The Appellant sued the Respondent in Plaint dated 13th September, 2023 seeking special damages of Kshs. 100,050/=, future medical expenses, general damages for pain and suffering, costs of the suit and interest. The Appellant’s case was that on 18th June 2023 he was lawfully riding motorcycle Reg. No. KMEN 705 K along Kisii - Nyamira road at Windspark Hotel area when the Defendant, his driver, agent or servant in the course of his employment as a driver so negligently drove, managed and controlled motor vehicle Reg. No. KCF 604 W and caused or permitted it to lose control, veered off the road, collided with the motor cycle the plaintiff was aboard and as a result the Plaintiff fell off the same and sustained grievous bodily injuries.
The injuries suffered by the Appellant were particularized as;
-brain concussion with LOC
-scalp contusion and bruising
-bi-mandibular fractures
-chest contusion
-Abdominal contusion
-Right tibia and fibula fractures
-Right thigh cut wounds
The particulars of special damages were;
-Medical Report _ Kshs. 6,500/=
-Search from NTSA _ Kshs. 550/=
-Medical expenses _ Kshs. 93,000/=
Total - Kshs. 100,050/=
Upon consideration of the evidence on record the Trial Magistrate found the Respondent liable 100 percent as established in KISII CMCC NO. E530 od 2023 which was the test suit and assessed general damages at Kshs. 750,000/= together with Kshs. 100,050/= as special damages. Future Medical expenses were also assessed at Kshs. 150,000/=with costs of the suit and interest from date of judgement.
The Appellant/ Plaintiff was aggrieved by the judgement and appealed against the said judgement vide Memorandum of Appeal dated 5th July, 2024 on the following grounds:
1. THAT the Learned Magistrate grossly misdirected herself in treating the evidence and submissions on quantum before her superficially and consequently coming to a wrong conclusion on the same.
2. THAT the Learned Trial Magistrate misdirected herself in ignoring the principle applicable in awarding quantum of damages and the relevant authorities on quantum cited in the written submissions presented and filed by the Appellant.
3. THAT the Learned Trial Magistrate proceeded on wrong principles when assessing the damages to be awarded to the Respondent (If any) and failed to apply precedents and tenet of law applicable.
4. THAT the Learned Trial Magistrate erred in law in awarding a sum in respect of damages which was so inordinately low in the circumstances that it represented an entirely erroneous estimate vis-à-vis the Appellant’s claim.
5. THAT the Learned Trial Magistrate failed to apply herself judiciously and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision unsustainable in law.
REASONS WHEREFORE the Appellant prays that this appeal be allowed with costs and that the judgement of the Learned Trial Magistrate be set aside with costs.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 6th December 2024 and the court was urged to reconsider the evidence, re-evaluate it and draw its own independent conclusions.
The Appellant cited the case of Sosphinaf Company Limited & Another v Daniel Ng’anga Kanyi Court of Appeal at Nyeri Civil Appeal No. 315 of 2001 where it was held:
“The assessment of damages for personal injuries is a difficult task. The court is required to give a reasonable award which is neither extravagant nor oppressive. And while the judge is guided by such factors as the previous awards for similar injuries and the principles developed by the courts, ultimately, what is a reasonable award is an exercise of discretion by the trial Judge and will invariably depend on the peculiar facts of each case.”
The Appellant further cited the case of Paul Kipsang Koech & Another v Titus Osule Osore (2013) eKLR where the court restated instances where the Appellate Court can disturb the Trial Court’s award on quantum as follows:
“It is a well-established law that, assessment of quantum of damages in a claim for general damages, is a discretionary exercise. The law has, however, set the dimensions for the exercise of discretion; must be exercised judicially, with wise circumspect and upon some defined legal principles. Invariably, when the trial court has violated a legal principle(s), the appellate court will interfere with the exercise of discretion by the trial court. The discretion, in assessing the amount of general damages payable will be disturbed if the trial court:
a) Took into account an irrelevant factor or
b) Left out of account a relevant factor or,
c) The award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”
The Respondent’s submissions are dated 30th January 2025 and are to the effect that there is no basis to disturb the award as they were reasonable and based on evidence on record. The respondent relied on the decision in KEMFRO AFRICA LTD and ANOTHER v LUBYA AND ANOTHER (1982-1988) KLR where it was held:
“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 inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
They also cited the Court of Appeal decision in CATHOLIC DIOCESS OF KISUMU V SOPHIA ACHIENG TETE – KISUMU CIVIL APPEAL NO. 284 OF 2001 where it was held:
“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 leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.
