(Being an appeal from the judgment and decree of Hon. A. Lorot Chief Magistrate, in Wang’uru Magistrate’s Court Civil Suit No. 140 of 2018 delivered on 8/3/2022)
Background
1. This appeal through the memorandum dated 1/4/2022 is on assessment of damages only. The trial court’s finding on liability against the appellants is not contested. It was that the case against the 2nd appellant was found wholly liable for the accident and judgment was entered against him for the sum of KShs 2,036,235/= being general and special damages. The appeal seeks to partially set aside the decree (which seems not to have been extracted) of the trial court arising from the judgment dated 8/3/2022 where the trial court awarded a sum of KShs 1,800,000/= general damages for pain, suffering and loss of amenities.
Grounds of appeal
2. The appellant was dissatisfied with the judgment and has filed this appeal based on the grounds that the learned trial magistrate erred in law and fact in that:
a) the award of general damages of KShs 1,800,000/= is manifestly excessive.
b) the learned trial magistrate ignored or failed to apply the principles applicable in assessment and award of quantum of damages by following precedent as cited in the submissions by the appellants and failing to consider conventional awards in cases of a similar nature.
c) the learned trial magistrate failed to adequately evaluate the evidence and exhibits placed before him and made a decision that was against the weight of the evidence based on misguided points of fact and wrong principles of law.
3. The appellants therefore pray that the appeal be allowed, the judgment of the trial court on quantum of damages be set aside and assesses afresh and the costs of the appeal be awarded to the appellant.
The duty of this court on appeal
4. This is a first appeal. Section 78(2) Civil Procedure Act provides that the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Act on courts of original jurisdiction in respect of suits instituted therein.
5. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
Case before the trial court
6. The respondent sued the appellants through a plaint dated 20/8/2018 claiming general and special damages for injuries arising out of a road traffic accident that occurred on 24/6/2016 along the Chuka-Mwea road around Wamumu area. The respondent was a passenger in the 1st appellant’s motor vehicle registration number KCF 309B when the accident happened whereby the same collided head-on with the 2nd appellant’s motor vehicle registration number KBY 655G. As a result, the respondent sustained the following injuries:
a) upper right arm and right shoulder lacerations.
b) extensive forearm lacerations.
c) degloving wound dorsum of right hand.
d) injury to extensor tendons of the right hand.
7. Upon considering the evidence tendered, the submissions and authorities tendered by the parties the learned trial magistrate awarded a sum of KShs 1,800,000/= as general damages for pain, suffering and loss of amenities.
8. The appellants are challenging this award as manifestly excessive.
Submissions
9. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent.
10. The appellants’ submissions reiterate their grounds of appeal that the damages are inordinately high. Learned counsel submits that the trial court violated the principles of assessment of damages and therefore this court should interfere. He has set out the said principles in his submissions as being that the trial court:
a) took into account an irrelevant factor,
b) left out of account a relevant factor, or short of this,
c) the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.
11. He also cited various cases on the principles. The principles are considered later in this judgment.
12. Learned counsel proposes that an award of KShs 700,000/= would be adequate compensation for the respondent’s injuries. At the trial court the appellants had proposed KShs 250,000/= which the learned trial magistrate termed as unhelpful and disrespectful.
13. Learned counsel for the respondent submits that the award of KShs 1,800,000/= was reasonable and this court should not interfere with it as the trial court keenly assessed the evidence tendered before arriving at that amount. He submits further that this court should be guided by the Court of Appeal decision in Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR).
14. Learned counsel submits that assessment of general damages is at the discretion of the court based on the evidence and impressions on demeanor of witnesses made by the trial court which an appellate court lacks the advantage. He cited the case of Simon Taveta v Mercy Mutitu Njeru [2014] KECA 755 (KLR) where the Court of Appeal reiterated that award of general damages is an exercise of judicial discretion which is based on the injuries sustained and comparable award for comparable injuries.
15. Learned counsel submits that they had proposed an award of KShs 2,500,000/= for the respondent’s injuries at the trial court.
16. Learned counsel for the respondent also submitted that this court should make an award of special damages for future medical expenses of KShs 947,000/= as proposed by Dr. Kale Maina and which the appellant’s doctor also proposed a sum of KShs 250,000/=. First, the appellant’s doctor’s report of Dr. Jenipher Kahuthu dated 30/3/2019 and filed in court through the defendants now appellant’s supplementary list of documents dated 4/6/2019 was not produced in court either by consent of the parties or by the appellant’s witnesses. It was therefore not part of the evidence to be considered by the trial court.
