(Being an Appeal from the judgment and decree of Hon. Peter Muholi (Mr.) (PM) delivered on 3rd June 2021 in Milimani Commercial Magistrates Courts CMCC No. 792 of 2020)
Background
1. The appellant Eunice Akoth Odero has filed this appeal through a memorandum of appeal dated 2nd February 2022. The appeal relates to the issue of assessment of quantum of general damages only.
2. The appellant was the defendant before the trial court. She was sued by the respondent through a plaint dated 20th January 2020 for injuries sustained in a road traffic accident that occurred on 17th April 2019. The respondent’s case was that he was a pillion passenger on motor cycle registration number KMDE 174B when the accident occurred at the junction of Kenyatta avenue and Statehouse road. That the appellant’s motor vehicle registration number KCE 485J was driven in careless and negligent manner without due care and attention and at very high speed that it collided with the motorcycle thereby causing the accident. As a result, the respondent sustained severe injuries, loss and damage. The injuries were compound fracture of left femur upper 1/3, and blunt injury, left shoulder.
3. The respondent claimed from the appellant general damages for pain and suffering and special damages of KShs 3,550/=.
4. The appellant filed a statement of defence dated 6th March 2020 and denied the claim by the respondent in toto and in the alternative pleaded that the rider of the motor cycle and the respondent were to blame for the accident.
5. The parties entered a consent on liability for the respondent against the appellant in the ratio of 80:20 on 10th March 2021. They also agreed to proceed in a most unconventional way by way of filing submissions on the issue of assessment of quantum without even calling the respondent to adopt his witness statement as evidence and produce the documents to be relied upon as exhibits.
6. The trial court considered the documents filed by the parties and the submissions by learned counsels and entered judgment on quantum awarding the respondent general damages for pain and suffering of KShs 1,000,000/= and special damages KShs 3,550/= subject to contribution of 20% which made the net award KShs 802,400/= together with costs and interest.
Grounds of appeal
7. The appellant was dissatisfied with that decision and has filed the present appeal based on five grounds that:
a. The learned magistrate erred in failing to consider the principles regarding assessment of general damages in personal injury claims and arrived at an erroneous conclusion.
b. The learned magistrate erred in failing to properly consider the medical report dated 18th November 2020 by Dr. P. M. Wambugu on the injuries sustained by the respondent.
c. The learned magistrate erred in making an inordinately high award of general damages to the respondent for the injuries sustained as compared to similar injuries in comparable cases.
d. The learned magistrate erred in failing to base the general damages of KShs 1,000,000/= on comparable awards issued in respect to similar injuries to those sustained by the respondent.
e. The learned magistrate erred in failing to consider the appellant’s submissions and authorities.
8. The appellant therefore prays for this court to set aside the judgment of the lower court and assess reasonable general damages awardable to the respondent.
9. The appeal was disposed of by way of written submissions filed by learned counsels for both parties. The same are considered in the analysis that follows.
10. This being a first appeal, the duty of the court is to re-consider the evidence, evaluate and analyze it and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 where it was held that:
“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 Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
Analysis and Determination
11. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the general damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset.
12. The injuries sustained by the respondent were as pleaded in the plaint and confirmed in the medical report of Dr. G. K. Mwaura, Physician of Kinoo Medical Clinic in his medical report dated 30th November 2019 to be:
a. Blunt injury, left shoulder.
b. Fracture-left femur upper 1/3.
13. The medical report indicates further that the respondent was admitted at Kenyatta National hospital for 1½ months and he was put on skeletal traction and analgesics. At the time of examination, he had not healed and was still on treatment. He had a limping gait. The doctor assessed the degree of injury as grievous harm and degree of incapacity at 10% left lower limb – pain and some weakness to persist.
