(Being an appeal arising from a judgment of Hon. A. Nyoike, dated 6.11.25, in Milimani CMCC E2594 of 2024)
The appellant herein sued the respondents vide a plaint dated 15.5.24, seeking judgment against the two jointly and severally for:
• Special damages in the sum of Kshs. 75,456
• General damages
• Costs of the suit
• Interest on (a), (b) and (c) at court rates
The suit was on account of a traffic road accident involving motorcycle registration number KMFS 684U owned by the respondents and on which the appellant was lawfully travelling aboard when it was allegedly driven at high-speed causing it to lose control. The appellant sustained the following injuries from the accident:
- Disc prolapse L5
- Fracture of the left index finger
- Tenderness of the left ankle joint
- Chest pain
The special damages claimed included the following:
- Copy of records – Kshs. 550
- Medical report – Kshs. 6500
- Treatment expences– Kshs.69,406
Though the respondents filed a defence dated 25.9.24 denying the averments contained in the plaint, on the 4.2.25, the parties recorded a consent judgment on liability in the ratio of 80:20 in favour of the appellant. The parties thereafter filed submissions on quantum of damages.
The trial court upon consideration of the evidence delivered a judgment on quantum of damages as follows:
a) General damages – Kshs. 250,000
b) Special damages – Kshs.68,228
The total award was reduced by 20% contributory negligence by the appellant. The appellant was also awarded costs of the suit.
Being aggrieved by the judgment, the appellant appeals against the finding on quantum and liability apportionment on special damages.
The appellant submitted that the award on special damages should not have been subjected to apportionment of liability. In support of this submission, the appellant cited the case of Waruhiu v Wanjiru (2024) KEHC 16742 (KLR) and the case of A.O. Boyusuf & Sons Ltd v Samuel Njoroge Kamau (2008) eKLR.
On the award of general damages, the appellant submitted that the court failed to consider current trends in ensuring that comparable injuries are compensated by comparable awards. The appellant cited the case of Mikua v Nthiga (2025) KEHC 12439 KLR, Mwangi & Another v GKM (2025) KEHC 2624 (KLR) and Moturi & Another v Obara (2024) KEHC 2484 KLR. The appellant proposed that award of Kshs. 800,000 was the appropriate sum considering the current prevailing inflation and the fact that the plaintiff suffered disability assessed at 5%.
The respondent submitted that the trial magistrate in awarding general damages did take into account the passage of time of the decided cases cited and the inflationary trends in reaching her finding. That there was no proper basis to disturb the exercise of discretion.
On the appellant’s submission that special damages should not have been subjected to apportionment of liability, the respondent submitted that special damages form part of the award and apportionment of liability affects the entire award. The respondent cited the case of Crops Estate Ltd v David Irungu Gathaka and Paul Kariuki Thubi (2002) KEHC 884 KLR.
ANALYSIS AND DETERMINATION
The appeal herein turns on two issues:
i) Whether the trial magistrate properly assessed and awarded damages in light of the evidence, comparable decided cases and prevailing trends
ii) Whether the trial magistrate erred in subjecting special damages to apportionment of liability
As regards the quantum of damages, the court of appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete (2004) 2 KLR 55 set out the circumstances vide which an appellate court can interfere with an award of damages in the following terms:
“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 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.”
Similarly, in Jane Chelagat Bor v Andrew Otieno Onduu (1988-92) 2 KAR 288 (1990-1994) EA 47 the court of appeal held:
“In effect, the court before it interferes with an award of damages, should be satisfied that the judge cited a wrong principle of law, or has misapprehended the facts, or has for those or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to intervene, whether on the ground of excess or insufficiency.”
In this case, there is no dispute that the appellant suffered injuries as follows:
1. Disc prolapse L5
2. Fracture of the left index finger
3. Tenderness of the left ankle joint
4. Chest pain
Dr. C.O. Okere who examined the appellant, concluded that the injuries were classified as grievous harm. The degree of permanent incapacity of the left index finger was assessed at 5%.
Having read the learned magistrate’s judgment on quantum, it is clear that she relied heavily on old decided cases including two which are over 10 years old in reaching her decision. While it is important that there is consistency in awards for similar or comparable injuries, the court must consider the age of the decided cases relied on versus the rate of inflation in the country. The learned magistrate appeared to have ignored without any stated reasons the more recent decided cases cited by the appellant’s advocate. I also note that she did not take into account the inflationary trend in the country in arriving at the figure she made. I am guided by the more recent case of Waruhiu v Wanjiru (2024) KEHC 16742 KLR where the court reviewed an award of Kshs. 250,000 to Kshs. 900,000 for a claimant who sustained non-displaced fracture of the left superior pubic ramus and injuries on the groin.
