Background
1. The Respondent/Plaintiff initiated this suit by way of a plaint dated 30 August 2017 againts the Appellant/Defendant. The Respondent sought for general damages, special damages, costs and interest of the suit. The cause of action arose as a result of a road traffic accident that occurred on 11 March 2017 involving motor vehicle registration number KAN 991P.
2. The Respodent averred that on 11 March 2017 while he was a lawful rider along Kondele-Obunga bypass near sunshine flyover area the Appellant’s motor vehicle registration number KAN 991P was carelessly and recklessly driven and or controlled by the Appellant’s servant, agent, driver and or employee thereby causing and or permitting the said motor vehicle to lose control thereby hitting the Respondent causing serious injuries.
3. The Respondent pleaded that the accident was occasioned due to the negligence of the Appellant, servant, agent, driver and or employee for wgich the Respondent blamed the Appellant wholly liable. As a result, the Respondent sufferred injuries to the head, injuries to the legs, lacerations on both knees, lacerations on the elbow, right thigh swollen deformed and tendor, compound fracture of the right femur with k-nail in situ, compound fracture of the right tibia/fibula with k-nail in situ, fracture right knee, back injuries, lacerations on the inner foot and neck injuries.
4. In response to the plaint, the Appellant filed a statement of defence dated 7 November 2017. In the said defence, he denied the occurrence of the accident as alleged and if an accident occurred which is denied, the same was caused by the reckless, negligent and careless acts of the Respondent.
5. Parties entered into a consent in favour of the plaintiff/Respondent against the Defendant/Appellant in the ratio of 10:90.
Evidence
6. The matter proceeded for hearing on 25 July 2019. PW1-Abraham Pmondi Onyango testified that he was leaving his work place at the Airport at KISAT flyover when he was knocked by a motor vehicle registranumber KAN 991P. That he was injured as a consequence of the accident and found himself at the hospital. He stated that he sustained a fracture of his right leg and thigh, knee tibia and nails were inserted on his right leg. He had chest pain. He stated that after the accident, he found himself at Oasis Hospital and was admitted for more than 6 months. He paid Kshs. 308, 121.50/= for medication. He did not pay the whole amount to the hospital. He paid Kshs. 288,000/= and produced receipts to prove payment. He produced treatment documents and medical notes for Oasis Hospital as PExhibit 3(a)-(c). He also produced X-ray report for West Kenya Diagnostic and Imaging Centre as PExhibit 4. He reported the accident at Kondele Police Station and was issued with a P3 form marked as Pexhibit 5. He produced a police abstract as PExhibit 6.
7. He further testified that he experiences pain during cold weather and the nail on his leg were supposed to be removed after 2 years. The nails had not been removed due to lack of finances to facilitate the process. He was informed that the procedure would cots Kshs. 70,000/=. He stated that the right leg is shorter thatn the left leg by 2 cm. before the accident, he was a Bodaboda and currently servived through well wishers as he could not sustain himself. He used to earn Kshs. 1,500/= to Kshs. 2,000/= per as a boda boda. He asked the court to make an award for the injuries, costs and expenses incurred in his treatment.
8. During cross examination, he stated that he used to earn between Kshs. 1,500/= to 2,000/= per day. He had no documents to verify the earnings. He used to go to the hospital for further treatment but had no medical documents to verify further treatment.
9. At the close of the plaintiff’s case, the defence closed its case without calling any evidence. Parties agreed to enter judgment on liabilities by consent in favour of the plaintiff against the Defendant day in the ratio of 90:10.
10. The trial court upon considering the evidence adduced and the written submissions delivered its judgment on 24 October 2019 in favour of the Plaintiff/Respondent. The trial court awarded the plaintiff a sum of Kshs. 2,959, 200/= plus costs and interest of the suit.
The Appeal
11. Dissatisfied with the judgment and decree of the trial court, the appellant preferred an appeal before this court vide a Memorandum of Appeal dated 5th February, 2020 setting forth the following grounds of appeal that:-
i. The learned trial Magistrate erred in law and in fact in the assessment of quantum thereby giving an award on quantum, general damages of Kshs. 3, 288, 000/= that was overly in excess in the circumstances of the case.
ii. The learned trial Magistrate erred in law and in fact in failing to rely on guiding principles in the amount of quantum that is appropriate in similar injuries as the case she was deciding.
iii. The learned trial Magistrate’s exercise of discretion in assessment of quantum was injudicious.
12. The appellant prays for the following reliefs;-
a. Do set aside the learned Magistrate’s judgment on quantum and replace with its own assessment.
b. Costs of the appeal be provided for.