14. The appellant on her part referred to a medical report by Dr. P. M. Wambugu dated 18th November 2020. The doctor indicated the injuries sustained as i). Closed non-displaced left femur intertrochanteric fracture. ii). Bruises left shoulder. The doctor’s opinion and prognosis were that the respondent sustained skeletal and soft tissue injuries from which he had since made adequate recovery. The fracture left femur had united. No further complications were envisaged. The doctor asserted that no total permanent incapacitation occurred.
15. In his judgment the learned trial magistrate found that the two doctors appeared to be at variance on the injuries sustained. He therefore considered a third report from Kenyatta National Hospital (KNH) where the respondent had been admitted after the accident.
16. The medical report of the injuries sustained by the respondent was the case summary from Kenyatta National Hospital dated 19th June 2019 by Dr. Yienya. It showed that he was admitted at the hospital on 17th April 2019 and discharged on 3rd June 2019. The diagnosis was intertrochanteric femur fracture (LT). He was admitted with complaints of lower limb pains and shoulder pains. Physical findings showed tenderness & swelling of the right trochanteric region and no obvious limb deformity and distal neurovascular status was normal. Investigations by X-ray showed left hip non-displaced intertrochanteric fracture with sub trochanteric extension. He was put on conservative management on skeletal traction.
17. I do not see any major difference in the injuries sustained by the respondent in all the three reports. They are all consistent that the respondent sustained intertrochanteric fracture of the left femur and blunt injury to the right shoulder.
18. In his submissions before the trial court, the respondent proposed an award of KShs 2,000,000/= general damages for pain, suffering and loss of amenities. The respondent relied on various authorities as follows: Kiama v Mutiso [2024] KEHC 5135 (KLR); Loise Njoki Kariuki v Bendricon Wamboka Waswa & another [2013] KEHC 6560 (KLR); Savco Stores Ltd v David Mwangi Kamotho [2008] KEHC 1796 (KLR); Hussein Abdi Hashi vs Hassan Noor [2004] KEHC 1926 (KLR).
19. The respondent has cited the first two cases above in this appeal and they are considered below. For the other two cases which are not cited in this appeal, I have considered them and I find that none of them involved fracture of the femur or the left femur as the case herein for that matter and they involved far more serious injuries than in the present case.
20. The appellant on his part proposed an award of between KShs 400,000/= and KShs 450,000/= general damages and relied on the following cases: Mwavita Jonathan v Silivia Onunga [2017] KEHC 2176 (KLR) but which went on a second appeal to the Court of Appeal to become Onunga v Jonathan [2024] KECA 46 (KLR). The Court of Appeal found that Silvia sustained a comminuted intertrochanteric fracture of the hip joint with corrective surgery involving the insertion of surgical plantings and screws. In addition, she suffered a blunt chest injury, dislocated right knee joint, sprains at the cervical spine of the neck, lumbar-sacral spine of the back, and a deep wound on the left lower leg.
As a result of the injuries, she could not walk without the aid of crutches. Her disability was assessed at 85% by Dr. Onyimbi who concluded that her injuries were serious, and reasonable recovery could be realized in the next 4 to 5 years.
The Court of Appeal reversed the decision of the High Court which had set aside and substituted the award made by the trial court of KShs 1,000,000/= with an award of KShs 400,000/= for general damages for pain, suffering and loss of amenities and reinstated the award of KShs 1,000,000/=.
21. The relevance of this decision is that it involved an injury to a similar site as that sustained by the respondent herein, the intertrochanteric point of the hip joint. But in the cited case, the injuries were far more serious than those sustained by the respondent herein. The same are incomparable in magnitude and cannot therefore attract the same quantum of damages.
22. In awarding the respondent KShs 1,000,000/= general damages for pain, suffering and loss of amenities, the learned trial magistrate considered the various authorities cited to him by both parties. He was of the opinion that the injuries sustained by the respondent herein were more serious than the ones sustained by the parties in the cases cited by the appellant.
