1. The appellant being dissatisfied with the whole judgement and decree of the learned trial adjudicator Hon. W.C Keter and delivered on the 22/4/2024 Appealed vide the memorandum of appeal herein on the grounds
that ;
a. The award of general damages awarded to the respondent was manifestly and inordinately excessive in the circumstances
b. The learned trial magistrate erred in law and in fact in holding the appellant 100% or at all
c. The learned magistrate acted in error when the same failed to properly evaluate the evidence on record thus reaching erroneous decision
d. The learned trial adjudicator erred when she failed to hold that the claim was fraudulent.
e. The learned trial magistrate erred when the same misapprehended the principle applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice
f. That the Learned Trial adjudicator erred in law when the same ignored the holding of the superior court in the authority of Ogwari v Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR) (3 July 2023) (Judgment), which was binding upon it, pursuant to the principle of Stare decisis doctrine.
g. The Learned Trial Adjudicator erred in law when she failed to appreciate that the issues of law raised by the Appellant vide the Preliminary objection dated the 1st day of March 2024, were never the very issues considered and determined vide the cases of Githinji & Another v Pioneer Assurance Co. & Others (Civil Appeal E47 OF 2021) [2023] KEHC 26526(KLR) CIV (8 DECEMBER 2023) and Torotich VS-Kibe & 2 Others (CIVIL APPEAL E124 OF2023) [2023] KEHC 251(24 January 2024) judgment, and thus the said decision precedents were irrelevant to the issues falling for determination before her thereby failing to uphold and appreciate that she was devoid of Jurisdiction to entertain and determine the suit.
h. The Learned Trial Adjudicator erred in law when she insisted that she has jurisdiction to entertain a common law claim of tort, under the Cap 405 Laws of Kenya, which claim cannot be fashioned or categorized as small claim under the Small Claims Court Act, and which claim is not adequately envisaged under the Rules and mechanism and forms enacted under the Small Claims Court Act, and thus not meant for resolution through mechanism set out under the small claim Act and the Rules made thereunder, more so, Sections 12(3), 19(2),(3), 23(2),(5), 24, 32, 34,37(138(1 & 2) and Rules 3(1,4,5,6), 23, 31
i. That the Learned Trial adjudicator erred in Law when it failed to appreciate that, owing to complexity and nature of claim under Cap 405, which are claim at large and mandatory statutory underpinnings, under the said Act, it is contrary to the Provisions of Article 50 of the Constitution for a claim arising under Cap 405, to be fairly and justly adjudicated under Small Claims Court Act.
j. The Act (Small Claims Court Act) as a whole, violates the Respondent’s rights of fair hearing and access to justice under Articles 48 & 50 of the Constitution of Kenya, in respect of claims under the Constitution of Kenya.
k. The Learned trial adjudicator erred in law when she failed to appreciate and interrogate the law and discern why claims under Cap 405, Laws of Kenya should not be adjudicated under Small Claims Court Act.
l. The Learned Trial Magistrate erred in Law when she insisted to entertain a matter in which she is devoid of the requisite Jurisdiction.
2. The appellant sought for Orders that: -
a) The Judgement and Decree of the Learned Trial Adjudicator dated the 22/4/2024 be set aside varied and/or quashed.
b)the court be pleased to order the small claim case mounted by the respondent ;(KISII/E041/2024) the subject of this appeal be dismissed
c)costs of the appeal and those before the adjudicator be borne by the respondents
d)any such and/or further orders that the Honourable court shall deem just and expedient in the circumstances.
APPELLANT’S SUBMISSIONS
3. The appellant in his appeal raises three issues ;
a)whether the learned trial adjudicator had the jurisdiction to hear and determine the claim before her.
b) Whether the learned adjudicator was justified in her finding on liability at 100%.
