[1] The appellant was the defendant before the lower court in Oyugis Senior Principal Magistrate’s Civil Case No. E109 of 2022: Kennedy Juma v James Martin Odiya. The respondent’s cause of action in that suit was that, on or around the 8 th May 2022, he was riding as a lawful pillion passenger along Kendu Bay-Katito Road when, at Kanyangwena area, he was knocked by Motor Vehicle Registration No. KCK 558T, thereby occasioning him serious bodily injuries. He alleged that the motor vehicle was driven so carelessly that it lost control; and that as a result he was subjected to pain, suffering and loss of amenities.
[2] The respondent supplied the particulars of negligence and injuries suffered at paragraphs 5 of the Plaint dated 13 th June 2022. Accordingly, the respondent claimed general damages for pain, suffering and loss of amenities as well as future medication. He also prayed for costs of the suit and interest thereon.
[3] The appellant denied the respondent’s allegations vide their Defence dated 5 th August 2022. He denied that an accident occurred as alleged or that the respondent was a lawful passenger in Motor Vehicle Registration No. KCK 558T, Toyota Premio. The appellant further denied the respondent’s allegations of negligence in the driving of the subject motor vehicle and the particulars of injuries alleged by the respondent and put him to strict proof thereof. In the alternative, the appellant alleged negligence on the part of the respondent as well as rider of the subject motor cycle.
[4] The parties thereafter recorded a consent on quantum and apportioned liability at 80:20 in favour of the respondent. The court then proceeded to assess general damages payable to the respondent at Kshs. 1,760,000/= and entered judgment in that sum together with costs and interest.
[5] Being aggrieved by the decision of the lower court, the appellant filed this appeal vide the Memorandum of Appeal filed herein on 29 th September 2023 on the following grounds:
[a] That the learned magistrate grossly misdirected herself in treating the evidence and submissions on quantum superficially and consequently coming to a wrong conclusion on the same.
[b] That the learned magistrate misdirected herself in ignoring the principles applicable in awarding quantum of damages and the relevant authorities on quantum cited in the written submissions presented and filed by the appellant.
[c] That the learned magistrate proceeded on wrong principles when assessing the damages to be awarded to the respondent (if any) and failed to apply precedents and tenets of law applicable.
[d] The learned magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstances that it represented an entirely erroneous estimate vis-à-vis the respondent’s claim.
[e] The learned magistrate failed to apply herself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision unsustainable in law.
[6] The appellant therefore prayed that the appeal be allowed and that the judgment of the lower court be set aside with costs.
[7] The appeal was canvassed by way of written submissions; to which end, the appellant filed written submissions dated 23 rd October 2025. He urged the Court to bear in mind the principles laid down in the case of Selle v Associated Motor Boat Company Ltd [1968] E A 123 as to the role of an appellate court. The appellant took issue with the quantum awarded by the lower court and contended that the alleged fractures of the right fibula bone and right ankle joint were not proved on a balance of probabilities in so far as no x-ray films or report were produced before the lower court.
[8] The appellant urged the Court to find that no such fractures as were alleged were suffered by the respondent. He relied on the following authorities to buttress his argument that it was necessary for the injuries to be proved to the requisite standard:
[a] Rahima Tayab & others v Anna Mary Kinanu [1983] KLR 114, KAR 90 for the proposition that awards must be reasonable and assessed with moderation;
[b] Jane Wanja Mwangi v Anestar Secondary School [2020] eKLR in which it was held that damages are awarded as compensation for injuries sustained and are not meant to punish the offending party or enrich the aggrieved party;
[c] Siaya Civil Appeal No. 39 of 2019: Pitalis Opiyo Ager v Daniel Otieno Owino & another where the court held that it was incumbent upon the plaintiff to prove the injuries sustained by way of credible evidence such as x-ray films, x-ray report and P3 Form.