13. The present appeal was canvassed through written submissions. The Respondent’s submissions are dated 3 October 2023. There are no submissions on record for the appellant.
Respondent’s submissions
14. The Respondent submitted that the appeal is only on quantum as assessed and arrived at by the learned magistrate. According to the Respondent, the judgment was modest and should not be disturbed and or interfered with by this Court. The judgment took cognizance of all factors, particularly the seriousness of the injuries suffered by the Respondent. The Respondent submitted that the reasoning and the judgment of the court were accurate, applicable and appropriate and urged this court to find in favour of the Respondent and dismiss this appeal with costs.
Analysis and Determination
15. This being a first appellate court, it has a duty to re-evaluate, re-consider and reanalyze the evidence afresh and draw its own conclusions-(See Selle & another vs Associated Motor Boat Co. Ltd (1968) EA 123).
16. I have considered the grounds of appeal, the rival submissions and the evidence adduced before the trial court. I find the sole issue for determination is whether the trial court erred on assessing quantum of damages.
17. Before I proceed to determine this issue, it is important to note that this court will only interfere with an award of a trial court if it is proved that the same was arrived at based on wrong principles or took into account irrelevant factors. These principles were set out in the case of Catholic Diocese of Kisumu vs Tete [2004] KECA 154 (KLR) where the Court of Appeal stated that;-
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, as by taking into account some irrelevant factor or leaving out of account some relevant one or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate.”
18. Similar principles were enshrined in the Court of Appeal decision of Kemfro Africa Limited t/a Meru Express Services & another vs Lubia & another (No 2) [1985] KECA 137 (KLR) where it held that:-
“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 that 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.”
19. In the instant appeal, the trial court awarded a sum of Kshs. Kshs. 3, 288, 000/= less 10% contribution thereby awarding a sum of Kshs. Kshs. 2,959, 200/= to the Respondent.
20. The appellant urged that the award was overly in excess in the circumstances and the trial court failed to rely on guiding principles in the amount of quantum that is appropriate in similar injuries.
21. There is no dispute that the Respondent sustained injuries to the head, injuries to the legs, lacerations on both knees, lacerations on the elbow, right thigh swollen deformed and tendor, compound fracture of the right femur with k-nail in situ, compound fracture of the right tibia/fibula with k-nail in situ, fracture right knee, back injuries, lacerations on the inner foot and neck injuries. These injuries were confirmed by Dr. Okombo vide the medical report produced as PExhibit 7. The report read as follows;-
“Injuries to the right leg with cut wound, injuries right knee with cut wound, injuries on the right thigh with fracture and injury on the right ankle joint with a fracture. The degree of incapacity is estimated at 70% and the injuries were categorized as grevious harm.”
22. It is trite law that comparable injuries should be compensated by comparable award of damages. Thus the trial court in assessing general damages should always bear in mind that comparable injuries attract comparable award of damages. This is the position held in the case of Odinga Jactone Ouma vs Moureen Achieng Odera [2016] KEHC 2922 (KLR) where the court held;-
“In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike.”
23. I have considered several authorities. In David Njihia vs Samuel Chepkok Kipkutol Njihia v Kipkutol (Civil Appeal 6 of 2019) [2023] KEHC 18094 (KLR) (Civ) (2 June 2023) (Judgment) the court awarded general damages of Kshs. 1, 502,000/= on appeal for injuries of fracture of the right ulna, fracture of the left tibia, multiple rib fracture on the right, wound on the right forearm, tenderness of the left lower leg and blunt injury on the chest.
24. In George William Awuor vs Beryl Awuor Ochieng [2020] KEHC 1103 (KLR) where the Respondent suffered fractures of the right femur and left tibia fibula. The doctor noted that the tibia fibula fractures were compound while the femur fracture was simple and on appeal the Court lowered the award from Kshs. 2,000,000/= to Kshs. 1,200,000/=.
25. Based on the above authorities, I am persuaded that this is a proper case for exercise of my discretion to interfere with the trial court’s finding on general damages for the reason that the quantum that was awarded was so excessive so as to warrant interference by this court.
26. For the reasons stated, the appeal on quantum of damages succeeds to the extent that the award of general damages succeeds and the award of Kshs. 3,000,000/= is set aside and substituted with an award of Kshs. 2,000,000/= as general damages. I proceed to make the following order;
i. Liability -10:90
ii. General damages- Kshs. 2,000,000 (subject to contribution).=
iii. Special damages-Kshs. 288,000/=
27. Since the Appellant did not file any submissions in this appeal, I direct that each party to bear their own costs.
28. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 7TH DAY OF AUGUST 2025
ADO MOSES
JUDGE
1. The Respondent/Plaintiff initiated this suit by way of a plaint dated 30 August 2017 againts the Appellant/Defendant. The Respondent sought for general damages, special damages, costs and interest of the suit. The cause of action arose as a result of a road traffic accident that occurred on 11 March 2017 involving motor vehicle registration number KAN 991P.