17. Back to the issue of future medical expenses, this cannot be considered for two reasons. The first is that the sum for future medical expenses was never pleaded. Learned counsel submits that via the amended plaint dated 20/8/2019 the respondent pleaded for future medical expenses at paragraph 6 and that this appears at pp 6 of the record of appeal. There is no such an amended plaint on record and at pp. 6 of the record of appeal. An application to amend the plaint was made but it was not pursued and so it was never determined. Even then, the proposed amendment was not to include a plea for future medical expenses.
18. The learned trial magistrate considered the issue in his judgment and found as much, that the issue had not been pleaded. That was correct. For this court, there was no cross-appeal on that issue as determined by the learned trial magistrate. Learned counsel submits that the respondent failed to appeal on the issue hoping that the appellants would settle the decretal amount in its entirety to enable the respondent undergo the requisite reconstructive surgery. Unfortunately, cases are not decided on sympathy on the submissions made but, on the law, and facts presented before the court through pleadings and evidence. The plea for an award of damages for future medical expenses is therefore without basis.
Analysis
19. 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 damages awarded by the trial court are so inordinately high as to represent an erroneous award and subject to be upset.
20. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturb the same as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR 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.”
21. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“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.”
22. 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.
23. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
24. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
25. Similarly, in the case of John Kamore & another v. Simon Irungu Ngugi [2014] eKLR the High court adopted the lower court’s observations on the relevant factors considered in making awards thus:
“Normally courts consider the nature of injuries, the period of healing and whether the healing is full or partial, the residual incapacity if any, the inconvenience or deprivation encountered by the plaintiff, inflationary trends, cost of living and lapse of time from the time of any availed decided authorities.
The plaintiff is only entitled to what is fair, just and reasonable. Money cannot renew a physical frame that has been shattered and battered. Assessment must be done with moderation. The aim is not to enrich the plaintiff. It is not also the aim to punish the defendant.”
26. I have taken these factors into account in in this appeal.
27. The first issue to determine is what injuries the respondent sustained.
28. According to Dr. Kane Maina in his report dated 19/2/2018 the sources of his information were police abstract, X-ray films, clinical notes, clinical history and clinical examination. He documented the injuries sustained as:
a) upper right arm and right shoulder lacerations.
b) extensive forearm lacerations.
c) degloving wound, dorsum of right hand.
d) injury to extensor tendons of right hand.
The respondent’s complaints were:
a) unsightly right upper limb scars.
b) right shoulder pain.
c) right wrist joint pain.
Upon examination the doctor’s observations were:
• extensive (hypertrophic) keloid scars on anterior shoulder, arm, forearm and back of right hand:
a) three separate keloids over anterior right shoulder.
b) large right arm hypertrophic scar (keloid) measuring 16 cm by 8cm (grafted).
c) large right hypertrophic scar measuring 16 cm by 8 cm (grafted) traversing the right wrist joint.
d) posterior back of right-hand scar traversing the wrist joint (within an area of lymphoedema laterally).
• right shoulder joint tenderness.
• right wrist joint tenderness.
• spongy lymphoedematous area on the lateral aspect of the right hand.
• healed donor site for graft tissues on the lower part of right thigh area 22 cm by 8 cm.
The doctor’s diagnoses were as follows:
a) soft and joint tissue injuries.
b) numerous keloids on the right upper limb.
c) oedema of posterior right hand.
d) right shoulder joint osteoarthritis
e) right wrist joint osteoarthritis.
29. The doctor’s professional opinion was that as a result of the accident the respondent sustained injuries leading to:
a) soft and joint tissue injuries.
b) permanent disability:
right shoulder joint osteoarthritis 5%
right wrist joint osteoarthritis 5%
c) she underwent severe physical and mental agony as a result of the accident.
d) she requires analgesics/anti-inflammatory drugs for an indefinite period.
e) she requires further specialized (microvascular surgery – for posterior right hand lymphoedema and plastic surgery with – a dose of radiotherapy – for keloids estimated at KShs 947,000/=.
30. The learned trial magistrate also made observations of the respondent’s appearance at the hearing noting “contractures with depressive injuries showing thinning of the muscle on the right humerus…severe scar with contractures on the right forearm running on the entire radial-ulna bone and on the back-palmer aspect, a swelling and tendon swelling affecting the entire right hand. She has lost grip completely on the right hand and the small finger cannot move. There are also contractures owing to degloving.”