[9] In the appellant’s view, the respondent was only entitled to an award of Kshs. 100,000/= on the premise that he only suffered soft tissue injuries. He made reference to the following authorities:
[a] F M (Minor, suing through mother and next friend M W N) v J D K & another [2020] eKLR, in which Kshs. 100,000/= was awarded for blunt soft tissue injuries to the head, neck, thorax, abdomen and limbs.
[b] Ndungu Dennis v Ann Wangari & another, Kiambu HCCC NO. 54 of 2016, in which the High Court awarded Kshs. 100,000/= blunt head injury, head concussion, blunt injuries to the chest and both hands.
[c] Godwin Ireri v Francline Gitonga [2018] eKLR in which the plaintiff suffered two cuts on the forehead, cuts on the scalp to the occipital region, bruises on the left ankle and bruises on the right knee.
[d] P F (suing as next friend and father of S K (minor) v Victor O Kamadi & another [2018] eKLR where the appellant suffered soft tissue injuries to the back, forehead with concussion and right arm. He was awarded Kshs. 50,000/= by the lower court, which award was enhanced on appeal to Kshs. 100,000/=.
[10] Further to the foregoing, the appellant submitted that no evidence was presented before the lower court by the respondent to show the need for future medical expenses. He therefore urged that that aspect of the respondent’s claim be dismissed. As for special damages, the appellant relied on Order 4 Rule 6 of the Civil Procedure Rules and the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR and urged the Court to find that the respondent neither pleaded nor proved special damages; and is therefore not entitled to the same. In sum, the appellant prayed for the dismissal of the appeal with costs.
[11] On his part, the respondent proposed for determination the question whether the award of general damages was manifestly and inordinately excessive in the circumstances. He reiterated the evidence adduced by him before the lower court as to the nature of his injuries and urged the Court to find that there was no rebuttal evidence presented by the appellant.
[12] The respondent relied on James Gathirwa Ngungi v Multiple Hauliers (EA) Limited & Another [2015] eKLR in which the plaintiff suffered a compound comminuted fracture of the right tibia, compound comminuted fracture of the right fibula, fracture of the left proximal radius, fracture of left ulna, head injury, deep cut wound of the parietal region about 4cm, soft tissue injury and bruises of both hands, multiple facial cuts and lacerations and pathological/re-fracture of the right leg and was awarded Kshs. 1,500,000/= in general damages for pain and suffering.
[13] Therefore, the respondent defended the award by the learned magistrate and submitted that it is reasonable, taking into consideration the nature of his injuries.
[14] This being a first appeal, it is the duty of the Court to re-evaluate the evidence adduced before the lower court and come to its own conclusions thereon while bearing in mind that it did not see or hear the witnesses. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
[15] Before the lower court, the respondent testified as PW2. He adopted his witness statement filed on 23 rd June 2022 with the Plaint. His evidence was therefore that on the 8 th May 2022 at about 0820 hours, he was riding as a pillion passenger along Katito-Kendu Bay Road; and that on reaching Kanyangwena area, they were hit by Motor Vehicle Registration No. KCK 558T, Toyota Premio. The respondent further stated that the said motor vehicle was being driven at a high speed and that it lost control, swerved off the road and hit him from behind. He further stated that they landed on the left side of the road and were rushed to hospital for treatment from the injuries sustained.
[16] It was the evidence of the respondent that he was admitted in hospital for 8 days before being discharged to continue with out-patient treatment. He gave the particulars of his injuries as follows:
[a] Fracture of the right fibula bone
[b] Dislocation of the right ankle joint
[c] Potts fracture of the right ankle joint
[d] Bruised right supraorbital region
[e] Cut wound on the temporal region
[f] Cut wound on the right loin region
[17] The respondent also stated that, as a result of the injuries he could no longer perform his normal chores or continue with his work as a farmer. In addition, he testified that would have to continue with medication on account of the serious pains he was experiencing.
