( Being an Appeal against the Judgment delivered on 13 th December, 2023 by Hon Felix Makoyo Principal Magistrate in KILUNGU MCC/E017 of 2023)
JUDGMENT.
Introduction
1. The background of this Appeal is that the Respondent herein had sued the Appellants vide the Plaint dated 1 st November, 2022, seeking the following reliefs:
a) General damages for pain and suffering and loss of amenities.
b) Special damages of Kshs. 5,550.00/=
c) Costs and interests.
2. The factual basis of the suit is that on or about the 15 th day of April, 2022, the Respondent was lawfully traveling as a passenger in Motor Vehicle Registration Number KBS 663K along Nairobi – Mombasa road at Kwa DC Area when the Appellants’ authorized driver, servant and/or agent managed, controlled negligently, recklessly and carelessly drove controlled and or managed Motor Vehicle Registration Number KBS 663K that he caused it to veer off the road and land in a ditch causing the Respondent to sustain severe bodily injuries to wit; fracture distal/lower 1/3 of fibula-ankle joint & soft tissue injuries of the scalp, upper limbs and lower limbs.
3. The particulars of negligence were that the 2 nd Appellant failed to keep a proper look out, drove without due regard and attention, drove recklessly, carelessly & dangerously, failed to have regard of other road users, failed have a proper control of the Motor vehicle and driving the Motor vehicle registration number KBS 663K at a speed that was too fast in the circumstances.
4. The 1 st Appellant was sued in the capacity of the registered beneficial owner and it is pleaded they are vicariously liable for the negligent act of its driver, agent and or servants whereas the 2 nd Appellant was charged in the capacity of authorized driver, servant and/or agent.
5. The Appellants filed a statement of defence denying the claim in its entirety. They alleged that the Respondent substantially contributed to the accident by his own negligence which they particularized to include; failure to wear a seat belt as a passenger in a moving motor vehicle, failure to exercise care, skill and/or due prudence while traveling as a passenger, failing to warn the driver to avoid accident, willfully and intentionally exposing herself to foreseeable risk of injuries which she knew or ought to have known to be dangerous, willfully and intentionally boarding a defective Motor Vehicle and as unauthorized passenger and lastly not being observant. They therefore prayed for the suit to be dismissed with costs.
6. The matter was slated to proceeded for hearing. However, the counsel for the parties recorded a consent which was adopted as an order of this court on 21 st September, 2023 in the following terms:
“By consent of the parties, judgement on liability be entered in the ratio 90:10 in favour of the plaintiff against the Defendants.
The documents filed by both parties be produced without calling the makers and parties file submissions on quantum”
7. That on the 14 th November, 2023, the counsel for the Plaintiff confirmed filing of submissions and on 13/12/2023, the trial court delivered a Judgment in favour of the Respondent as against the Appellants in the following terms:
a) Liability 90:10
b) General Damages – Kshs. 800,000.00
c) Special damages – Kshs. 5,550.00
Total – Kshs. 805,550.00
Less 10% - Kshs. 724,995.00
Together with costs and interest.
8. Being aggrieved with this Judgment, the Appellants lodged the present appeal on the following grounds:
(i) That the learned trial magistrate erred in law and in fact by awarding Kshs. 800,000/= as general damages for pain and suffering which is too high for the injuries in question and not in line with precedent.
(ii) That the learned magistrate erred in law and in fact by failing to apply the correct law, tests, doctrines and principles relating to special damages by awarding Kshs. 5,550/= as special damages.
(iii) That the learned trial magistrate erred in law and in fact by failing to consider the Appellant’s submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum.
(iv) That the learned trial magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which is inordinately high.
(v) That the learned trial magistrate erred in law and in fact by failing to apply the correct law, tests, doctrines and principles relating to evidence tendered by the Respondent thereby arriving at an erroneous decision.
9. The Appellants thus seeks this court to set aside the Judgment of the trial court and substitute with an award that befits the injuries suffered by the Respondent.
Analysis & Determination
10. This being a first appeal it is the duty of this court to re-assess and re-analyse the evidence that was adduced before the trial court and come to its own Judgment in line with the decision in the case of Selle & Another –vs- Associated Motor Boat Co. Ltd. & others [1968] EA 123 in the following terms:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif –vs- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).”
11. I have read through the Record of Appeal dated the 14 th day of February, 2025 in consideration of the grounds set out in the Memorandum of Appeal and find the issues for determination being:
a) Whether special damages awarded by the trial court were based on wrong consideration.
b) Whether the general damages awarded are excessive in the circumstances of this case.