31. Learned counsel for the appellants has cited the following cases in support of the submissions:
a) Barnabas v Ombati [2022]KEHC 12136 (KLR) where the High Court on appeal upheld the trial court’s award of KShs 800,000/= for general damages where the respondent/plaintiff had sustained a head and chest contusion, bruises on her right hand and waist together with fracture of the right femur, fracture of right humerus and fracture of the pelvic.
b) Gladys Lyaka Mwombe vs Francis Namatsi & 2 Others (2019) eKLR the appellant/plaintiff had sustained a cut wound on the anterior part of the scalp, a head injury, a spinal cord injury, fracture of the lower tibia and fibula and cut wound on the face. An award of KShs. 300,000/- was upheld by the High Court on appeal.
c) Jitan Nagra vs. Abednego Nyandusi Oigo [2018] eKLR, the appellant had sustained lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, and a segmental distal fracture to the right femur. The trial court award of KShs. 1,000,000/= general damages, was revised to an award of Kshs. 450, 000.00 on appeal on 12th October 2018.
32. Learned counsel for the respondent on his part has cited the following cases as involving comparable injuries:
a) Barchia Leonard Mbaabu & another v Angeline Ngesa Rambim [2019] KEHC 3380 (KLR) where the High Court in 2019 sustained an award of KShs 1,500,000/= general damages for pain, suffering and loss of amenities where the Respondent suffered the following injuries which the doctor in his report assessed as 60% permanent incapacity:
i. Deep frictional burns to right upper limb
ii. Deep degloving injury on muscles of flexors of right elbow
iii. Degloving injury on right antecubital area (inner or front surface of the forearm) exposing flexor muscles
iv. Loss of 4 extensors medial right hand exposing the metacarpal bones
v. Exposed carpal bones with chip fractures on right wrist.
vi. Soft tissue injuries on left ankle
b) Sifa Cleaning and Bins Services Limited v Kamau [2023] KEHC 1623 (KLR) the High Court on appeal in 2023 sustained an award of KShs 1,000,000/= general damages for pain and suffering and KShs 600,000/= for loss of amenities where Dr. GK Mwaura of Kinoo Medical Clinic noted by his report dated June 29, 2019 the following injuries: -
i. De-gloving injury - involving the right temple and right cheek.
ii. Multiple deep cuts-right upper arm, right elbow and right proximal fare arm.
iii. Deep cut wound right knee.
iv. Bruises-both cheeks.
v. Loss of consciousness.
That doctor noted that although respondent had healed from those injuries there however were persistent complications such as: -
i. Disfiguring scars- right temple face right side and left thigh (donor site).
ii. Disfiguring scars and keloids- right fore arm.
iii. Pain and weakness - right upper limb.
iv. Pain and blood loss.
v. Permanent degree or incapacity accessed at 5% - right upper limb.
vi. Grievous harm injuries.
vii. Future medical expenses to remove keloids and dis-fighting scars, surgeon at cost of Ksh 700,000.
Doctor Wambugu’s report dated May 27, 2020 noted injuries the respondent sustained as:-
i. De-gloving wound right temporary scalp.
ii. Multiple Lacerations right upper limb.
The report noted that respondent had skin grafting done to the wound at the temporal scalp extending to the cheek. It further noted that the injury had left scaring as having significant cosmetic concern.
Determination
33. A comparison of the decisions cited by the appellant and those of the respondent shows that the authorities by the appellant do not involve similar or comparable injuries as those of the respondent. The injuries sustained by the respondent in the case of Sifa Cleaning and Bins Services Limited are very similar and comparable to those sustained by the respondent herein including the aspect of their cosmetic significance. In the present case the injuries resulted in 10% permanent incapacity while in the Sifa Cleaning and Bins Services Limited, the permanent incapacity was assessed at 10%. In the circumstances, it cannot be said that the learned trial magistrate was not properly guided by precedent in the assessment of his award.
34. Consequently, I find the decision by learned trial magistrate on assessment of general damages for pain, suffering and loss of amenities KShs 1,800,000/= was not inordinately high as to represent an erroneous award. The same was in line with similar awards made in the recent past for comparable injuries.
35. The appeal is dismissed with costs to the respondent.
36. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 30th day of June 2025 in the presence of:
No appearance for the appellants.
