'REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E171 OF 2023
ELISHA MALENYA MUSONYI ...............................................................APPELLANT
VERSUS
JAMES MWAI MUSANGI .............................................................1ST RESPONDENT
TONNY JARED AYOO..................................................................2ND RESPONDENT
(Being an appeal from the judgment/decree of the Hon. S. Kandie (S.R.M) a delivered on 3/7/2023 in Mavoko CMCC No. E922 OF 2021)
JUDGEMENT
1. By a Plaint dated the 12.11.2021, the Appellant instituted suit seeking General and Special Damages against the Respondents following an accident which occurred on the 04.04.2020 along Nairobi-Mombasa Road in which the Appellant sustained personal injuries.
2. The matter proceeded for hearing on diverse dates and thereafter parties filed their written submissions. Judgment was delivered on 03.0702023 as follows:
Liability 100%
General damages Kshs 350,000 /-
Special damages Kshs 58,590
Total Kshs 408 590
3. Being aggrieved by the said judgment on quantum, the Appellant instituted this appeal vide a Memorandum of Appeal dated 20/07/2023 which raises grounds of appeal basically challenging quantum as being inordinately low.
4. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) EA 123, (1958) EA page 424
5. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: -
A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.
6. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion.
7. I have anxiously and carefully considered the grounds of appeal, the pleadings in the trial court, the evidence in the medical report adduced on the injuries before the trial court, the written submissions filed by respective counsels and the authorities cited as well as the trial court’s judgment.
8. The Appellant sustained the following injuries:-
i. Fracture left femur
ii. Blunt head injuries
iii. Displaced fractures -left mandibular body, left Zygomatic bone, left pterygoid plate.
9. Doctor Ndeti classified the injuries as soft tissue injuries of moderate severity which caused pin and suffering. He opined the degree of disability could not be assessed.
10. The Appellant’s Counsel submitted that an award of Kshs.2,500,000/= and relied on Machakos HCCA No. 120 of 2019, Jackson Mbaluka Mwangangi v Onesmus Nzioka & Anor where the High Court awarded Kshs.600,000/= in 2021 where the Plaintiff sustained blunt injury to the right shoulder and fractured femur. In Nakuru HCCA No. 215 of 2001 Sospine Company Limited & Anor v Daniel Nganga Kanyi where the High Court awarded Kshs.2,000,000/= in 2022 where the Plaintiff sustained compound depressed skull fracture of the right frontal bone.
11. The Respondents’ counsel submitted that, Khs.50,000/= is commensurate to the injuries by the Appellant and relied on the cases of Reamic Investment Limited v Boaz Amenya Samuel (2021) eKLR where the appellate court set aside judgement of Kshs.600,000 to Kshs.350,000/=. The Appellant sustained open left femur fracture, abrasion on the left knee, face, neck, right upper limb and left upper, contusion of the anterior chest wall.
12. The Respondent also relied on the case of Ibrahim Kalema Lewa v Esteel Company Limited (2016) eKLR where the appellant sustained intertrochanteric fracture of the left femur and psychological pains and was awarded Kshs.300,000/=
13. The Plaintiff in Kisii HCCA No. 66 of 2017, Erick Ratemo v Joash Nyakweba Ratemo (2018) eKLR sustained abrasion and deep cut wound on the face, cut wound on the upper lip, contusion on the anterior chest wall, dislocation on the right shoulder, bruises on the right hand, blunt injury on the left and right knee, epistasis and fracture of the right femur and the High Court upheld an award of Kshs.300,000/= as general damages in 2018.
14. The trial court considered the authorities relied upon by the parties and went ahead to cite recent cases with comparable injuries as follows:
• Civil Appeal No. 82 of 2008, T A M (Minor suing through her father and next friend J O M) Richard Kirimi Kinoti & Anor (2015) eKLR where the Plaintiff sustained fracture of the left femur, laceration on the right temple and blunt chest injuries. A metal plate was inserted in the fractured leg. He was awarded general damages of Kshs.250,000/= in November 2015.
• Erick Ratemo v Joash Nyakweba Ratemo (2018) eKLR (supra) cited by the Respondent.
• Eldoret Civil Appeal No. 106 of 2013 Hashim Mohamed Said & Anor v Lawrence Kibor Tuwei (2018) eKLR
• Muranga High Court Civil Case No. 193 of 2013 Thomas Mwangi & Anor (2017) eKLR
• Kakamega Civil Appeal No. 85 of 2016 John Shikuku Keya v Lubao Jaggery Limited (2018) eKLR.
15. The trial court states that it took into consideration the age of the decisions, the severity of the injuries and inflation and awarded the Appellant Kshs.350,000/= as damages for injuries sustained.