c). Whether the learned adjudicator awarded excessive damages
4. On jurisdiction, it was submitted they raised a preliminary objection in the Small Claims court that although Section 12 (1) (d)of the Small Claims Act provides that the court has jurisdiction to hear and determined cases for compensation arising to road traffic accidents, such claims are not liquidated. Also that Section 34 of the Act provides for hearing and determination of small claims within 60 days from the date of filling and thus it is impractical to hear and determine those cases within the same time lines as the defendant has to send the plaintiff for a 2nd medical examination , review the same and call in experts . The appellant further submitted that it is contrary to the provisions of Article 50 of the Constitution of Kenya for a claim arising under Cap 405 to be adjudicated under Small Claims Court Act. Also that the small claims court erred in insisting to entertain a common law claim of tort which claim cannot be categorized as small claim under the small claims Act. Appellant also relied on the case of Ogwari Vs Hersi , Mombasa High Court Civil Appeal No. 223 of 2022 where it was held that – ‘’the purpose of the Act is to handle simple matters and not complicated cases where strict proof is necessary. That does not however leave the respondent with a duty to modify the form to fit their claim. The claim to that was being dealt with clearly beyond scope of the small claims court. Therefore, i hold that such matters involving negligence and injuries arising from road traffic accidents , should be filed in the chief magistrates court. If for any reason they have already been filed in small claims court ,the particulars of negligence must be pleaded. The nature of the form used for the claim introduces a mongrel of strict liability and negligence, which is untenable. This matter has presented to me a very unique opportunity to clarify the law on the aspects of personal injury related to the road traffic accidents are also timelines to be kept in service of notices under cap 405, insurance (motor vehicle third party risks)Act. I have found that it is impractical for such cases to be in the small claims court it does not mean that if the pleadings are properly done ,the case cannot be in the courts .it is that the act does not contemplate the claims other than assault in this courts .I direct that a claimant to file a proper suit in the chief Magistrates court.’’
5. On the issue of liability , the appellant contends that the court erred in finding the appellant 100% liable and argued that neither pedestrians or any persons were hit by appellant’s vehicle on the material day neither were any persons .They relied on the case of Nicholas Nyangwechi Miyogo Joseph Vs James Nyakundi Nyamrai and 2 others .
6. On the issue of quantum,, the appellant submitted that the said award of Ksh. 180,000/= was extremely excessive in the circumstances and suggested that an award of 50,000 would be adequate .
RESPONDENT’S SUBMISSIONS
7. In response to the appeal, the Respondent submitted that the judgment delivered on 22nd April 2024 by Hon. W.C. Keter was properly founded. On the issue of jurisdiction, the Respondent contends that the Trial Magistrate had jurisdiction under Section 12(1)(d) of the Small Claims Court Act, which expressly includes compensation for personal injuries. Reference is made to the First Schedule of the Act, which provides for personal injury claims in FORM SCC 1. The Respondent relies on the case of Gichovi v Kilem (Civil Appeal E020 of 2024) [2024] KEHC 10859 (KLR), where Justice L. Njuguna confirmed that claims relating to personal injuries fall within the scope of the Small Claims Court's jurisdiction under section 12(1)(d).
8. On liability, it was submitted trial court also found the Appellant 100% liable for the accident involving motor vehicle KCV 735R, which veered off it’s lane and hit pedestrians , including the Respondent who were off the road . The Respondent’s account, supported by a police officer and consistent under cross-examination, was not rebutted, was credible and consistent and therefore justified the court’s findings on liability and thus the Appellant’s grounds of appeal regarding liability are therefore without merit.
9. On the issue of quantum, the Respondent was awarded Ksh. 180,000/= as general damages for pain and suffering and Ksh. 12,050/= as special damages. It was submitted that the Respondent pleaded before the Trial Court that the injuries suffered included:
Bruises on the right hand and shoulder,
Blunt trauma to the forearm, foot, thigh,
Blood loss,
Physical and psychological pain.
