REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E095 OF 2023
HENRY WANYONYI WANGILI…………………………….…APPELLANT
VERSUS
RONALD MUTETE MUGERA……………………………...RESPONDENT
(Being an appeal from the Judgement and Decree of the Chief Magistrate’s Court in Bungoma Civil Case No. 178 of 2022 delivered by Hon. T.M. Olando (PM) on 9th August 2023.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in the Chief Magistrate’s Court in Bungoma Civil Case No. 178 of 2022 delivered by Hon. T. M. Olando (PM) on 9th August 2023 on solely quantum of damages. In the said case, the Appellant had sued the Respondent seeking recovery of general and special damages arising from a road accident that occurred on 20th April 2021, in which the Appellant sustained injuries.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for re-evaluation of the evidence in an exercise akin to rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Plaint dated 24th May 2022, the Appellant averred that on or about 24th April 2021, he had been a pedestrian walking along Bungoma Main Stage at Kariget area, when the Respondent’s agent driver and/or servant drove and controlled Motor Vehicle Registration number KBK 816 Y Toyota Caldina in such a reckless, negligent and careless manner thus causing it to veered off its side of the road and thereby knocked the Appellant at opposite side of the road and as a result the Appellant had sustained serious personal injuries.
5. The Respondent filed his Statement of Defence dated 19th July 2022, wherein he denied the occurrence of the accident, liability and alternatively attributed the accident to the Appellant’s negligence wholly or substantially.
D. THE EVIDENCE
6. The Appellant’s case in the lower Court rested on the evidence of four witnesses, namely, PW1, Henry Wanyonyi Wangila, the Plaintiff, PW2, Dr. Joseph Sokobe, a medical Officer, PW3, No. 81576, a police officer, and PW4, Elias Adoka, a clinical officer. The Respondent not did call any witness. The only evidence on record is what was tendered by the Appellant. Given that the appeal is on quantum I will re-analyze the evidence of the Appellant and the doctor who tendered the medical evidence.
7. PW1, Henry Wanyonyi Wangila, the Plaintiff, adopted his witness statement recorded on 12th June 2022, and documents filed therewith as his evidence in chief. It was his evidence that he sustained a fractured on his right leg, injury on his shoulder and that he spent ten (10) days at the hospital and that he was yet to recover from his injuries as at the time of tendering his evidence.
8. PW2, Dr. Joseph Sokobe, a medical Officer produced PW1’s P3 form, medical report dated 23rd April 2021 and a receipt for preparation of the medical report as PEXH 2, PEXH 3(a) and PEXH 3(b) respectively. He assessed PW1’s injuries as serious harm.
9. On cross-examination, he testified that PW1 had been in good condition and his recovery was remarkable as at the time of his examination.
10. PW4, Elias Adoka, a clinical officer from Bungoma Referral Hospital, testified that the Appellant had been admitted at Bungoma County Referral Hospital from 24th February 2021 and had been discharged on 4th March 2021. According to him, PW1 sustained a compound fracture of right fibula and tibula bones and soft tissue injury. He produced the discharge summary as PEXH4 and the bundle of receipts as PEXH 6 (a) and (d).
11. On cross-examination, he testified that he did not examine PW1 and could not confirm his injuries.
E. THE APPEAL
12. The Appellant seeks to overturn the judgment citing the following grounds: -
a. The Learned Trial Magistrate erred in law and in fact in awarding the Appellant a sum of Kshs. 500,000/= as general damages which was not comparable to the serious injuries suffered by the Appellant.
b. The Learned Trial Magistrate erred in law and in fact in awarding the Appellant general damages which are low compared to the injuries suffered.
c. The Learned Trial Magistrate after considering the evidence before him and the medical report presented, erred in law and fact in awarding general damages.
d. The Learned Trial Magistrate erred in law and in fact and failed to consider the submission and authorities before him by the Appellant in regards to general damages hence miscarriage of justice.
13. The Appellant prayed that this Court do set aside the award on general damages of the subordinate Court and substitute the same with an appropriate award on general damages. Subsequently, that the costs both of the appeal be awarded to the Appellant.
14. Vide Court directions issued on 24th February 2025, this Court directed the parties to canvass the appeal by way of written submissions.
