Introduction and Background
1. The Appellants are dissatisfied with the subordinate court’s award of Kshs. 355,550.00 as general and special damages as set out in the judgment of 15 th February 2024. This award stems from a suit filed by the Respondent in the subordinate against the Appellants stating that on or about 8 th November 2021, she was lawfully travelling as a passenger in motor vehicle registration number KBA ***A along the Nairobi-Mombasa road at Kappa area when an accident occurred. She claimed that the 2 nd Appellant drove the vehicle carelessly and negligently at a very high speed, lost control, and caused it to veer off its lane, resulting in serious bodily injuries to her.
2. The Respondent attributed the accident to the negligence of the 2 nd Appellant, citing particulars such as failing to keep a proper lookout, driving at excessive speed, failing to control the vehicle and driving recklessly. She sought to hold the 1 st Appellant vicariously liable for the tortious acts of the 2 nd Appellant and she pleaded that she sustained injuries including fracture of the left fifth and sixth ribs, pain and bruising on the abdomen, headache and neck pains, a cut wound on the back of her head and pain on her left forearm, left chest, and left leg.
3. In the judgment, the trial court held that the Respondent was a passenger in the Appellants’ vehicle, which was under the control of the 2 nd Appellant and he had a duty of care to the Respondent, who had no control over the vehicle. That Appellants did not call any witnesses to rebut the Respondent’s case or to prove any contributory negligence on the part of the Respondent and the trial court found that the Respondent proved on a balance of probability that the accident was caused entirely by the 2 nd Appellant, acting as an agent of the 1 st Appellant. Liability was thus entered at 100% against the Appellants jointly and severally.
4. On quantum, the subordinate court considered the injuries and the doctor's opinion which was that the Respondent was in a fair general condition and had fully healed. The trial court stated that it had analyzed comparable awards and applied the principle of stare decisis , taking into account the trend of recent awards, the current value of the shilling and inflation. Relying on cases such as Bolpak Trading Co Ltd & another v Gilbert Onyango Odie [2022] KEHC 1291 (KLR) and Blue Horizon Travel Co Ltd v Kenneth Njoroge [2020] KEHC 8431 (KLR) , the trial court assessed and awarded General Damages of Kshs. 350,000.00. The trial court also held that the Respondent had proved the pleaded special damages of Kshs. 5,550.00 and awarded them.
5. As stated, the Appellants are dissatisfied with these awards and through their Memorandum of Appeal dated 5 th March 2024, they aver that learned magistrate erred in awarding General Damages of Kshs. 350,000.00 which was too high compared to the injuries suffered by the Respondent. That he erred in failing to appreciate the principle of stare decisis, thus bringing confusion to the law and reaching an erroneous conclusion on damages and that he further erred by failing to appreciate that the Respondent's pleadings, submissions and evidence were incapable of sustaining the award of Kshs. 350,000.00 for General Damages.
6. The Appellants state that the learned magistrate also erred in entering judgment for the Respondent despite the Respondent's failure to establish her case on quantum and as such, they urge the court to allow the appeal with costs and that the judgment of the subordinate court regarding the award of General and Special Damages, costs and interest be set aside. The appeal has been canvassed by way of written submissions which are on record and I have considered the same together with the record and I will make relevant references in my analysis and determination below.
Analysis and Determination
7. In determining this appeal, I am cognizant of the role of this court as a first appellate court which is to re-evaluate and re-assess the evidence before the court of first instance. At the same time, I also need to keep in mind the fact that the trial court interacted first hand with the parties (see Selle v. Associated Motor Boat Co. [1968] EA 123 )
8. Since the appeal is only on the quantum of damages awarded, it should not be lost that an assessment of damages is within the discretion of the trial court and an appellate court will only interfere where trial court, in assessing damages, either took into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is not based on any evidence (See Imanyara & 2 others v Attorney General [2022] KESC 78 (KLR) , Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) and Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5)
9. The parties have also rightly submitted that a court should also be mindful to make fair and consistent awards in line with the principle that similar injuries must attract similar awards (see Nyamete & another v Ogutu [2024] KEHC 2639 (KLR) . The Appellants’ main argument is that the medical report by Dr. Cynthia W. Muriithi did not note any fracture and they attempt to use this to argue that the injury was less severe and the award too high. However, I agree with the Respondent that she pleaded the fracture of the 5 th and 6 th ribs in her plaint and that from Dr. Muriithi’s report, the fractures were revealed after a plain radiograph was done on the Respondent’s chest in the hospital where she was treated, that is Kitengela Sub-County Hospital. While the doctor's summary might not explicitly list the fracture in the “physical examination” section, the report is based on the Respondent’s history and the documents provided.
