Background
1. The Appellant vide its memorandum of appeal dated 4th December 2025.The grounds are as follows:
(a) The learned magistrate erred in and in fact in the assessment of quantum of general damages leading to an excessive award of damages
(b) The learned magistrate in law and fact in failing to justify or give the rationale for its assessment of damages payable
(c) The learned magistrate in law and fact in relying on extraneous evidence in arriving at the decision on quantum
(d) The learned magistrate in law and fact in failing to consider and properly evaluate the defence evidence
(e) The learned magistrate misdirected herself in failing to consider the evidence and the submissions of the Appellant while arriving at the Judgement.
(f) The learned magistrate erred in law and fact in failing to align its findings with precedents and or binding while arriving at the Judgement.
(g) The learned magistrate erred in law and fact in relying on extraneous evidence/ factor in arriving at the decision on quantum.
2. The Appellant prayed that the appeal be allowed, this court be pleased to set aside judgement delivered on 4th July 2025 and prayed for this Court to lower the quantum of damages awarded.
3. The Appeal proceeded by way of written submissions and both parties complied and filed the same.
Analysis and determination.
Whether the Learned Trial Magistrate erred in his decision.
4. Having perused the record, the rival submissions and the decisions referred to therein, the emerging issued will be answered when this Court answers the question if the learned Magistrate erred in his decision. I will proceed and analyse the matter with a view to finding an answer.
5. Before dealing with the above issue, this Court will address its role as the first appellate Court. This being a first appeal, this Court is tasked with the duty to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion. In Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court set out the role of the first appellate Court in the following terms: -
“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.
6. In view of the above, this Court has a duty to look into factual details and the evidence as presented before the Trial Court, analyze the same and arrive at an independent conclusion bearing in mind that the trial court had the advantage of hearing the parties.
7. The case is one of soft tissue injury as per the medical report from Guru Nanak hospital, this fact is not disputed by both parties but the Appellant faults the Trial Court for awarding an excessive amount. In their submissions, they have made reference to precedents to demonstrate that the amount was excessive.
8. The Respondent upon cross examination informed court that he was hit from behind during the accident and was treated at Guru Nanak Hospital. He informed Court that he was now healed.
9. Two medical reports were produced in this case, the first on dated 30th March 2023 signed by Dr. Cynthia Muriithi which gave the opinion and prognosis which in a nutshell showed that the Respondent had sustained multiple soft issues injuries which were classified as “harm’’
10. The Second medical report is dated 20th January 2025 which was produced by the Appellant at the Trial Court. the report was prepared by Dr. Wambugu whose opinion and prognosis was that the injuries sustained with were consistent with those due to blind trauma as may have occurred during the said accident. The reported indicated that he had made full recovery and that no permanent incapacitation occurred.
11. Looking at the memorandum of appeal, all the Appellant seeks is this court to intervene and find that the excessive, unjustified and not supported by any authority. He faults the Court for arriving at an ordinately high and disproportionate. He suggested a figure of Kshs.80,000 and cited various authorities supporting their suggested amount. The Appellant is not disputing the injuries sustained but is disputing the amount of damages awarded. They have cited many authorities supporting their position.
12. The Respondent prays that this court dismisses the Appeal as baseless. He made reference to authorities supporting the award made by the trial court. it is their case that the trial magistrate relied on proper principles in assessing the quantum.
13. The Respondent submits that having given evidence under oath and having supported their case; it was the responsibility of the Appellant to rebut inference of negligence. He further made reference and cited authorities in support of the amount awarded.
14. I have looked the Kshs.500,000 awarded by the trial and I find that the amount is excessive given the veracity of the injuries, it is this Court’s view that award of damages must based on comparable awards and that Courts ought to be consistent. Looking at the existing range of the damages in such injuries, I am persuaded that the same is excessive.
15. I hereby reduce the award from Kshs.500,000 t0 200,000, being guided by the Court of Appeal decision in Mbaka Nguru and Another v James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR that:
“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”
16. The Respondent prayed for special damages of Kshs. 5,500. Trial Court awarded the who amount, the Respondent attached receipts on the record of appeal and there is no basis not setting the same aside. This Court therefore will court will affirm the award as the same was proved.
17. This Court finds no compelling reason to disturb the ratio awarded by the Trial Court. The same is affirmed.
Final Orders.
18. Consequently, the Appeal is allowed to the effect that the Amount awarded is reduced from Kshs.500,000 to Kshs.200,000. The 20% contributory negligence will be applied.
19. The special damages of Kshs. 5,500 is affirmed.
20. Each party will bear its costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 17th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Jeptoo Learned Counsel for the Appellant.
Maina Learned Counsel for the Respondents
Michael – Court Assistant.
