A. INTRODUCTION AND BACKGROUND
1. By a plaint dated 17th January 2020, and subsequently by an amended plaint dated 1st September 2023, the Appellant sued the Respondent for general and special damages, costs and interest arising out of a road traffic accident which occurred on 24th December 2019 along the Kisumu–Kakamega road at Lunyerere area.
2. The Appellant's case was that she was lawfully travelling as a fare-paying passenger aboard tuk tuk registration number KTWA 6600 when motor vehicle registration number KBU 713P, a FAW lorry owned by the Respondent, was so negligently, carelessly and recklessly driven at high speed that its driver lost control and rammed into the rear of the tuk tuk, occasioning her severe bodily injuries.
3. The Respondent filed a statement of defence dated 29th January 2020, and later an amended statement of defence dated 11th March 2024, denying ownership of the subject motor vehicle, denying knowledge of the accident, denying the particulars of negligence imputed to it, and pleading in the alternative that any such accident was wholly caused or contributed to by the negligence of the tuk tuk rider and of the Appellant herself.
4. The matter proceeded to full hearing. The Appellant testified as PW1 and called three medical witnesses: Dr. John Ngololo (PW2), a consultant radiologist formerly stationed at Vihiga County Referral Hospital; Dr. Neema Mbaruku (PW3), a consultant orthopaedic Surgeon who produced the medical report of the late Dr. Olima; and Dr. Vitalis Juma (PW4), the Medical Superintendent of Vihiga County Referral Hospital, who produced the discharge summary. The Respondent called a single witness, its driver Musa Hassan (DW1).
5. After the close of both cases, and upon an application dated 1st September 2023, the trial Court by a ruling delivered on 22nd February 2024 granted the Appellant leave to amend her plaint so as to plead further particulars of the injuries she had sustained. The amended plaint and the amended defence followed. The parties then filed written submissions and the trial Court reserved judgment.
B. THE JUDGMENT OF THE TRIAL COURT
6. In her judgment delivered on 22nd August 2024, the learned trial Magistrate framed five issues and resolved each of them in favour of the Appellant. She found that the Respondent was the registered owner of motor vehicle registration number KBU 713P as at 24th December 2019; that the accident occurred as pleaded; and that, the Appellant's evidence being overwhelming and DW1's evidence standing alone and uncorroborated, the Respondent was 100% liable for the occurrence of the accident.
7. On the fourth issue, the injuries and the appropriate quantum the learned Magistrate set out the thirteen heads of injury pleaded in the amended plaint. She then held, in terms:
“In the Plaintiff's evidence, she confirmed having sustained above injuries and sought treatment at Vihiga County Referral hospital, I have carefully perused the treatment notes and do note that the Plaintiff was treated in the hospital after having been diagnosed with injuries herein. Further, the above injuries were confirmed by Dr. Olima ... Based on the reasons advanced herein it is my finding that the Plaintiff has on a balance of probabilities proved her case against the Defendants.”
8. Having so found, the learned Magistrate cited two authorities Dennis Matagaro v NKO (Minor suing through next friend and father WOO) [2021] eKLR, where an award of Kshs. 700,000/= was upheld for a mild head injury, tenderness of the neck, dislocation of the left shoulder, tenderness of the back, deep lacerated cut wounds on the forearms and a fracture of the left tibia and fibula; and Blue Horizon Travel Co. Ltd v Kenneth Njoroge [2020] eKLR, where Kshs. 400,000/= was awarded for cut wounds to the head and right forearm, bruising, fractured ribs, right haemothorax and fracture dislocations of the right hip and right shoulder.
9. She then concluded that, “taking into account the inflationary trends, nature of the injuries and general trend of awards based on such similar injuries”, an award of Kshs. 800,000/= would adequately compensate the Appellant. Special damages of Kshs. 18,725/= had been pleaded but only Kshs. 13,275/= was supported by receipts, and that lesser sum was awarded.
10. Judgment was accordingly entered for the Appellant as follows: liability at 100%; general damages Kshs. 800,000/=; special damages Kshs. 13,275/=; total Kshs. 813,275/=, together with costs and interest at Court rates from the date of judgment until payment in full.
C. THE APPEAL
11. The Appellant, being dissatisfied with that award, preferred the present appeal by a memorandum of appeal filed on 21st September 2024, raising three grounds which may be compressed into one: that the learned trial Magistrate erred in law and in fact by disregarding the Appellant's submissions and evidence on quantum, by deviating substantially from the pleadings, evidence and submissions on record, and by failing to appreciate the principles governing the award of general damages relative to the nature of the injuries reflected in the doctors' reports, thereby arriving at an award of Kshs. 800,000/= that was grossly low, not commensurate with the injuries, and occasioning a miscarriage of justice.
12. It is common ground that this appeal is on quantum of general damages only. Liability is not in issue. The award of special damages is not in issue.
13. The appeal was, by directions given on 29th October 2025, canvassed by way of written submissions. The Appellant filed submissions dated 29th November 2025; the Respondent filed submissions dated 3rd December 2025.
14. Before turning to those submissions, I record a preliminary housekeeping matter. The Respondent's written submissions describe the impugned decision as having been delivered in “Vihiga PMCC No. 32 of 2020 between Nancy Sakwa v West Kenya Sugar”. No such party features anywhere in the record. The certified copy of the judgment at pages 100–105 of the Record of Appeal is plainly entitled Emily Uside v West Kenya Sugar, MCCC/32/2020. I am satisfied that this is a typographical slip in the Respondent's submissions, that no prejudice arises, and that Article 159(2)(d) of the Constitution requires me to disregard it. Similar slips as to dates appearing in the parties' respective submissions are likewise treated as clerical. The operative date of the impugned judgment is 22nd August 2024.
D. THE APPELLANT'S SUBMISSIONS
15. Learned Counsel for the Appellant, M/s M. A. Okumu & Company Advocates, set out the particulars of injury pleaded at paragraph 5 of the amended plaint and the particulars of continuing injury, and drew the Court's attention to the four documents relied upon at trial: the discharge summary from Vihiga County Referral Hospital dated 30th December 2019; the CT scan head report dated 24th December 2019; the P3 form; and the medical report of the late Dr. Olima.