[18] The respondent called, as his witness, the Chief Clinical Officer at Homa Bay Referral Hospital, Michael Ochola (PW1). PW1 confirmed that the respondent was indeed injured in a road traffic accident and was rushed to their facility for treatment. PW1 further confirmed that the respondent was admitted and treated for the following injuries:
[a] Bruises on the right eye area
[b] Cut wound on the left head
[c] Cut wound on the right loin region
[d] Fracture of the right fibula bone
[e] Fracture on the right ankle joint
[f] Dislocation of the right ankle joint
[19] PW1 produced the medical documents, including the respondent’s Discharge Summary and P3 Form as exhibits. The appellant opted to adduce no evidence.
[20] The appeal is only on quantum. In H. West & Son Ltd v Shephard [1964] AC 326, it was acknowledged that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[21] The Court of Appeal restated this principle in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR as follows:
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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. The Court 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 high that it must be a wholly erroneous estimate of the damages."
[22] Therefore, as far as possible, comparable injuries ought to attract the same award for purposes of uniformity. The Court of Appeal made this point in Stanley Maore v Geoffrey Mwenda [2004] eKLR, and held:
“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
[23] In this instance, the respondent pleaded the following injuries in his Plaint:
[a] Fracture of the right fibula bone
[b] Dislocation of the right ankle joint
[c] Potts fracture of the right ankle joint
[d] Bruised right supraorbital region
[e] Cut wound on the temporal region
[f] Cut wound on the right loin region
[24] In addition to the respondent’s own evidence in proof of the injuries sustained, he called Michael Ochola who produced the Discharge Summary issued to the respondent as the Plaintiff’s Exhibit 1. The documents confirm that, in addition to soft tissue injuries, the respondent sustained a fracture of the right fibula bone, Pott’s fracture of the right ankle joint as well as dislocation of right ankle joint. The document further shows that x-rays were taken and Plaster of Paris (POP) applied to immobilize the fractured bones.
[25] PW1 also produced a P3 Form dated 19 th May 2022 which he filled and signed after examining the respondent. The P3 Form also indicates the same injuries and also confirms that POP was applied on the fracture sites. In the opinion of PW1 the injuries sustained by the respondent amounted to “Grievous Harm”.
[26] It is manifest therefore that the respondent proved his injuries and that they were not simply soft tissue injuries only as the Court was urged by the appellant to find. Hence, the authorities relied on by the appellant cannot be said to be in respect of comparable injuries. On the other hand, the authority relied on by the respondent involved much more serious injuries; a fact conceded to by counsel for the respondent. Granted the circumstances of this case, I find the following authorities to be more comparable:
[a] Ndathi Mwangi & 2 others v Benson Lumumba Ndivo [2018] KEHC 1905 (KLR) in which the plaintiff suffered fractures of tibia and fibula, among other injuries. The lower court’s award of Kshs. 2,186,000/= was on appeal reduced to Kshs. 1,250,000/=.
[b] Razi Amin Kulaten v Claus Kruger and Rosemary Nyakinyua [2004] KEHC 2239 (KLR) where the plaintiff sustained a fracture of the tibia/fibula and Potts fracture on the left ankle, among other injuries. The lower court awarded him Kshs. 300,000/= as general damages; which sum was enhanced on appeal to Kshs. 1,154,000/= inclusive of cost of future medical attention.
[27] Taking into account the submissions made by the appellant, the authorities relied on by him as well as the effects of inflation, I find an award of Kshs. 1,200,000/= to be reasonable in the circumstances. Indeed, in Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR, the Court of Appeal held:
“The assessment of damages in personal injury case by a court is guided by the following principles: An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained The award should be commensurable with the injuries sustained Previous awards in similar injuries sustained are a mere guide but each case be treated on its own facts Previous awards to be taken into account to maintain the stability of awards but factors such as inflation should be taken into account The awards should not be inordinately low or high.”
[29] It is equally manifest that, although the respondent pleaded that he would require future medication, this aspect was not proved and no award was made in this regard by the lower court.
[30] In the premises, I find merit in the appeal on quantum. The same is hereby allowed and orders granted as follows:
[a] That the judgment delivered in Homa Bay Chief Magistrate’s Civil Case No. E012 of 2022 on 19 th April 2024 be and is hereby set aside and substituted with the judgment of this Court for general damages in the sum of Kshs. 1,200,000/= only.