The medical report by Dr. Peter Momanyi Morebu confirmed the said injuries. Dr Walter Adero (RW1) an orthopedic and trauma surgeon saw the respondent herein on 5.4.2024 and found that he sustained soft tissue injuries on his torso and extremities . He found that the respondent did not sustain permanent disability . it is clear that the respondent sustained moderate soft tissue injuries which healed without any complication . The trial court awarded Ksh. 180,000/= in general damages, relying on the decision in Anthony Nyamwaya v Jackline Moraa Nyandemo (2022) eKLR, where the claimant had sustained similar injuries. The Respondent also cited:
Lucy Ntibuka v Bernard Mutwiri & others [2007] eKLR
Poa Link Services Co. Ltd & Another v Sindani Boaz Bonzemo [2021]
Vincent Cheruiyot Rono v Mombasa Maize Millers Ltd [2006] eKLR
Pan Paper Mills (EA) Ltd & Another v Asha Hassan [2007] eKLR
Further, the Respondent cited the holding of Justice Majanja in Telkom Orange Kenya Ltd v I.S.O. (Minor) suing through J.N. [2018] eKLR, where the court emphasized that general damages should reflect the nature and gravity of injuries and be comparable to other awards while giving adjustment adjusting for inflation factor . Supporting this position, the Respondent cited Stanley Maore v Geoffrey Mwenda [2004] eKLR, where the Court of Appeal noted the principle that comparable injuries should yield comparable awards. They also also cited Ugenya Bus Service v Gachoki [1982] eKLR and Jabane v Olenja [1986] KLR 661, which underscored the need for awards to remain fair yet realistic within the economic context.
10. The Respondent submitted that no error in law or principle was made by the trial court, and that the award is commensurate with the nature of injuries and past judicial awards. They referred to the case of Peter Nyangacha v Nyagaka Bisera Peter [2018] eKLR, to stress that an appellate court can only interfere with an award of damages if it is shown to be inordinately high/low or based on erroneous principles, which is not the case here.
11. On whether the trial court considered the circumstances, precedents, and submissions of the Appellant, the Respondent said that the court had the opportunity to observe the witnesses receive written submissions from both parties and relied on precedents. The court acknowledged all this in its reasoning and judgment. the appellant argues that the appeal lacks merit and that it should be dismissed with costs.
12. This is an first appellate court whose duty is to re-evaluated the entire evidence on record and arrive at its own conclusion on the issues bearing in mind that it had no opportunity to see and hear the witnesses during the trial as was held in the case of Selle and Another vs Associated Motor Boat Company Ltd & others [1968] 1EA 123 to wit :
“…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. In particular, this court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”
Issues for determination.
12. I have considered the memorandum of appeal, the submissions of both parties and the issues arising for determination are;
Whether the trial adjudicator had jurisdiction to entertain the suit for unliquidated sum ;and if so
ii. whether Jared Ondigo the respondent herein and the respondent in Kisii High court civil appeal no. E081 of 2024 were involved in the accident.
iii. Whether liability was proved by the respondent .
iv. Whether the quantum awarded by the learned adjudicator
was excessive .
Analysis and determination
23. The issues of jurisdiction, involvement of the respondent in the accident , liability were dealt with in the said Kisii High court civil appeal no. E081 of 2024 . The parties in the instant appeal and the said appeal , the cause of action and witnesses are the same. I order that the findings in the said Kisii High court civil appeal no. E081 of 2024 save for the issue of quantum to apply to this appeal .
Quantum.
23. The issue question is whether this court should interfere with the damages awarded by the trial court. In the case of Kemfro Africa Limited T/A Meru Express Services [1976] and another v Lubia and another (No.2) [1985] eKLR, in which the Court (Kneller, Nyarangi, JJA and Chesoni, Ag JA) stated as follows:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. It is thus clear that the discretion of a trial court in assessing general damages will only be disturbed if the trial court took into account an irrelevant facts or failed to take into account a relevant factor or that and that it arrived at an erroneous award of the damages. The trial magistrate in the instant case awarded 180,000 as general damages , the appellant submitted the award as excessively high .The respondent supported the award saying it is reasonable and commensurate to the injuries sustained .The purpose of an award of general damages neither to enrich the victim nor restore him but to adequately compensate such victim for the injuries sustained . The respondent herein pleaded that he sustained the following injuries;
a)bruises on the right hand
b)blunt trauma to the right forearm
c)physical and psychological pains.
d)blunt trauma to the right foot.
e)bruises on the right shoulder
f)blood loss.
g)blunt trauma to the right thigh .
