1. Before me is an appeal arising from the Trial Court’s Judgement delivered on 19th December 2025 by the Honourable S.O. Otuke, Senior Resident Magistrate, in Garissa Chief Magistrates Court Civil Suit No. E006 of 2021. The Respondent had instituted a suit against the Appellant vide a plaint dated 26th January 2021 seeking compensation for injuries sustained on 10th March 2018 along Lamu Road at the entrance to Garissa Government Guest House, when the Appellant’s motor vehicle registration number KCG 066B Toyota Auris veered off the road and struck the Respondent who was standing off the road at the entrance awaiting his vehicle and driver. The Respondent sustained a deep cut on the scalp and neck pain as a result of the accident.
2. By its judgment dated 19th December 2025, the trial court entered judgment in favour of the Respondent as follows:
a) Liability: 100% against the Appellant
b) General Damages for pain and suffering and loss of amenities: KES 500,000.00
c) Special Damages: KES 12,700.00
d) Total: KES 512,700.00
3. Aggrieved by the said judgment, the Appellant filed the present appeal on the following grounds:
a) That the learned trial magistrate erred in fact and in law by awarding damages that were inordinately high to constitute a miscarriage of justice in the circumstances of the case.
b) That the learned magistrate erred in law and in fact in failing to consider the written submissions of the Appellant on record and the authorities annexed therein in support of the Appellant’s case while arriving at the award in damages.
c) That the learned trial magistrate’s judgment was wholly not supported in law by evidence tendered in court by the parties.
4. The parties have filed their respective submissions which I have had the privilege of reading alongside the authorities relied upon therein. I have also gone through the lower court file and the rival submissions and authorities cited therein. At the outset, I note that the Appellant’s written submissions on appeal also sought to challenge the trial court’s apportionment of 100% liability against the Appellant. This issue was not raised in the Memorandum of Appeal and has accordingly been disregarded. I have framed the following issue for determination.
Issues
i) Whether this court should interfere with the Trial Court’s assessment and judgment on quantum?
Analysis
I) Whether this court should interfere with the Trial Court’s assessment and judgment on quantum?
5. The Court of Appeal in Butt v Khan [1978] KECA 24 (KLR) set out the parameters under which an appellate court will interfere with an award in damages as:
“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.” Judgment of Law JA.
6. The rationale for compensation is well-known. Potter, JA stated in Rahima Tayab & Others v Anna Mary Kinanu Civil Appeal No 29 of 1982 [1983] eKLR 114; 1 KAR 90 while relying on the oft-cited case of West (H) & Son Ltd v Shephard [1964] AC 326 at 345:
“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”
7. In determining this issue, I am mindful of the principle that an appellate court is not justified in substituting a figure of its own for that awarded in the trial court simply because it would have awarded a different figure if it had tried the case at the first instance. It must be shown that the learned magistrate 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.
8. The evidence before the trial court was that on 10th March 2018, the Respondent (PW1), a water engineer at the Water Resources Authority, was in Garissa on official duty. He was standing off the road at the entrance to the Garissa Government Guest House awaiting his key and vehicle when the Appellant’s motor vehicle KCG 066B Toyota Auris veered off the road and struck him. The Respondent lost consciousness at the scene and was taken to Garissa County Referral Hospital where he was admitted from 10th to 11th March 2018 and received stitches, analgesics, a tetanus toxoid and a cervical collar. He was thereafter transferred to Embu Level 5 Hospital where he remained admitted from 11th to 15th March 2018 and was placed on analgesics, antibiotics and wound care, thereafter discharged via the surgical and physiotherapy clinic. The Respondent’s witness PW2, a colleague, corroborated the occurrence of the accident and confirmed that he found the Appellant’s vehicle still at the scene when he arrived. The police abstract reflects that the police recommended the Appellant be charged with the offence of careless driving contrary to Section 49(1) of the Traffic Act. The Appellant elected not to call any witness in his defence, leaving the Respondent’s account uncontroverted. I find that the trial court’s finding of 100% liability is sound on the evidence before it and requires no further comment.