23. Learned counsel for the appellant has termed the award of KShs 1,000,000/= general damages for pain, suffering and loss of amenities by the trial court to be exorbitant and not based on comparable awards for similar injuries. He now proposes an award of between KShs 350,000/= and KShs 400,000/=, departing from the proposal before the trial court for an award of between KShs 400,000/= and KShs 450,000/=.
24. The appellant relies on the following cases:
a. Kiama v Mutiso [2024] KEHC 5135 (KLR) where the respondent suffered a fracture of the left tibia bone (upper 1/3) and a blunt injury to the left leg and thigh. The injuries had fully healed without and disability. The High Court on appeal set aside the award of Kshs 700,000.00 awarded as general damages and substitute it with an award of Kshs 400,000.00 subject to the agreed liability.
a. Otundo v Oeri [2025] KEHC 2328 (KLR) where the respondent suffered the following injuries: (a). Left femur fracture. (b). Bruises to the left and right upper limbs and left knee. (c). Chest contusion. (d). Blunt trauma to the back. On appeal the High Court sustained the lower court award of KShs 400,000/= general damages for pain, suffering and loss of amenities.
25. Learned counsel for the respondent defends the award as being fair submitting that no error was made by the trial court. He has cited the following cases:
a. Michael Njagi Karimi v Gideon Ndungu Nguribu & another [2013] KEHC 6544 (KLR) which went on appeal to the Court of Appeal as Gideon Ndungu Nguribu & another v Michael Njagi Karimi [2017] KECA 206 (KLR) the injuries sustained by the respondent as set out in the medical report produced by Dr. James were:-
i. Bruises, swelling and tenderness of the right arm and forearm and a displaced fracture of the right humerus.
ii. Deformity and swelling of the right forearm and fractures of the right radius and ulna with displacement.
iii. Injury to the right lower limb involving the right leg which was tender, swollen and deformed. X-ray examination showed a fracture of the right tibia and fibular.
iv. Swelling and deformity of the left thigh with apparent shortening; x-ray revealed a segmental fracture of the left femur with marked displacement.
The Court of Appeal found that in light of those injuries coupled with the extended hospitalization, future medical needs of the respondent the award of KShs 2,000,000/= for pain, suffering and loss of amenities made by the High Court was reasonable and therefore confirmed it.
b. Loise Njoki Kariuki v Bendricon Wamboka Waswa & another [2013] KEHC 6560 (KLR) the plaintiff sustained compound fractures of her humerus of the right upper arm and fractures of the right upper limb. At the time of examination, the doctor observed that there was a 1.75-inch-long scar on the right cheek and did not have her right hand and half of her forearm. In his opinion, the scar on the face was a small cosmetic matter. The injury of the arm however to him must have caused pain for a few weeks and discomfort for a few months. The doctor recommended a prosthesis with a hook device at a cost of KShs. 10,000/=. The High Court awarded KShs 1.5 million general damages for pain, suffering and loss of amenities.
26. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion on the award of general damages even as I give due consideration to the findings of fact made by the trial court.
27. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly interfere with an award of quantum of damages made by a lower court. This was so held in the case of Butt v Khan [1978] KECA 24 (KLR) where the court pronounced itself on the issue as follows:
“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.”
28. These principles were restated in the case of Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730 by Kneller J.A. as follows:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
29. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award. The trial court, in awarding the KShs 1,000,000/= observed that the injuries sustained by the respondent herein were more severe than those sustained by the parties in the cases cited by the appellant. However, that was an erroneous view of the cases relied upon by the appellant because as I have showed above in the case of Onunga, the injuries in that case were more severe than those sustained by the respondent herein. The learned trial magistrate seems to have relied on the cases cited by the respondent which I have found above that they did not bear injuries comparable in similarity to those sustained by the respondent herein.