The injuries were supported by the treatment notes , the p3 form and the medical report dated 15.1.24 by Dr Morebu peter Momanyi (CW) who opined that he saw respondent about 10 days after the accident , that he was healing the wounds were expected to leave large disfiguring ugly scars creating a permanent significant cosmetic defect on his appearance .
The Court of Appeal in the case of Simon Taveta vs Mercy Mutitu Njeru [2014] eKLR held that: ‘’ The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”
In the case of Peter Njuguna vs Francis Njuguna Njoroge [2015] eKLR the court awarded Kshs. 230,000/- where the plaintiff sustained the following injuries :-
a.Bruises on the occipital region of the scalp.
b.Deep cut on the forehead.
c.Bruises on the chest and lower back.
d.Bruises on the right elbow.
e.Bruises on both hands.
f.Tender left knee joint.
g.Broken tooth.
24. In the case of Francis Ochieng & Another v Alice Kajimba (2015) eKLR, the High Court reduced an award of Kshs 500,000/= to Kshs 350,000/= for multiple soft tissue injuries. Also in the =case of H. Young Construction Company Ltd v Richard Kyule Ndolo (2014) eKLR award of Kshs 250,000/= general damages were made for soft tissue injuries. I have also seen the case of Catherine Wanjiru Kingori & 3 Others =Versus= Gibson Theuri Gichubi(2005) eKLR where the Plaintiff was awarded Kshs.350,000/= for multiple soft tissue injuries.
25. I have considered the judgement of the lower court , the nature injuries sustained by the respondent, the inflation factor , comparable awards for similar injuries in the cited authorities tendered by the parties herein I find no reason to interfere with the award of the trial court which was adequate in the circumstances I uphold the finding of the Learned Trial Magistrate on Quantum .
25. Turning to the award of special damages , the same was specifically pleaded and strictly as required by law . I uphold the same .
26 The appeal is thus devoid of merit and is hereby dismissed with costs.
T.A ODERA
JUDGE
7.7.25
DELIVERD VIRTUALLY VIA TEAMS PLATFORM ON THIS 7TH DAY OF JULY 2025 IN THE PRESENCE OF :
MISS OPONDO FOR THE APPELLANT
MISS NDEMO FOR THE RESPONDENT
CA KIPCHIRCHIR
that ;
a. The award of general damages awarded to the respondent was manifestly and inordinately excessive in the circumstances
b. The learned trial magistrate erred in law and in fact in holding the appellant 100% or at all
c. The learned magistrate acted in error when the same failed to properly evaluate the evidence on record thus reaching erroneous decision
d. The learned trial adjudicator erred when she failed to hold that the claim was fraudulent.
e. The learned trial magistrate erred when the same misapprehended the principle applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice
f. That the Learned Trial adjudicator erred in law when the same ignored the holding of the superior court in the authority of Ogwari v Hersi (Civil Appeal 223 of 2022) [2023] KEHC 20111 (KLR) (3 July 2023) (Judgment), which was binding upon it, pursuant to the principle of Stare decisis doctrine.
g. The Learned Trial Adjudicator erred in law when she failed to appreciate that the issues of law raised by the Appellant vide the Preliminary objection dated the 1st day of March 2024, were never the very issues considered and determined vide the cases of Githinji & Another v Pioneer Assurance Co. & Others (Civil Appeal E47 OF 2021) [2023] KEHC 26526(KLR) CIV (8 DECEMBER 2023) and Torotich VS-Kibe & 2 Others (CIVIL APPEAL E124 OF2023) [2023] KEHC 251(24 January 2024) judgment, and thus the said decision precedents were irrelevant to the issues falling for determination before her thereby failing to uphold and appreciate that she was devoid of Jurisdiction to entertain and determine the suit.
h. The Learned Trial Adjudicator erred in law when she insisted that she has jurisdiction to entertain a common law claim of tort, under the Cap 405 Laws of Kenya, which claim cannot be fashioned or categorized as small claim under the Small Claims Court Act, and which claim is not adequately envisaged under the Rules and mechanism and forms enacted under the Small Claims Court Act, and thus not meant for resolution through mechanism set out under the small claim Act and the Rules made thereunder, more so, Sections 12(3), 19(2),(3), 23(2),(5), 24, 32, 34,37(138(1 & 2) and Rules 3(1,4,5,6), 23, 31
i. That the Learned Trial adjudicator erred in Law when it failed to appreciate that, owing to complexity and nature of claim under Cap 405, which are claim at large and mandatory statutory underpinnings, under the said Act, it is contrary to the Provisions of Article 50 of the Constitution for a claim arising under Cap 405, to be fairly and justly adjudicated under Small Claims Court Act.