10. Further, I agree with the Respondent that her testimony and the treatment notes were not successfully challenged by the Appellants who did not call any witness or produce an independent medical report to counter the Respondent's evidence of the rib fracture. The evidence that she sustained this fracture remained uncontroverted and I find that the trial court was entitled to rely on this evidence.
11. I also note that the trial court explicitly considered the principle of stare decisis and the need for comparable injuries to attract comparable awards. It found the cases cited by both parties to be not directly comparable and instead relied on two relevant cases that is Bolpak Trading Co Ltd(supra) which involved a fracture of the 7 th and 8 th ribs, among other injuries and an award of Kshs. 250,000.00 as general damages was given and Blue Horizon Travel Co Ltd(supra) which involved a fracture of the 3 rd and 9 th ribs where Kshs. 400,000.00 was awarded. I find that the trial court's award of Kshs. 350,000.00 falls logically between these two decisions that were binding upon the trial court and relevant in the circumstances. In my view, this demonstrates a clear and judicious exercise of the trial court’s discretion and application of the correct legal principles.
12. The Respondent's submissions correctly point out that the test is not whether the award is "excessive," but whether it is "manifestly excessive and that it is also the duty of the court to consider inflation and the economic realities of the time (see Kneller JA., in Jabane v Olenja [1986] KECA 21 (KLR) .I find that the Respondent cited cases such as Kensilver Express Limited v Nzangu [2022] KEHC 10331 (KLR) involving more severe injuries in some instances which demonstrate that the award by the trial court was within a reasonable range for injuries involving fractures.
13. In the end, I find that the trial court had unchallenged evidence of a rib fracture, it properly directed itself on the applicable legal principles, assessed the award based on comparable authorities and the relevant facts of the case and it reached an award that is not so inordinately high as to be a wholly erroneous estimate.
Conclusion and Disposition
14. In the foregoing, it is my finding that the trial court’s decision on the quantum of damages awarded was sound and it is upheld. The Appellant’s appeal stands dismissed with costs assessed at Kshs. 30,000.00
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. N/A for the Appellant
2. Ms. Maina for the Respondent
3. Abdisalan- Court Assistant
1. The Appellants are dissatisfied with the subordinate court’s award of Kshs. 355,550.00 as general and special damages as set out in the judgment of 15 th February 2024. This award stems from a suit filed by the Respondent in the subordinate against the Appellants stating that on or about 8 th November 2021, she was lawfully travelling as a passenger in motor vehicle registration number KBA ***A along the Nairobi-Mombasa road at Kappa area when an accident occurred. She claimed that the 2 nd Appellant drove the vehicle carelessly and negligently at a very high speed, lost control, and caused it to veer off its lane, resulting in serious bodily injuries to her.
2. The Respondent attributed the accident to the negligence of the 2 nd Appellant, citing particulars such as failing to keep a proper lookout, driving at excessive speed, failing to control the vehicle and driving recklessly. She sought to hold the 1 st Appellant vicariously liable for the tortious acts of the 2 nd Appellant and she pleaded that she sustained injuries including fracture of the left fifth and sixth ribs, pain and bruising on the abdomen, headache and neck pains, a cut wound on the back of her head and pain on her left forearm, left chest, and left leg.
3. In the judgment, the trial court held that the Respondent was a passenger in the Appellants’ vehicle, which was under the control of the 2 nd Appellant and he had a duty of care to the Respondent, who had no control over the vehicle. That Appellants did not call any witnesses to rebut the Respondent’s case or to prove any contributory negligence on the part of the Respondent and the trial court found that the Respondent proved on a balance of probability that the accident was caused entirely by the 2 nd Appellant, acting as an agent of the 1 st Appellant. Liability was thus entered at 100% against the Appellants jointly and severally.
4. On quantum, the subordinate court considered the injuries and the doctor's opinion which was that the Respondent was in a fair general condition and had fully healed. The trial court stated that it had analyzed comparable awards and applied the principle of stare decisis , taking into account the trend of recent awards, the current value of the shilling and inflation. Relying on cases such as Bolpak Trading Co Ltd & another v Gilbert Onyango Odie [2022] KEHC 1291 (KLR) and Blue Horizon Travel Co Ltd v Kenneth Njoroge [2020] KEHC 8431 (KLR) , the trial court assessed and awarded General Damages of Kshs. 350,000.00. The trial court also held that the Respondent had proved the pleaded special damages of Kshs. 5,550.00 and awarded them.