30. The principles for assessment of general damages are as stated in the case of Wahinya v Lucheveleli [2022] KEHC 13762 (KLR) that:
“In assessing general damages, courts must have presence of mind to ascertain the sum of general damages that other courts and especially appellate courts would ordinarily award in respect of a particular injury. A plaintiff’s compensation ought to be comparable to awards by the other courts. In view of the aforesaid, a court must therefore be guided by precedents.” …
“An appellate court can only disturb an award of damages made by a trial court if it was satisfied that it was either inordinately high or low as to justify an inference that it represented an erroneous estimate of the damage suffered; or that the trial court took into account irrelevant factors or omitted to take into account relevant ones or acted on wrong legal principles in arriving at the award.”
31. Besides the cases relied upon by the trial court, I have looked up the case of Stanley Gicheru Njogo v Kijara Joseph Kagu & another [2018] KECA 749 (KLR) where the Court of Appeal in 2018 reversed a decision of the High Court which had reduced an award made by the magistrate’s court from Ksh.700,000/- to 400,000/-. The Court of Appeal reinstated the award of KShs 700,000/= where the plaintiff before the lower court had, according to the medical report of Dr. Wokabi, showed that he had sustained fracture of the left femur requiring internal fracture (I believe fixation) and would require removal at a cost of KShs. 70,000/-.
32. I have considered the cases relied upon by the trial court as well as the case above and considering the injuries sustained by the respondent herein I find that the award of KShs 1,000,000/= made by the trial court was inordinately high and must be disturbed. Guided by the Court of Appeal decision in Onunga v Jonathan [2024] KECA 46 (KLR) and the one of Stanley Gicheru Njogo above, I find that an award of KShs 600,000/= would be adequate compensation for the respondent’s injuries general damages for pain, suffering and loss of amenities.
33. Consequently, the appeal succeeds to the extent that the lower court award of KShs 1,000,000/= of general damages for pain and suffering is set aside and is substituted with an award of KShs 600,000/=. For clarity, there was no appeal on the assessment of special damages and the award remains KShs 3,550/=. The total award is therefore 603,550/= which is subject to 20% contribution making the final award KShs 482,840/=.
34. Each party will bear its own costs of the appeal.
35. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Microsoft Teams this 23rd day of March 2026 in the presence of:
… for the appellant.
… for the respondent.
Ummu h/b for Amina: Court assistant.
Background
1. The appellant Eunice Akoth Odero has filed this appeal through a memorandum of appeal dated 2nd February 2022. The appeal relates to the issue of assessment of quantum of general damages only.
2. The appellant was the defendant before the trial court. She was sued by the respondent through a plaint dated 20th January 2020 for injuries sustained in a road traffic accident that occurred on 17th April 2019. The respondent’s case was that he was a pillion passenger on motor cycle registration number KMDE 174B when the accident occurred at the junction of Kenyatta avenue and Statehouse road. That the appellant’s motor vehicle registration number KCE 485J was driven in careless and negligent manner without due care and attention and at very high speed that it collided with the motorcycle thereby causing the accident. As a result, the respondent sustained severe injuries, loss and damage. The injuries were compound fracture of left femur upper 1/3, and blunt injury, left shoulder.
3. The respondent claimed from the appellant general damages for pain and suffering and special damages of KShs 3,550/=.
4. The appellant filed a statement of defence dated 6th March 2020 and denied the claim by the respondent in toto and in the alternative pleaded that the rider of the motor cycle and the respondent were to blame for the accident.
5. The parties entered a consent on liability for the respondent against the appellant in the ratio of 80:20 on 10th March 2021. They also agreed to proceed in a most unconventional way by way of filing submissions on the issue of assessment of quantum without even calling the respondent to adopt his witness statement as evidence and produce the documents to be relied upon as exhibits.
6. The trial court considered the documents filed by the parties and the submissions by learned counsels and entered judgment on quantum awarding the respondent general damages for pain and suffering of KShs 1,000,000/= and special damages KShs 3,550/= subject to contribution of 20% which made the net award KShs 802,400/= together with costs and interest.