12. In regard to whether or not the special damages were awarded on wrong considerations, it is important to appreciate that it is settled law that special damages must be specifically pleaded and strictly proven. In the case of Hahn –vs- Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716 , the Court of Appeal held:
“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
13. In the instant case, the Respondent claimed the following items as special damages:
a) Medical reports/Expenses Kshs. 5,000.00
b) Copy of Records Kshs. 550.00
Total Kshs. 5,550.00
14. The evidence of the specific items claimed as special damages were presented before the trial court by way of receipts, bills and or reports which were admitted as Plaintiff (Respondent’s) exhibits by consent of counsel for both parties on the 26/10/2023. That notwithstanding, the documents required scrutiny by the trial court to ascertain their validity.
15. In its Judgment delivered on 13/12/2023, the trial court awarded Kshs. 5,550.00 and upon perusing the documents produced as exhibits in support of the claim for special damages, the court has noted receipts for the sums of Kshs. 5,000.00 being receipt from Mulele Medical Centre for Medical Report & Kshs. 550.00 being receipt from NTSA for Motor Vehicle Copy of Record totalling to Kshs 5,500.00 as was pleaded by the Respondent
16. The Court is satisfied that the special damages were specifically pleaded and I therefore find no reason to interfere with the said award.
17. On general damages, it is trite law that this Court can interfere with the discretion of the trial court in awarding damages only if it is based on wrong principles of law or is manifestly excessive or low. This principle was adopted with approval by the court in the case of Butt –vs- Khan [1981] KLR 349 , where it was held per law, J.A that:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low so 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 at a figure which was either inordinately high or low”.
18. It is also trite that in awarding general damages, the court should award damages that are commensurate to the injuries that he or she sustained. In the case of Charles Oriwo Odeyo –vs- Appollo Justus Andabwa & Another [2017] eKLR , the Court of Appeal set out the principles to be considered in awarding damages as follows:
“The assessment of damages in personal injury case by a court is guided by the following principles:
1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2) The award should be commensurable with the injuries sustained.
3) Previous awards in similar injuries sustained are a mere guide but each case be treated on its own facts.
4) Previous awards to be taken into account to maintain the stability of awards but factors such as inflation should be taken into account.
5) The awards should not be inordinately low or high”
19. According to the medical report by Dr. Joseph Siboko, the Respondent sustained the following injuries:
a) Soft tissue injuries of the scalp, upper limbs and lower limbs.
b) Fracture distal/lower 1/3 of tibia fibula-ankle joint.
20. Having considered the said injuries, the trial court awarded Kshs. 800,000/= as general damages. In the submissions, the Appellant argues that the appropriate award ought to have been Kshs. 350,000/= and has relied upon several authorities in support of the one filed in the submissions at the trial court which I have perused including Murugi v Onyango (2025) KEH 4673 (KLR), Ondieki & Another vs E0 aka E (Minor suing through other and Next Friend EAO) 2025 (KEHC 12139 (KRL), Kerandi & Another v Okong’o [2024] KEHC 3823 (KLR), Daniel Otieno Owino & Another v Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR) & Mohammed Younis Quereshi & Another v Chris Maina Mathu [2020] eKLR
21. On the other hand, the Respondent has urged the court to maintain the sum of Kshs. 800,000/= and relied on the case of Alphonce Muli Nzuki v Brian Charles Ochuodho [2014] KEHC 1408 (KLR) & SBI International Holdings (AG) Kenya v William Ambuga Ongeri [2018] KEHC 8193 (KLR) in support of their submissions against the appeal.
22. It is judicial practice that the general approach in awarding damages for injuries is that comparable injuries should as far as possible be compensated by comparable awards. See Denshire Muteti Wambua Versus Kenya Power and Lighting Company Ltd (2013) eKLR . This is to ensure, to the extent possible that similar injuries do not have glaringly desperate awards.
23. In addition to the authorities quoted by the parties, I have found the following cases quite helpful comparison, noting the injuries by the present Respondent:
a) In Peter Namu Njeru v Philemone Mwagoti (2016) eKLR the court held that Kshs 700,000.00 was sufficient as general damages where the plaintiff sustained a fracture of the humerus and soft tissue injuries.
b) Akamba Public Road Services vs Abdikadir Adan Galgalo (2016) eKLR where the award of Kshs. 800,000.00 was substituted with an award of Kshs. 500,000.00 on appeal for injuries particularized as fracture to the right tibia leg bone malleolus, right fibular bone and blunt injury to the right ankle.
c) In Eston Mwirigi Ndege & Another vs Joseph Macharia Kawira (2019) eKLR , the court awarded Kshs 500,000.00 for the fracture of the right femur and right arm where the Respondent would require future surgery to remove the K nail.