Muthee holding brief for Mwaniki for the respondent.
Job: Court assistant.
Background
1. This appeal through the memorandum dated 1/4/2022 is on assessment of damages only. The trial court’s finding on liability against the appellants is not contested. It was that the case against the 2nd appellant was found wholly liable for the accident and judgment was entered against him for the sum of KShs 2,036,235/= being general and special damages. The appeal seeks to partially set aside the decree (which seems not to have been extracted) of the trial court arising from the judgment dated 8/3/2022 where the trial court awarded a sum of KShs 1,800,000/= general damages for pain, suffering and loss of amenities.
Grounds of appeal
2. The appellant was dissatisfied with the judgment and has filed this appeal based on the grounds that the learned trial magistrate erred in law and fact in that:
a) the award of general damages of KShs 1,800,000/= is manifestly excessive.
b) the learned trial magistrate ignored or failed to apply the principles applicable in assessment and award of quantum of damages by following precedent as cited in the submissions by the appellants and failing to consider conventional awards in cases of a similar nature.
c) the learned trial magistrate failed to adequately evaluate the evidence and exhibits placed before him and made a decision that was against the weight of the evidence based on misguided points of fact and wrong principles of law.
3. The appellants therefore pray that the appeal be allowed, the judgment of the trial court on quantum of damages be set aside and assesses afresh and the costs of the appeal be awarded to the appellant.
The duty of this court on appeal
4. This is a first appeal. Section 78(2) Civil Procedure Act provides that the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Act on courts of original jurisdiction in respect of suits instituted therein.
5. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
Case before the trial court
6. The respondent sued the appellants through a plaint dated 20/8/2018 claiming general and special damages for injuries arising out of a road traffic accident that occurred on 24/6/2016 along the Chuka-Mwea road around Wamumu area. The respondent was a passenger in the 1st appellant’s motor vehicle registration number KCF 309B when the accident happened whereby the same collided head-on with the 2nd appellant’s motor vehicle registration number KBY 655G. As a result, the respondent sustained the following injuries:
a) upper right arm and right shoulder lacerations.
b) extensive forearm lacerations.
c) degloving wound dorsum of right hand.
d) injury to extensor tendons of the right hand.
7. Upon considering the evidence tendered, the submissions and authorities tendered by the parties the learned trial magistrate awarded a sum of KShs 1,800,000/= as general damages for pain, suffering and loss of amenities.
8. The appellants are challenging this award as manifestly excessive.
Submissions
9. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent.
10. The appellants’ submissions reiterate their grounds of appeal that the damages are inordinately high. Learned counsel submits that the trial court violated the principles of assessment of damages and therefore this court should interfere. He has set out the said principles in his submissions as being that the trial court:
a) took into account an irrelevant factor,
b) left out of account a relevant factor, or short of this,
c) the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages.
11. He also cited various cases on the principles. The principles are considered later in this judgment.
12. Learned counsel proposes that an award of KShs 700,000/= would be adequate compensation for the respondent’s injuries. At the trial court the appellants had proposed KShs 250,000/= which the learned trial magistrate termed as unhelpful and disrespectful.
13. Learned counsel for the respondent submits that the award of KShs 1,800,000/= was reasonable and this court should not interfere with it as the trial court keenly assessed the evidence tendered before arriving at that amount. He submits further that this court should be guided by the Court of Appeal decision in Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR).
14. Learned counsel submits that assessment of general damages is at the discretion of the court based on the evidence and impressions on demeanor of witnesses made by the trial court which an appellate court lacks the advantage. He cited the case of Simon Taveta v Mercy Mutitu Njeru [2014] KECA 755 (KLR) where the Court of Appeal reiterated that award of general damages is an exercise of judicial discretion which is based on the injuries sustained and comparable award for comparable injuries.
15. Learned counsel submits that they had proposed an award of KShs 2,500,000/= for the respondent’s injuries at the trial court.
16. Learned counsel for the respondent also submitted that this court should make an award of special damages for future medical expenses of KShs 947,000/= as proposed by Dr. Kale Maina and which the appellant’s doctor also proposed a sum of KShs 250,000/=. First, the appellant’s doctor’s report of Dr. Jenipher Kahuthu dated 30/3/2019 and filed in court through the defendants now appellant’s supplementary list of documents dated 4/6/2019 was not produced in court either by consent of the parties or by the appellant’s witnesses. It was therefore not part of the evidence to be considered by the trial court.
