracture on the right fibula, fracture of left proximal radius, fracture of left ulna, head injury, deep cut wound of the parietal region about 4cm, soft tissue injury and bruises of both hands, multiple facial cuts and lacerations/refracture of the right leg court awarded a sum of Kshs.1,500,000/=”
In Mashru Limited v Omar Mwakoro Makenge alias Omar Masaoud v PN Mashru Limited, Voi HCCC No 9 of 2017 eKLR ,
the High Court on Appeal upheld an ward of Kshs. 1,200,000/= for the Plaintiff who had suffered injuries including loss of consciousness, fracture of the femur distal third, fracture of the temporal bone with hematoma, head injury to the right frontal parietal bone with brain oedema and left subdural hematoma.
(20) It is submitted that the determination of General Damages is a discretionary exercise which should not be interfered with unless the trial court took into account irrelevant factors , left out of account relevant factors and/or the award was so inordinately high/low that it must have been wholly an erroneous estimate of the damages. For this the respondent cites Kemfro Africa Ltd T/a Meru Express Services (1976) & Another vs Lubia & Another (No. 2) [1985] eKLR , Butt vs Khan [1981] KLR 470 & Kitavi vs Coastal Bottlers Ltd [1985] KLR 470 where 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 arrived a figure which was either inordinately high or low.”
(21) The respondent also relies on – Denshire Muteti Wambua vs Kenya Power & Lighting Co. Ltd [2013] eKLR where the court held that;
“the general method of approach for assessing damages is that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
(22) On costs the Respondent relies on Simba Platinum Limited v Nicholas Auma Wandera [2021] eKLR where the learned Judge held as hereunder;
“Like in all judicial discretions, the discretion on costs must be exercised judiciously and how a court exercises that discretion depends on the facts of each case. Unless there are exceptional circumstances, costs follow events. In other words, costs will always be awarded to a successful party unless there was sufficient reason or cause to deny such party costs.”
In any event the effect of Section 27 of the Civil Procedure Acis that the court dealing with the issue of costs in any suit, action, cause or matter has absolute discretion to determine by whom and to what extent costs are to be paid
(23) The court is urged to dismiss the appeal.
Analysis and Determination
(24) The duty of a 1 st appellate court is to re-evaluate the evidence in the trial court and to draw its own conclusion.
(25) In this case there was no oral evidence given hence the court relied on pleadings and the submissions.
Submissions in the lower court
(26) Before the subordinate court the plaintiff/respondent submitted that Kshs. 2,000,000 relying on the Court of Appeal in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR settled the principles to be applied in assessing damages and stated that:
Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases .
The plaintiff/respondent relied on:
1. Wamalwa Wamba & another v Kyalo Wambua [2018] eKLR where the Respondent suffered compound fracture of the right distal tibia/fibula, cut wound on the scalp, cut wound on the chest and cut on the lower lip and was awarded Kshs.700,000 .
2. Mutembi v Maurice Ochieng Odoyo [2019] eKLR , the respondent suffered injuries of a fracture of the right femur and a proximal fracture of the left tibia was awarded general damages of Kshs.1,600,000.00 had the same reduced on appeal to Kshs. 800,000.00.
3. Pauline Gesare v Samuel Onami v Samuel Changamure & Another [2017] eKLR where the plaintiff suffered fracture of the right tibia and fibula bone, fracture of the tibia and fibula bone, laceration on the neck area, blunt trauma to the chest and deep cut wound on both legs mid shaft and the court upheld the trial court’s award of Kshs. 600,000.
4. Njora Samuel v Richard Nyang’au Orechi [2018] eKLR in which, the court upheld an award of Kshs. 500,000/= in the instance of a Respondent who had suffered a fracture of one (1) metatarsal with no permanent disability and the case.
5. Grace Wamue v Wicks Mwethi Njenga [2020] eKLR the High Court on appeal saw it fit to award Kshs. 500,000/=. The Court established that the Respondent had suffered the following injuries; Blunt chest injuries, Blunt injury – left lower limb, swollen left tender foot and fracture of the left 3 rd and 4 th metatarsals.