General Damages
9. The medical evidence before the trial court consisted of the report of Dr. John Elijah Thiong’o which described a prominent L-shaped degloving scar wound on the Respondent’s scalp: starting from the left lateral front to the anterior occipital region (10 cm) and extending to the right posterior parietal region (10 cm) — a total permanent scar of 20 cm. The report confirmed that the Respondent sustained a head injury causing loss of consciousness for hours at the scene, and that his profession as a water engineer who spends most of his time in the field is heavily affected by the persistent headaches and scalp numbness. The Appellant produced a medical report from Dr. Waruguru which concluded that the Respondent had made an adequate recovery and that the scar was clinically insignificant. However, no witness was called to adopt that report and the trial court rightful placed no reliance upon it.
10. On general damages, the Appellant submitted that the award of Kenya Shillings Five Hundred Thousand (KES 500,000.00) was inordinately high, relying on the following comparable authorities. In Edward Mutevu Mathiya & Another v Edwin Nyamweya [2022] eKLR, he submitted that the High Court set aside an award of KES 550,000 and substituted it with KES 100,000 where the respondent sustained cut wounds on the scalp, bruises on the back, right upper limb and left lower limb. In Ephraim Wagura Muthui & 2 Others v Toyota Kenya Limited [2019] eKLR, it was submitted that Majanja J set aside a lower court award and substituted it with KES 100,000 for cut wound on the parietal area, contusion on the neck, blunt trauma to the chest, cut wound on the left leg and blunt trauma to the back. In Otieno & Another v Odhiambo [2024] KEHC 7688 (KLR), it was submitted that the trial magistrate’s award of KES 300,000 for soft tissue injuries was substituted with KES 100,000. In Godwin Ireri v Franklin Gitonga [2018] eKLR, it was submitted that an award was reduced to Kenya Shillings Ninety Thousand (KES 90,000.00) for a cut on the scalp and forehead, swelling on the dorsum of the left foot and a bruise on the right knee. The Appellant proposes an award of Kenya Shillings One Hundred Thousand (KES 100,000.00). The Respondent, for his part, relied on Mara Tea Factory Limited v Lillian Bosibori Nyandika [2021] eKLR, where an award of Kenya Shillings Three Hundred Thousand (KES 300,000.00) was made for comparable injuries.
11. I am persuaded by the Appellant that the trial court awarded an inordinately high amount under this head, having arrived at the figure of KES 500,000 and accordingly set it aside. That said, I do not accept the Appellant’s proposal of KES 100,000 as being sufficient in the circumstances of this case. The Respondent’s injuries were not trivial soft tissue injuries. The L-shaped degloving scalp wound of 20 cm is permanent, caused loss of consciousness for hours, required hospitalisation across two facilities over five days, and has materially impaired the Respondent’s ability to discharge his professional duties as a field water engineer. I have gone through the Appellant’s authorities and the conventional range of KES 90,000-100,000 established by those cases involves injuries that are markedly less severe than those sustained here. In Mara Tea Factory Limited v Lillian Bosibori Nyandika (supra), the court awarded KES 300,000 for comparable injuries, and I am guided by that authority. Bearing in mind that no two cases are the same, and that comparable injuries should attract comparable awards, I find that an award of Kenya Shillings Three Hundred Thousand (KES 300,000.00) is fair and just in the circumstances of this case.
Special Damages
12. The trial court awarded special damages of Kenya Shillings Twelve Thousand Seven Hundred (KES 12,700.00) comprising treatment expenses of KES 7,000.00, medical report fees of KES 5,200.00 and motor vehicle search document fees of KES 500.00. These were specifically pleaded and proved by receipts produced at trial. The Appellant did not mount a challenge to the special damages award in the Memorandum of Appeal. I find no reason to disturb this finding and uphold it in full.