24. Guided by the above authorities and while the trial court's award of Kshs. 800,000/= cannot be said to have been wholly erroneous, I am persuaded that a modest reduction is warranted to align the award with more recent comparable authorities. Taking into account the respondent's injuries, namely soft tissue injuries to the scalp, upper limbs and lower limbs and a fracture of the distal one-third of the tibia and fibula involving the ankle joint, and bearing in mind the principle that comparable injuries should attract comparable awards, I find that an award of Kshs. 600,000.00 in general damages constitutes fair and reasonable compensation.
25. The said award is also consistent with High Court in Onyinkwa v Simiyu (Civil Appeal 101 of 2023) [2024] KEHC 11717 (KLR), where the Court substituted the trial court's award with Kshs. 700,000.00, and accords with the prevailing range of awards for comparable tibia and fibula fractures it is my finding that the award of Kshs 800,000.00 as general damages by the trial court was fairly excessive.
26. Having taken into consideration the current inflation rates, it is my finding that an award of Kshs 600,000.00 would be just and commensurate to the injuries suffered by the Respondent.
27. I therefore substitute the award of Kshs 800,000.00 with an award of Kshs 600,00000.
28. The final computation is as below:
Liability 90:10
General Damages Kshs. 600,000.00
Less 10 % liability Kshs. 60,000.00
Sub Total Kshs. 540,000.00
Special Damages Kshs. 5,550.00
Total Kshs. 545,550.00
29. In the end, the Memorandum of Appeal dated 20 th December, 2023 succeeds only to the extent that the trial court’s net award of Kshs 724,995.00 is substituted with Kshs 545,550.00.
30. Each party shall bear their costs of the Appeal while costs in the suit shall remain as awarded by the trial court.
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 6 th August 2026.
HCCA NO. E117 OF 2023 ELIMAX HAULIERS LTD & ANO. VS MUTISYA MUSANGO JUDGT Pg.10
JUDGMENT.
Introduction
1. The background of this Appeal is that the Respondent herein had sued the Appellants vide the Plaint dated 1 st November, 2022, seeking the following reliefs:
a) General damages for pain and suffering and loss of amenities.
b) Special damages of Kshs. 5,550.00/=
c) Costs and interests.
2. The factual basis of the suit is that on or about the 15 th day of April, 2022, the Respondent was lawfully traveling as a passenger in Motor Vehicle Registration Number KBS 663K along Nairobi – Mombasa road at Kwa DC Area when the Appellants’ authorized driver, servant and/or agent managed, controlled negligently, recklessly and carelessly drove controlled and or managed Motor Vehicle Registration Number KBS 663K that he caused it to veer off the road and land in a ditch causing the Respondent to sustain severe bodily injuries to wit; fracture distal/lower 1/3 of fibula-ankle joint & soft tissue injuries of the scalp, upper limbs and lower limbs.
3. The particulars of negligence were that the 2 nd Appellant failed to keep a proper look out, drove without due regard and attention, drove recklessly, carelessly & dangerously, failed to have regard of other road users, failed have a proper control of the Motor vehicle and driving the Motor vehicle registration number KBS 663K at a speed that was too fast in the circumstances.
4. The 1 st Appellant was sued in the capacity of the registered beneficial owner and it is pleaded they are vicariously liable for the negligent act of its driver, agent and or servants whereas the 2 nd Appellant was charged in the capacity of authorized driver, servant and/or agent.
5. The Appellants filed a statement of defence denying the claim in its entirety. They alleged that the Respondent substantially contributed to the accident by his own negligence which they particularized to include; failure to wear a seat belt as a passenger in a moving motor vehicle, failure to exercise care, skill and/or due prudence while traveling as a passenger, failing to warn the driver to avoid accident, willfully and intentionally exposing herself to foreseeable risk of injuries which she knew or ought to have known to be dangerous, willfully and intentionally boarding a defective Motor Vehicle and as unauthorized passenger and lastly not being observant. They therefore prayed for the suit to be dismissed with costs.
6. The matter was slated to proceeded for hearing. However, the counsel for the parties recorded a consent which was adopted as an order of this court on 21 st September, 2023 in the following terms:
“By consent of the parties, judgement on liability be entered in the ratio 90:10 in favour of the plaintiff against the Defendants.