F. ANALYSIS AND DETERMINATION
15. It is settled law that an appellate Court will not interfere with an award of general damages by a trial Court unless:- (a) the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of principles; or (c) where the trial Court took into account irrelevant matters or failed to take into account relevant matters: or (d) where the trial Court acted under a misapprehension of facts; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is either ridiculously low or ridiculously high that it must have been erroneous estimate of the damage. (See Dumez (Nig) Ltd v Ogboli {1972} 3 S.C. Page 196.'' Per BADA, J.C.A (P. 28, paras. C-G).
16. Additionally, in Kivati v Coastal Bottlers Ltd42 the Court of Appeal (Civil Appeal No. 69 of 1984) stated:-
“The Court of Appeal should only disturb an award of damages when the trial Judge has taken into account a factor he ought not to have or failed to take into account something he ought to have or if the award is so high or so low that it amounts to an erroneous estimate."
17. Award of damages is an exercise of discretion of the trial Court, but the same should be within limits set out in decided case law and must not be inordinately so low or so high as to reflect an erroneous figure. The award must also take into account the prevailing economic environment.
18. The evidence of the Appellant was as such uncontroverted. In the case of Janet Kaphiphe Ouma & Another –vs- Maries Stopes International (Kenya), Kisumu HCCC No. 68 of 2007, Ali Aroni, J citing the decision in Edward Muriga suing through Stanley Muriga –vs- Nathaniel D. Schulter, Civil Appeal No. 23 of 1997 stated that:
“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”
16.Guided by the above case, I find the statements in the defence filed on 10th December 2014 remain mere allegations having not been substantiated orally in court by the Appellant to controvert the Respondents testimony.”
19. In my view, based on the injuries as captured in the medical report dated 23rd April 2021, Dr. Joseph C. Sokobe, it is clear that the Appellant herein sustained moderate soft and bony (fracture) injuries had not healed as at the time of his examination.
20. As regards general damages, the lower Court awarded Kshs. 500,000/-. No specific authority was referred to. The damages must be commensurate to the nature of injuries sustained for consistency in the judicial award. This is achieved through awarding similar injuries with similar or relatively similar damages. The Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”
21. I proceed to establish related injuries. In the following cases:-
a. Fred Barasa Matayo vs Channan Agricultural Contractors [2013] eKLR: The appellate Court reviewed an award of Kshs 250,000/= down wards to Kshs 150,000/= where the Respondent therein had sustained moderate soft tissue injuries that were expected to heal in eight months’ time.
b. Dickson Ndungu vs Theresia Otieno & 4 Others [2014] eKLR: The appellate Court reviewed the award of Kshs 250,000/= general damages downwards to Kshs 127,500/= where the respondent had sustained soft tissue injuries.
c. Purity Wambui Muriithi vs Highlands Mineral Water Company Ltd [2015] eKLR: The appellate Court reduced the award of Kshs 700,000/= general damages to Kshs 150,000/= where the Respondent therein had sustained injuries to the left elbow, pubic region, lower back and right ankle.
22. In my reevaluation based on the above authorities, the fractures & soft tissue injuries suffered by the Appellant and remaining faithful to the doctrine of stare decisis, and taking the inflationary trends into consideration, this Court takes the view that the award of Kshs 500,000/= for the soft tissue and bony injuries that the Appellant herein sustained was fair in the circumstances of the case herein.
G. CONCLUSION
23. In view of my findings on quantum, the inevitable conclusion is that this appeal is unmerited and therefore it fails. I dismiss it and uphold the judgment of the learned Magistrate dated 9th August 2023.
24. The Respondent is awarded costs of this appeal.
25. This file is marked closed.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 18th day of December 2025.
Mwanaisha.S. Shariff
Judge
In the presence of:
N/A FOR APPELLANT
N/A FOR RESPONDENT
PETER MACHONI - COURT ASSISTANT
IN THE HIGH COURT OF KENYA
AT BUNGOMA
CIVIL APPEAL NO. E095 OF 2023
HENRY WANYONYI WANGILI…………………………….…APPELLANT
VERSUS
RONALD MUTETE MUGERA……………………………...RESPONDENT
(Being an appeal from the Judgement and Decree of the Chief Magistrate’s Court in Bungoma Civil Case No. 178 of 2022 delivered by Hon. T.M. Olando (PM) on 9th August 2023.)