The Respondent urged the court to reconsider and re-evaluate the evidence that was placed before the Trial Magistrate and reach its own conclusions whether or not the Magistrate acted on wrong principles or misapprehended the evidence.
It was submitted that the parties had no dispute that the responded suffered the injuries as particularized in the plaint and in the exhibits produced and that those injuries were severe and comparable to the ones in the authorities cited by the Respondent in the Trial Court and in the appeal. That the quantum of damages assessed was neither excessive nor manifestly high and the Appellant had not laid a basis to warrant interference with the Trial Court’s decision. The Respondent therefore urged the Court to affirm the award made by the Trial Court as all the relevant facts, evidence and Laws were taken into account in assessing damages.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
Having considered the grounds of appeal and Appellant’s submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are: -
1. Whether the principles and authorities on quantum cited by the parties in their submissions were considered in assessment and award of damages.
2. Whether the Trial Magistrate ignored the principles applicable in assessing and award of damages.
3. Who should bear the cost of the appeal.
The Appellant proposed an award of Kshs. 1,500,000/= as general damages for the injuries that he sustained. In support of the said claim he relied on the case of Mwaura Muiruri v Suera Flowers Limited and Another [2014] KEHC where the High Court at Nakuru awarded Kshs. 1,450,000/= in 2014 for an accident that occurred in 2008 and where the injuries were; multiple lacerations on the face, soft tissue injuries on the chest cage (mainly left subaxilliary area), comminuted fractures of the right humerus upper and lower thirds of the tibia and compound double fractures of the right leg upper and lower 1/3rd tibia fibula which were less serious compared to the instant case. The Appellant also relied on the case of Moi Teaching and Referral Hospital Board & Another v Leonard Kibiwott Kosgei [2020] KEHC 8049 KLR where the High Court at Eldoret upheld an award Kshs. 2,000,000/= in 2020 for an accident that occurred on 23rd November 2008 and the injuries were; fracture on the nasal bone indulge Maxilla Upper Jaw, loss of one incisor, a segmental fracture of the tibia of the left leg, a lateral fracture of right tibia, facial wounds which were treated by surgery and the treatment discharge notes also indicated; Injury to right and left lower limbs, fracture of tibia and fracture of maxillary and mandible. The injuries in the latter authority are more similar to those of the Appellant herein.
On the other part, the Respondent while relying on the case of BK v Wilson Gitari Mburugu [2020] eKLR and the case of Akamba Public Road Services V Abdikadir Adan Galgalo [2016] eKLR proposed a sum of Kshs. 400,000/= for the severe injuries to the maxilla and mandible resulting to loss of 5 teeth with cut on the lip, multiple injuries to the face, soft tissue injuries to the thorax, abdomen as well as on the upper and lower limbs. In the second case an award of 500,000/= was made for a fracture of the right tibia fibula and a blunt injury to the right ankle.
Apart from the fact that the Decisions referred to by the Respondent were made several years back, the injuries in the said authorities are also less severe than those suffered by the appellant herein.
In assessing damages, the Trial Magistrate totally ignored the authorities referred to by the Appellant which in the view of this court had injuries which were more similar to those of the Appellant herein.
In consideration of the injuries suffered by the Appellant and guided by the authorities relied upon by the parties, the rate of inflation, time and the economic trends, the award of general damages assessed by the Trial Court was inordinately low in the circumstances. The said award is therefore set aside and substituted thereof with Kshs. 1,500,000/= being general damages for pain and suffering. The awards made for future medical expenses and special damages will remain as ordered in the subordinate court. Interest on the general damages and future medical expenses to accrue from the date of Judgement in the Subordinate Court. Interest on Special Damages to accrue from the date the suit was filed. Each Party to bear their own costs of the Appeal. Costs of the suit in the Subordinate Court to the Appellant.