From the foregoing discourse, I hold that the award by the trial magistrate on general damages was inordinately low and did not reflect the current trend of awards for the kind of injuries suffered by the appellant. Comparing the appellant’s injuries with those of the case I have cited above, adjusting for severity and inflationary trend, I am persuaded that an award of Kshs. 600,000 is adequate as general damages for pain and suffering.
On the next issue, which is whether special damages should have been subject to contributory negligence, it appears that there have been varying decisions by the high court of Kenya. While some judges apply the apportionment universally across both special and general damages, some others have ruled that special damages should not be subject to apportionment, reasoning that special damages are strictly for actual ‘out of pocket’ expenses incurred. In Waruhiu v Wanjiru (supra) , N.I. Adagi, J, while quoting with approval the holding in Hashim Mohamed Said & Another v Lawrence Kibor Tuwei (2018) eKLR held that special damages should not be subjected to the apportionment. In Crops Estate Ltd v David Irungu Gathaka and Paul Kariuki Thubi (2002) KEHC 884 KLR, Aganyanya J, (as he then was) held that apportionment of liability should apply to special damages.
On my part, I am persuaded by the finding in the case of Crops Estate Ltd v David Irungu Gathaka and Another. My reason is that a defendant, like the respondent herein, should only be held financially responsible for the exact portion of the harm they caused. If an accident is partly the plaintiff’s fault (as was the case herein), the compensation must be adjusted to reflect that shared responsibility. Even though special damages reimburse specific provable financial loss, to award the full amount would mean that the defendant is absorbing 100% of the cost of an injury or injuries that the claimant partially brought upon themselves. To do so will be against the tenets of fairness and proportionality.
I therefore find that the learned magistrate cannot be faulted for reducing the award of special damages by 20% to take into account the portion of blame by the appellant.
Accordingly;
This appeal is partly allowed in the following terms:
1) Liability apportioned by consent at 80:20 as against the respondent
2) Damages awarded is hereunder;
General damages – Kshs. 600,000 less 20%
Special damages – Kshs. 68,223 less 20%
3) Having considered the entire circumstances of this appeal, including that the appellant has only succeeded partially, I make no order as to costs of the appeal. The appellant shall have costs before the trial court.
DATED, SIGNED AND DELIVERED THIS 15 TH JULY 2026
D.O. ONYANGO
JUDGE
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The appellant herein sued the respondents vide a plaint dated 15.5.24, seeking judgment against the two jointly and severally for:
• Special damages in the sum of Kshs. 75,456
• General damages
• Costs of the suit
• Interest on (a), (b) and (c) at court rates
The suit was on account of a traffic road accident involving motorcycle registration number KMFS 684U owned by the respondents and on which the appellant was lawfully travelling aboard when it was allegedly driven at high-speed causing it to lose control. The appellant sustained the following injuries from the accident:
- Disc prolapse L5
- Fracture of the left index finger
- Tenderness of the left ankle joint
- Chest pain
The special damages claimed included the following:
- Copy of records – Kshs. 550
- Medical report – Kshs. 6500
- Treatment expences– Kshs.69,406
Though the respondents filed a defence dated 25.9.24 denying the averments contained in the plaint, on the 4.2.25, the parties recorded a consent judgment on liability in the ratio of 80:20 in favour of the appellant. The parties thereafter filed submissions on quantum of damages.
The trial court upon consideration of the evidence delivered a judgment on quantum of damages as follows:
a) General damages – Kshs. 250,000
b) Special damages – Kshs.68,228
The total award was reduced by 20% contributory negligence by the appellant. The appellant was also awarded costs of the suit.
Being aggrieved by the judgment, the appellant appeals against the finding on quantum and liability apportionment on special damages.
The appellant submitted that the award on special damages should not have been subjected to apportionment of liability. In support of this submission, the appellant cited the case of Waruhiu v Wanjiru (2024) KEHC 16742 (KLR) and the case of A.O. Boyusuf & Sons Ltd v Samuel Njoroge Kamau (2008) eKLR.
On the award of general damages, the appellant submitted that the court failed to consider current trends in ensuring that comparable injuries are compensated by comparable awards. The appellant cited the case of Mikua v Nthiga (2025) KEHC 12439 KLR, Mwangi & Another v GKM (2025) KEHC 2624 (KLR) and Moturi & Another v Obara (2024) KEHC 2484 KLR. The appellant proposed that award of Kshs. 800,000 was the appropriate sum considering the current prevailing inflation and the fact that the plaintiff suffered disability assessed at 5%.
