' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CIVIL APPEAL NO. E014 OF 2024
JAMES WANYOIKE T/A PROMISE
(MWANAKE LUXURY) COACH……………………………….1 ST APPELLANT/APPLICANT
NEW PROMISE CONTRACTORS CO.
LIMITED………………………...………………………………..2 ND APPELLANT/ APPLICANT
GIDRAF MUIRURI……………………………………………….3 RD APPELLANT/APPLICANT
VERSUS
LOKAI SAMUEL LOBURAK (Suing through the next friend & Mother)
ROSA SEVERINO AMUTO………………………………………………….......RESPONDENT
JUDGEMENT
The appeal herein emanates from the Judgment of the Honourable V. Shivego, Resident Magistrate/Adjudicator, sitting at the Small Claims Court in Kakuma, delivered on 01/02/2024 in SCCC No. E005 of 2023. The Respondent instituted the suit seeking general and special damages for personal injuries sustained in a road traffic accident that occurred on 08/08/2023, along the Lodwar-Kakuma road. The accident involved Motor Vehicle Registration Number KDB 115Q, an Isuzu bus, in which the Respondent was traveling as a fare-paying passenger.
The claim was predicated on the negligence of the 3 rd Appellant, the driver of the said motor vehicle. The 1 st and 2 nd Appellants were sued as the alleged owner and operator, thereby being held vicariously liable for the acts of the 3 rd Appellant. The Appellants filed a Response denying the claim in its totality, specifically refuting the ownership of the motor vehicle, the occurrence of the accident, and any negligence attributed to them and insisted on strict proof of all allegations. In the alternative, the Appellants pleaded that if an accident did occur, it was wholly or substantially caused by the contributory negligence of the Respondent, thus denying the applicability of the doctrine of res ipsa loquitur .
The pleadings alleged negligence against the 1 st Appellant, the driver of Motor Vehicle Registration No. KDB 115Q, with the 2 nd and 3 rd Appellants being sued as the alleged owners and/or insurers, thereby being held vicariously liable for the tortious acts of the 1 st Appellant. The Respondent’s Statement of Claim included a specific claim for special damages.
In their Response dated 09/12/2023, the Appellants denied the claim in its totality, specifically refuting the ownership of the motor vehicle, the occurrence of the accident, and any negligence attributed to them and insisted on strict proof of all allegations. In the alternative, the Appellants pleaded that if an accident did occur, it was solely, wholly and/or substantially caused by the contributory negligence of the Respondent, thus denying the applicability of the doctrine of res ipsa loquitur .
The matter proceeded for hearing before the trial court. The record indicates that only the Respondent gave evidence, detailing the injuries suffered by the minor and producing the relevant medical report and documentation to prove the special damages. She was the cross-examined and her case closed. The Appellants despite being granted five adjournments to present their case, failed to lead evidence but only filed written submissions and medical report leading the court to close their case.
In the trial judgment delivered on 1 st February 2023, the learned Adjudicator found the Appellants wholly to blame for the accident and the resultant injuries. Consequently, the court awarded the Respondent the pleaded special damages of Kshs. 8,200 and general damages of Kshs. 800,000, along with costs and interest of the suit.
Being aggrieved by the quantum awarded by the trial court, the Appellants lodged the instant Appeal vide memorandum of Appal dated 16/02/2024. Although the Memorandum of Appeal sets out four grounds of appeal, the substantive grievance is consolidated into a single issue: that the assessment of general damages was erroneous for failure to apply comparable awards for comparable injuries, thereby deviating from the principle of stare decisis resulting to an award that was manifestly excessive.
The Court directed that the Appeal be canvassed by way of written submissions. The record confirms the filing of submissions by the Appellants. Regrettably, the Respondent failed to file any submissions as per the court’s direction. That notwithstanding, the court takes cognizance of the grounds set out in the Memorandum of Appeal and the Appellants’ stance recorded in the trial judgment.
Mandate, issues, Analysis and Determination.
The mandate of this court sitting as a first appellate court is defined and established to entail the duty to subject the evidence adduced before the lower court to fresh scrutiny, re-evaluation, and reassessment towards drawing its own conclusions while acknowledging that it did not have the benefit of seeing or hearing the witnesses.
Having re-evaluated the record at the trial and the grounds of appeal set forth, the court isolates the only issue for determination to be whether there was an error by the trial court in the exercise of its judicial discretion in the duty of assessment of damages.