Grounds of appeal
7. The appellant was dissatisfied with that decision and has filed the present appeal based on five grounds that:
a. The learned magistrate erred in failing to consider the principles regarding assessment of general damages in personal injury claims and arrived at an erroneous conclusion.
b. The learned magistrate erred in failing to properly consider the medical report dated 18th November 2020 by Dr. P. M. Wambugu on the injuries sustained by the respondent.
c. The learned magistrate erred in making an inordinately high award of general damages to the respondent for the injuries sustained as compared to similar injuries in comparable cases.
d. The learned magistrate erred in failing to base the general damages of KShs 1,000,000/= on comparable awards issued in respect to similar injuries to those sustained by the respondent.
e. The learned magistrate erred in failing to consider the appellant’s submissions and authorities.
8. The appellant therefore prays for this court to set aside the judgment of the lower court and assess reasonable general damages awardable to the respondent.
9. The appeal was disposed of by way of written submissions filed by learned counsels for both parties. The same are considered in the analysis that follows.
10. This being a first appeal, the duty of the court is to re-consider the evidence, evaluate and analyze it and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that. See for example Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 where it was held that:
“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 Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
Analysis and Determination
11. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the general damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset.
12. The injuries sustained by the respondent were as pleaded in the plaint and confirmed in the medical report of Dr. G. K. Mwaura, Physician of Kinoo Medical Clinic in his medical report dated 30th November 2019 to be:
a. Blunt injury, left shoulder.
b. Fracture-left femur upper 1/3.
13. The medical report indicates further that the respondent was admitted at Kenyatta National hospital for 1½ months and he was put on skeletal traction and analgesics. At the time of examination, he had not healed and was still on treatment. He had a limping gait. The doctor assessed the degree of injury as grievous harm and degree of incapacity at 10% left lower limb – pain and some weakness to persist.
14. The appellant on her part referred to a medical report by Dr. P. M. Wambugu dated 18th November 2020. The doctor indicated the injuries sustained as i). Closed non-displaced left femur intertrochanteric fracture. ii). Bruises left shoulder. The doctor’s opinion and prognosis were that the respondent sustained skeletal and soft tissue injuries from which he had since made adequate recovery. The fracture left femur had united. No further complications were envisaged. The doctor asserted that no total permanent incapacitation occurred.
15. In his judgment the learned trial magistrate found that the two doctors appeared to be at variance on the injuries sustained. He therefore considered a third report from Kenyatta National Hospital (KNH) where the respondent had been admitted after the accident.
16. The medical report of the injuries sustained by the respondent was the case summary from Kenyatta National Hospital dated 19th June 2019 by Dr. Yienya. It showed that he was admitted at the hospital on 17th April 2019 and discharged on 3rd June 2019. The diagnosis was intertrochanteric femur fracture (LT). He was admitted with complaints of lower limb pains and shoulder pains. Physical findings showed tenderness & swelling of the right trochanteric region and no obvious limb deformity and distal neurovascular status was normal. Investigations by X-ray showed left hip non-displaced intertrochanteric fracture with sub trochanteric extension. He was put on conservative management on skeletal traction.
17. I do not see any major difference in the injuries sustained by the respondent in all the three reports. They are all consistent that the respondent sustained intertrochanteric fracture of the left femur and blunt injury to the right shoulder.
18. In his submissions before the trial court, the respondent proposed an award of KShs 2,000,000/= general damages for pain, suffering and loss of amenities. The respondent relied on various authorities as follows: Kiama v Mutiso [2024] KEHC 5135 (KLR); Loise Njoki Kariuki v Bendricon Wamboka Waswa & another [2013] KEHC 6560 (KLR); Savco Stores Ltd v David Mwangi Kamotho [2008] KEHC 1796 (KLR); Hussein Abdi Hashi vs Hassan Noor [2004] KEHC 1926 (KLR).
19. The respondent has cited the first two cases above in this appeal and they are considered below. For the other two cases which are not cited in this appeal, I have considered them and I find that none of them involved fracture of the femur or the left femur as the case herein for that matter and they involved far more serious injuries than in the present case.