2. The Respodent averred that on 11 March 2017 while he was a lawful rider along Kondele-Obunga bypass near sunshine flyover area the Appellant’s motor vehicle registration number KAN 991P was carelessly and recklessly driven and or controlled by the Appellant’s servant, agent, driver and or employee thereby causing and or permitting the said motor vehicle to lose control thereby hitting the Respondent causing serious injuries.
3. The Respondent pleaded that the accident was occasioned due to the negligence of the Appellant, servant, agent, driver and or employee for wgich the Respondent blamed the Appellant wholly liable. As a result, the Respondent sufferred injuries to the head, injuries to the legs, lacerations on both knees, lacerations on the elbow, right thigh swollen deformed and tendor, compound fracture of the right femur with k-nail in situ, compound fracture of the right tibia/fibula with k-nail in situ, fracture right knee, back injuries, lacerations on the inner foot and neck injuries.
4. In response to the plaint, the Appellant filed a statement of defence dated 7 November 2017. In the said defence, he denied the occurrence of the accident as alleged and if an accident occurred which is denied, the same was caused by the reckless, negligent and careless acts of the Respondent.
5. Parties entered into a consent in favour of the plaintiff/Respondent against the Defendant/Appellant in the ratio of 10:90.
Evidence
6. The matter proceeded for hearing on 25 July 2019. PW1-Abraham Pmondi Onyango testified that he was leaving his work place at the Airport at KISAT flyover when he was knocked by a motor vehicle registranumber KAN 991P. That he was injured as a consequence of the accident and found himself at the hospital. He stated that he sustained a fracture of his right leg and thigh, knee tibia and nails were inserted on his right leg. He had chest pain. He stated that after the accident, he found himself at Oasis Hospital and was admitted for more than 6 months. He paid Kshs. 308, 121.50/= for medication. He did not pay the whole amount to the hospital. He paid Kshs. 288,000/= and produced receipts to prove payment. He produced treatment documents and medical notes for Oasis Hospital as PExhibit 3(a)-(c). He also produced X-ray report for West Kenya Diagnostic and Imaging Centre as PExhibit 4. He reported the accident at Kondele Police Station and was issued with a P3 form marked as Pexhibit 5. He produced a police abstract as PExhibit 6.
7. He further testified that he experiences pain during cold weather and the nail on his leg were supposed to be removed after 2 years. The nails had not been removed due to lack of finances to facilitate the process. He was informed that the procedure would cots Kshs. 70,000/=. He stated that the right leg is shorter thatn the left leg by 2 cm. before the accident, he was a Bodaboda and currently servived through well wishers as he could not sustain himself. He used to earn Kshs. 1,500/= to Kshs. 2,000/= per as a boda boda. He asked the court to make an award for the injuries, costs and expenses incurred in his treatment.
8. During cross examination, he stated that he used to earn between Kshs. 1,500/= to 2,000/= per day. He had no documents to verify the earnings. He used to go to the hospital for further treatment but had no medical documents to verify further treatment.
9. At the close of the plaintiff’s case, the defence closed its case without calling any evidence. Parties agreed to enter judgment on liabilities by consent in favour of the plaintiff against the Defendant day in the ratio of 90:10.
10. The trial court upon considering the evidence adduced and the written submissions delivered its judgment on 24 October 2019 in favour of the Plaintiff/Respondent. The trial court awarded the plaintiff a sum of Kshs. 2,959, 200/= plus costs and interest of the suit.
The Appeal
11. Dissatisfied with the judgment and decree of the trial court, the appellant preferred an appeal before this court vide a Memorandum of Appeal dated 5th February, 2020 setting forth the following grounds of appeal that:-
i. The learned trial Magistrate erred in law and in fact in the assessment of quantum thereby giving an award on quantum, general damages of Kshs. 3, 288, 000/= that was overly in excess in the circumstances of the case.
ii. The learned trial Magistrate erred in law and in fact in failing to rely on guiding principles in the amount of quantum that is appropriate in similar injuries as the case she was deciding.
iii. The learned trial Magistrate’s exercise of discretion in assessment of quantum was injudicious.
12. The appellant prays for the following reliefs;-
a. Do set aside the learned Magistrate’s judgment on quantum and replace with its own assessment.
b. Costs of the appeal be provided for.