In an appeal where the contention is only on assessment of damages, the court reminds itself that the assessment of general damages is at the discretion of the trial court and that it takes a very strong case for an Appellant to interfere. The court in the case of Savanna Saw Mills Ltd vs Gorge Mwale Mudomo (2005) eKLR stated as follows:
“It is the law that the assessment of damages is at the discretion of the trial court, and an appellate court is not justified in substituting a figure of its own for that awarded by the court simply because it would have awarded a different figure if it had tried the case at the first instance ...”
On when an Appellate court can interfere with quantum, the court adopts the position in Court of Appeal''s decision in the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR , where it was held that:
“... it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance, they would have given a larger sum. In order to justify reversing the trial judge on the question of the amount of damages, it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the Plaintiff is entitled. This is the principle enunciated in Rook v Rainie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per law, J.A that:
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.”
By the foregoing, for this Court to interfere with the said award of damages by the trial court, it must be satisfied that the trial judge acted on the wrong principle of law, or misapprehended the fact, or for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference, the scale must go down heavily against the figure attacked if the appellate Court is to interfere, whether on the ground of excess or insufficiency. See Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288 .
The court has looked at the record and taken into account the complaint that it is difficult to know how the sum was arrived at as well as the Appellant’s claim of there being no coherent analysis of past decisions to satisfy the conditions that the commensurate award was the sum of Kshs 800,000/=awarded.
In answer to the complaint, the court reminds the Appellant that the matter proceeded before the Small Claims Court which by legal design was conceived and created to act in the fashion of a Tribunal with constrained timelines. That the court lacks the luxury of time to delve into the deep analysis inviting flowery legal writing and analysis. Secondly, that there is no standard fashion of judgement writing required of any judicial officer away provided the spirit of Order 21 Rule 4, civil procedure Rules.
Upon examining the judgment of the learned Magistrate, it is evident that the court did, in fact, base its decision on a clear comparable precedent. The trial court expressly cited the High Court case of Ndungu & Another vs Munene (Civil Appeal 31 of 2020) KEHC 3023 (KLR) 21 April 2022) . In the said case, an award of Kshs. 700,000/= was confirmed for similar injuries including cut wounds and abrasions on the right forehead and bruises on the upper and lower lips, blunt injury to the right cheek with a broken right incisor tooth and extracted right 3 rd molar tooth, fracture of distal end of the left radius bone, blunt injury to the chest and bruises on the leg.
The magistrate acknowledged that the Kshs. 700,000/= figure would have been ideal based purely on the nature of the injuries compared to the precedent. The court however proceeded to adjust this figure upwards by Kshs. 100,000/=, arriving at the final award of Kshs. 800,000/=, to account for the passage of time, the depreciating value of the Kenyan shilling, and the rising cost of living.
The principle that an award should make sense and fairly compensate the claimant while avoiding astronomical figures, as discussed in George William Awuor v Beryl Awuor Ochieng [2020] KEHC 1103 (KLR) , necessitates considering the current economic reality. The trial court explicitly articulated a specific basis for the adjustment: translating the purchasing power of Kshs. 700,000/= from 2022 into a realistic compensation figure for 2024. Such reliance on economic factors by the trial court to justify an upward adjustment in damages is never a deviation from the correct principles or application of wrong principle of law.
Further, the Small Claims Court, is by statutory design, functions in the fashion akin to a tribunal, conceived to operate with constrained timelines and simplified procedures. This structure is not intended to accommodate the kind of extensive judicial analysis involving flowery legal writing often demanded witnessed in ordinary courts.
The court finds and holds that it is not accurate to fault the trial court for failure to exhaustively analyse its award of Kshs. 800,000/=. The court further finds that is an analysis, however brief, and that the award is consistent and comparable with previous awards of Kshs 700,000/= found in precedents applied by the court. The fact that the court cited the said decision and implemented a principled adjustment based on economic necessity demonstrates that the discretion and ensuing decisio was sound, even if briefly articulated.
The upshot is that the court finds that there is no demonstration that there was an error in principle which resulted in an award demonstrating an outright error in assessment of damages. The consequence of the foregoing findings is that the appeal is determined to lack merit and is thus dismissed with costs.
Orders accordingly.