16. It was submitted that although the percentage of incapacity was not stated in Dr. Olima's report, it is beyond argument that the Appellant suffered severe head and facial injuries resulting in blurred vision and poor focus, numbness of the left side of the face, and permanent disfiguring scars on her face. It was further pointed out that the Respondent, having obtained leave to subject the Appellant to a second medical examination, never availed any medical report in rebuttal. Relying on Butt v Khan (Civil Appeal No. 40 of 1997), learned Counsel submitted that the learned Magistrate had proceeded on wrong principles and misapprehended the evidence, arriving at a figure that was inordinately low. Learned Counsel urged that an award must be in tandem with previous awards for similar injuries, must be neither too high nor too low, and must take account of inflation.
17. A number of authorities were relied upon: Imbezi v Fairmile School Limited & Another [2024] KECA 486 (KLR) (Kshs. 1,300,000/= restored); Kimani v Njuki alias David Kinyua [2024] KEHC 16994 (KLR) (Kshs.
2,500,000/= upheld); Mugoye v Siso t/a Jogoce's Group [2024] KEHC 13031 (KLR) (Kshs. 4,000,000/= substituted for Kshs. 1,500,000/=); Benson Wanyoike Nyambura & Another v Esther Muthoni Gichimu, Murang'a HCCA No. E005B of 2021 (Kshs. 1,200,000/= upheld); Moi Teaching and Referral Hospital Board & Another v Leonard Kibiwott Kosgei [2020] eKLR (Kshs. 2,000,000/= upheld); Baj v Roadstar Limited & 2 Others [2018] eKLR (Kshs. 1,500,000/= upheld); Thuge Caroline & 2 Others v Kimani Nganga Kago [2022] eKLR (Kshs. 1,600,000/= upheld); and Sosines Orindo v Emkay Builders Limited [2019] eKLR on the necessity of factoring inflation.
18. The Appellant prayed that the award be enhanced to Kshs.
2,500,000/=.
E. THE RESPONDENT'S SUBMISSIONS
19. Learned Counsel for the Respondent, M/s Nyairo & Company Advocates, opposed the appeal on two limbs: First, it was submitted that the injuries introduced by the amended plaint dated 1st September 2023 were time-barred, the accident having occurred on 24th December 2019 and the amendment having been sought after more than four years, contrary to Section 4(2) of the Limitation of Actions Act. The Court was urged to disregard the injuries introduced through the amended plaint. Secondly, it was submitted that the Appellant did not prove the pleaded fractures to the required standard. Reliance was placed on the evidence of PW4, Dr. Vitalis Juma, who produced the discharge summary (PExh. 8) and who, it was said, testified that the Appellant had sustained soft tissue injuries to the head, shoulder, elbow and hand, and that there was no indication of any fracture in the discharge summary. It was argued that Dr. Olima's report was mere opinion evidence, unsupported by primary medical documentation, and that the P3 form was never produced in evidence. Reliance was placed on Michael Okello v Priscilla Atieno [2021] eKLR and Shah & Another v Shah & Others (2003) 1 EA 290.
20. Learned Counsel relied on Kemfro Africa Limited t/a Meru Express Services & Another v Lubia & Another [1987] eKLR for the threshold of appellate interference, and on Otieno & Another v Odhiambo (Civil Appeal E027 of 2024) [2024] KEHC 7688 (KLR), Pitalis Opiyo Ager v Daniel Otieno Owino & Another [2020] eKLR and Nguku Joseph & Another v Gerald Kihiu Maina [2020] KEHC 7670 (KLR) as demonstrating the appropriate range of awards. It was submitted that the award of Kshs. 800,000/= was legally sound and generous, that it had already been paid, and that the appeal was an afterthought which ought to be dismissed with costs.
F. THE DUTY OF THIS COURT AS A FIRST APPELLATE COURT
21. This being a first appeal, my mandate is prescribed by Section 78 of the Civil Procedure Act and settled by a long line of authority. I am under a duty to re-evaluate, re-assess and re-analyze the evidence tendered before the trial Court and to arrive at my own independent conclusions, bearing always in mind that, unlike the trial Court, I neither saw nor heard the witnesses and must make due allowance in that respect: Selle & Another v Associated Motor Boat Company Ltd [1968] EA 123; Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR.
22. As was said in Peters v Sunday Post Ltd (1958) EA 424 at 429, it is a strong thing for an appellate Court to differ from the finding, on a question of fact, of the Judge who tried the case and who had the advantage of seeing and hearing the witnesses. That caution applies with particular force where, as here, the finding sought to be disturbed is one of quantum, which lies in the discretion of the trial Court.
23. The circumstances in which an appellate Court may interfere with an award of general damages are narrow and well known. In Bashir Ahmed Butt v Uwais Ahmed Khan (1982–88) 1 KAR 1, Law JA stated: “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 at a figure which was either inordinately high or low.”
24. To the same effect are Kemfro Africa Limited t/a Meru Express Services & Another v A. M. Lubia & Another (1982–88) 1 KAR 727; Kitavi v Coastal Bottlers Ltd [1985] KLR 470; and Catholic Diocese of Kisumu v Tete [2014] eKLR, where the Court of Appeal held that an appellate Court is not justified in substituting a figure of its own merely because it would have awarded a different figure had it tried the case at first instance; it may interfere only where the trial Court applied wrong principles, took into account an irrelevant factor, left out of account a relevant one, or misapprehended the evidence, and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate.
25. I remind myself, too, of the caution in Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2006] eKLR, citing Lord Morris in H. West & Son Ltd v Shephard [1964] AC 326 at 353, that the assessment
of damages in personal injury cases is essentially a matter of opinion, judgment and experience, and that a member of an appellate tribunal does not proceed to dismiss as wrong the figure of an award merely because it does not correspond with the figure of his own assessment.
G. ISSUES FOR DETERMINATION
26. Having considered the memorandum of appeal, the record, and the rival submissions, the following issues fall for determination:
i. Whether the Respondent may in absence of a cross-appeal, invite this Court to disregard the injuries pleaded in the amended plaint on the ground of limitation.
ii. If so, whether those injuries are statute-barred;
iii. Whether the Appellant proved, on a balance of probabilities, the injuries pleaded;
iv. Whether the award of Kshs. 800,000/= is so inordinately low as to warrant the interference of this Court and, if so, what award ought properly to be substituted; and
v. Who should bear the costs of this appeal.
H. ANALYSIS AND DETERMINATION
(i) The limitation objection and the absence of a cross-appeal
27. The Respondent's first limb is, in substance, an invitation to this Court to set aside the effect of a ruling of the trial Court delivered on 22nd February 2024, and to strike out part of the Appellant's pleadings. That invitation is misconceived for four independent reasons.