j. The Act (Small Claims Court Act) as a whole, violates the Respondent’s rights of fair hearing and access to justice under Articles 48 & 50 of the Constitution of Kenya, in respect of claims under the Constitution of Kenya.
k. The Learned trial adjudicator erred in law when she failed to appreciate and interrogate the law and discern why claims under Cap 405, Laws of Kenya should not be adjudicated under Small Claims Court Act.
l. The Learned Trial Magistrate erred in Law when she insisted to entertain a matter in which she is devoid of the requisite Jurisdiction.
2. The appellant sought for Orders that: -
a) The Judgement and Decree of the Learned Trial Adjudicator dated the 22/4/2024 be set aside varied and/or quashed.
b)the court be pleased to order the small claim case mounted by the respondent ;(KISII/E041/2024) the subject of this appeal be dismissed
c)costs of the appeal and those before the adjudicator be borne by the respondents
d)any such and/or further orders that the Honourable court shall deem just and expedient in the circumstances.
APPELLANT’S SUBMISSIONS
3. The appellant in his appeal raises three issues ;
a)whether the learned trial adjudicator had the jurisdiction to hear and determine the claim before her.
b) Whether the learned adjudicator was justified in her finding on liability at 100%.
c). Whether the learned adjudicator awarded excessive damages
4. On jurisdiction, it was submitted they raised a preliminary objection in the Small Claims court that although Section 12 (1) (d)of the Small Claims Act provides that the court has jurisdiction to hear and determined cases for compensation arising to road traffic accidents, such claims are not liquidated. Also that Section 34 of the Act provides for hearing and determination of small claims within 60 days from the date of filling and thus it is impractical to hear and determine those cases within the same time lines as the defendant has to send the plaintiff for a 2nd medical examination , review the same and call in experts . The appellant further submitted that it is contrary to the provisions of Article 50 of the Constitution of Kenya for a claim arising under Cap 405 to be adjudicated under Small Claims Court Act. Also that the small claims court erred in insisting to entertain a common law claim of tort which claim cannot be categorized as small claim under the small claims Act. Appellant also relied on the case of Ogwari Vs Hersi , Mombasa High Court Civil Appeal No. 223 of 2022 where it was held that – ‘’the purpose of the Act is to handle simple matters and not complicated cases where strict proof is necessary. That does not however leave the respondent with a duty to modify the form to fit their claim. The claim to that was being dealt with clearly beyond scope of the small claims court. Therefore, i hold that such matters involving negligence and injuries arising from road traffic accidents , should be filed in the chief magistrates court. If for any reason they have already been filed in small claims court ,the particulars of negligence must be pleaded. The nature of the form used for the claim introduces a mongrel of strict liability and negligence, which is untenable. This matter has presented to me a very unique opportunity to clarify the law on the aspects of personal injury related to the road traffic accidents are also timelines to be kept in service of notices under cap 405, insurance (motor vehicle third party risks)Act. I have found that it is impractical for such cases to be in the small claims court it does not mean that if the pleadings are properly done ,the case cannot be in the courts .it is that the act does not contemplate the claims other than assault in this courts .I direct that a claimant to file a proper suit in the chief Magistrates court.’’
5. On the issue of liability , the appellant contends that the court erred in finding the appellant 100% liable and argued that neither pedestrians or any persons were hit by appellant’s vehicle on the material day neither were any persons .They relied on the case of Nicholas Nyangwechi Miyogo Joseph Vs James Nyakundi Nyamrai and 2 others .
6. On the issue of quantum,, the appellant submitted that the said award of Ksh. 180,000/= was extremely excessive in the circumstances and suggested that an award of 50,000 would be adequate .