Dated, signed and delivered virtually this 7 th day of November, 2025
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IN THE HIGH COURT OF KENYA AT LODWAR
CIVIL APPEAL NO. E014 OF 2024
JAMES WANYOIKE T/A PROMISE
(MWANAKE LUXURY) COACH……………………………….1 ST APPELLANT/APPLICANT
NEW PROMISE CONTRACTORS CO.
LIMITED………………………...………………………………..2 ND APPELLANT/ APPLICANT
GIDRAF MUIRURI……………………………………………….3 RD APPELLANT/APPLICANT
VERSUS
LOKAI SAMUEL LOBURAK (Suing through the next friend & Mother)
ROSA SEVERINO AMUTO………………………………………………….......RESPONDENT
JUDGEMENT
The appeal herein emanates from the Judgment of the Honourable V. Shivego, Resident Magistrate/Adjudicator, sitting at the Small Claims Court in Kakuma, delivered on 01/02/2024 in SCCC No. E005 of 2023. The Respondent instituted the suit seeking general and special damages for personal injuries sustained in a road traffic accident that occurred on 08/08/2023, along the Lodwar-Kakuma road. The accident involved Motor Vehicle Registration Number KDB 115Q, an Isuzu bus, in which the Respondent was traveling as a fare-paying passenger.
The claim was predicated on the negligence of the 3 rd Appellant, the driver of the said motor vehicle. The 1 st and 2 nd Appellants were sued as the alleged owner and operator, thereby being held vicariously liable for the acts of the 3 rd Appellant. The Appellants filed a Response denying the claim in its totality, specifically refuting the ownership of the motor vehicle, the occurrence of the accident, and any negligence attributed to them and insisted on strict proof of all allegations. In the alternative, the Appellants pleaded that if an accident did occur, it was wholly or substantially caused by the contributory negligence of the Respondent, thus denying the applicability of the doctrine of res ipsa loquitur .
The pleadings alleged negligence against the 1 st Appellant, the driver of Motor Vehicle Registration No. KDB 115Q, with the 2 nd and 3 rd Appellants being sued as the alleged owners and/or insurers, thereby being held vicariously liable for the tortious acts of the 1 st Appellant. The Respondent’s Statement of Claim included a specific claim for special damages.
In their Response dated 09/12/2023, the Appellants denied the claim in its totality, specifically refuting the ownership of the motor vehicle, the occurrence of the accident, and any negligence attributed to them and insisted on strict proof of all allegations. In the alternative, the Appellants pleaded that if an accident did occur, it was solely, wholly and/or substantially caused by the contributory negligence of the Respondent, thus denying the applicability of the doctrine of res ipsa loquitur .
The matter proceeded for hearing before the trial court. The record indicates that only the Respondent gave evidence, detailing the injuries suffered by the minor and producing the relevant medical report and documentation to prove the special damages. She was the cross-examined and her case closed. The Appellants despite being granted five adjournments to present their case, failed to lead evidence but only filed written submissions and medical report leading the court to close their case.
In the trial judgment delivered on 1 st February 2023, the learned Adjudicator found the Appellants wholly to blame for the accident and the resultant injuries. Consequently, the court awarded the Respondent the pleaded special damages of Kshs. 8,200 and general damages of Kshs. 800,000, along with costs and interest of the suit.
Being aggrieved by the quantum awarded by the trial court, the Appellants lodged the instant Appeal vide memorandum of Appal dated 16/02/2024. Although the Memorandum of Appeal sets out four grounds of appeal, the substantive grievance is consolidated into a single issue: that the assessment of general damages was erroneous for failure to apply comparable awards for comparable injuries, thereby deviating from the principle of stare decisis resulting to an award that was manifestly excessive.
The Court directed that the Appeal be canvassed by way of written submissions. The record confirms the filing of submissions by the Appellants. Regrettably, the Respondent failed to file any submissions as per the court’s direction. That notwithstanding, the court takes cognizance of the grounds set out in the Memorandum of Appeal and the Appellants’ stance recorded in the trial judgment.
Mandate, issues, Analysis and Determination.
The mandate of this court sitting as a first appellate court is defined and established to entail the duty to subject the evidence adduced before the lower court to fresh scrutiny, re-evaluation, and reassessment towards drawing its own conclusions while acknowledging that it did not have the benefit of seeing or hearing the witnesses.
Having re-evaluated the record at the trial and the grounds of appeal set forth, the court isolates the only issue for determination to be whether there was an error by the trial court in the exercise of its judicial discretion in the duty of assessment of damages.