Dated, Signed and Delivered at Kisii this 24th day of June, 2025
The injuries suffered by the Appellant were particularized as;
-brain concussion with LOC
-scalp contusion and bruising
-bi-mandibular fractures
-chest contusion
-Abdominal contusion
-Right tibia and fibula fractures
-Right thigh cut wounds
The particulars of special damages were;
-Medical Report _ Kshs. 6,500/=
-Search from NTSA _ Kshs. 550/=
-Medical expenses _ Kshs. 93,000/=
Total - Kshs. 100,050/=
Upon consideration of the evidence on record the Trial Magistrate found the Respondent liable 100 percent as established in KISII CMCC NO. E530 od 2023 which was the test suit and assessed general damages at Kshs. 750,000/= together with Kshs. 100,050/= as special damages. Future Medical expenses were also assessed at Kshs. 150,000/=with costs of the suit and interest from date of judgement.
The Appellant/ Plaintiff was aggrieved by the judgement and appealed against the said judgement vide Memorandum of Appeal dated 5th July, 2024 on the following grounds:
1. THAT the Learned Magistrate grossly misdirected herself in treating the evidence and submissions on quantum before her superficially and consequently coming to a wrong conclusion on the same.
2. THAT the Learned Trial Magistrate misdirected herself in ignoring the principle applicable in awarding quantum of damages and the relevant authorities on quantum cited in the written submissions presented and filed by the Appellant.
3. THAT the Learned Trial Magistrate proceeded on wrong principles when assessing the damages to be awarded to the Respondent (If any) and failed to apply precedents and tenet of law applicable.
4. THAT the Learned Trial Magistrate erred in law in awarding a sum in respect of damages which was so inordinately low in the circumstances that it represented an entirely erroneous estimate vis-à-vis the Appellant’s claim.
5. THAT the Learned Trial Magistrate failed to apply herself judiciously and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision unsustainable in law.
REASONS WHEREFORE the Appellant prays that this appeal be allowed with costs and that the judgement of the Learned Trial Magistrate be set aside with costs.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 6th December 2024 and the court was urged to reconsider the evidence, re-evaluate it and draw its own independent conclusions.
The Appellant cited the case of Sosphinaf Company Limited & Another v Daniel Ng’anga Kanyi Court of Appeal at Nyeri Civil Appeal No. 315 of 2001 where it was held:
“The assessment of damages for personal injuries is a difficult task. The court is required to give a reasonable award which is neither extravagant nor oppressive. And while the judge is guided by such factors as the previous awards for similar injuries and the principles developed by the courts, ultimately, what is a reasonable award is an exercise of discretion by the trial Judge and will invariably depend on the peculiar facts of each case.”
The Appellant further cited the case of Paul Kipsang Koech & Another v Titus Osule Osore (2013) eKLR where the court restated instances where the Appellate Court can disturb the Trial Court’s award on quantum as follows:
“It is a well-established law that, assessment of quantum of damages in a claim for general damages, is a discretionary exercise. The law has, however, set the dimensions for the exercise of discretion; must be exercised judicially, with wise circumspect and upon some defined legal principles. Invariably, when the trial court has violated a legal principle(s), the appellate court will interfere with the exercise of discretion by the trial court. The discretion, in assessing the amount of general damages payable will be disturbed if the trial court:
a) Took into account an irrelevant factor or
b) Left out of account a relevant factor or,
c) The award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.”
The Respondent’s submissions are dated 30th January 2025 and are to the effect that there is no basis to disturb the award as they were reasonable and based on evidence on record. The respondent relied on the decision in KEMFRO AFRICA LTD and ANOTHER v LUBYA AND ANOTHER (1982-1988) KLR where it was held:
“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 inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
They also cited the Court of Appeal decision in CATHOLIC DIOCESS OF KISUMU V SOPHIA ACHIENG TETE – KISUMU CIVIL APPEAL NO. 284 OF 2001 where it was held:
“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 leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.