28. First, the ruling of 22nd February 2024 granting leave to amend was a decision of the Subordinate Court from which an appeal lay. The Respondent neither appealed against it, nor sought its review, nor crossappealed against the judgment. Instead, it filed an amended statement of defence dated 11th March 2024 and proceeded to full argument on the amended pleadings. A party may not, having acquiesced in an interlocutory ruling and taken its chances at trial, mount a collateral attack upon it in a wholly separate appeal brought by its opponent on an entirely different question.
29. Secondly, and more fundamentally, it is trite that a Respondent who wishes to have the decision of the trial Court varied or reversed in any respect must file a cross-appeal. A Respondent without a cross-appeal may support the decree on the grounds on which it was given, or on any other ground appearing on the record, but may not seek an outcome more favourable than the decree gives it. The Respondent here seeks a finding that the greater part of the Appellant's proven injuries should be expunged, a finding which, if made, would necessarily depress the award below Kshs. 800,000/=. That is a variation of the decree, and it is not open to the Respondent on this record.
30. Thirdly, the limitation point is misconceived on its own terms. Section 4(2) of the Limitation of Actions Act bars actions founded on tort after the expiry of three years from the date on which the cause of action accrued. The cause of action here accrued on 24th December 2019 and suit was instituted on 17th January 2020 — comfortably within time. What the amendment of 1st September 2023 introduced was not a new cause of action but further and better particulars of injury flowing from the selfsame accident, the self-same breach of duty, and the self-same Defendant. Particulars of injury are not a cause of action; they are the measure of the damage occasioned by a cause of action already pleaded and already before the Court.
31. Fourthly, even had the amendment introduced a new cause of action, Order 8 rule 3(5) of the Civil Procedure Rules expressly permits an amendment notwithstanding the expiry of a limitation period where the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed. It plainly does so here. That, no doubt, is why the trial Court exercised its discretion as it did. I accordingly decline the invitation to disregard the injuries pleaded in the amended plaint. The first limb of the Respondent's submissions fails.
(ii) Whether the injuries were proved
32. The Respondent's second limb rests almost entirely on the evidence of PW4, Dr. Vitalis Juma. With respect, that evidence has been materially mischaracterized. I have read the certified proceedings at pages 116 and 117 of the Record of Appeal. Dr. Juma is the Medical Superintendent of Vihiga County Referral Hospital and a consultant family physician. He was called for the limited purpose of producing the discharge summary prepared by an intern under the supervision of Dr. Ali and the late Dr. Mercy. He deposed that the discharge summary recorded “multiple injuries”, injuries to the “head, shoulder, elbow, hand”, and that “X-ray & CT scan was done”. He then stated, in terms: “I do not have the head CT scan report findings or discharge summary. Had poly trauma — many treatments. The treatment shows there was brain injury could have been mild.” He continued: “The other body parts were soft tissue injuries — No fractures. He had cut wound stitched on the face…”. In cross-examination he confirmed: “I did not treat this patient… It's not clear if the patient sustained fracture.”
33. Read fairly and as a whole, that evidence establishes the very opposite of the proposition advanced. Dr. Juma was not the treating clinician; he did not have the CT scan report; and his observation that “the other body parts were soft tissue injuries — no fractures” was, in context, an observation about parts of the body other than the face, where he expressly noted a stitched cut wound. His evidence that a CT scan was in fact performed on the Appellant, and his acknowledgment of posttrauma and of a brain injury, corroborates rather than contradicts the Appellant's case. A witness who candidly says that he does not have the radiological report cannot be treated as having disproved what that report contains.
34. The radiological report was, in any event, before the trial Court, and it was produced and spoken to by its own author. PW2, Dr. John Ngololo, a consultant radiologist, testified that he was working as a consultant radiologist at Vihiga County Referral Hospital and that he examined the Appellant and prepared a report on 24th December 2019 — the very day of the accident. He produced that report as PExh. 5(a). As recorded by the trial Court, his findings were:
a. Displaced fractures of the left anterior wall of the maxillary sinus and of the zygomatic arch;
b. Medial bowing of the medial wall of the left orbit;
c. A fracture of the lateral orbital wall;
d. Entrapment of the medial rectus muscle;
e. Haemorrhage into the left ethmoidal sinus;
f. Bruised left facial soft tissues and skeletal injuries, with no intracranial involvement.
35. Critically, that evidence survived cross-examination intact. At page 113 of the Record of Appeal, PW2 stated under cross-examination by Counsel for the Respondent: “He sustained facial bone fracture and muscle… I examined on 24/12/2019. He could not move eye balls if he was not attended to.” Nothing was put to PW2 to suggest that his films had been misread, that the report was not his, or that the fractures he described were referable to some other event.
36. This is therefore not a case, as the Respondent's authorities contemplate, of a Plaintiff seeking to establish fractures on the strength of an assessment report obtained long after the event and unsupported by any contemporaneous documentation. In Otieno & Another v Odhiambo [2024] KEHC 7688 (KLR), Aburili J. declined to find a tooth fracture proved precisely because it was absent from the initial treatment notes, was first noticed three weeks later by the assessing doctor, and was supported by no other documentary evidence. In Pitalis Opiyo Ager v Daniel Otieno Owino & Another [2020] eKLR the same learned Judge rejected alleged fractures and dislocations where no Xray films or reports were ever produced, no plaster or immobilization was recorded, and the P3 form was never exhibited. Here, by contrast, there is a contemporaneous radiological report of the day of the accident, produced in evidence by the consultant radiologist who authored it, and tested in cross-examination. Those authorities are distinguishable on their facts and do not assist the Respondent.
37. It is also clear that neither does the submissions that Dr. Olima's report was “merely an opinion” advance matters. The principle in Stephen Kinini Wangondu v The Ark Ltd [2016] eKLR and Kimatu Mbuvi (supra) - that expert evidence does not trump all other evidence and must be weighed in the context of the whole record - cuts against the Respondent here. Weighed in the context of the whole record, Dr. Olima's report (produced through PW3, Dr. Neema Mbaruku, whose competence to produce it was not seriously impugned) is consistent with, and corroborated by, the contemporaneous radiology of PW2 and the discharge summary of PW4.
38. There is a further matter. It is apparent from the proceedings at page 114 of the Record of Appeal that at the close of the Appellant's case, Counsel for the Respondent applied for and was granted leave for the Appellant to undergo a second medical examination. No report from any doctor instructed by the Respondent was ever produced. The Respondent called only its driver, DW1, who gave no evidence at all on the medical question. Sections 107 to 109 of the Evidence Act place the burden of proof on the party who asserts, but where a party arms itself with the means of contradicting its opponent's medical evidence and then withholds the result. A Court of appeal is entitled to conclude as the trial Magistrate expressly did that the Appellant's medical evidence “remained wholly uncontroverted, unchallenged and unrebutted.”