5. As stated, the Appellants are dissatisfied with these awards and through their Memorandum of Appeal dated 5 th March 2024, they aver that learned magistrate erred in awarding General Damages of Kshs. 350,000.00 which was too high compared to the injuries suffered by the Respondent. That he erred in failing to appreciate the principle of stare decisis, thus bringing confusion to the law and reaching an erroneous conclusion on damages and that he further erred by failing to appreciate that the Respondent's pleadings, submissions and evidence were incapable of sustaining the award of Kshs. 350,000.00 for General Damages.
6. The Appellants state that the learned magistrate also erred in entering judgment for the Respondent despite the Respondent's failure to establish her case on quantum and as such, they urge the court to allow the appeal with costs and that the judgment of the subordinate court regarding the award of General and Special Damages, costs and interest be set aside. The appeal has been canvassed by way of written submissions which are on record and I have considered the same together with the record and I will make relevant references in my analysis and determination below.
Analysis and Determination
7. In determining this appeal, I am cognizant of the role of this court as a first appellate court which is to re-evaluate and re-assess the evidence before the court of first instance. At the same time, I also need to keep in mind the fact that the trial court interacted first hand with the parties (see Selle v. Associated Motor Boat Co. [1968] EA 123 )
8. Since the appeal is only on the quantum of damages awarded, it should not be lost that an assessment of damages is within the discretion of the trial court and an appellate court will only interfere where trial court, in assessing damages, either took into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is not based on any evidence (See Imanyara & 2 others v Attorney General [2022] KESC 78 (KLR) , Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) and Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5)
9. The parties have also rightly submitted that a court should also be mindful to make fair and consistent awards in line with the principle that similar injuries must attract similar awards (see Nyamete & another v Ogutu [2024] KEHC 2639 (KLR) . The Appellants’ main argument is that the medical report by Dr. Cynthia W. Muriithi did not note any fracture and they attempt to use this to argue that the injury was less severe and the award too high. However, I agree with the Respondent that she pleaded the fracture of the 5 th and 6 th ribs in her plaint and that from Dr. Muriithi’s report, the fractures were revealed after a plain radiograph was done on the Respondent’s chest in the hospital where she was treated, that is Kitengela Sub-County Hospital. While the doctor's summary might not explicitly list the fracture in the “physical examination” section, the report is based on the Respondent’s history and the documents provided.
10. Further, I agree with the Respondent that her testimony and the treatment notes were not successfully challenged by the Appellants who did not call any witness or produce an independent medical report to counter the Respondent's evidence of the rib fracture. The evidence that she sustained this fracture remained uncontroverted and I find that the trial court was entitled to rely on this evidence.
11. I also note that the trial court explicitly considered the principle of stare decisis and the need for comparable injuries to attract comparable awards. It found the cases cited by both parties to be not directly comparable and instead relied on two relevant cases that is Bolpak Trading Co Ltd(supra) which involved a fracture of the 7 th and 8 th ribs, among other injuries and an award of Kshs. 250,000.00 as general damages was given and Blue Horizon Travel Co Ltd(supra) which involved a fracture of the 3 rd and 9 th ribs where Kshs. 400,000.00 was awarded. I find that the trial court's award of Kshs. 350,000.00 falls logically between these two decisions that were binding upon the trial court and relevant in the circumstances. In my view, this demonstrates a clear and judicious exercise of the trial court’s discretion and application of the correct legal principles.
12. The Respondent's submissions correctly point out that the test is not whether the award is "excessive," but whether it is "manifestly excessive and that it is also the duty of the court to consider inflation and the economic realities of the time (see Kneller JA., in Jabane v Olenja [1986] KECA 21 (KLR) .I find that the Respondent cited cases such as Kensilver Express Limited v Nzangu [2022] KEHC 10331 (KLR) involving more severe injuries in some instances which demonstrate that the award by the trial court was within a reasonable range for injuries involving fractures.
13. In the end, I find that the trial court had unchallenged evidence of a rib fracture, it properly directed itself on the applicable legal principles, assessed the award based on comparable authorities and the relevant facts of the case and it reached an award that is not so inordinately high as to be a wholly erroneous estimate.
Conclusion and Disposition
14. In the foregoing, it is my finding that the trial court’s decision on the quantum of damages awarded was sound and it is upheld. The Appellant’s appeal stands dismissed with costs assessed at Kshs. 30,000.00
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. N/A for the Appellant
2. Ms. Maina for the Respondent
3. Abdisalan- Court Assistant