The documents filed by both parties be produced without calling the makers and parties file submissions on quantum”
7. That on the 14 th November, 2023, the counsel for the Plaintiff confirmed filing of submissions and on 13/12/2023, the trial court delivered a Judgment in favour of the Respondent as against the Appellants in the following terms:
a) Liability 90:10
b) General Damages – Kshs. 800,000.00
c) Special damages – Kshs. 5,550.00
Total – Kshs. 805,550.00
Less 10% - Kshs. 724,995.00
Together with costs and interest.
8. Being aggrieved with this Judgment, the Appellants lodged the present appeal on the following grounds:
(i) That the learned trial magistrate erred in law and in fact by awarding Kshs. 800,000/= as general damages for pain and suffering which is too high for the injuries in question and not in line with precedent.
(ii) That the learned magistrate erred in law and in fact by failing to apply the correct law, tests, doctrines and principles relating to special damages by awarding Kshs. 5,550/= as special damages.
(iii) That the learned trial magistrate erred in law and in fact by failing to consider the Appellant’s submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum.
(iv) That the learned trial magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which is inordinately high.
(v) That the learned trial magistrate erred in law and in fact by failing to apply the correct law, tests, doctrines and principles relating to evidence tendered by the Respondent thereby arriving at an erroneous decision.
9. The Appellants thus seeks this court to set aside the Judgment of the trial court and substitute with an award that befits the injuries suffered by the Respondent.
Analysis & Determination
10. This being a first appeal it is the duty of this court to re-assess and re-analyse the evidence that was adduced before the trial court and come to its own Judgment in line with the decision in the case of Selle & Another –vs- Associated Motor Boat Co. Ltd. & others [1968] EA 123 in the following terms:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif –vs- Ali Mohamed Sholan (1955), 22 E.A.C.A. 270).”
11. I have read through the Record of Appeal dated the 14 th day of February, 2025 in consideration of the grounds set out in the Memorandum of Appeal and find the issues for determination being:
a) Whether special damages awarded by the trial court were based on wrong consideration.
b) Whether the general damages awarded are excessive in the circumstances of this case.
12. In regard to whether or not the special damages were awarded on wrong considerations, it is important to appreciate that it is settled law that special damages must be specifically pleaded and strictly proven. In the case of Hahn –vs- Singh, Civil Appeal No. 42 Of 1983 [1985] KLR 716 , the Court of Appeal held:
“Special damages must not only be specifically claimed (pleaded) but also strictly proved…. for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.”
13. In the instant case, the Respondent claimed the following items as special damages:
a) Medical reports/Expenses Kshs. 5,000.00
b) Copy of Records Kshs. 550.00
Total Kshs. 5,550.00
14. The evidence of the specific items claimed as special damages were presented before the trial court by way of receipts, bills and or reports which were admitted as Plaintiff (Respondent’s) exhibits by consent of counsel for both parties on the 26/10/2023. That notwithstanding, the documents required scrutiny by the trial court to ascertain their validity.
15. In its Judgment delivered on 13/12/2023, the trial court awarded Kshs. 5,550.00 and upon perusing the documents produced as exhibits in support of the claim for special damages, the court has noted receipts for the sums of Kshs. 5,000.00 being receipt from Mulele Medical Centre for Medical Report & Kshs. 550.00 being receipt from NTSA for Motor Vehicle Copy of Record totalling to Kshs 5,500.00 as was pleaded by the Respondent
16. The Court is satisfied that the special damages were specifically pleaded and I therefore find no reason to interfere with the said award.
17. On general damages, it is trite law that this Court can interfere with the discretion of the trial court in awarding damages only if it is based on wrong principles of law or is manifestly excessive or low. This principle was adopted with approval by the court in the case of Butt –vs- Khan [1981] KLR 349 , where it was held per law, J.A that:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low so 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 at a figure which was either inordinately high or low”.
18. It is also trite that in awarding general damages, the court should award damages that are commensurate to the injuries that he or she sustained. In the case of Charles Oriwo Odeyo –vs- Appollo Justus Andabwa & Another [2017] eKLR , the Court of Appeal set out the principles to be considered in awarding damages as follows:
“The assessment of damages in personal injury case by a court is guided by the following principles:
1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
2) The award should be commensurable with the injuries sustained.
3) Previous awards in similar injuries sustained are a mere guide but each case be treated on its own facts.
4) Previous awards to be taken into account to maintain the stability of awards but factors such as inflation should be taken into account.