[b] The costs of the appeal and of the lower court suit to be borne by the appellant.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12 TH DAY OF JUNE, 2026
[2] The respondent supplied the particulars of negligence and injuries suffered at paragraphs 5 of the Plaint dated 13 th June 2022. Accordingly, the respondent claimed general damages for pain, suffering and loss of amenities as well as future medication. He also prayed for costs of the suit and interest thereon.
[3] The appellant denied the respondent’s allegations vide their Defence dated 5 th August 2022. He denied that an accident occurred as alleged or that the respondent was a lawful passenger in Motor Vehicle Registration No. KCK 558T, Toyota Premio. The appellant further denied the respondent’s allegations of negligence in the driving of the subject motor vehicle and the particulars of injuries alleged by the respondent and put him to strict proof thereof. In the alternative, the appellant alleged negligence on the part of the respondent as well as rider of the subject motor cycle.
[4] The parties thereafter recorded a consent on quantum and apportioned liability at 80:20 in favour of the respondent. The court then proceeded to assess general damages payable to the respondent at Kshs. 1,760,000/= and entered judgment in that sum together with costs and interest.
[5] Being aggrieved by the decision of the lower court, the appellant filed this appeal vide the Memorandum of Appeal filed herein on 29 th September 2023 on the following grounds:
[a] That the learned magistrate grossly misdirected herself in treating the evidence and submissions on quantum superficially and consequently coming to a wrong conclusion on the same.
[b] That the learned magistrate misdirected herself in ignoring the principles applicable in awarding quantum of damages and the relevant authorities on quantum cited in the written submissions presented and filed by the appellant.
[c] That the learned magistrate proceeded on wrong principles when assessing the damages to be awarded to the respondent (if any) and failed to apply precedents and tenets of law applicable.
[d] The learned magistrate erred in awarding a sum in respect of damages which was so inordinately high in the circumstances that it represented an entirely erroneous estimate vis-à-vis the respondent’s claim.
[e] The learned magistrate failed to apply herself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision unsustainable in law.
[6] The appellant therefore prayed that the appeal be allowed and that the judgment of the lower court be set aside with costs.
[7] The appeal was canvassed by way of written submissions; to which end, the appellant filed written submissions dated 23 rd October 2025. He urged the Court to bear in mind the principles laid down in the case of Selle v Associated Motor Boat Company Ltd [1968] E A 123 as to the role of an appellate court. The appellant took issue with the quantum awarded by the lower court and contended that the alleged fractures of the right fibula bone and right ankle joint were not proved on a balance of probabilities in so far as no x-ray films or report were produced before the lower court.
[8] The appellant urged the Court to find that no such fractures as were alleged were suffered by the respondent. He relied on the following authorities to buttress his argument that it was necessary for the injuries to be proved to the requisite standard:
[a] Rahima Tayab & others v Anna Mary Kinanu [1983] KLR 114, KAR 90 for the proposition that awards must be reasonable and assessed with moderation;
[b] Jane Wanja Mwangi v Anestar Secondary School [2020] eKLR in which it was held that damages are awarded as compensation for injuries sustained and are not meant to punish the offending party or enrich the aggrieved party;
[c] Siaya Civil Appeal No. 39 of 2019: Pitalis Opiyo Ager v Daniel Otieno Owino & another where the court held that it was incumbent upon the plaintiff to prove the injuries sustained by way of credible evidence such as x-ray films, x-ray report and P3 Form.
[9] In the appellant’s view, the respondent was only entitled to an award of Kshs. 100,000/= on the premise that he only suffered soft tissue injuries. He made reference to the following authorities:
[a] F M (Minor, suing through mother and next friend M W N) v J D K & another [2020] eKLR, in which Kshs. 100,000/= was awarded for blunt soft tissue injuries to the head, neck, thorax, abdomen and limbs.