JUDGEMENT
A. INTRODUCTION
1. The Appellant seeks to overturn the decision in the Chief Magistrate’s Court in Bungoma Civil Case No. 178 of 2022 delivered by Hon. T. M. Olando (PM) on 9th August 2023 on solely quantum of damages. In the said case, the Appellant had sued the Respondent seeking recovery of general and special damages arising from a road accident that occurred on 20th April 2021, in which the Appellant sustained injuries.
B. THE DUTY OF A FIRST APPELLATE COURT
2. A first appellate Court is mandated to re-evaluate the evidence before the trial Court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate Court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. (See Selle & another v Associated Motor Boat Co. Ltd.& others {1968} EA 123). As was held by the Court of Appeal for East Africa in Peters v Sunday Post Limited {1958} E.A. page 424: -
“It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
3. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for re-evaluation of the evidence in an exercise akin to rehearing both on questions of fact and law. The judgment of the appellate Court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate Court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial Court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate Court had discharged the duty expected of it. (See Santosh Hazari vs. Purushottam Tiwari (Deceased) by L. Rs {2001} 3 SCC 179).
C. THE PLEADINGS
4. In the Plaint dated 24th May 2022, the Appellant averred that on or about 24th April 2021, he had been a pedestrian walking along Bungoma Main Stage at Kariget area, when the Respondent’s agent driver and/or servant drove and controlled Motor Vehicle Registration number KBK 816 Y Toyota Caldina in such a reckless, negligent and careless manner thus causing it to veered off its side of the road and thereby knocked the Appellant at opposite side of the road and as a result the Appellant had sustained serious personal injuries.
5. The Respondent filed his Statement of Defence dated 19th July 2022, wherein he denied the occurrence of the accident, liability and alternatively attributed the accident to the Appellant’s negligence wholly or substantially.
D. THE EVIDENCE
6. The Appellant’s case in the lower Court rested on the evidence of four witnesses, namely, PW1, Henry Wanyonyi Wangila, the Plaintiff, PW2, Dr. Joseph Sokobe, a medical Officer, PW3, No. 81576, a police officer, and PW4, Elias Adoka, a clinical officer. The Respondent not did call any witness. The only evidence on record is what was tendered by the Appellant. Given that the appeal is on quantum I will re-analyze the evidence of the Appellant and the doctor who tendered the medical evidence.
7. PW1, Henry Wanyonyi Wangila, the Plaintiff, adopted his witness statement recorded on 12th June 2022, and documents filed therewith as his evidence in chief. It was his evidence that he sustained a fractured on his right leg, injury on his shoulder and that he spent ten (10) days at the hospital and that he was yet to recover from his injuries as at the time of tendering his evidence.
8. PW2, Dr. Joseph Sokobe, a medical Officer produced PW1’s P3 form, medical report dated 23rd April 2021 and a receipt for preparation of the medical report as PEXH 2, PEXH 3(a) and PEXH 3(b) respectively. He assessed PW1’s injuries as serious harm.
9. On cross-examination, he testified that PW1 had been in good condition and his recovery was remarkable as at the time of his examination.
10. PW4, Elias Adoka, a clinical officer from Bungoma Referral Hospital, testified that the Appellant had been admitted at Bungoma County Referral Hospital from 24th February 2021 and had been discharged on 4th March 2021. According to him, PW1 sustained a compound fracture of right fibula and tibula bones and soft tissue injury. He produced the discharge summary as PEXH4 and the bundle of receipts as PEXH 6 (a) and (d).
11. On cross-examination, he testified that he did not examine PW1 and could not confirm his injuries.
E. THE APPEAL
12. The Appellant seeks to overturn the judgment citing the following grounds: -
a. The Learned Trial Magistrate erred in law and in fact in awarding the Appellant a sum of Kshs. 500,000/= as general damages which was not comparable to the serious injuries suffered by the Appellant.
b. The Learned Trial Magistrate erred in law and in fact in awarding the Appellant general damages which are low compared to the injuries suffered.
c. The Learned Trial Magistrate after considering the evidence before him and the medical report presented, erred in law and fact in awarding general damages.
d. The Learned Trial Magistrate erred in law and in fact and failed to consider the submission and authorities before him by the Appellant in regards to general damages hence miscarriage of justice.