(27) The defendant/appellant submitted for Kshs. 300,000/= relying on – Harun Muyoma Boge v Daniel Otieno Agulo MGR HCCA No. 7 of 2015 [2015] eKLR , the Judge was of the following view:
“The assessment of general damages is not exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politics is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.”
(28) In Damaris Ombati v Moses Mogoko Levis & Another [2019] the Court awarded Kshs.300,000.00 as general damages for:
a) A cut wound on the forehead and cheek;
b) Dislocation on the left shoulder joint;
c) Tenderness of the anterior chest wall; and
d) Fracture on the left tibia.
(29) In Naomi Momanyi vs. Gas Security Services Kenya Limited [2018] eKLR , the appellant sustained a fracture of the left-right condylar tibia, blunt injuries on the back and multiple bruises on the left arm and was awarded Kshs. 300,000.00.
(30) In Gogni Construction Company Limited v Francis Ojuok Olewe [2015] eKLR where the claimant was awarded Kshs. 350,000/= as general damages having sustained a fracture of the left distal radius and ulna and dislocation of the left elbow and was hospitalized for 6 weeks. It was submitted that the injuries in the precedent cited were more severe but the court awarded and the range was f Kshs. 300,000 for a fracture . The court was invited to make the same determination while being guided by the quoted precedents.
(31) I have carefully considered these and the authorities cited before me.
(32) Clearly the authorities cited before me by the plaintiff/respondent are of much more serious injuries – the plaintiff therein sustained head injuries multiple serious fractures, including loss of consciousness – these injuries are not comparable to the injuries the respondent sustained.
(33) In any event, it is not ok for counsel to cite fresh authorities very different from those cited before the trial court because the duty of this court is to review what was before the trial court -
(34) The authorities the respondent cited before the trial court were for sums ranging Ksh 500,000 to Kshs. 800,000/= in fact in one – the award of Ksh 1,600,000/= was reduced to Ksh. 800,000/=.
(35) Clearly the respondent did not also lay a basis for the award of Ksh 2,000,000 – alleged inflationary trends would not be enough to raise a claim for Ksh 800,000 to Ksh 2,000,000.
(36) The plaintiff did not testify.
(37) I have looked at medical records.
(38) The discharge summary from Makueni County Referral Hospital – of 5/11/2021 shows that the plaintiff was admitted on 12/10/2021 while he was hospitalized for a while. It says that:-
“drapped malleolar screws and K wire were fixed on the left foot and 1 / 3 tibula plate on the right distal tibia.”
(39) The plaintiff sustained fractures on both legs – which were fixed, and at the time of the medical examination – he had scars, and slight deformity of the left foot.
(40) From the plaintiff’s/respondent own submissions – highest sum submitted for with an authority was the sum of Ksh 800000/=.
(41) The amount submitted for by the defendant/appellant at Ksh 3000000 on the lower side.
(42) Having reviewed the evidence on record, aware of the limits to exercise my discretion as a first appellate court I find that the award of Ksh 1.500.000 was on the higher side looking at comparable injuries. In the circumstances I set aside that ward and substitute it for Ksh. 800,000/=.
(43) The final order
Liability 70:30
General damages 800,000 X 70 / 100
560000
Special Damages 6,520
566,520
Future medicals 100,000
Total Ksh 666,520
(44) The Respondent will have costs below plus interest from the date of the Judgment below.
(45) Considering that there was no trial the appellant will have a third of the costs of the appeal.
JUDGMENT dated signed and delivered this 15 th May 2026 via CTS
Mumbua T Matheka
Judge
CA Chrispol
Parties and Counsel absent though notified.
Judgment HCCA No. E009 of 2023 Page 2 of 2
IN THE HIGH COURT OF KENYA AT MAKUENI
HCCA NO. E099 OF 2023
DANIEL MUTISO ………………………………………………APPELLANT
VERSUS
LOLLECARP MUTUKU PETER ………………………… RESPONDENT
JUDGMENT
(1) According to the Plaint dated 26/9/2022 in MAKUENI MCCC 133/2022. ON 12/10/2021 Lollecarp Mutuku Peter was riding motor cycle Registration No. KMCX 308M Skygo along Wote Machakos and Nthangu area when the defendant’s (Daniel Mutiso) motor vehicle Registration No. KCM 607M was carelessly and negligently driven that it came into collision with plaintiff’s motor cycle KMCX 308M Skygo causing the plaintiff grievous harm .