20. The appellant on his part proposed an award of between KShs 400,000/= and KShs 450,000/= general damages and relied on the following cases: Mwavita Jonathan v Silivia Onunga [2017] KEHC 2176 (KLR) but which went on a second appeal to the Court of Appeal to become Onunga v Jonathan [2024] KECA 46 (KLR). The Court of Appeal found that Silvia sustained a comminuted intertrochanteric fracture of the hip joint with corrective surgery involving the insertion of surgical plantings and screws. In addition, she suffered a blunt chest injury, dislocated right knee joint, sprains at the cervical spine of the neck, lumbar-sacral spine of the back, and a deep wound on the left lower leg.
As a result of the injuries, she could not walk without the aid of crutches. Her disability was assessed at 85% by Dr. Onyimbi who concluded that her injuries were serious, and reasonable recovery could be realized in the next 4 to 5 years.
The Court of Appeal reversed the decision of the High Court which had set aside and substituted the award made by the trial court of KShs 1,000,000/= with an award of KShs 400,000/= for general damages for pain, suffering and loss of amenities and reinstated the award of KShs 1,000,000/=.
21. The relevance of this decision is that it involved an injury to a similar site as that sustained by the respondent herein, the intertrochanteric point of the hip joint. But in the cited case, the injuries were far more serious than those sustained by the respondent herein. The same are incomparable in magnitude and cannot therefore attract the same quantum of damages.
22. In awarding the respondent KShs 1,000,000/= general damages for pain, suffering and loss of amenities, the learned trial magistrate considered the various authorities cited to him by both parties. He was of the opinion that the injuries sustained by the respondent herein were more serious than the ones sustained by the parties in the cases cited by the appellant.
23. Learned counsel for the appellant has termed the award of KShs 1,000,000/= general damages for pain, suffering and loss of amenities by the trial court to be exorbitant and not based on comparable awards for similar injuries. He now proposes an award of between KShs 350,000/= and KShs 400,000/=, departing from the proposal before the trial court for an award of between KShs 400,000/= and KShs 450,000/=.
24. The appellant relies on the following cases:
a. Kiama v Mutiso [2024] KEHC 5135 (KLR) where the respondent suffered a fracture of the left tibia bone (upper 1/3) and a blunt injury to the left leg and thigh. The injuries had fully healed without and disability. The High Court on appeal set aside the award of Kshs 700,000.00 awarded as general damages and substitute it with an award of Kshs 400,000.00 subject to the agreed liability.
a. Otundo v Oeri [2025] KEHC 2328 (KLR) where the respondent suffered the following injuries: (a). Left femur fracture. (b). Bruises to the left and right upper limbs and left knee. (c). Chest contusion. (d). Blunt trauma to the back. On appeal the High Court sustained the lower court award of KShs 400,000/= general damages for pain, suffering and loss of amenities.
25. Learned counsel for the respondent defends the award as being fair submitting that no error was made by the trial court. He has cited the following cases:
a. Michael Njagi Karimi v Gideon Ndungu Nguribu & another [2013] KEHC 6544 (KLR) which went on appeal to the Court of Appeal as Gideon Ndungu Nguribu & another v Michael Njagi Karimi [2017] KECA 206 (KLR) the injuries sustained by the respondent as set out in the medical report produced by Dr. James were:-
i. Bruises, swelling and tenderness of the right arm and forearm and a displaced fracture of the right humerus.
ii. Deformity and swelling of the right forearm and fractures of the right radius and ulna with displacement.
iii. Injury to the right lower limb involving the right leg which was tender, swollen and deformed. X-ray examination showed a fracture of the right tibia and fibular.
iv. Swelling and deformity of the left thigh with apparent shortening; x-ray revealed a segmental fracture of the left femur with marked displacement.