17. Back to the issue of future medical expenses, this cannot be considered for two reasons. The first is that the sum for future medical expenses was never pleaded. Learned counsel submits that via the amended plaint dated 20/8/2019 the respondent pleaded for future medical expenses at paragraph 6 and that this appears at pp 6 of the record of appeal. There is no such an amended plaint on record and at pp. 6 of the record of appeal. An application to amend the plaint was made but it was not pursued and so it was never determined. Even then, the proposed amendment was not to include a plea for future medical expenses.
18. The learned trial magistrate considered the issue in his judgment and found as much, that the issue had not been pleaded. That was correct. For this court, there was no cross-appeal on that issue as determined by the learned trial magistrate. Learned counsel submits that the respondent failed to appeal on the issue hoping that the appellants would settle the decretal amount in its entirety to enable the respondent undergo the requisite reconstructive surgery. Unfortunately, cases are not decided on sympathy on the submissions made but, on the law, and facts presented before the court through pleadings and evidence. The plea for an award of damages for future medical expenses is therefore without basis.
Analysis
19. 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 damages awarded by the trial court are so inordinately high as to represent an erroneous award and subject to be upset.
20. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturb the same as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR 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.”
21. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“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.”
22. 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.
23. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
24. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
25. Similarly, in the case of John Kamore & another v. Simon Irungu Ngugi [2014] eKLR the High court adopted the lower court’s observations on the relevant factors considered in making awards thus:
“Normally courts consider the nature of injuries, the period of healing and whether the healing is full or partial, the residual incapacity if any, the inconvenience or deprivation encountered by the plaintiff, inflationary trends, cost of living and lapse of time from the time of any availed decided authorities.
The plaintiff is only entitled to what is fair, just and reasonable. Money cannot renew a physical frame that has been shattered and battered. Assessment must be done with moderation. The aim is not to enrich the plaintiff. It is not also the aim to punish the defendant.”
26. I have taken these factors into account in in this appeal.
27. The first issue to determine is what injuries the respondent sustained.
28. According to Dr. Kane Maina in his report dated 19/2/2018 the sources of his information were police abstract, X-ray films, clinical notes, clinical history and clinical examination. He documented the injuries sustained as:
a) upper right arm and right shoulder lacerations.
b) extensive forearm lacerations.
c) degloving wound, dorsum of right hand.
d) injury to extensor tendons of right hand.
The respondent’s complaints were:
a) unsightly right upper limb scars.
b) right shoulder pain.
c) right wrist joint pain.
Upon examination the doctor’s observations were:
• extensive (hypertrophic) keloid scars on anterior shoulder, arm, forearm and back of right hand:
a) three separate keloids over anterior right shoulder.
b) large right arm hypertrophic scar (keloid) measuring 16 cm by 8cm (grafted).
c) large right hypertrophic scar measuring 16 cm by 8 cm (grafted) traversing the right wrist joint.
d) posterior back of right-hand scar traversing the wrist joint (within an area of lymphoedema laterally).
• right shoulder joint tenderness.
• right wrist joint tenderness.
• spongy lymphoedematous area on the lateral aspect of the right hand.
• healed donor site for graft tissues on the lower part of right thigh area 22 cm by 8 cm.
The doctor’s diagnoses were as follows:
a) soft and joint tissue injuries.
b) numerous keloids on the right upper limb.
c) oedema of posterior right hand.
d) right shoulder joint osteoarthritis
e) right wrist joint osteoarthritis.
29. The doctor’s professional opinion was that as a result of the accident the respondent sustained injuries leading to:
a) soft and joint tissue injuries.
b) permanent disability:
right shoulder joint osteoarthritis 5%
right wrist joint osteoarthritis 5%
c) she underwent severe physical and mental agony as a result of the accident.
d) she requires analgesics/anti-inflammatory drugs for an indefinite period.
e) she requires further specialized (microvascular surgery – for posterior right hand lymphoedema and plastic surgery with – a dose of radiotherapy – for keloids estimated at KShs 947,000/=.
30. The learned trial magistrate also made observations of the respondent’s appearance at the hearing noting “contractures with depressive injuries showing thinning of the muscle on the right humerus…severe scar with contractures on the right forearm running on the entire radial-ulna bone and on the back-palmer aspect, a swelling and tendon swelling affecting the entire right hand. She has lost grip completely on the right hand and the small finger cannot move. There are also contractures owing to degloving.”