(2) The Plaintiff filed suit and sought General Damages, for pain and suffering, Special Damages of Ksh. 6,520 costs and interest.
(3) It was the plaintiff’s case that he sustained the following injuries:-
- Blunt injuries to right lower limb distal aspect.
- Fractured distal right tibia bone.
- Fractured left metatarsal/phalangeal bones.
- Deep cut wound on left foot.
(4) The defendant filed statement of defence dated 14/11/2022 denied all particulars of injury, loss, and negligence and put the plaintiff to strict proof thereof.
(5) The defendant averred that if any accident happened, then the plaintiff was to blame. The court was urged to dismiss the plaintiff’s suit. On 2/2/2023, the parties entered into a consent on liability – at 30%:70% in favour of the plaintiff and against the defendant.
(6) On 27/7/2023, the parties agreed to proceed by way of written submissions on the issue of quantum damages.
(7) The learned trial magistrate by Judgment delivered on 27/9/2023 made the following awards:-
General Damages Ksh. 1,500,000/=
Les. 30% 450,000
1,050,000
Special damages Ksh. 6,520
1,056,520
(8) The trial Magistrate noted that the plaintiff filed submission seeking General Damages of Ksh 2,000,000/=. He indicated in the Judgment that the plaintiff relied on a case cited as Stanley Maore and Geoffrey Mwendo CA 147/07 & 2004 eKLR.(sic)
(9) He noted that the defence was asking for an award of Ksh. 300,000/=.
(10) Aggrieved, the defendant/appellant lodged this appeal vide Memorandum of appeal dated 16/10/2023 on the following grounds;
1. The Learned Magistrate erred and misdirected himself in law, principle and facts when he misapprehended and misunderstood the applicable principles and the law in assessing quantum thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the damages in the circumstances of the case.
2. The Learned Trial Court erred by overestimating, misapprehending and misunderstanding the extend of the injuries therein so as to reach an overly high and unreasonable award in general damages.
3. The learned Trial Court erred by failing to consider with a fair measure the submissions of the Defendant in writing the Judgment.
4. The Learned Trial Court erred in the evaluation of evidence before it and disregarded important elements of the evidence, principles and practice thus reaching an award on quantum so inordinately high in the circumstances.
(11) The appellant seeks:-
i) This appeal be allowed and the lower courts judgment be set aside in its entirety:
ii) The award of the quantum be set aside and vacated and a fresh award based on proper application of the law, evidence, facts and principles be entered.
iii) This court does award costs in this application and in the lower court to the Appellant .
(12) The appellant listed the respondent’s injuries thus:-
a) Blunt injuries to the right lower limb distal aspect.
b) Fracture distal right tibia bone.
c) Deep cut wound on the left foot.
d) Fractured left metatarsal/phalangeal bones.
The complainants present at the time of examination were found to be.
e) Inability to walk for long distance.
f) The metal implants were in situ.
g) Permanent disability at 10%.
The opinion and prognosis was
• Respondent will require removal of metal implants at a cost of Kshs 100,000.
• Permanent incapacity at 10 %.
(13) The issue for determination are whether the trial court erred in the award of General Damages.
(ii) Who should bear the costs of the appeal.
(14) The appellant relies on a raft of cases to support their submissions for an award of Ksh. 500,000/=.It is submitted that in assessing quantum of damages, the Courts have held that damages should not be too large to the extent of crippling the economy. The appellant cited:-
Jackline Syombua – vs- BOG & Ekalakala Secondary School Embu HCCC No. 118 of 2006 (UR) where the court held:-
“The task of assessing damages in a case such as this is a difficult one. The court must nonetheless be guided by relevant precedents… in assessing compensatory damages the court will always bear in mind that the purpose of awarding damages is not to pay as it were for the loss or injury the plaintiff has suffered. Damages only assuage the pain or loss suffered by the Plaintiff because no amount of money can replace a lost limb.”
