' REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT LODWAR
CIVIL APPEAL NO. E012 OF 2024
JAMES WANYOIKE T/A PROMISE
(MWANAKE LUXURY) COACH………………………………………………1 ST APPELLANT
NEW PROMISE CONTRACTORS CO. LTD………………………………….2 ND APPELLANT
GIDRAF MUIRURI………………………………………………………………3 RD APPELLANT
VESRUS
ROSA OKAL ESINYEN…………………………………………………………...RESPONDENT
JUDGEMENT
The instant appeal emanates from the Judgment of the Honourable V. Shivegi, Resident Magistrate/Adjudicator, sitting at the Small Claims Court in Kakuma, delivered on 01/02/2024 in SCCC No. E2 of 2023.
The Respondent instituted the suit seeking general and special damages for personal injuries sustained in a road traffic accident that occurred on August 8, 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 alleged 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 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. Afterwards, despite the Appellants being granted multiple adjournments, they failed to present any witnesses or explanation regarding the accident, leading the trial court to close their case.
Upon review of the evidence, the trial court found the Appellants jointly and severally wholly liable (100%) for the accident. This finding was premised on the principle that the 3 rd Appellant failed to offer an explanation for the self-involving accident, thus leaving the particulars of negligence pleaded by the Respondent uncontroverted. Furthermore, the court rejected the allegation of contributory negligence, noting that the Respondent, as a fare-paying passenger, had no control over the operation of the bus. Consequently, the court awarded the Respondent the pleaded special damages of Kshs. 15,730 and general damages of Kshs. 300,000, along with costs and interest of the suit.
The Appellants were aggrieved by the quantum awarded and lodged the instant Appeal. 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 and resulting in 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’ stand recorded in the judgment.
Before the Small Claims Court, the Appellants had proposed a modest sum of Kshs. 80,000/= as general damages for the Respondent’s injuries. The Appellants maintained that the trial magistrate failed to consider conventional awards for similar injuries and that the final award of Kshs. 300,000/= was disproportionately high, leading to a prayer for the award to be set aside and substituted with a re-assessment downwards.
In response, the Respondent’s submissions reiterate the established judicial policy that an appellate court should only interfere with an award of damages in exceptional circumstances where the trial court acted on a wrong principle of law or made an entirely erroneous estimate. The Respondent cited key authorities such as Bashir Ahmed Butt v Uwais Ahmed Khan and Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini vs A. M. M. Lubia & Anorther to underscore the strict threshold for interference.
The Respondent contended that the injuries sustained were adequately compensated by the Kshs. 300,000/= award. The Respondent pointed out that in the lower court, they had proposed Kshs. 400,000/=, relying on several High Court precedents where awards for comparable soft tissue injuries ranged from Kshs. 300,000/= to Kshs. 400,000/=, specifically referencing Manji vs Khasiani (Kshs. 300,000/=) and Retco East Africa Ltd vs Wycliffe Kennedy Makori (Kshs. 400,000/=).
The Respondent concluded that the learned Adjudicator did not take into account an irrelevant factor, nor leave out a relevant one, and that the amount is not inordinately so high as to constitute a wholly erroneous estimate of the damage. Consequently, the Respondent prayed for the dismissal of the Appeal with costs.
The mandate of this court sitting as a first appellate court is generally defined by the duty to subject the evidence adduced before the lower court to fresh scrutiny, re-evaluation, and reassessment, drawing its own conclusions while acknowledging that it did not have the benefit of seeing or hearing the witnesses.
In circumstances like here where the contention is on assessment of damages only, 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 the two reasons 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. [1]
Here the Appellants contend that the trial court failed to apply the principle of comparability, resulting in an excessive award of Kshs. 300,000/=. Upon examining the judgment of the learned Adjudicator, 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 Anthony Nyamwaya vs Jackline Moraa Nyandemo (2022) eKLR where an award of Kshs. 250,000/= was confirmed for similar or comparable tissue injuries, including ragged cut wounds on the head, tenderness on the neck, chest, back, shoulders, and injuries to the limbs.
The magistrate acknowledged that the Kshs. 250,000/= figure would have been ideal based purely on the nature of the injuries compared to the precedent. However, the court proceeded to adjust this figure upwards by Kshs. 50,000/=, arriving at the final award of Kshs. 300,000/=, to account for the passage of time, the depreciating value of the Kenyan shilling, and the rising cost of living. Those are the consideration any court setting out to assess damages must consider and take into account.
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. 250,000/= from 2022 into a realistic compensation figure for 2024. The court holds that such reliance on economic factors by the trial court to justify an upward adjustment in damages is not a wrong principle of law.
Notably, the Small Claims Court, by its statutory design, functions in a 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 and witnessed in the ordinary courts. The court holds that the trial magistrate duly considered and noted the Appellants’ proposal of Kshs. 80,000/=. It is clear to the court that analyse the proposed was overly law compared with comparable awards of Kshs. 250,000/= in the precedents applied by the court. The fact that the court cited the said decision and implemented a principled adjustment based on economic necessity satisfies the court that the assessment was indeed judicious even if briefly articulated.
Accordingly, the Appellants have failed to meet the substantial burden required under the Butt v Khan [1978] KECA 24 (KLR) . They have not demonstrated that the learned Adjudicator relied on a wrong principle or that the final award of Kshs. 300,000/= is so inordinately high that the scale goes down heavily against it. The award is justifiable both on the basis of comparability and economic adjustment.
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 cost.
Orders accordingly.
Dated, signed and delivered virtually this 7 th day of November, 2025.