39. Finally, and decisively on this issue, the trial Court itself found the pleaded injuries proved, that is at page 104 of the Record of Appeal the learned Magistrate, having set out all thirteen heads of injury, held that the Appellant “has on a balance of probabilities proved her case against the Defendants.” There is no cross-appeal against that finding. It stands.
40. On my own independent re-evaluation of the evidence, I reach the same conclusion. I find as a fact that the Appellant sustained the following injuries in the accident of 24th December 2019:
a) A displaced fracture of the left anterior wall of the maxillary sinus;
b) A fracture of the lateral orbital wall of the left eye, with infra-orbital haemorrhage;
c) Medial bowing of the medial wall of the left orbit;
d) A fracture of the left zygomatic arch;
e) Entrapment of the left medial rectus muscle;
f) Haemorrhage into the left ethmoidal sinus;
g) A closed head injury with loss of consciousness (characterised by
PW4 as a possibly mild brain injury);
h) Lacerations and cut wounds of the left facial region, the right parietal region and both fronto-parietal regions, requiring suturing;
i) Soft tissue injuries to the chest with bruising of the anterior and right chest walls, haemoptysis, soft tissue injuries to the lower back, and bruises to the left upper arm and fingers.
41. As to the consequences of those injuries, the evidence establishes pain in the left eye with blurring of vision and poor focus; sluggish medial movement of the left eye; persistent headaches; numbness of the left side of the face consistent with injury to the facial nerve; left infra-orbital discolouration; tenderness of the infra-orbital, supra-orbital and medial walls of the left orbit; chest pain with inability to lie on the right side; low back pain; and permanent scarring, namely a sutured scar of the right parietal region measuring approximately 5cm x 0.5cm and bilateral scars of the right and left fronto-parietal regions measuring approximately 4cm x 3cm each.
42. I record, for completeness, two limitations on the Appellant's case which I take into account below. First, no percentage of permanent incapacity was assessed by any doctor. Secondly, no claim for the cost of future or reconstructive surgery was pleaded, quantified or proved.
(iii) Whether the award of Kshs. 800,000/= should be disturbed
43. I turn to the central question. The Appellant must show not merely that this Court might have awarded more, but that the learned Magistrate proceeded on wrong principles or misapprehended the evidence in some material respect, and so arrived at a figure that was inordinately low.
44. In my respectful view, she has discharged that burden, for the following reasons.
45. First, the comparables relied upon were not comparable. The cardinal principle in the assessment of damages for personal injury is that comparable injuries should, so far as possible, attract comparable awards: Arrow Car Ltd v Bimomo & 2 Others [2004] 2 KLR 101; Stanley Maore v Geoffrey Mwenda [2004] eKLR; Rahima Tayab & Others v Anna Mary Kinanu (1983) KLR 114. The learned Magistrate anchored her award on two decisions. Dennis Matagaro concerned a mild head injury, a shoulder dislocation, forearm lacerations and a tibia/fibula fracture. Blue Horizon Travel concerned cut wounds, rib fractures, a haemothorax and fracture dislocations of the hip and shoulder. Neither involved a single facial fracture. Neither involved the orbit. Neither involved any injury to the eye or to the facial nerve. Neither involved permanent facial or scalp scarring. The one thing the present case is centrally about - multiple displaced mid-facial fractures with orbital and ocular involvement - finds no reflection whatever in either authority. To assess an award of this kind by reference to authorities that do not touch the principal injury is, with respect, to proceed on a wrong principle.
46. Secondly, relevant factors were left out of account. The judgment nowhere weighs the entrapment of the medial rectus muscle, nor the resulting sluggish medial movement of the left eye with blurring of vision and poor focus, nor the numbness of the left side of the face, nor the permanent scarring of the face and scalp of a woman, nor the fact that these are permanent or long-standing sequelae rather than injuries which resolved on discharge. PW2's unchallenged evidence that the Appellant “could not move eye balls if he was not attended to” underscores the gravity of the ocular component. These were plainly relevant factors and they do not appear to have been brought into the reckoning at all.
47. Thirdly, the evidence was in one material respect misapprehended. At page 104 of the record the learned Magistrate summarized the medical evidence as being that Dr. Olima “observed that suffered multiple soft tissue injuries.” That summary omits the skeletal injuries entirely. It cannot be reconciled with the contemporaneous radiological findings of PW2, which the same judgment had faithfully recorded two pages earlier, nor with the list of thirteen injuries the Court itself had just set out and found proved. That internal inconsistency, in my view, explains the disparity between the finding on injuries and the figure ultimately arrived at.
48. I note in passing, and without labouring the point, that the judgment refers to the Appellant throughout in the masculine and speaks of compensating “him”. Standing alone this would be no more than a clerical infelicity. Read with the matters set out above, it fortifies my conclusion that the assessment of general damages was not individually calibrated to the injuries of this particular claimant.
49. The consequence is that the threshold in Butt v Khan and Catholic Diocese of Kisumu v Tete is met, and this Court is at liberty, indeed obliged to make its own assessment.
(iv) The appropriate award
50. In undertaking that assessment I bear in mind that money cannot renew a physical frame that has been battered and shattered, and that all a Court can do is award sums which must be regarded as giving reasonable compensation, assessed with moderation and with an eye to uniformity: H. West & Son Ltd v Shephard (supra); Tayab v Kinanu (supra). I bear in mind equally that no two cases are on all fours, that pain is not susceptible of measurement on a scale, and that the exercise is one of judgment rather than arithmetic: Imbezi v Fairmile School Limited & Another [2024] KECA 486 (KLR), paragraph 10.
51. I have considered the following awards for injuries in the same family as those before me:
• Joseph Karanja Wanjiru v Grace Wangare Nyoro & Another [2015] eKLR - facial oedema, sub-conjunctival haemorrhage, infra-orbital paraesthesia, fractured mandible, Le Fort I fracture, left zygomatic complex fracture, left orbital rim fracture and mid-palatal split. Kshs. 1,000,000/= in November 2015 (plus future medical expenses).