4) It is also submitted that Courts have held that authorities are a guide to the amount of damages to be awarded, caution must be exercised as was stated in Kigaraari v. Aya (1982 – 88) IKAR 768 that:-
“Damages must be within the limits set out by the decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to the members of the public, the vast majority of whom cannot afford the burden in the form of increases insurance and increased fees.”
7) The appellant submitted that an award of Kshs. 500,000 would be adequate as general damages for pain and suffering on the following authorities:-
I. WAINAINA V WAGACHA (CIVIL APPEAL 16 OF 2019) [2023] KEHC 26226 (KLR) (9 NOVEMBER 2023) (JUDGMENT) where the appellate court set aside an award of Kshs 700,000/- for general damages awarded by the Trial Court and substituted this with an award of Ksh 500,000/- general damages where the Respondent had sustained fracture of the left hand necessitating him to be admitted and operated on.
II. NJENGA & ANOTHER V KINYANJUI (CIVIL APPEAL E117 OF 2021) [2024] KEHC 3810 (KLR) (12 APRIL 2024) (JUDGMENT), where the appellate court dismissed an appeal where the Respondent had been awarded Kshs 400,000/- general damages. The Respondent had sustained soft tissue injury to the Right forearm, fractured right ulna bone, fractured right radius bone, multiple bruises on the right leg from the thigh extending to the right knee and multiple bruises on left thigh.
III. JULIE AKOTH ONYANGO V DANIEL OTIENO OWINO & ANOTHER [2020] EKLR where the appellate court found the award of Kshs. 500,000/= general damages for pain suffering and loss of amenities sufficient compensation for the appellant who sustained injuries involving fracture of tibia-fibular of left leg.
IV. JUSTINE NYAMWEYA OCHOKI & ANOTHER V FRANCIS NDURYA THOYA & ANOTHER [2020] EKLR where the appellate court affirmed the lower court’s award of Kshs. 500,000/= as general damages for pain suffering and loss of amenities sufficient compensation where the respondent had sustained fracture of the chest center bone (manubrium sternum), blunt object injury to the chest and bruises on the neck.
V. SELENITS CONTRACTORS LIMITED V JOHN MUTHAMA MULONZI [2021] eKLR , where the High Court dismissed an appeal and cross appeal against an award of Kshs 300,000/- general damages in a case where the Respondent had sustained fractures of middle metatarsal bone 4 th toe, fracture middle metatarsal bone 5 th toe, and soft tissue injuries on 4 th and 5 th toe.
VI. ISAAC KATAMBANI IMINYA V FIRESTONE EAST AFRICA (1969) LIMITED [2015] eKLR where the Appellant suffered a fracture of the 5 th metacarpal in the year 2002 and the court awarded Kshs. 250,000/= in general damages.
VII. SILPHANUS KUMBE MURONDO V LAMEK MBAKA MOTEGI & ANOTHER [2013[ eKLR , where the Appellant had a fracture of the 5 th Metacarpal bone of the right hand and soft tissue injuries to the chest, right thigh and blunt injury to the right hip-joint, the court awarded Kshs. 220,000/= in general damages.
(15) On issue of costs the appellant relies on section 27 of the Civil Procedure Act which states;
(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:
Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.
(2) The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.
Respondents
(16) For the respondent 2 issues are set out for determination –
i) Whether the sum of Ksh. 1,500,000 General Damages is inordinately high?
ii) Who should bear the costs of the appeal?
(17) The respondent cites Dr. Titus Ndeti Nzina’s report.