1. The Appellant vide its memorandum of appeal dated 4th December 2025.The grounds are as follows:
(a) The learned magistrate erred in and in fact in the assessment of quantum of general damages leading to an excessive award of damages
(b) The learned magistrate in law and fact in failing to justify or give the rationale for its assessment of damages payable
(c) The learned magistrate in law and fact in relying on extraneous evidence in arriving at the decision on quantum
(d) The learned magistrate in law and fact in failing to consider and properly evaluate the defence evidence
(e) The learned magistrate misdirected herself in failing to consider the evidence and the submissions of the Appellant while arriving at the Judgement.
(f) The learned magistrate erred in law and fact in failing to align its findings with precedents and or binding while arriving at the Judgement.
(g) The learned magistrate erred in law and fact in relying on extraneous evidence/ factor in arriving at the decision on quantum.
2. The Appellant prayed that the appeal be allowed, this court be pleased to set aside judgement delivered on 4th July 2025 and prayed for this Court to lower the quantum of damages awarded.
3. The Appeal proceeded by way of written submissions and both parties complied and filed the same.
Analysis and determination.
Whether the Learned Trial Magistrate erred in his decision.
4. Having perused the record, the rival submissions and the decisions referred to therein, the emerging issued will be answered when this Court answers the question if the learned Magistrate erred in his decision. I will proceed and analyse the matter with a view to finding an answer.
5. Before dealing with the above issue, this Court will address its role as the first appellate Court. This being a first appeal, this Court is tasked with the duty to re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusion. In Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR the Court set out the role of the first appellate Court in the following terms: -
“This being a first appeal, we are reminded of our primary role as a first appellate court, namely, to re-evaluate, re-assess and re-analyse the extracts on the record and then determine whether the conclusions reached by the learned trial judge are to stand or not and give reasons either way.
6. In view of the above, this Court has a duty to look into factual details and the evidence as presented before the Trial Court, analyze the same and arrive at an independent conclusion bearing in mind that the trial court had the advantage of hearing the parties.
7. The case is one of soft tissue injury as per the medical report from Guru Nanak hospital, this fact is not disputed by both parties but the Appellant faults the Trial Court for awarding an excessive amount. In their submissions, they have made reference to precedents to demonstrate that the amount was excessive.
8. The Respondent upon cross examination informed court that he was hit from behind during the accident and was treated at Guru Nanak Hospital. He informed Court that he was now healed.
9. Two medical reports were produced in this case, the first on dated 30th March 2023 signed by Dr. Cynthia Muriithi which gave the opinion and prognosis which in a nutshell showed that the Respondent had sustained multiple soft issues injuries which were classified as “harm’’
10. The Second medical report is dated 20th January 2025 which was produced by the Appellant at the Trial Court. the report was prepared by Dr. Wambugu whose opinion and prognosis was that the injuries sustained with were consistent with those due to blind trauma as may have occurred during the said accident. The reported indicated that he had made full recovery and that no permanent incapacitation occurred.
11. Looking at the memorandum of appeal, all the Appellant seeks is this court to intervene and find that the excessive, unjustified and not supported by any authority. He faults the Court for arriving at an ordinately high and disproportionate. He suggested a figure of Kshs.80,000 and cited various authorities supporting their suggested amount. The Appellant is not disputing the injuries sustained but is disputing the amount of damages awarded. They have cited many authorities supporting their position.
12. The Respondent prays that this court dismisses the Appeal as baseless. He made reference to authorities supporting the award made by the trial court. it is their case that the trial magistrate relied on proper principles in assessing the quantum.
13. The Respondent submits that having given evidence under oath and having supported their case; it was the responsibility of the Appellant to rebut inference of negligence. He further made reference and cited authorities in support of the amount awarded.
14. I have looked the Kshs.500,000 awarded by the trial and I find that the amount is excessive given the veracity of the injuries, it is this Court’s view that award of damages must based on comparable awards and that Courts ought to be consistent. Looking at the existing range of the damages in such injuries, I am persuaded that the same is excessive.
15. I hereby reduce the award from Kshs.500,000 t0 200,000, being guided by the Court of Appeal decision in Mbaka Nguru and Another v James George Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR that:
“The award must however reflect the trend of previous, recent, and comparable awards. Considering the authorities cited and also considering all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured within Kenyan conditions.”
16. The Respondent prayed for special damages of Kshs. 5,500. Trial Court awarded the who amount, the Respondent attached receipts on the record of appeal and there is no basis not setting the same aside. This Court therefore will court will affirm the award as the same was proved.
17. This Court finds no compelling reason to disturb the ratio awarded by the Trial Court. The same is affirmed.
Final Orders.
18. Consequently, the Appeal is allowed to the effect that the Amount awarded is reduced from Kshs.500,000 to Kshs.200,000. The 20% contributory negligence will be applied.
19. The special damages of Kshs. 5,500 is affirmed.
20. Each party will bear its costs.
DELIVERED, DATED and SIGNED at NAIROBI through the Microsoft online platform on this 17th day of July 2026.
HON.LEPARASHAO PATRICIA
JUDGE
Judgment virtually delivered in the presence of:
Jeptoo Learned Counsel for the Appellant.
Maina Learned Counsel for the Respondents
Michael – Court Assistant.