5) The awards should not be inordinately low or high”
19. According to the medical report by Dr. Joseph Siboko, the Respondent sustained the following injuries:
a) Soft tissue injuries of the scalp, upper limbs and lower limbs.
b) Fracture distal/lower 1/3 of tibia fibula-ankle joint.
20. Having considered the said injuries, the trial court awarded Kshs. 800,000/= as general damages. In the submissions, the Appellant argues that the appropriate award ought to have been Kshs. 350,000/= and has relied upon several authorities in support of the one filed in the submissions at the trial court which I have perused including Murugi v Onyango (2025) KEH 4673 (KLR), Ondieki & Another vs E0 aka E (Minor suing through other and Next Friend EAO) 2025 (KEHC 12139 (KRL), Kerandi & Another v Okong’o [2024] KEHC 3823 (KLR), Daniel Otieno Owino & Another v Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR) & Mohammed Younis Quereshi & Another v Chris Maina Mathu [2020] eKLR
21. On the other hand, the Respondent has urged the court to maintain the sum of Kshs. 800,000/= and relied on the case of Alphonce Muli Nzuki v Brian Charles Ochuodho [2014] KEHC 1408 (KLR) & SBI International Holdings (AG) Kenya v William Ambuga Ongeri [2018] KEHC 8193 (KLR) in support of their submissions against the appeal.
22. It is judicial practice that the general approach in awarding damages for injuries is that comparable injuries should as far as possible be compensated by comparable awards. See Denshire Muteti Wambua Versus Kenya Power and Lighting Company Ltd (2013) eKLR . This is to ensure, to the extent possible that similar injuries do not have glaringly desperate awards.
23. In addition to the authorities quoted by the parties, I have found the following cases quite helpful comparison, noting the injuries by the present Respondent:
a) In Peter Namu Njeru v Philemone Mwagoti (2016) eKLR the court held that Kshs 700,000.00 was sufficient as general damages where the plaintiff sustained a fracture of the humerus and soft tissue injuries.
b) Akamba Public Road Services vs Abdikadir Adan Galgalo (2016) eKLR where the award of Kshs. 800,000.00 was substituted with an award of Kshs. 500,000.00 on appeal for injuries particularized as fracture to the right tibia leg bone malleolus, right fibular bone and blunt injury to the right ankle.
c) In Eston Mwirigi Ndege & Another vs Joseph Macharia Kawira (2019) eKLR , the court awarded Kshs 500,000.00 for the fracture of the right femur and right arm where the Respondent would require future surgery to remove the K nail.
24. Guided by the above authorities and while the trial court's award of Kshs. 800,000/= cannot be said to have been wholly erroneous, I am persuaded that a modest reduction is warranted to align the award with more recent comparable authorities. Taking into account the respondent's injuries, namely soft tissue injuries to the scalp, upper limbs and lower limbs and a fracture of the distal one-third of the tibia and fibula involving the ankle joint, and bearing in mind the principle that comparable injuries should attract comparable awards, I find that an award of Kshs. 600,000.00 in general damages constitutes fair and reasonable compensation.
25. The said award is also consistent with High Court in Onyinkwa v Simiyu (Civil Appeal 101 of 2023) [2024] KEHC 11717 (KLR), where the Court substituted the trial court's award with Kshs. 700,000.00, and accords with the prevailing range of awards for comparable tibia and fibula fractures it is my finding that the award of Kshs 800,000.00 as general damages by the trial court was fairly excessive.
26. Having taken into consideration the current inflation rates, it is my finding that an award of Kshs 600,000.00 would be just and commensurate to the injuries suffered by the Respondent.
27. I therefore substitute the award of Kshs 800,000.00 with an award of Kshs 600,00000.
28. The final computation is as below:
Liability 90:10
General Damages Kshs. 600,000.00
Less 10 % liability Kshs. 60,000.00
Sub Total Kshs. 540,000.00
Special Damages Kshs. 5,550.00
Total Kshs. 545,550.00
29. In the end, the Memorandum of Appeal dated 20 th December, 2023 succeeds only to the extent that the trial court’s net award of Kshs 724,995.00 is substituted with Kshs 545,550.00.
30. Each party shall bear their costs of the Appeal while costs in the suit shall remain as awarded by the trial court.
Orders accordingly.
Dated, signed and delivered virtually via Microsoft Teams this 6 th August 2026.
HCCA NO. E117 OF 2023 ELIMAX HAULIERS LTD & ANO. VS MUTISYA MUSANGO JUDGT Pg.10