• Baj v Roadstar Limited & 2 Others [2018] eKLR — left orbital floor and margin fractures with pneumo-orbit, comminuted left maxillary fractures of the anterior and posterior
[...truncated]
1. By a plaint dated 17th January 2020, and subsequently by an amended plaint dated 1st September 2023, the Appellant sued the Respondent for general and special damages, costs and interest arising out of a road traffic accident which occurred on 24th December 2019 along the Kisumu–Kakamega road at Lunyerere area.
2. The Appellant's case was that she was lawfully travelling as a fare-paying passenger aboard tuk tuk registration number KTWA 6600 when motor vehicle registration number KBU 713P, a FAW lorry owned by the Respondent, was so negligently, carelessly and recklessly driven at high speed that its driver lost control and rammed into the rear of the tuk tuk, occasioning her severe bodily injuries.
3. The Respondent filed a statement of defence dated 29th January 2020, and later an amended statement of defence dated 11th March 2024, denying ownership of the subject motor vehicle, denying knowledge of the accident, denying the particulars of negligence imputed to it, and pleading in the alternative that any such accident was wholly caused or contributed to by the negligence of the tuk tuk rider and of the Appellant herself.
4. The matter proceeded to full hearing. The Appellant testified as PW1 and called three medical witnesses: Dr. John Ngololo (PW2), a consultant radiologist formerly stationed at Vihiga County Referral Hospital; Dr. Neema Mbaruku (PW3), a consultant orthopaedic Surgeon who produced the medical report of the late Dr. Olima; and Dr. Vitalis Juma (PW4), the Medical Superintendent of Vihiga County Referral Hospital, who produced the discharge summary. The Respondent called a single witness, its driver Musa Hassan (DW1).
5. After the close of both cases, and upon an application dated 1st September 2023, the trial Court by a ruling delivered on 22nd February 2024 granted the Appellant leave to amend her plaint so as to plead further particulars of the injuries she had sustained. The amended plaint and the amended defence followed. The parties then filed written submissions and the trial Court reserved judgment.
B. THE JUDGMENT OF THE TRIAL COURT
6. In her judgment delivered on 22nd August 2024, the learned trial Magistrate framed five issues and resolved each of them in favour of the Appellant. She found that the Respondent was the registered owner of motor vehicle registration number KBU 713P as at 24th December 2019; that the accident occurred as pleaded; and that, the Appellant's evidence being overwhelming and DW1's evidence standing alone and uncorroborated, the Respondent was 100% liable for the occurrence of the accident.
7. On the fourth issue, the injuries and the appropriate quantum the learned Magistrate set out the thirteen heads of injury pleaded in the amended plaint. She then held, in terms:
“In the Plaintiff's evidence, she confirmed having sustained above injuries and sought treatment at Vihiga County Referral hospital, I have carefully perused the treatment notes and do note that the Plaintiff was treated in the hospital after having been diagnosed with injuries herein. Further, the above injuries were confirmed by Dr. Olima ... Based on the reasons advanced herein it is my finding that the Plaintiff has on a balance of probabilities proved her case against the Defendants.”
8. Having so found, the learned Magistrate cited two authorities Dennis Matagaro v NKO (Minor suing through next friend and father WOO) [2021] eKLR, where an award of Kshs. 700,000/= was upheld for a mild head injury, tenderness of the neck, dislocation of the left shoulder, tenderness of the back, deep lacerated cut wounds on the forearms and a fracture of the left tibia and fibula; and Blue Horizon Travel Co. Ltd v Kenneth Njoroge [2020] eKLR, where Kshs. 400,000/= was awarded for cut wounds to the head and right forearm, bruising, fractured ribs, right haemothorax and fracture dislocations of the right hip and right shoulder.
9. She then concluded that, “taking into account the inflationary trends, nature of the injuries and general trend of awards based on such similar injuries”, an award of Kshs. 800,000/= would adequately compensate the Appellant. Special damages of Kshs. 18,725/= had been pleaded but only Kshs. 13,275/= was supported by receipts, and that lesser sum was awarded.
10. Judgment was accordingly entered for the Appellant as follows: liability at 100%; general damages Kshs. 800,000/=; special damages Kshs. 13,275/=; total Kshs. 813,275/=, together with costs and interest at Court rates from the date of judgment until payment in full.
C. THE APPEAL
11. The Appellant, being dissatisfied with that award, preferred the present appeal by a memorandum of appeal filed on 21st September 2024, raising three grounds which may be compressed into one: that the learned trial Magistrate erred in law and in fact by disregarding the Appellant's submissions and evidence on quantum, by deviating substantially from the pleadings, evidence and submissions on record, and by failing to appreciate the principles governing the award of general damages relative to the nature of the injuries reflected in the doctors' reports, thereby arriving at an award of Kshs. 800,000/= that was grossly low, not commensurate with the injuries, and occasioning a miscarriage of justice.
12. It is common ground that this appeal is on quantum of general damages only. Liability is not in issue. The award of special damages is not in issue.
13. The appeal was, by directions given on 29th October 2025, canvassed by way of written submissions. The Appellant filed submissions dated 29th November 2025; the Respondent filed submissions dated 3rd December 2025.
14. Before turning to those submissions, I record a preliminary housekeeping matter. The Respondent's written submissions describe the impugned decision as having been delivered in “Vihiga PMCC No. 32 of 2020 between Nancy Sakwa v West Kenya Sugar”. No such party features anywhere in the record. The certified copy of the judgment at pages 100–105 of the Record of Appeal is plainly entitled Emily Uside v West Kenya Sugar, MCCC/32/2020. I am satisfied that this is a typographical slip in the Respondent's submissions, that no prejudice arises, and that Article 159(2)(d) of the Constitution requires me to disregard it. Similar slips as to dates appearing in the parties' respective submissions are likewise treated as clerical. The operative date of the impugned judgment is 22nd August 2024.
D. THE APPELLANT'S SUBMISSIONS
15. Learned Counsel for the Appellant, M/s M. A. Okumu & Company Advocates, set out the particulars of injury pleaded at paragraph 5 of the amended plaint and the particulars of continuing injury, and drew the Court's attention to the four documents relied upon at trial: the discharge summary from Vihiga County Referral Hospital dated 30th December 2019; the CT scan head report dated 24th December 2019; the P3 form; and the medical report of the late Dr. Olima.