16. The issue for consideration is whether the award of Kshs.350, 000/= was inordinately too low.
17. For an Appellant Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied.
18. In the case of Maraga V Musila (1984) 1 KLR 251, where the Court of Appeal when addressing its mind to this issue expressed itself thus;
“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”.
19. The approach taken by courts in the assessment of damages is that comparable injuries should as far as possible be compensated by comparable awards although the court should bear in mind that no two cases are exactly the same. The court will also consider factors such as the state of the economy and the rate of inflation in its assessment of damages. (See Stanley Maore v Geoffrey Mwenda [2004] eKLR and Ugenya Bus Service v Gachoki [1982] eKLR).
20. In the circumstances, it is my considered finding that the authorities relied on by learned magistrate some of which I note did not show the nature of the injuries and the awards made in the cases it cited and the in the cases appear to be too old.
21. Having given due consideration to the injuries sustained by the Appellant, I find the following more recent authorities to be more comparable on the aspect of general damages in this case:-
• In Musyoka v Kaguora & Anor (2022) KEHC 15038 (KLR) (Limo,J) the injuries were fracture of the right tibia and fracture of right fibula bones, and the trial court awarded Kshs.300,000/= as general damages on 2.4.2019, which the High Court enhanced to Kshs.400,000/= on 3.11.2022.
• In George William Awuor v Beryl Awuor Ochieng (2020) eKLR (Aburili,J), the injuries were fractures of the right femur and left tibia/fibula. The trial court awardedKshs.2,000,000/= which the high court reduced to Kshs.1,200,000/= on 15th December 2020.
22. Hence, from the foregoing comparison, the lower court’s award of Kshs.350,000/= as general damages for pain suffering and loss of amenities can be said to be manifestly low as to amount to a wrong assessment. In the premises, there is sufficient cause, in my view, for disturbing the award made by the lower court under the general damages head.
23. I therefore set aside the award of Kshs.350,000/= by the trial court and substitute it with an award of Kshs.500,000.00 general damages.
24. The award on special damages will not be disturbed
25. In the end the Respondent is awarded Ksh.500,000/- in general damages and Kshs.58,590/= special damages plus costs of the lower court and interest.
26. Each party will bear their own costs of the appeal.
27. It is so ordered.
JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 26TH NOVEMBER 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 26TH NOVEMBER 2025
In the presence of:-
Ms Ketta for Appellant
Mr. Njuguna for Respondent
Milly Grace -Court Asst
'
IN THE HIGH COURT OF KENYA AT MACHAKOS
CIVIL APPEAL NO. E171 OF 2023
ELISHA MALENYA MUSONYI ...............................................................APPELLANT
VERSUS
JAMES MWAI MUSANGI .............................................................1ST RESPONDENT
TONNY JARED AYOO..................................................................2ND RESPONDENT
(Being an appeal from the judgment/decree of the Hon. S. Kandie (S.R.M) a delivered on 3/7/2023 in Mavoko CMCC No. E922 OF 2021)
JUDGEMENT
1. By a Plaint dated the 12.11.2021, the Appellant instituted suit seeking General and Special Damages against the Respondents following an accident which occurred on the 04.04.2020 along Nairobi-Mombasa Road in which the Appellant sustained personal injuries.
2. The matter proceeded for hearing on diverse dates and thereafter parties filed their written submissions. Judgment was delivered on 03.0702023 as follows:
Liability 100%
General damages Kshs 350,000 /-
Special damages Kshs 58,590
Total Kshs 408 590
3. Being aggrieved by the said judgment on quantum, the Appellant instituted this appeal vide a Memorandum of Appeal dated 20/07/2023 which raises grounds of appeal basically challenging quantum as being inordinately low.
4. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) EA 123, (1958) EA page 424
5. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: -
A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it.
6. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion.
7. I have anxiously and carefully considered the grounds of appeal, the pleadings in the trial court, the evidence in the medical report adduced on the injuries before the trial court, the written submissions filed by respective counsels and the authorities cited as well as the trial court’s judgment.
8. The Appellant sustained the following injuries:-
i. Fracture left femur
ii. Blunt head injuries
iii. Displaced fractures -left mandibular body, left Zygomatic bone, left pterygoid plate.
9. Doctor Ndeti classified the injuries as soft tissue injuries of moderate severity which caused pin and suffering. He opined the degree of disability could not be assessed.
10. The Appellant’s Counsel submitted that an award of Kshs.2,500,000/= and relied on Machakos HCCA No. 120 of 2019, Jackson Mbaluka Mwangangi v Onesmus Nzioka & Anor where the High Court awarded Kshs.600,000/= in 2021 where the Plaintiff sustained blunt injury to the right shoulder and fractured femur. In Nakuru HCCA No. 215 of 2001 Sospine Company Limited & Anor v Daniel Nganga Kanyi where the High Court awarded Kshs.2,000,000/= in 2022 where the Plaintiff sustained compound depressed skull fracture of the right frontal bone.