[b] Ndungu Dennis v Ann Wangari & another, Kiambu HCCC NO. 54 of 2016, in which the High Court awarded Kshs. 100,000/= blunt head injury, head concussion, blunt injuries to the chest and both hands.
[c] Godwin Ireri v Francline Gitonga [2018] eKLR in which the plaintiff suffered two cuts on the forehead, cuts on the scalp to the occipital region, bruises on the left ankle and bruises on the right knee.
[d] P F (suing as next friend and father of S K (minor) v Victor O Kamadi & another [2018] eKLR where the appellant suffered soft tissue injuries to the back, forehead with concussion and right arm. He was awarded Kshs. 50,000/= by the lower court, which award was enhanced on appeal to Kshs. 100,000/=.
[10] Further to the foregoing, the appellant submitted that no evidence was presented before the lower court by the respondent to show the need for future medical expenses. He therefore urged that that aspect of the respondent’s claim be dismissed. As for special damages, the appellant relied on Order 4 Rule 6 of the Civil Procedure Rules and the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR and urged the Court to find that the respondent neither pleaded nor proved special damages; and is therefore not entitled to the same. In sum, the appellant prayed for the dismissal of the appeal with costs.
[11] On his part, the respondent proposed for determination the question whether the award of general damages was manifestly and inordinately excessive in the circumstances. He reiterated the evidence adduced by him before the lower court as to the nature of his injuries and urged the Court to find that there was no rebuttal evidence presented by the appellant.
[12] The respondent relied on James Gathirwa Ngungi v Multiple Hauliers (EA) Limited & Another [2015] eKLR in which the plaintiff suffered a compound comminuted fracture of the right tibia, compound comminuted fracture of the right fibula, fracture of the left proximal radius, fracture of left ulna, head injury, deep cut wound of the parietal region about 4cm, soft tissue injury and bruises of both hands, multiple facial cuts and lacerations and pathological/re-fracture of the right leg and was awarded Kshs. 1,500,000/= in general damages for pain and suffering.
[13] Therefore, the respondent defended the award by the learned magistrate and submitted that it is reasonable, taking into consideration the nature of his injuries.
[14] This being a first appeal, it is the duty of the Court to re-evaluate the evidence adduced before the lower court and come to its own conclusions thereon while bearing in mind that it did not see or hear the witnesses. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
[15] Before the lower court, the respondent testified as PW2. He adopted his witness statement filed on 23 rd June 2022 with the Plaint. His evidence was therefore that on the 8 th May 2022 at about 0820 hours, he was riding as a pillion passenger along Katito-Kendu Bay Road; and that on reaching Kanyangwena area, they were hit by Motor Vehicle Registration No. KCK 558T, Toyota Premio. The respondent further stated that the said motor vehicle was being driven at a high speed and that it lost control, swerved off the road and hit him from behind. He further stated that they landed on the left side of the road and were rushed to hospital for treatment from the injuries sustained.
[16] It was the evidence of the respondent that he was admitted in hospital for 8 days before being discharged to continue with out-patient treatment. He gave the particulars of his injuries as follows:
[a] Fracture of the right fibula bone
[b] Dislocation of the right ankle joint
[c] Potts fracture of the right ankle joint
[d] Bruised right supraorbital region
[e] Cut wound on the temporal region
[f] Cut wound on the right loin region
[17] The respondent also stated that, as a result of the injuries he could no longer perform his normal chores or continue with his work as a farmer. In addition, he testified that would have to continue with medication on account of the serious pains he was experiencing.
[18] The respondent called, as his witness, the Chief Clinical Officer at Homa Bay Referral Hospital, Michael Ochola (PW1). PW1 confirmed that the respondent was indeed injured in a road traffic accident and was rushed to their facility for treatment. PW1 further confirmed that the respondent was admitted and treated for the following injuries:
[a] Bruises on the right eye area
[b] Cut wound on the left head
[c] Cut wound on the right loin region
[d] Fracture of the right fibula bone
[e] Fracture on the right ankle joint
[f] Dislocation of the right ankle joint
[19] PW1 produced the medical documents, including the respondent’s Discharge Summary and P3 Form as exhibits. The appellant opted to adduce no evidence.