13. The present appeal was canvassed through written submissions. The Respondent’s submissions are dated 3 October 2023. There are no submissions on record for the appellant.
Respondent’s submissions
14. The Respondent submitted that the appeal is only on quantum as assessed and arrived at by the learned magistrate. According to the Respondent, the judgment was modest and should not be disturbed and or interfered with by this Court. The judgment took cognizance of all factors, particularly the seriousness of the injuries suffered by the Respondent. The Respondent submitted that the reasoning and the judgment of the court were accurate, applicable and appropriate and urged this court to find in favour of the Respondent and dismiss this appeal with costs.
Analysis and Determination
15. This being a first appellate court, it has a duty to re-evaluate, re-consider and reanalyze the evidence afresh and draw its own conclusions-(See Selle & another vs Associated Motor Boat Co. Ltd (1968) EA 123).
16. I have considered the grounds of appeal, the rival submissions and the evidence adduced before the trial court. I find the sole issue for determination is whether the trial court erred on assessing quantum of damages.
17. Before I proceed to determine this issue, it is important to note that this court will only interfere with an award of a trial court if it is proved that the same was arrived at based on wrong principles or took into account irrelevant factors. These principles were set out in the case of Catholic Diocese of Kisumu vs Tete [2004] KECA 154 (KLR) where the Court of Appeal stated that;-
“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, as by taking into account some irrelevant factor or leaving out of account some relevant one or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate.”
18. Similar principles were enshrined in the Court of Appeal decision of Kemfro Africa Limited t/a Meru Express Services & another vs Lubia & another (No 2) [1985] KECA 137 (KLR) where it held that:-
“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 that 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.”
19. In the instant appeal, the trial court awarded a sum of Kshs. Kshs. 3, 288, 000/= less 10% contribution thereby awarding a sum of Kshs. Kshs. 2,959, 200/= to the Respondent.
20. The appellant urged that the award was overly in excess in the circumstances and the trial court failed to rely on guiding principles in the amount of quantum that is appropriate in similar injuries.
21. There is no dispute that the Respondent sustained injuries to the head, injuries to the legs, lacerations on both knees, lacerations on the elbow, right thigh swollen deformed and tendor, compound fracture of the right femur with k-nail in situ, compound fracture of the right tibia/fibula with k-nail in situ, fracture right knee, back injuries, lacerations on the inner foot and neck injuries. These injuries were confirmed by Dr. Okombo vide the medical report produced as PExhibit 7. The report read as follows;-
“Injuries to the right leg with cut wound, injuries right knee with cut wound, injuries on the right thigh with fracture and injury on the right ankle joint with a fracture. The degree of incapacity is estimated at 70% and the injuries were categorized as grevious harm.”
22. It is trite law that comparable injuries should be compensated by comparable award of damages. Thus the trial court in assessing general damages should always bear in mind that comparable injuries attract comparable award of damages. This is the position held in the case of Odinga Jactone Ouma vs Moureen Achieng Odera [2016] KEHC 2922 (KLR) where the court held;-
“In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike.”
23. I have considered several authorities. In David Njihia vs Samuel Chepkok Kipkutol Njihia v Kipkutol (Civil Appeal 6 of 2019) [2023] KEHC 18094 (KLR) (Civ) (2 June 2023) (Judgment) the court awarded general damages of Kshs. 1, 502,000/= on appeal for injuries of fracture of the right ulna, fracture of the left tibia, multiple rib fracture on the right, wound on the right forearm, tenderness of the left lower leg and blunt injury on the chest.
24. In George William Awuor vs Beryl Awuor Ochieng [2020] KEHC 1103 (KLR) where the Respondent suffered fractures of the right femur and left tibia fibula. The doctor noted that the tibia fibula fractures were compound while the femur fracture was simple and on appeal the Court lowered the award from Kshs. 2,000,000/= to Kshs. 1,200,000/=.
25. Based on the above authorities, I am persuaded that this is a proper case for exercise of my discretion to interfere with the trial court’s finding on general damages for the reason that the quantum that was awarded was so excessive so as to warrant interference by this court.
26. For the reasons stated, the appeal on quantum of damages succeeds to the extent that the award of general damages succeeds and the award of Kshs. 3,000,000/= is set aside and substituted with an award of Kshs. 2,000,000/= as general damages. I proceed to make the following order;
i. Liability -10:90
ii. General damages- Kshs. 2,000,000 (subject to contribution).=
iii. Special damages-Kshs. 288,000/=
27. Since the Appellant did not file any submissions in this appeal, I direct that each party to bear their own costs.
28. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT
THIS 7TH DAY OF AUGUST 2025
ADO MOSES
JUDGE