Determination
13. The upshot of the above is that the appeal is partly successful. The judgment of the Trial Court is substituted as follows:
a) Liability in favour of the Respondent at 100%
b) General Damages for pain, suffering and loss of amenities KES 300,000.00
c) Special Damages KES 12,700.00
14. Each party shall bear their own costs at this appeal and the Respondent shall have costs at the trial court. The above judgment shall accrue interest at court’s rate from the date of the trial court’s judgment delivered on 19th December 2025. It is so ordered.
2. By its judgment dated 19th December 2025, the trial court entered judgment in favour of the Respondent as follows:
a) Liability: 100% against the Appellant
b) General Damages for pain and suffering and loss of amenities: KES 500,000.00
c) Special Damages: KES 12,700.00
d) Total: KES 512,700.00
3. Aggrieved by the said judgment, the Appellant filed the present appeal on the following grounds:
a) That the learned trial magistrate erred in fact and in law by awarding damages that were inordinately high to constitute a miscarriage of justice in the circumstances of the case.
b) That the learned magistrate erred in law and in fact in failing to consider the written submissions of the Appellant on record and the authorities annexed therein in support of the Appellant’s case while arriving at the award in damages.
c) That the learned trial magistrate’s judgment was wholly not supported in law by evidence tendered in court by the parties.
4. The parties have filed their respective submissions which I have had the privilege of reading alongside the authorities relied upon therein. I have also gone through the lower court file and the rival submissions and authorities cited therein. At the outset, I note that the Appellant’s written submissions on appeal also sought to challenge the trial court’s apportionment of 100% liability against the Appellant. This issue was not raised in the Memorandum of Appeal and has accordingly been disregarded. I have framed the following issue for determination.
Issues
i) Whether this court should interfere with the Trial Court’s assessment and judgment on quantum?
Analysis
I) Whether this court should interfere with the Trial Court’s assessment and judgment on quantum?
5. The Court of Appeal in Butt v Khan [1978] KECA 24 (KLR) set out the parameters under which an appellate court will interfere with an award in damages as:
“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.” Judgment of Law JA.
6. The rationale for compensation is well-known. Potter, JA stated in Rahima Tayab & Others v Anna Mary Kinanu Civil Appeal No 29 of 1982 [1983] eKLR 114; 1 KAR 90 while relying on the oft-cited case of West (H) & Son Ltd v Shephard [1964] AC 326 at 345:
“But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process, there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.”
7. In determining this issue, I am mindful of the principle that an appellate court is not justified in substituting a figure of its own for that awarded in the trial court simply because it would have awarded a different figure if it had tried the case at the first instance. It must be shown that the learned magistrate 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.
8. The evidence before the trial court was that on 10th March 2018, the Respondent (PW1), a water engineer at the Water Resources Authority, was in Garissa on official duty. He was standing off the road at the entrance to the Garissa Government Guest House awaiting his key and vehicle when the Appellant’s motor vehicle KCG 066B Toyota Auris veered off the road and struck him. The Respondent lost consciousness at the scene and was taken to Garissa County Referral Hospital where he was admitted from 10th to 11th March 2018 and received stitches, analgesics, a tetanus toxoid and a cervical collar. He was thereafter transferred to Embu Level 5 Hospital where he remained admitted from 11th to 15th March 2018 and was placed on analgesics, antibiotics and wound care, thereafter discharged via the surgical and physiotherapy clinic. The Respondent’s witness PW2, a colleague, corroborated the occurrence of the accident and confirmed that he found the Appellant’s vehicle still at the scene when he arrived. The police abstract reflects that the police recommended the Appellant be charged with the offence of careless driving contrary to Section 49(1) of the Traffic Act. The Appellant elected not to call any witness in his defence, leaving the Respondent’s account uncontroverted. I find that the trial court’s finding of 100% liability is sound on the evidence before it and requires no further comment.