16. It was submitted that although the percentage of incapacity was not stated in Dr. Olima's report, it is beyond argument that the Appellant suffered severe head and facial injuries resulting in blurred vision and poor focus, numbness of the left side of the face, and permanent disfiguring scars on her face. It was further pointed out that the Respondent, having obtained leave to subject the Appellant to a second medical examination, never availed any medical report in rebuttal. Relying on Butt v Khan (Civil Appeal No. 40 of 1997), learned Counsel submitted that the learned Magistrate had proceeded on wrong principles and misapprehended the evidence, arriving at a figure that was inordinately low. Learned Counsel urged that an award must be in tandem with previous awards for similar injuries, must be neither too high nor too low, and must take account of inflation.
17. A number of authorities were relied upon: Imbezi v Fairmile School Limited & Another [2024] KECA 486 (KLR) (Kshs. 1,300,000/= restored); Kimani v Njuki alias David Kinyua [2024] KEHC 16994 (KLR) (Kshs.
2,500,000/= upheld); Mugoye v Siso t/a Jogoce's Group [2024] KEHC 13031 (KLR) (Kshs. 4,000,000/= substituted for Kshs. 1,500,000/=); Benson Wanyoike Nyambura & Another v Esther Muthoni Gichimu, Murang'a HCCA No. E005B of 2021 (Kshs. 1,200,000/= upheld); Moi Teaching and Referral Hospital Board & Another v Leonard Kibiwott Kosgei [2020] eKLR (Kshs. 2,000,000/= upheld); Baj v Roadstar Limited & 2 Others [2018] eKLR (Kshs. 1,500,000/= upheld); Thuge Caroline & 2 Others v Kimani Nganga Kago [2022] eKLR (Kshs. 1,600,000/= upheld); and Sosines Orindo v Emkay Builders Limited [2019] eKLR on the necessity of factoring inflation.
18. The Appellant prayed that the award be enhanced to Kshs.
2,500,000/=.
E. THE RESPONDENT'S SUBMISSIONS
19. Learned Counsel for the Respondent, M/s Nyairo & Company Advocates, opposed the appeal on two limbs: First, it was submitted that the injuries introduced by the amended plaint dated 1st September 2023 were time-barred, the accident having occurred on 24th December 2019 and the amendment having been sought after more than four years, contrary to Section 4(2) of the Limitation of Actions Act. The Court was urged to disregard the injuries introduced through the amended plaint. Secondly, it was submitted that the Appellant did not prove the pleaded fractures to the required standard. Reliance was placed on the evidence of PW4, Dr. Vitalis Juma, who produced the discharge summary (PExh. 8) and who, it was said, testified that the Appellant had sustained soft tissue injuries to the head, shoulder, elbow and hand, and that there was no indication of any fracture in the discharge summary. It was argued that Dr. Olima's report was mere opinion evidence, unsupported by primary medical documentation, and that the P3 form was never produced in evidence. Reliance was placed on Michael Okello v Priscilla Atieno [2021] eKLR and Shah & Another v Shah & Others (2003) 1 EA 290.
20. Learned Counsel relied on Kemfro Africa Limited t/a Meru Express Services & Another v Lubia & Another [1987] eKLR for the threshold of appellate interference, and on Otieno & Another v Odhiambo (Civil Appeal E027 of 2024) [2024] KEHC 7688 (KLR), Pitalis Opiyo Ager v Daniel Otieno Owino & Another [2020] eKLR and Nguku Joseph & Another v Gerald Kihiu Maina [2020] KEHC 7670 (KLR) as demonstrating the appropriate range of awards. It was submitted that the award of Kshs. 800,000/= was legally sound and generous, that it had already been paid, and that the appeal was an afterthought which ought to be dismissed with costs.
F. THE DUTY OF THIS COURT AS A FIRST APPELLATE COURT
21. This being a first appeal, my mandate is prescribed by Section 78 of the Civil Procedure Act and settled by a long line of authority. I am under a duty to re-evaluate, re-assess and re-analyze the evidence tendered before the trial Court and to arrive at my own independent conclusions, bearing always in mind that, unlike the trial Court, I neither saw nor heard the witnesses and must make due allowance in that respect: Selle & Another v Associated Motor Boat Company Ltd [1968] EA 123; Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR.
22. As was said in Peters v Sunday Post Ltd (1958) EA 424 at 429, it is a strong thing for an appellate Court to differ from the finding, on a question of fact, of the Judge who tried the case and who had the advantage of seeing and hearing the witnesses. That caution applies with particular force where, as here, the finding sought to be disturbed is one of quantum, which lies in the discretion of the trial Court.
23. The circumstances in which an appellate Court may interfere with an award of general damages are narrow and well known. In Bashir Ahmed Butt v Uwais Ahmed Khan (1982–88) 1 KAR 1, Law JA stated: “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 at a figure which was either inordinately high or low.”
24. To the same effect are Kemfro Africa Limited t/a Meru Express Services & Another v A. M. Lubia & Another (1982–88) 1 KAR 727; Kitavi v Coastal Bottlers Ltd [1985] KLR 470; and Catholic Diocese of Kisumu v Tete [2014] eKLR, where the Court of Appeal held that an appellate Court is not justified in substituting a figure of its own merely because it would have awarded a different figure had it tried the case at first instance; it may interfere only where the trial Court applied wrong principles, took into account an irrelevant factor, left out of account a relevant one, or misapprehended the evidence, and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate.
25. I remind myself, too, of the caution in Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2006] eKLR, citing Lord Morris in H. West & Son Ltd v Shephard [1964] AC 326 at 353, that the assessment
of damages in personal injury cases is essentially a matter of opinion, judgment and experience, and that a member of an appellate tribunal does not proceed to dismiss as wrong the figure of an award merely because it does not correspond with the figure of his own assessment.
G. ISSUES FOR DETERMINATION
26. Having considered the memorandum of appeal, the record, and the rival submissions, the following issues fall for determination:
i. Whether the Respondent may in absence of a cross-appeal, invite this Court to disregard the injuries pleaded in the amended plaint on the ground of limitation.
ii. If so, whether those injuries are statute-barred;
iii. Whether the Appellant proved, on a balance of probabilities, the injuries pleaded;
iv. Whether the award of Kshs. 800,000/= is so inordinately low as to warrant the interference of this Court and, if so, what award ought properly to be substituted; and
v. Who should bear the costs of this appeal.
H. ANALYSIS AND DETERMINATION
(i) The limitation objection and the absence of a cross-appeal
27. The Respondent's first limb is, in substance, an invitation to this Court to set aside the effect of a ruling of the trial Court delivered on 22nd February 2024, and to strike out part of the Appellant's pleadings. That invitation is misconceived for four independent reasons.