[20] The appeal is only on quantum. In H. West & Son Ltd v Shephard [1964] AC 326, it was acknowledged that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[21] The Court of Appeal restated this principle in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR as follows:
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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. The Court 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 high that it must be a wholly erroneous estimate of the damages."
[22] Therefore, as far as possible, comparable injuries ought to attract the same award for purposes of uniformity. The Court of Appeal made this point in Stanley Maore v Geoffrey Mwenda [2004] eKLR, and held:
“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
[23] In this instance, the respondent pleaded the following injuries in his Plaint:
[a] Fracture of the right fibula bone
[b] Dislocation of the right ankle joint
[c] Potts fracture of the right ankle joint
[d] Bruised right supraorbital region
[e] Cut wound on the temporal region
[f] Cut wound on the right loin region
[24] In addition to the respondent’s own evidence in proof of the injuries sustained, he called Michael Ochola who produced the Discharge Summary issued to the respondent as the Plaintiff’s Exhibit 1. The documents confirm that, in addition to soft tissue injuries, the respondent sustained a fracture of the right fibula bone, Pott’s fracture of the right ankle joint as well as dislocation of right ankle joint. The document further shows that x-rays were taken and Plaster of Paris (POP) applied to immobilize the fractured bones.
[25] PW1 also produced a P3 Form dated 19 th May 2022 which he filled and signed after examining the respondent. The P3 Form also indicates the same injuries and also confirms that POP was applied on the fracture sites. In the opinion of PW1 the injuries sustained by the respondent amounted to “Grievous Harm”.
[26] It is manifest therefore that the respondent proved his injuries and that they were not simply soft tissue injuries only as the Court was urged by the appellant to find. Hence, the authorities relied on by the appellant cannot be said to be in respect of comparable injuries. On the other hand, the authority relied on by the respondent involved much more serious injuries; a fact conceded to by counsel for the respondent. Granted the circumstances of this case, I find the following authorities to be more comparable:
[a] Ndathi Mwangi & 2 others v Benson Lumumba Ndivo [2018] KEHC 1905 (KLR) in which the plaintiff suffered fractures of tibia and fibula, among other injuries. The lower court’s award of Kshs. 2,186,000/= was on appeal reduced to Kshs. 1,250,000/=.
[b] Razi Amin Kulaten v Claus Kruger and Rosemary Nyakinyua [2004] KEHC 2239 (KLR) where the plaintiff sustained a fracture of the tibia/fibula and Potts fracture on the left ankle, among other injuries. The lower court awarded him Kshs. 300,000/= as general damages; which sum was enhanced on appeal to Kshs. 1,154,000/= inclusive of cost of future medical attention.
[27] Taking into account the submissions made by the appellant, the authorities relied on by him as well as the effects of inflation, I find an award of Kshs. 1,200,000/= to be reasonable in the circumstances. Indeed, in Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR, the Court of Appeal held:
“The assessment of damages in personal injury case by a court is guided by the following principles: An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained The award should be commensurable with the injuries sustained Previous awards in similar injuries sustained are a mere guide but each case be treated on its own facts Previous awards to be taken into account to maintain the stability of awards but factors such as inflation should be taken into account The awards should not be inordinately low or high.”
[29] It is equally manifest that, although the respondent pleaded that he would require future medication, this aspect was not proved and no award was made in this regard by the lower court.
[30] In the premises, I find merit in the appeal on quantum. The same is hereby allowed and orders granted as follows:
[a] That the judgment delivered in Homa Bay Chief Magistrate’s Civil Case No. E012 of 2022 on 19 th April 2024 be and is hereby set aside and substituted with the judgment of this Court for general damages in the sum of Kshs. 1,200,000/= only.
[b] The costs of the appeal and of the lower court suit to be borne by the appellant.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 12 TH DAY OF JUNE, 2026