RESPONDENT’S SUBMISSIONS
7. In response to the appeal, the Respondent submitted that the judgment delivered on 22nd April 2024 by Hon. W.C. Keter was properly founded. On the issue of jurisdiction, the Respondent contends that the Trial Magistrate had jurisdiction under Section 12(1)(d) of the Small Claims Court Act, which expressly includes compensation for personal injuries. Reference is made to the First Schedule of the Act, which provides for personal injury claims in FORM SCC 1. The Respondent relies on the case of Gichovi v Kilem (Civil Appeal E020 of 2024) [2024] KEHC 10859 (KLR), where Justice L. Njuguna confirmed that claims relating to personal injuries fall within the scope of the Small Claims Court's jurisdiction under section 12(1)(d).
8. On liability, it was submitted trial court also found the Appellant 100% liable for the accident involving motor vehicle KCV 735R, which veered off it’s lane and hit pedestrians , including the Respondent who were off the road . The Respondent’s account, supported by a police officer and consistent under cross-examination, was not rebutted, was credible and consistent and therefore justified the court’s findings on liability and thus the Appellant’s grounds of appeal regarding liability are therefore without merit.
9. On the issue of quantum, the Respondent was awarded Ksh. 180,000/= as general damages for pain and suffering and Ksh. 12,050/= as special damages. It was submitted that the Respondent pleaded before the Trial Court that the injuries suffered included:
Bruises on the right hand and shoulder,
Blunt trauma to the forearm, foot, thigh,
Blood loss,
Physical and psychological pain.
The medical report by Dr. Peter Momanyi Morebu confirmed the said injuries. Dr Walter Adero (RW1) an orthopedic and trauma surgeon saw the respondent herein on 5.4.2024 and found that he sustained soft tissue injuries on his torso and extremities . He found that the respondent did not sustain permanent disability . it is clear that the respondent sustained moderate soft tissue injuries which healed without any complication . The trial court awarded Ksh. 180,000/= in general damages, relying on the decision in Anthony Nyamwaya v Jackline Moraa Nyandemo (2022) eKLR, where the claimant had sustained similar injuries. The Respondent also cited:
Lucy Ntibuka v Bernard Mutwiri & others [2007] eKLR
Poa Link Services Co. Ltd & Another v Sindani Boaz Bonzemo [2021]
Vincent Cheruiyot Rono v Mombasa Maize Millers Ltd [2006] eKLR
Pan Paper Mills (EA) Ltd & Another v Asha Hassan [2007] eKLR
Further, the Respondent cited the holding of Justice Majanja in Telkom Orange Kenya Ltd v I.S.O. (Minor) suing through J.N. [2018] eKLR, where the court emphasized that general damages should reflect the nature and gravity of injuries and be comparable to other awards while giving adjustment adjusting for inflation factor . Supporting this position, the Respondent cited Stanley Maore v Geoffrey Mwenda [2004] eKLR, where the Court of Appeal noted the principle that comparable injuries should yield comparable awards. They also also cited Ugenya Bus Service v Gachoki [1982] eKLR and Jabane v Olenja [1986] KLR 661, which underscored the need for awards to remain fair yet realistic within the economic context.
10. The Respondent submitted that no error in law or principle was made by the trial court, and that the award is commensurate with the nature of injuries and past judicial awards. They referred to the case of Peter Nyangacha v Nyagaka Bisera Peter [2018] eKLR, to stress that an appellate court can only interfere with an award of damages if it is shown to be inordinately high/low or based on erroneous principles, which is not the case here.
11. On whether the trial court considered the circumstances, precedents, and submissions of the Appellant, the Respondent said that the court had the opportunity to observe the witnesses receive written submissions from both parties and relied on precedents. The court acknowledged all this in its reasoning and judgment. the appellant argues that the appeal lacks merit and that it should be dismissed with costs.
12. This is an first appellate court whose duty is to re-evaluated the entire evidence on record and arrive at its own conclusion on the issues bearing in mind that it had no opportunity to see and hear the witnesses during the trial as was held in the case of Selle and Another vs Associated Motor Boat Company Ltd & others [1968] 1EA 123 to wit :
“…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. In particular, this court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.”
Issues for determination.