General Damages
9. The medical evidence before the trial court consisted of the report of Dr. John Elijah Thiong’o which described a prominent L-shaped degloving scar wound on the Respondent’s scalp: starting from the left lateral front to the anterior occipital region (10 cm) and extending to the right posterior parietal region (10 cm) — a total permanent scar of 20 cm. The report confirmed that the Respondent sustained a head injury causing loss of consciousness for hours at the scene, and that his profession as a water engineer who spends most of his time in the field is heavily affected by the persistent headaches and scalp numbness. The Appellant produced a medical report from Dr. Waruguru which concluded that the Respondent had made an adequate recovery and that the scar was clinically insignificant. However, no witness was called to adopt that report and the trial court rightful placed no reliance upon it.
10. On general damages, the Appellant submitted that the award of Kenya Shillings Five Hundred Thousand (KES 500,000.00) was inordinately high, relying on the following comparable authorities. In Edward Mutevu Mathiya & Another v Edwin Nyamweya [2022] eKLR, he submitted that the High Court set aside an award of KES 550,000 and substituted it with KES 100,000 where the respondent sustained cut wounds on the scalp, bruises on the back, right upper limb and left lower limb. In Ephraim Wagura Muthui & 2 Others v Toyota Kenya Limited [2019] eKLR, it was submitted that Majanja J set aside a lower court award and substituted it with KES 100,000 for cut wound on the parietal area, contusion on the neck, blunt trauma to the chest, cut wound on the left leg and blunt trauma to the back. In Otieno & Another v Odhiambo [2024] KEHC 7688 (KLR), it was submitted that the trial magistrate’s award of KES 300,000 for soft tissue injuries was substituted with KES 100,000. In Godwin Ireri v Franklin Gitonga [2018] eKLR, it was submitted that an award was reduced to Kenya Shillings Ninety Thousand (KES 90,000.00) for a cut on the scalp and forehead, swelling on the dorsum of the left foot and a bruise on the right knee. The Appellant proposes an award of Kenya Shillings One Hundred Thousand (KES 100,000.00). The Respondent, for his part, relied on Mara Tea Factory Limited v Lillian Bosibori Nyandika [2021] eKLR, where an award of Kenya Shillings Three Hundred Thousand (KES 300,000.00) was made for comparable injuries.
11. I am persuaded by the Appellant that the trial court awarded an inordinately high amount under this head, having arrived at the figure of KES 500,000 and accordingly set it aside. That said, I do not accept the Appellant’s proposal of KES 100,000 as being sufficient in the circumstances of this case. The Respondent’s injuries were not trivial soft tissue injuries. The L-shaped degloving scalp wound of 20 cm is permanent, caused loss of consciousness for hours, required hospitalisation across two facilities over five days, and has materially impaired the Respondent’s ability to discharge his professional duties as a field water engineer. I have gone through the Appellant’s authorities and the conventional range of KES 90,000-100,000 established by those cases involves injuries that are markedly less severe than those sustained here. In Mara Tea Factory Limited v Lillian Bosibori Nyandika (supra), the court awarded KES 300,000 for comparable injuries, and I am guided by that authority. Bearing in mind that no two cases are the same, and that comparable injuries should attract comparable awards, I find that an award of Kenya Shillings Three Hundred Thousand (KES 300,000.00) is fair and just in the circumstances of this case.
Special Damages
12. The trial court awarded special damages of Kenya Shillings Twelve Thousand Seven Hundred (KES 12,700.00) comprising treatment expenses of KES 7,000.00, medical report fees of KES 5,200.00 and motor vehicle search document fees of KES 500.00. These were specifically pleaded and proved by receipts produced at trial. The Appellant did not mount a challenge to the special damages award in the Memorandum of Appeal. I find no reason to disturb this finding and uphold it in full.
Determination
13. The upshot of the above is that the appeal is partly successful. The judgment of the Trial Court is substituted as follows:
a) Liability in favour of the Respondent at 100%
b) General Damages for pain, suffering and loss of amenities KES 300,000.00
c) Special Damages KES 12,700.00
14. Each party shall bear their own costs at this appeal and the Respondent shall have costs at the trial court. The above judgment shall accrue interest at court’s rate from the date of the trial court’s judgment delivered on 19th December 2025. It is so ordered.