<>><>><> Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288 . ↑
'
IN THE HIGH COURT OF KENYA AT LODWAR
CIVIL APPEAL NO. E012 OF 2024
JAMES WANYOIKE T/A PROMISE
(MWANAKE LUXURY) COACH………………………………………………1 ST APPELLANT
NEW PROMISE CONTRACTORS CO. LTD………………………………….2 ND APPELLANT
GIDRAF MUIRURI………………………………………………………………3 RD APPELLANT
VESRUS
ROSA OKAL ESINYEN…………………………………………………………...RESPONDENT
JUDGEMENT
The instant appeal emanates from the Judgment of the Honourable V. Shivegi, Resident Magistrate/Adjudicator, sitting at the Small Claims Court in Kakuma, delivered on 01/02/2024 in SCCC No. E2 of 2023.
The Respondent instituted the suit seeking general and special damages for personal injuries sustained in a road traffic accident that occurred on August 8, 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 alleged 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 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. Afterwards, despite the Appellants being granted multiple adjournments, they failed to present any witnesses or explanation regarding the accident, leading the trial court to close their case.
Upon review of the evidence, the trial court found the Appellants jointly and severally wholly liable (100%) for the accident. This finding was premised on the principle that the 3 rd Appellant failed to offer an explanation for the self-involving accident, thus leaving the particulars of negligence pleaded by the Respondent uncontroverted. Furthermore, the court rejected the allegation of contributory negligence, noting that the Respondent, as a fare-paying passenger, had no control over the operation of the bus. Consequently, the court awarded the Respondent the pleaded special damages of Kshs. 15,730 and general damages of Kshs. 300,000, along with costs and interest of the suit.
The Appellants were aggrieved by the quantum awarded and lodged the instant Appeal. 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 and resulting in 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’ stand recorded in the judgment.
Before the Small Claims Court, the Appellants had proposed a modest sum of Kshs. 80,000/= as general damages for the Respondent’s injuries. The Appellants maintained that the trial magistrate failed to consider conventional awards for similar injuries and that the final award of Kshs. 300,000/= was disproportionately high, leading to a prayer for the award to be set aside and substituted with a re-assessment downwards.
In response, the Respondent’s submissions reiterate the established judicial policy that an appellate court should only interfere with an award of damages in exceptional circumstances where the trial court acted on a wrong principle of law or made an entirely erroneous estimate. The Respondent cited key authorities such as Bashir Ahmed Butt v Uwais Ahmed Khan and Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini vs A. M. M. Lubia & Anorther to underscore the strict threshold for interference.
The Respondent contended that the injuries sustained were adequately compensated by the Kshs. 300,000/= award. The Respondent pointed out that in the lower court, they had proposed Kshs. 400,000/=, relying on several High Court precedents where awards for comparable soft tissue injuries ranged from Kshs. 300,000/= to Kshs. 400,000/=, specifically referencing Manji vs Khasiani (Kshs. 300,000/=) and Retco East Africa Ltd vs Wycliffe Kennedy Makori (Kshs. 400,000/=).
The Respondent concluded that the learned Adjudicator did not take into account an irrelevant factor, nor leave out a relevant one, and that the amount is not inordinately so high as to constitute a wholly erroneous estimate of the damage. Consequently, the Respondent prayed for the dismissal of the Appeal with costs.
The mandate of this court sitting as a first appellate court is generally defined by the duty to subject the evidence adduced before the lower court to fresh scrutiny, re-evaluation, and reassessment, drawing its own conclusions while acknowledging that it did not have the benefit of seeing or hearing the witnesses.
In circumstances like here where the contention is on assessment of damages only, 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 the two reasons 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. [1]
Here the Appellants contend that the trial court failed to apply the principle of comparability, resulting in an excessive award of Kshs. 300,000/=. Upon examining the judgment of the learned Adjudicator, 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 Anthony Nyamwaya vs Jackline Moraa Nyandemo (2022) eKLR where an award of Kshs. 250,000/= was confirmed for similar or comparable tissue injuries, including ragged cut wounds on the head, tenderness on the neck, chest, back, shoulders, and injuries to the limbs.
The magistrate acknowledged that the Kshs. 250,000/= figure would have been ideal based purely on the nature of the injuries compared to the precedent. However, the court proceeded to adjust this figure upwards by Kshs. 50,000/=, arriving at the final award of Kshs. 300,000/=, to account for the passage of time, the depreciating value of the Kenyan shilling, and the rising cost of living. Those are the consideration any court setting out to assess damages must consider and take into account.
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. 250,000/= from 2022 into a realistic compensation figure for 2024. The court holds that such reliance on economic factors by the trial court to justify an upward adjustment in damages is not a wrong principle of law.
Notably, the Small Claims Court, by its statutory design, functions in a 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 and witnessed in the ordinary courts. The court holds that the trial magistrate duly considered and noted the Appellants’ proposal of Kshs. 80,000/=. It is clear to the court that analyse the proposed was overly law compared with comparable awards of Kshs. 250,000/= in the precedents applied by the court. The fact that the court cited the said decision and implemented a principled adjustment based on economic necessity satisfies the court that the assessment was indeed judicious even if briefly articulated.
Accordingly, the Appellants have failed to meet the substantial burden required under the Butt v Khan [1978] KECA 24 (KLR) . They have not demonstrated that the learned Adjudicator relied on a wrong principle or that the final award of Kshs. 300,000/= is so inordinately high that the scale goes down heavily against it. The award is justifiable both on the basis of comparability and economic adjustment.
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 cost.
Orders accordingly.
Dated, signed and delivered virtually this 7 th day of November, 2025.
<>><>><> Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288 . ↑
'