The Court of Appeal found that in light of those injuries coupled with the extended hospitalization, future medical needs of the respondent the award of KShs 2,000,000/= for pain, suffering and loss of amenities made by the High Court was reasonable and therefore confirmed it.
b. Loise Njoki Kariuki v Bendricon Wamboka Waswa & another [2013] KEHC 6560 (KLR) the plaintiff sustained compound fractures of her humerus of the right upper arm and fractures of the right upper limb. At the time of examination, the doctor observed that there was a 1.75-inch-long scar on the right cheek and did not have her right hand and half of her forearm. In his opinion, the scar on the face was a small cosmetic matter. The injury of the arm however to him must have caused pain for a few weeks and discomfort for a few months. The doctor recommended a prosthesis with a hook device at a cost of KShs. 10,000/=. The High Court awarded KShs 1.5 million general damages for pain, suffering and loss of amenities.
26. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion on the award of general damages even as I give due consideration to the findings of fact made by the trial court.
27. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly interfere with an award of quantum of damages made by a lower court. This was so held in the case of Butt v Khan [1978] KECA 24 (KLR) where the court pronounced itself on the issue as follows:
“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.”
28. These principles were restated in the case of Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730 by Kneller J.A. as follows:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
29. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award. The trial court, in awarding the KShs 1,000,000/= observed that the injuries sustained by the respondent herein were more severe than those sustained by the parties in the cases cited by the appellant. However, that was an erroneous view of the cases relied upon by the appellant because as I have showed above in the case of Onunga, the injuries in that case were more severe than those sustained by the respondent herein. The learned trial magistrate seems to have relied on the cases cited by the respondent which I have found above that they did not bear injuries comparable in similarity to those sustained by the respondent herein.
30. The principles for assessment of general damages are as stated in the case of Wahinya v Lucheveleli [2022] KEHC 13762 (KLR) that:
“In assessing general damages, courts must have presence of mind to ascertain the sum of general damages that other courts and especially appellate courts would ordinarily award in respect of a particular injury. A plaintiff’s compensation ought to be comparable to awards by the other courts. In view of the aforesaid, a court must therefore be guided by precedents.” …
“An appellate court can only disturb an award of damages made by a trial court if it was satisfied that it was either inordinately high or low as to justify an inference that it represented an erroneous estimate of the damage suffered; or that the trial court took into account irrelevant factors or omitted to take into account relevant ones or acted on wrong legal principles in arriving at the award.”
31. Besides the cases relied upon by the trial court, I have looked up the case of Stanley Gicheru Njogo v Kijara Joseph Kagu & another [2018] KECA 749 (KLR) where the Court of Appeal in 2018 reversed a decision of the High Court which had reduced an award made by the magistrate’s court from Ksh.700,000/- to 400,000/-. The Court of Appeal reinstated the award of KShs 700,000/= where the plaintiff before the lower court had, according to the medical report of Dr. Wokabi, showed that he had sustained fracture of the left femur requiring internal fracture (I believe fixation) and would require removal at a cost of KShs. 70,000/-.
32. I have considered the cases relied upon by the trial court as well as the case above and considering the injuries sustained by the respondent herein I find that the award of KShs 1,000,000/= made by the trial court was inordinately high and must be disturbed. Guided by the Court of Appeal decision in Onunga v Jonathan [2024] KECA 46 (KLR) and the one of Stanley Gicheru Njogo above, I find that an award of KShs 600,000/= would be adequate compensation for the respondent’s injuries general damages for pain, suffering and loss of amenities.
33. Consequently, the appeal succeeds to the extent that the lower court award of KShs 1,000,000/= of general damages for pain and suffering is set aside and is substituted with an award of KShs 600,000/=. For clarity, there was no appeal on the assessment of special damages and the award remains KShs 3,550/=. The total award is therefore 603,550/= which is subject to 20% contribution making the final award KShs 482,840/=.
34. Each party will bear its own costs of the appeal.
35. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Microsoft Teams this 23rd day of March 2026 in the presence of:
… for the appellant.
… for the respondent.
Ummu h/b for Amina: Court assistant.