The respondent submitted that the trial magistrate in awarding general damages did take into account the passage of time of the decided cases cited and the inflationary trends in reaching her finding. That there was no proper basis to disturb the exercise of discretion.
On the appellant’s submission that special damages should not have been subjected to apportionment of liability, the respondent submitted that special damages form part of the award and apportionment of liability affects the entire award. The respondent cited the case of Crops Estate Ltd v David Irungu Gathaka and Paul Kariuki Thubi (2002) KEHC 884 KLR.
ANALYSIS AND DETERMINATION
The appeal herein turns on two issues:
i) Whether the trial magistrate properly assessed and awarded damages in light of the evidence, comparable decided cases and prevailing trends
ii) Whether the trial magistrate erred in subjecting special damages to apportionment of liability
As regards the quantum of damages, the court of appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete (2004) 2 KLR 55 set out the circumstances vide which an appellate court can interfere with an award of damages in the following terms:
“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 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.”
Similarly, in Jane Chelagat Bor v Andrew Otieno Onduu (1988-92) 2 KAR 288 (1990-1994) EA 47 the court of appeal held:
“In effect, the court before it interferes with an award of damages, should be satisfied that the judge cited a wrong principle of law, or has misapprehended the facts, or has for those or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to intervene, whether on the ground of excess or insufficiency.”
In this case, there is no dispute that the appellant suffered injuries as follows:
1. Disc prolapse L5
2. Fracture of the left index finger
3. Tenderness of the left ankle joint
4. Chest pain
Dr. C.O. Okere who examined the appellant, concluded that the injuries were classified as grievous harm. The degree of permanent incapacity of the left index finger was assessed at 5%.
Having read the learned magistrate’s judgment on quantum, it is clear that she relied heavily on old decided cases including two which are over 10 years old in reaching her decision. While it is important that there is consistency in awards for similar or comparable injuries, the court must consider the age of the decided cases relied on versus the rate of inflation in the country. The learned magistrate appeared to have ignored without any stated reasons the more recent decided cases cited by the appellant’s advocate. I also note that she did not take into account the inflationary trend in the country in arriving at the figure she made. I am guided by the more recent case of Waruhiu v Wanjiru (2024) KEHC 16742 KLR where the court reviewed an award of Kshs. 250,000 to Kshs. 900,000 for a claimant who sustained non-displaced fracture of the left superior pubic ramus and injuries on the groin.
From the foregoing discourse, I hold that the award by the trial magistrate on general damages was inordinately low and did not reflect the current trend of awards for the kind of injuries suffered by the appellant. Comparing the appellant’s injuries with those of the case I have cited above, adjusting for severity and inflationary trend, I am persuaded that an award of Kshs. 600,000 is adequate as general damages for pain and suffering.
On the next issue, which is whether special damages should have been subject to contributory negligence, it appears that there have been varying decisions by the high court of Kenya. While some judges apply the apportionment universally across both special and general damages, some others have ruled that special damages should not be subject to apportionment, reasoning that special damages are strictly for actual ‘out of pocket’ expenses incurred. In Waruhiu v Wanjiru (supra) , N.I. Adagi, J, while quoting with approval the holding in Hashim Mohamed Said & Another v Lawrence Kibor Tuwei (2018) eKLR held that special damages should not be subjected to the apportionment. In Crops Estate Ltd v David Irungu Gathaka and Paul Kariuki Thubi (2002) KEHC 884 KLR, Aganyanya J, (as he then was) held that apportionment of liability should apply to special damages.
On my part, I am persuaded by the finding in the case of Crops Estate Ltd v David Irungu Gathaka and Another. My reason is that a defendant, like the respondent herein, should only be held financially responsible for the exact portion of the harm they caused. If an accident is partly the plaintiff’s fault (as was the case herein), the compensation must be adjusted to reflect that shared responsibility. Even though special damages reimburse specific provable financial loss, to award the full amount would mean that the defendant is absorbing 100% of the cost of an injury or injuries that the claimant partially brought upon themselves. To do so will be against the tenets of fairness and proportionality.
I therefore find that the learned magistrate cannot be faulted for reducing the award of special damages by 20% to take into account the portion of blame by the appellant.
Accordingly;
This appeal is partly allowed in the following terms:
1) Liability apportioned by consent at 80:20 as against the respondent
2) Damages awarded is hereunder;
General damages – Kshs. 600,000 less 20%
Special damages – Kshs. 68,223 less 20%
3) Having considered the entire circumstances of this appeal, including that the appellant has only succeeded partially, I make no order as to costs of the appeal. The appellant shall have costs before the trial court.
DATED, SIGNED AND DELIVERED THIS 15 TH JULY 2026
D.O. ONYANGO
JUDGE
2