13. The Appellant prayed that this Court do set aside the award on general damages of the subordinate Court and substitute the same with an appropriate award on general damages. Subsequently, that the costs both of the appeal be awarded to the Appellant.
14. Vide Court directions issued on 24th February 2025, this Court directed the parties to canvass the appeal by way of written submissions.
F. ANALYSIS AND DETERMINATION
15. It is settled law that an appellate Court will not interfere with an award of general damages by a trial Court unless:- (a) the trial Court acted under a mistake of law; or (b) where the trial Court acted in disregard of principles; or (c) where the trial Court took into account irrelevant matters or failed to take into account relevant matters: or (d) where the trial Court acted under a misapprehension of facts; or (e) where injustice would result if the appellate Court does not interfere; or (f) where the amount awarded is either ridiculously low or ridiculously high that it must have been erroneous estimate of the damage. (See Dumez (Nig) Ltd v Ogboli {1972} 3 S.C. Page 196.'' Per BADA, J.C.A (P. 28, paras. C-G).
16. Additionally, in Kivati v Coastal Bottlers Ltd42 the Court of Appeal (Civil Appeal No. 69 of 1984) stated:-
“The Court of Appeal should only disturb an award of damages when the trial Judge has taken into account a factor he ought not to have or failed to take into account something he ought to have or if the award is so high or so low that it amounts to an erroneous estimate."
17. Award of damages is an exercise of discretion of the trial Court, but the same should be within limits set out in decided case law and must not be inordinately so low or so high as to reflect an erroneous figure. The award must also take into account the prevailing economic environment.
18. The evidence of the Appellant was as such uncontroverted. In the case of Janet Kaphiphe Ouma & Another –vs- Maries Stopes International (Kenya), Kisumu HCCC No. 68 of 2007, Ali Aroni, J citing the decision in Edward Muriga suing through Stanley Muriga –vs- Nathaniel D. Schulter, Civil Appeal No. 23 of 1997 stated that:
“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”
16.Guided by the above case, I find the statements in the defence filed on 10th December 2014 remain mere allegations having not been substantiated orally in court by the Appellant to controvert the Respondents testimony.”
19. In my view, based on the injuries as captured in the medical report dated 23rd April 2021, Dr. Joseph C. Sokobe, it is clear that the Appellant herein sustained moderate soft and bony (fracture) injuries had not healed as at the time of his examination.
20. As regards general damages, the lower Court awarded Kshs. 500,000/-. No specific authority was referred to. The damages must be commensurate to the nature of injuries sustained for consistency in the judicial award. This is achieved through awarding similar injuries with similar or relatively similar damages. The Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards”
21. I proceed to establish related injuries. In the following cases:-
a. Fred Barasa Matayo vs Channan Agricultural Contractors [2013] eKLR: The appellate Court reviewed an award of Kshs 250,000/= down wards to Kshs 150,000/= where the Respondent therein had sustained moderate soft tissue injuries that were expected to heal in eight months’ time.
b. Dickson Ndungu vs Theresia Otieno & 4 Others [2014] eKLR: The appellate Court reviewed the award of Kshs 250,000/= general damages downwards to Kshs 127,500/= where the respondent had sustained soft tissue injuries.
c. Purity Wambui Muriithi vs Highlands Mineral Water Company Ltd [2015] eKLR: The appellate Court reduced the award of Kshs 700,000/= general damages to Kshs 150,000/= where the Respondent therein had sustained injuries to the left elbow, pubic region, lower back and right ankle.
22. In my reevaluation based on the above authorities, the fractures & soft tissue injuries suffered by the Appellant and remaining faithful to the doctrine of stare decisis, and taking the inflationary trends into consideration, this Court takes the view that the award of Kshs 500,000/= for the soft tissue and bony injuries that the Appellant herein sustained was fair in the circumstances of the case herein.
G. CONCLUSION
23. In view of my findings on quantum, the inevitable conclusion is that this appeal is unmerited and therefore it fails. I dismiss it and uphold the judgment of the learned Magistrate dated 9th August 2023.
24. The Respondent is awarded costs of this appeal.
25. This file is marked closed.
Orders accordingly
Delivered, Signed and Dated at Bungoma this 18th day of December 2025.
Mwanaisha.S. Shariff
Judge
In the presence of:
N/A FOR APPELLANT
N/A FOR RESPONDENT
PETER MACHONI - COURT ASSISTANT