The Respondent urged the court to reconsider and re-evaluate the evidence that was placed before the Trial Magistrate and reach its own conclusions whether or not the Magistrate acted on wrong principles or misapprehended the evidence.
It was submitted that the parties had no dispute that the responded suffered the injuries as particularized in the plaint and in the exhibits produced and that those injuries were severe and comparable to the ones in the authorities cited by the Respondent in the Trial Court and in the appeal. That the quantum of damages assessed was neither excessive nor manifestly high and the Appellant had not laid a basis to warrant interference with the Trial Court’s decision. The Respondent therefore urged the Court to affirm the award made by the Trial Court as all the relevant facts, evidence and Laws were taken into account in assessing damages.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
Having considered the grounds of appeal and Appellant’s submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are: -
1. Whether the principles and authorities on quantum cited by the parties in their submissions were considered in assessment and award of damages.
2. Whether the Trial Magistrate ignored the principles applicable in assessing and award of damages.
3. Who should bear the cost of the appeal.
The Appellant proposed an award of Kshs. 1,500,000/= as general damages for the injuries that he sustained. In support of the said claim he relied on the case of Mwaura Muiruri v Suera Flowers Limited and Another [2014] KEHC where the High Court at Nakuru awarded Kshs. 1,450,000/= in 2014 for an accident that occurred in 2008 and where the injuries were; multiple lacerations on the face, soft tissue injuries on the chest cage (mainly left subaxilliary area), comminuted fractures of the right humerus upper and lower thirds of the tibia and compound double fractures of the right leg upper and lower 1/3rd tibia fibula which were less serious compared to the instant case. The Appellant also relied on the case of Moi Teaching and Referral Hospital Board & Another v Leonard Kibiwott Kosgei [2020] KEHC 8049 KLR where the High Court at Eldoret upheld an award Kshs. 2,000,000/= in 2020 for an accident that occurred on 23rd November 2008 and the injuries were; fracture on the nasal bone indulge Maxilla Upper Jaw, loss of one incisor, a segmental fracture of the tibia of the left leg, a lateral fracture of right tibia, facial wounds which were treated by surgery and the treatment discharge notes also indicated; Injury to right and left lower limbs, fracture of tibia and fracture of maxillary and mandible. The injuries in the latter authority are more similar to those of the Appellant herein.
On the other part, the Respondent while relying on the case of BK v Wilson Gitari Mburugu [2020] eKLR and the case of Akamba Public Road Services V Abdikadir Adan Galgalo [2016] eKLR proposed a sum of Kshs. 400,000/= for the severe injuries to the maxilla and mandible resulting to loss of 5 teeth with cut on the lip, multiple injuries to the face, soft tissue injuries to the thorax, abdomen as well as on the upper and lower limbs. In the second case an award of 500,000/= was made for a fracture of the right tibia fibula and a blunt injury to the right ankle.
Apart from the fact that the Decisions referred to by the Respondent were made several years back, the injuries in the said authorities are also less severe than those suffered by the appellant herein.
In assessing damages, the Trial Magistrate totally ignored the authorities referred to by the Appellant which in the view of this court had injuries which were more similar to those of the Appellant herein.
In consideration of the injuries suffered by the Appellant and guided by the authorities relied upon by the parties, the rate of inflation, time and the economic trends, the award of general damages assessed by the Trial Court was inordinately low in the circumstances. The said award is therefore set aside and substituted thereof with Kshs. 1,500,000/= being general damages for pain and suffering. The awards made for future medical expenses and special damages will remain as ordered in the subordinate court. Interest on the general damages and future medical expenses to accrue from the date of Judgement in the Subordinate Court. Interest on Special Damages to accrue from the date the suit was filed. Each Party to bear their own costs of the Appeal. Costs of the suit in the Subordinate Court to the Appellant.
Dated, Signed and Delivered at Kisii this 24th day of June, 2025