28. First, the ruling of 22nd February 2024 granting leave to amend was a decision of the Subordinate Court from which an appeal lay. The Respondent neither appealed against it, nor sought its review, nor crossappealed against the judgment. Instead, it filed an amended statement of defence dated 11th March 2024 and proceeded to full argument on the amended pleadings. A party may not, having acquiesced in an interlocutory ruling and taken its chances at trial, mount a collateral attack upon it in a wholly separate appeal brought by its opponent on an entirely different question.
29. Secondly, and more fundamentally, it is trite that a Respondent who wishes to have the decision of the trial Court varied or reversed in any respect must file a cross-appeal. A Respondent without a cross-appeal may support the decree on the grounds on which it was given, or on any other ground appearing on the record, but may not seek an outcome more favourable than the decree gives it. The Respondent here seeks a finding that the greater part of the Appellant's proven injuries should be expunged, a finding which, if made, would necessarily depress the award below Kshs. 800,000/=. That is a variation of the decree, and it is not open to the Respondent on this record.
30. Thirdly, the limitation point is misconceived on its own terms. Section 4(2) of the Limitation of Actions Act bars actions founded on tort after the expiry of three years from the date on which the cause of action accrued. The cause of action here accrued on 24th December 2019 and suit was instituted on 17th January 2020 — comfortably within time. What the amendment of 1st September 2023 introduced was not a new cause of action but further and better particulars of injury flowing from the selfsame accident, the self-same breach of duty, and the self-same Defendant. Particulars of injury are not a cause of action; they are the measure of the damage occasioned by a cause of action already pleaded and already before the Court.
31. Fourthly, even had the amendment introduced a new cause of action, Order 8 rule 3(5) of the Civil Procedure Rules expressly permits an amendment notwithstanding the expiry of a limitation period where the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed. It plainly does so here. That, no doubt, is why the trial Court exercised its discretion as it did. I accordingly decline the invitation to disregard the injuries pleaded in the amended plaint. The first limb of the Respondent's submissions fails.
(ii) Whether the injuries were proved
32. The Respondent's second limb rests almost entirely on the evidence of PW4, Dr. Vitalis Juma. With respect, that evidence has been materially mischaracterized. I have read the certified proceedings at pages 116 and 117 of the Record of Appeal. Dr. Juma is the Medical Superintendent of Vihiga County Referral Hospital and a consultant family physician. He was called for the limited purpose of producing the discharge summary prepared by an intern under the supervision of Dr. Ali and the late Dr. Mercy. He deposed that the discharge summary recorded “multiple injuries”, injuries to the “head, shoulder, elbow, hand”, and that “X-ray & CT scan was done”. He then stated, in terms: “I do not have the head CT scan report findings or discharge summary. Had poly trauma — many treatments. The treatment shows there was brain injury could have been mild.” He continued: “The other body parts were soft tissue injuries — No fractures. He had cut wound stitched on the face…”. In cross-examination he confirmed: “I did not treat this patient… It's not clear if the patient sustained fracture.”
33. Read fairly and as a whole, that evidence establishes the very opposite of the proposition advanced. Dr. Juma was not the treating clinician; he did not have the CT scan report; and his observation that “the other body parts were soft tissue injuries — no fractures” was, in context, an observation about parts of the body other than the face, where he expressly noted a stitched cut wound. His evidence that a CT scan was in fact performed on the Appellant, and his acknowledgment of posttrauma and of a brain injury, corroborates rather than contradicts the Appellant's case. A witness who candidly says that he does not have the radiological report cannot be treated as having disproved what that report contains.
34. The radiological report was, in any event, before the trial Court, and it was produced and spoken to by its own author. PW2, Dr. John Ngololo, a consultant radiologist, testified that he was working as a consultant radiologist at Vihiga County Referral Hospital and that he examined the Appellant and prepared a report on 24th December 2019 — the very day of the accident. He produced that report as PExh. 5(a). As recorded by the trial Court, his findings were:
a. Displaced fractures of the left anterior wall of the maxillary sinus and of the zygomatic arch;
b. Medial bowing of the medial wall of the left orbit;
c. A fracture of the lateral orbital wall;
d. Entrapment of the medial rectus muscle;
e. Haemorrhage into the left ethmoidal sinus;
f. Bruised left facial soft tissues and skeletal injuries, with no intracranial involvement.
35. Critically, that evidence survived cross-examination intact. At page 113 of the Record of Appeal, PW2 stated under cross-examination by Counsel for the Respondent: “He sustained facial bone fracture and muscle… I examined on 24/12/2019. He could not move eye balls if he was not attended to.” Nothing was put to PW2 to suggest that his films had been misread, that the report was not his, or that the fractures he described were referable to some other event.
36. This is therefore not a case, as the Respondent's authorities contemplate, of a Plaintiff seeking to establish fractures on the strength of an assessment report obtained long after the event and unsupported by any contemporaneous documentation. In Otieno & Another v Odhiambo [2024] KEHC 7688 (KLR), Aburili J. declined to find a tooth fracture proved precisely because it was absent from the initial treatment notes, was first noticed three weeks later by the assessing doctor, and was supported by no other documentary evidence. In Pitalis Opiyo Ager v Daniel Otieno Owino & Another [2020] eKLR the same learned Judge rejected alleged fractures and dislocations where no Xray films or reports were ever produced, no plaster or immobilization was recorded, and the P3 form was never exhibited. Here, by contrast, there is a contemporaneous radiological report of the day of the accident, produced in evidence by the consultant radiologist who authored it, and tested in cross-examination. Those authorities are distinguishable on their facts and do not assist the Respondent.
37. It is also clear that neither does the submissions that Dr. Olima's report was “merely an opinion” advance matters. The principle in Stephen Kinini Wangondu v The Ark Ltd [2016] eKLR and Kimatu Mbuvi (supra) - that expert evidence does not trump all other evidence and must be weighed in the context of the whole record - cuts against the Respondent here. Weighed in the context of the whole record, Dr. Olima's report (produced through PW3, Dr. Neema Mbaruku, whose competence to produce it was not seriously impugned) is consistent with, and corroborated by, the contemporaneous radiology of PW2 and the discharge summary of PW4.
38. There is a further matter. It is apparent from the proceedings at page 114 of the Record of Appeal that at the close of the Appellant's case, Counsel for the Respondent applied for and was granted leave for the Appellant to undergo a second medical examination. No report from any doctor instructed by the Respondent was ever produced. The Respondent called only its driver, DW1, who gave no evidence at all on the medical question. Sections 107 to 109 of the Evidence Act place the burden of proof on the party who asserts, but where a party arms itself with the means of contradicting its opponent's medical evidence and then withholds the result. A Court of appeal is entitled to conclude as the trial Magistrate expressly did that the Appellant's medical evidence “remained wholly uncontroverted, unchallenged and unrebutted.”