(18) On whether the sum of Kshs. 1,500,000/= awarded by the trial court as general damages to the Respondent was inordinately high.
the respondent submitted that the medical report by Dr Titus Ndeti Nzina dated 3 rd August, 2022 together with the pleadings filed by the Respondent before this Honourable Court, showed that the Respondent had sustained the following injuries;
1. Blunt injuries to the right lower limb distal aspect
2. Fractured distal right tibia borne
3. Deep cut wound on the left foot
4. Fractured left metatarsal/phalangeal bones
(19) The Respondent relied on James Gathirwa Ngungi vs Multiple Hauliers (EA) Limited & Another [2015] eKLR , where the court stated;
“the plaintiff suffered compound comminuted fracture of the right tibia compound communited fracture on the right fibula, fracture of left proximal radius, fracture of left ulna, head injury, deep cut wound of the parietal region about 4cm, soft tissue injury and bruises of both hands, multiple facial cuts and lacerations/refracture of the right leg court awarded a sum of Kshs.1,500,000/=”
In Mashru Limited v Omar Mwakoro Makenge alias Omar Masaoud v PN Mashru Limited, Voi HCCC No 9 of 2017 eKLR ,
the High Court on Appeal upheld an ward of Kshs. 1,200,000/= for the Plaintiff who had suffered injuries including loss of consciousness, fracture of the femur distal third, fracture of the temporal bone with hematoma, head injury to the right frontal parietal bone with brain oedema and left subdural hematoma.
(20) It is submitted that the determination of General Damages is a discretionary exercise which should not be interfered with unless the trial court took into account irrelevant factors , left out of account relevant factors and/or the award was so inordinately high/low that it must have been wholly an erroneous estimate of the damages. For this the respondent cites Kemfro Africa Ltd T/a Meru Express Services (1976) & Another vs Lubia & Another (No. 2) [1985] eKLR , Butt vs Khan [1981] KLR 470 & Kitavi vs Coastal Bottlers Ltd [1985] KLR 470 where 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 arrived a figure which was either inordinately high or low.”
(21) The respondent also relies on – Denshire Muteti Wambua vs Kenya Power & Lighting Co. Ltd [2013] eKLR where the court held that;
“the general method of approach for assessing damages is that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
(22) On costs the Respondent relies on Simba Platinum Limited v Nicholas Auma Wandera [2021] eKLR where the learned Judge held as hereunder;
“Like in all judicial discretions, the discretion on costs must be exercised judiciously and how a court exercises that discretion depends on the facts of each case. Unless there are exceptional circumstances, costs follow events. In other words, costs will always be awarded to a successful party unless there was sufficient reason or cause to deny such party costs.”
In any event the effect of Section 27 of the Civil Procedure Acis that the court dealing with the issue of costs in any suit, action, cause or matter has absolute discretion to determine by whom and to what extent costs are to be paid
(23) The court is urged to dismiss the appeal.
Analysis and Determination
(24) The duty of a 1 st appellate court is to re-evaluate the evidence in the trial court and to draw its own conclusion.
(25) In this case there was no oral evidence given hence the court relied on pleadings and the submissions.
Submissions in the lower court
(26) Before the subordinate court the plaintiff/respondent submitted that Kshs. 2,000,000 relying on the Court of Appeal in the case of Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR settled the principles to be applied in assessing damages and stated that:
Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases .
The plaintiff/respondent relied on:
1. Wamalwa Wamba & another v Kyalo Wambua [2018] eKLR where the Respondent suffered compound fracture of the right distal tibia/fibula, cut wound on the scalp, cut wound on the chest and cut on the lower lip and was awarded Kshs.700,000 .
2. Mutembi v Maurice Ochieng Odoyo [2019] eKLR , the respondent suffered injuries of a fracture of the right femur and a proximal fracture of the left tibia was awarded general damages of Kshs.1,600,000.00 had the same reduced on appeal to Kshs. 800,000.00.
3. Pauline Gesare v Samuel Onami v Samuel Changamure & Another [2017] eKLR where the plaintiff suffered fracture of the right tibia and fibula bone, fracture of the tibia and fibula bone, laceration on the neck area, blunt trauma to the chest and deep cut wound on both legs mid shaft and the court upheld the trial court’s award of Kshs. 600,000.
4. Njora Samuel v Richard Nyang’au Orechi [2018] eKLR in which, the court upheld an award of Kshs. 500,000/= in the instance of a Respondent who had suffered a fracture of one (1) metatarsal with no permanent disability and the case.