In an appeal where the contention is only on assessment of damages, the court reminds itself that the assessment of general damages is at the discretion of the trial court and that it takes a very strong case for an Appellant to interfere. The court in the case of Savanna Saw Mills Ltd vs Gorge Mwale Mudomo (2005) eKLR stated as follows:
“It is the law that the assessment of damages is at the discretion of the trial court, and an appellate court is not justified in substituting a figure of its own for that awarded by the court simply because it would have awarded a different figure if it had tried the case at the first instance ...”
On when an Appellate court can interfere with quantum, the court adopts the position in Court of Appeal''s decision in the case of Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR , where it was held that:
“... it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance, they would have given a larger sum. In order to justify reversing the trial judge on the question of the amount of damages, it will generally be necessary that this Court should be convinced either that the judge acted upon some wrong principle of law or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the Plaintiff is entitled. This is the principle enunciated in Rook v Rainie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per law, J.A that:
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.”
By the foregoing, for this Court to interfere with the said award of damages by the trial court, it must be satisfied that the trial judge acted on the wrong principle of law, or misapprehended the fact, or for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference, the scale must go down heavily against the figure attacked if the appellate Court is to interfere, whether on the ground of excess or insufficiency. See Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288 .
The court has looked at the record and taken into account the complaint that it is difficult to know how the sum was arrived at as well as the Appellant’s claim of there being no coherent analysis of past decisions to satisfy the conditions that the commensurate award was the sum of Kshs 800,000/=awarded.
In answer to the complaint, the court reminds the Appellant that the matter proceeded before the Small Claims Court which by legal design was conceived and created to act in the fashion of a Tribunal with constrained timelines. That the court lacks the luxury of time to delve into the deep analysis inviting flowery legal writing and analysis. Secondly, that there is no standard fashion of judgement writing required of any judicial officer away provided the spirit of Order 21 Rule 4, civil procedure Rules.
Upon examining the judgment of the learned Magistrate, it is evident that the court did, in fact, base its decision on a clear comparable precedent. The trial court expressly cited the High Court case of Ndungu & Another vs Munene (Civil Appeal 31 of 2020) KEHC 3023 (KLR) 21 April 2022) . In the said case, an award of Kshs. 700,000/= was confirmed for similar injuries including cut wounds and abrasions on the right forehead and bruises on the upper and lower lips, blunt injury to the right cheek with a broken right incisor tooth and extracted right 3 rd molar tooth, fracture of distal end of the left radius bone, blunt injury to the chest and bruises on the leg.
The magistrate acknowledged that the Kshs. 700,000/= figure would have been ideal based purely on the nature of the injuries compared to the precedent. The court however proceeded to adjust this figure upwards by Kshs. 100,000/=, arriving at the final award of Kshs. 800,000/=, to account for the passage of time, the depreciating value of the Kenyan shilling, and the rising cost of living.
The principle that an award should make sense and fairly compensate the claimant while avoiding astronomical figures, as discussed in George William Awuor v Beryl Awuor Ochieng [2020] KEHC 1103 (KLR) , necessitates considering the current economic reality. The trial court explicitly articulated a specific basis for the adjustment: translating the purchasing power of Kshs. 700,000/= from 2022 into a realistic compensation figure for 2024. Such reliance on economic factors by the trial court to justify an upward adjustment in damages is never a deviation from the correct principles or application of wrong principle of law.
Further, the Small Claims Court, is by statutory design, functions in the fashion akin to a tribunal, conceived to operate with constrained timelines and simplified procedures. This structure is not intended to accommodate the kind of extensive judicial analysis involving flowery legal writing often demanded witnessed in ordinary courts.
The court finds and holds that it is not accurate to fault the trial court for failure to exhaustively analyse its award of Kshs. 800,000/=. The court further finds that is an analysis, however brief, and that the award is consistent and comparable with previous awards of Kshs 700,000/= found in precedents applied by the court. The fact that the court cited the said decision and implemented a principled adjustment based on economic necessity demonstrates that the discretion and ensuing decisio was sound, even if briefly articulated.
The upshot is that the court finds that there is no demonstration that there was an error in principle which resulted in an award demonstrating an outright error in assessment of damages. The consequence of the foregoing findings is that the appeal is determined to lack merit and is thus dismissed with costs.
Orders accordingly.
Dated, signed and delivered virtually this 7 th day of November, 2025
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