39. Finally, and decisively on this issue, the trial Court itself found the pleaded injuries proved, that is at page 104 of the Record of Appeal the learned Magistrate, having set out all thirteen heads of injury, held that the Appellant “has on a balance of probabilities proved her case against the Defendants.” There is no cross-appeal against that finding. It stands.
40. On my own independent re-evaluation of the evidence, I reach the same conclusion. I find as a fact that the Appellant sustained the following injuries in the accident of 24th December 2019:
a) A displaced fracture of the left anterior wall of the maxillary sinus;
b) A fracture of the lateral orbital wall of the left eye, with infra-orbital haemorrhage;
c) Medial bowing of the medial wall of the left orbit;
d) A fracture of the left zygomatic arch;
e) Entrapment of the left medial rectus muscle;
f) Haemorrhage into the left ethmoidal sinus;
g) A closed head injury with loss of consciousness (characterised by
PW4 as a possibly mild brain injury);
h) Lacerations and cut wounds of the left facial region, the right parietal region and both fronto-parietal regions, requiring suturing;
i) Soft tissue injuries to the chest with bruising of the anterior and right chest walls, haemoptysis, soft tissue injuries to the lower back, and bruises to the left upper arm and fingers.
41. As to the consequences of those injuries, the evidence establishes pain in the left eye with blurring of vision and poor focus; sluggish medial movement of the left eye; persistent headaches; numbness of the left side of the face consistent with injury to the facial nerve; left infra-orbital discolouration; tenderness of the infra-orbital, supra-orbital and medial walls of the left orbit; chest pain with inability to lie on the right side; low back pain; and permanent scarring, namely a sutured scar of the right parietal region measuring approximately 5cm x 0.5cm and bilateral scars of the right and left fronto-parietal regions measuring approximately 4cm x 3cm each.
42. I record, for completeness, two limitations on the Appellant's case which I take into account below. First, no percentage of permanent incapacity was assessed by any doctor. Secondly, no claim for the cost of future or reconstructive surgery was pleaded, quantified or proved.
(iii) Whether the award of Kshs. 800,000/= should be disturbed
43. I turn to the central question. The Appellant must show not merely that this Court might have awarded more, but that the learned Magistrate proceeded on wrong principles or misapprehended the evidence in some material respect, and so arrived at a figure that was inordinately low.
44. In my respectful view, she has discharged that burden, for the following reasons.
45. First, the comparables relied upon were not comparable. The cardinal principle in the assessment of damages for personal injury is that comparable injuries should, so far as possible, attract comparable awards: Arrow Car Ltd v Bimomo & 2 Others [2004] 2 KLR 101; Stanley Maore v Geoffrey Mwenda [2004] eKLR; Rahima Tayab & Others v Anna Mary Kinanu (1983) KLR 114. The learned Magistrate anchored her award on two decisions. Dennis Matagaro concerned a mild head injury, a shoulder dislocation, forearm lacerations and a tibia/fibula fracture. Blue Horizon Travel concerned cut wounds, rib fractures, a haemothorax and fracture dislocations of the hip and shoulder. Neither involved a single facial fracture. Neither involved the orbit. Neither involved any injury to the eye or to the facial nerve. Neither involved permanent facial or scalp scarring. The one thing the present case is centrally about - multiple displaced mid-facial fractures with orbital and ocular involvement - finds no reflection whatever in either authority. To assess an award of this kind by reference to authorities that do not touch the principal injury is, with respect, to proceed on a wrong principle.
46. Secondly, relevant factors were left out of account. The judgment nowhere weighs the entrapment of the medial rectus muscle, nor the resulting sluggish medial movement of the left eye with blurring of vision and poor focus, nor the numbness of the left side of the face, nor the permanent scarring of the face and scalp of a woman, nor the fact that these are permanent or long-standing sequelae rather than injuries which resolved on discharge. PW2's unchallenged evidence that the Appellant “could not move eye balls if he was not attended to” underscores the gravity of the ocular component. These were plainly relevant factors and they do not appear to have been brought into the reckoning at all.
47. Thirdly, the evidence was in one material respect misapprehended. At page 104 of the record the learned Magistrate summarized the medical evidence as being that Dr. Olima “observed that suffered multiple soft tissue injuries.” That summary omits the skeletal injuries entirely. It cannot be reconciled with the contemporaneous radiological findings of PW2, which the same judgment had faithfully recorded two pages earlier, nor with the list of thirteen injuries the Court itself had just set out and found proved. That internal inconsistency, in my view, explains the disparity between the finding on injuries and the figure ultimately arrived at.
48. I note in passing, and without labouring the point, that the judgment refers to the Appellant throughout in the masculine and speaks of compensating “him”. Standing alone this would be no more than a clerical infelicity. Read with the matters set out above, it fortifies my conclusion that the assessment of general damages was not individually calibrated to the injuries of this particular claimant.
49. The consequence is that the threshold in Butt v Khan and Catholic Diocese of Kisumu v Tete is met, and this Court is at liberty, indeed obliged to make its own assessment.
(iv) The appropriate award
50. In undertaking that assessment I bear in mind that money cannot renew a physical frame that has been battered and shattered, and that all a Court can do is award sums which must be regarded as giving reasonable compensation, assessed with moderation and with an eye to uniformity: H. West & Son Ltd v Shephard (supra); Tayab v Kinanu (supra). I bear in mind equally that no two cases are on all fours, that pain is not susceptible of measurement on a scale, and that the exercise is one of judgment rather than arithmetic: Imbezi v Fairmile School Limited & Another [2024] KECA 486 (KLR), paragraph 10.
51. I have considered the following awards for injuries in the same family as those before me:
• Joseph Karanja Wanjiru v Grace Wangare Nyoro & Another [2015] eKLR - facial oedema, sub-conjunctival haemorrhage, infra-orbital paraesthesia, fractured mandible, Le Fort I fracture, left zygomatic complex fracture, left orbital rim fracture and mid-palatal split. Kshs. 1,000,000/= in November 2015 (plus future medical expenses).
• Baj v Roadstar Limited & 2 Others [2018] eKLR — left orbital floor and margin fractures with pneumo-orbit, comminuted left maxillary fractures of the anterior and posterior
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