31. Learned counsel for the appellants has cited the following cases in support of the submissions:
a) Barnabas v Ombati [2022]KEHC 12136 (KLR) where the High Court on appeal upheld the trial court’s award of KShs 800,000/= for general damages where the respondent/plaintiff had sustained a head and chest contusion, bruises on her right hand and waist together with fracture of the right femur, fracture of right humerus and fracture of the pelvic.
b) Gladys Lyaka Mwombe vs Francis Namatsi & 2 Others (2019) eKLR the appellant/plaintiff had sustained a cut wound on the anterior part of the scalp, a head injury, a spinal cord injury, fracture of the lower tibia and fibula and cut wound on the face. An award of KShs. 300,000/- was upheld by the High Court on appeal.
c) Jitan Nagra vs. Abednego Nyandusi Oigo [2018] eKLR, the appellant had sustained lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, and a segmental distal fracture to the right femur. The trial court award of KShs. 1,000,000/= general damages, was revised to an award of Kshs. 450, 000.00 on appeal on 12th October 2018.
32. Learned counsel for the respondent on his part has cited the following cases as involving comparable injuries:
a) Barchia Leonard Mbaabu & another v Angeline Ngesa Rambim [2019] KEHC 3380 (KLR) where the High Court in 2019 sustained an award of KShs 1,500,000/= general damages for pain, suffering and loss of amenities where the Respondent suffered the following injuries which the doctor in his report assessed as 60% permanent incapacity:
i. Deep frictional burns to right upper limb
ii. Deep degloving injury on muscles of flexors of right elbow
iii. Degloving injury on right antecubital area (inner or front surface of the forearm) exposing flexor muscles
iv. Loss of 4 extensors medial right hand exposing the metacarpal bones
v. Exposed carpal bones with chip fractures on right wrist.
vi. Soft tissue injuries on left ankle
b) Sifa Cleaning and Bins Services Limited v Kamau [2023] KEHC 1623 (KLR) the High Court on appeal in 2023 sustained an award of KShs 1,000,000/= general damages for pain and suffering and KShs 600,000/= for loss of amenities where Dr. GK Mwaura of Kinoo Medical Clinic noted by his report dated June 29, 2019 the following injuries: -
i. De-gloving injury - involving the right temple and right cheek.
ii. Multiple deep cuts-right upper arm, right elbow and right proximal fare arm.
iii. Deep cut wound right knee.
iv. Bruises-both cheeks.
v. Loss of consciousness.
That doctor noted that although respondent had healed from those injuries there however were persistent complications such as: -
i. Disfiguring scars- right temple face right side and left thigh (donor site).
ii. Disfiguring scars and keloids- right fore arm.
iii. Pain and weakness - right upper limb.
iv. Pain and blood loss.
v. Permanent degree or incapacity accessed at 5% - right upper limb.
vi. Grievous harm injuries.
vii. Future medical expenses to remove keloids and dis-fighting scars, surgeon at cost of Ksh 700,000.
Doctor Wambugu’s report dated May 27, 2020 noted injuries the respondent sustained as:-
i. De-gloving wound right temporary scalp.
ii. Multiple Lacerations right upper limb.
The report noted that respondent had skin grafting done to the wound at the temporal scalp extending to the cheek. It further noted that the injury had left scaring as having significant cosmetic concern.
Determination
33. A comparison of the decisions cited by the appellant and those of the respondent shows that the authorities by the appellant do not involve similar or comparable injuries as those of the respondent. The injuries sustained by the respondent in the case of Sifa Cleaning and Bins Services Limited are very similar and comparable to those sustained by the respondent herein including the aspect of their cosmetic significance. In the present case the injuries resulted in 10% permanent incapacity while in the Sifa Cleaning and Bins Services Limited, the permanent incapacity was assessed at 10%. In the circumstances, it cannot be said that the learned trial magistrate was not properly guided by precedent in the assessment of his award.
34. Consequently, I find the decision by learned trial magistrate on assessment of general damages for pain, suffering and loss of amenities KShs 1,800,000/= was not inordinately high as to represent an erroneous award. The same was in line with similar awards made in the recent past for comparable injuries.
35. The appeal is dismissed with costs to the respondent.
36. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 30th day of June 2025 in the presence of:
No appearance for the appellants.
Muthee holding brief for Mwaniki for the respondent.
Job: Court assistant.