5. Grace Wamue v Wicks Mwethi Njenga [2020] eKLR the High Court on appeal saw it fit to award Kshs. 500,000/=. The Court established that the Respondent had suffered the following injuries; Blunt chest injuries, Blunt injury – left lower limb, swollen left tender foot and fracture of the left 3 rd and 4 th metatarsals.
(27) The defendant/appellant submitted for Kshs. 300,000/= relying on – Harun Muyoma Boge v Daniel Otieno Agulo MGR HCCA No. 7 of 2015 [2015] eKLR , the Judge was of the following view:
“The assessment of general damages is not exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politics is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.”
(28) In Damaris Ombati v Moses Mogoko Levis & Another [2019] the Court awarded Kshs.300,000.00 as general damages for:
a) A cut wound on the forehead and cheek;
b) Dislocation on the left shoulder joint;
c) Tenderness of the anterior chest wall; and
d) Fracture on the left tibia.
(29) In Naomi Momanyi vs. Gas Security Services Kenya Limited [2018] eKLR , the appellant sustained a fracture of the left-right condylar tibia, blunt injuries on the back and multiple bruises on the left arm and was awarded Kshs. 300,000.00.
(30) In Gogni Construction Company Limited v Francis Ojuok Olewe [2015] eKLR where the claimant was awarded Kshs. 350,000/= as general damages having sustained a fracture of the left distal radius and ulna and dislocation of the left elbow and was hospitalized for 6 weeks. It was submitted that the injuries in the precedent cited were more severe but the court awarded and the range was f Kshs. 300,000 for a fracture . The court was invited to make the same determination while being guided by the quoted precedents.
(31) I have carefully considered these and the authorities cited before me.
(32) Clearly the authorities cited before me by the plaintiff/respondent are of much more serious injuries – the plaintiff therein sustained head injuries multiple serious fractures, including loss of consciousness – these injuries are not comparable to the injuries the respondent sustained.
(33) In any event, it is not ok for counsel to cite fresh authorities very different from those cited before the trial court because the duty of this court is to review what was before the trial court -
(34) The authorities the respondent cited before the trial court were for sums ranging Ksh 500,000 to Kshs. 800,000/= in fact in one – the award of Ksh 1,600,000/= was reduced to Ksh. 800,000/=.
(35) Clearly the respondent did not also lay a basis for the award of Ksh 2,000,000 – alleged inflationary trends would not be enough to raise a claim for Ksh 800,000 to Ksh 2,000,000.
(36) The plaintiff did not testify.
(37) I have looked at medical records.
(38) The discharge summary from Makueni County Referral Hospital – of 5/11/2021 shows that the plaintiff was admitted on 12/10/2021 while he was hospitalized for a while. It says that:-
“drapped malleolar screws and K wire were fixed on the left foot and 1 / 3 tibula plate on the right distal tibia.”
(39) The plaintiff sustained fractures on both legs – which were fixed, and at the time of the medical examination – he had scars, and slight deformity of the left foot.
(40) From the plaintiff’s/respondent own submissions – highest sum submitted for with an authority was the sum of Ksh 800000/=.
(41) The amount submitted for by the defendant/appellant at Ksh 3000000 on the lower side.
(42) Having reviewed the evidence on record, aware of the limits to exercise my discretion as a first appellate court I find that the award of Ksh 1.500.000 was on the higher side looking at comparable injuries. In the circumstances I set aside that ward and substitute it for Ksh. 800,000/=.
(43) The final order
Liability 70:30
General damages 800,000 X 70 / 100
560000
Special Damages 6,520
566,520
Future medicals 100,000
Total Ksh 666,520
(44) The Respondent will have costs below plus interest from the date of the Judgment below.
(45) Considering that there was no trial the appellant will have a third of the costs of the appeal.
JUDGMENT dated signed and delivered this 15 th May 2026 via CTS
Mumbua T Matheka
Judge
CA Chrispol
Parties and Counsel absent though notified.
Judgment HCCA No. E009 of 2023 Page 2 of 2