12. I have considered the memorandum of appeal, the submissions of both parties and the issues arising for determination are;
Whether the trial adjudicator had jurisdiction to entertain the suit for unliquidated sum ;and if so
ii. whether Jared Ondigo the respondent herein and the respondent in Kisii High court civil appeal no. E081 of 2024 were involved in the accident.
iii. Whether liability was proved by the respondent .
iv. Whether the quantum awarded by the learned adjudicator
was excessive .
Analysis and determination
23. The issues of jurisdiction, involvement of the respondent in the accident , liability were dealt with in the said Kisii High court civil appeal no. E081 of 2024 . The parties in the instant appeal and the said appeal , the cause of action and witnesses are the same. I order that the findings in the said Kisii High court civil appeal no. E081 of 2024 save for the issue of quantum to apply to this appeal .
Quantum.
23. The issue question is whether this court should interfere with the damages awarded by the trial court. In the case of Kemfro Africa Limited T/A Meru Express Services [1976] and another v Lubia and another (No.2) [1985] eKLR, in which the Court (Kneller, Nyarangi, JJA and Chesoni, Ag JA) stated as follows:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage. It is thus clear that the discretion of a trial court in assessing general damages will only be disturbed if the trial court took into account an irrelevant facts or failed to take into account a relevant factor or that and that it arrived at an erroneous award of the damages. The trial magistrate in the instant case awarded 180,000 as general damages , the appellant submitted the award as excessively high .The respondent supported the award saying it is reasonable and commensurate to the injuries sustained .The purpose of an award of general damages neither to enrich the victim nor restore him but to adequately compensate such victim for the injuries sustained . The respondent herein pleaded that he sustained the following injuries;
a)bruises on the right hand
b)blunt trauma to the right forearm
c)physical and psychological pains.
d)blunt trauma to the right foot.
e)bruises on the right shoulder
f)blood loss.
g)blunt trauma to the right thigh .
The injuries were supported by the treatment notes , the p3 form and the medical report dated 15.1.24 by Dr Morebu peter Momanyi (CW) who opined that he saw respondent about 10 days after the accident , that he was healing the wounds were expected to leave large disfiguring ugly scars creating a permanent significant cosmetic defect on his appearance .
The Court of Appeal in the case of Simon Taveta vs Mercy Mutitu Njeru [2014] eKLR held that: ‘’ The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”
In the case of Peter Njuguna vs Francis Njuguna Njoroge [2015] eKLR the court awarded Kshs. 230,000/- where the plaintiff sustained the following injuries :-
a.Bruises on the occipital region of the scalp.
b.Deep cut on the forehead.
c.Bruises on the chest and lower back.
d.Bruises on the right elbow.
e.Bruises on both hands.
f.Tender left knee joint.
g.Broken tooth.
24. In the case of Francis Ochieng & Another v Alice Kajimba (2015) eKLR, the High Court reduced an award of Kshs 500,000/= to Kshs 350,000/= for multiple soft tissue injuries. Also in the =case of H. Young Construction Company Ltd v Richard Kyule Ndolo (2014) eKLR award of Kshs 250,000/= general damages were made for soft tissue injuries. I have also seen the case of Catherine Wanjiru Kingori & 3 Others =Versus= Gibson Theuri Gichubi(2005) eKLR where the Plaintiff was awarded Kshs.350,000/= for multiple soft tissue injuries.
25. I have considered the judgement of the lower court , the nature injuries sustained by the respondent, the inflation factor , comparable awards for similar injuries in the cited authorities tendered by the parties herein I find no reason to interfere with the award of the trial court which was adequate in the circumstances I uphold the finding of the Learned Trial Magistrate on Quantum .
25. Turning to the award of special damages , the same was specifically pleaded and strictly as required by law . I uphold the same .
26 The appeal is thus devoid of merit and is hereby dismissed with costs.
T.A ODERA
JUDGE
7.7.25
DELIVERD VIRTUALLY VIA TEAMS PLATFORM ON THIS 7TH DAY OF JULY 2025 IN THE PRESENCE OF :
MISS OPONDO FOR THE APPELLANT
MISS NDEMO FOR THE RESPONDENT
CA KIPCHIRCHIR