11. The Respondents’ counsel submitted that, Khs.50,000/= is commensurate to the injuries by the Appellant and relied on the cases of Reamic Investment Limited v Boaz Amenya Samuel (2021) eKLR where the appellate court set aside judgement of Kshs.600,000 to Kshs.350,000/=. The Appellant sustained open left femur fracture, abrasion on the left knee, face, neck, right upper limb and left upper, contusion of the anterior chest wall.
12. The Respondent also relied on the case of Ibrahim Kalema Lewa v Esteel Company Limited (2016) eKLR where the appellant sustained intertrochanteric fracture of the left femur and psychological pains and was awarded Kshs.300,000/=
13. The Plaintiff in Kisii HCCA No. 66 of 2017, Erick Ratemo v Joash Nyakweba Ratemo (2018) eKLR sustained abrasion and deep cut wound on the face, cut wound on the upper lip, contusion on the anterior chest wall, dislocation on the right shoulder, bruises on the right hand, blunt injury on the left and right knee, epistasis and fracture of the right femur and the High Court upheld an award of Kshs.300,000/= as general damages in 2018.
14. The trial court considered the authorities relied upon by the parties and went ahead to cite recent cases with comparable injuries as follows:
• Civil Appeal No. 82 of 2008, T A M (Minor suing through her father and next friend J O M) Richard Kirimi Kinoti & Anor (2015) eKLR where the Plaintiff sustained fracture of the left femur, laceration on the right temple and blunt chest injuries. A metal plate was inserted in the fractured leg. He was awarded general damages of Kshs.250,000/= in November 2015.
• Erick Ratemo v Joash Nyakweba Ratemo (2018) eKLR (supra) cited by the Respondent.
• Eldoret Civil Appeal No. 106 of 2013 Hashim Mohamed Said & Anor v Lawrence Kibor Tuwei (2018) eKLR
• Muranga High Court Civil Case No. 193 of 2013 Thomas Mwangi & Anor (2017) eKLR
• Kakamega Civil Appeal No. 85 of 2016 John Shikuku Keya v Lubao Jaggery Limited (2018) eKLR.
15. The trial court states that it took into consideration the age of the decisions, the severity of the injuries and inflation and awarded the Appellant Kshs.350,000/= as damages for injuries sustained.
16. The issue for consideration is whether the award of Kshs.350, 000/= was inordinately too low.
17. For an Appellant Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied.
18. In the case of Maraga V Musila (1984) 1 KLR 251, where the Court of Appeal when addressing its mind to this issue expressed itself thus;
“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”.
19. The approach taken by courts in the assessment of damages is that comparable injuries should as far as possible be compensated by comparable awards although the court should bear in mind that no two cases are exactly the same. The court will also consider factors such as the state of the economy and the rate of inflation in its assessment of damages. (See Stanley Maore v Geoffrey Mwenda [2004] eKLR and Ugenya Bus Service v Gachoki [1982] eKLR).
20. In the circumstances, it is my considered finding that the authorities relied on by learned magistrate some of which I note did not show the nature of the injuries and the awards made in the cases it cited and the in the cases appear to be too old.
21. Having given due consideration to the injuries sustained by the Appellant, I find the following more recent authorities to be more comparable on the aspect of general damages in this case:-
• In Musyoka v Kaguora & Anor (2022) KEHC 15038 (KLR) (Limo,J) the injuries were fracture of the right tibia and fracture of right fibula bones, and the trial court awarded Kshs.300,000/= as general damages on 2.4.2019, which the High Court enhanced to Kshs.400,000/= on 3.11.2022.
• In George William Awuor v Beryl Awuor Ochieng (2020) eKLR (Aburili,J), the injuries were fractures of the right femur and left tibia/fibula. The trial court awardedKshs.2,000,000/= which the high court reduced to Kshs.1,200,000/= on 15th December 2020.
22. Hence, from the foregoing comparison, the lower court’s award of Kshs.350,000/= as general damages for pain suffering and loss of amenities can be said to be manifestly low as to amount to a wrong assessment. In the premises, there is sufficient cause, in my view, for disturbing the award made by the lower court under the general damages head.
23. I therefore set aside the award of Kshs.350,000/= by the trial court and substitute it with an award of Kshs.500,000.00 general damages.
24. The award on special damages will not be disturbed
25. In the end the Respondent is awarded Ksh.500,000/- in general damages and Kshs.58,590/= special damages plus costs of the lower court and interest.
26. Each party will bear their own costs of the appeal.
27. It is so ordered.
JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 26TH NOVEMBER 2025
NOEL I. ADAGI
JUDGE
DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 26TH NOVEMBER 2025
In the presence of:-
Ms Ketta for Appellant
Mr. Njuguna for Respondent
Milly Grace -Court Asst
'