(Being an Appeal from the decision of the Learned Honourable Resident Magistrate Harriet Okello in Nairobi CMCC No. E5650 of 2022 delivered on 12.11.24)
JUDGMENT
The Respondent filed Nairobi CMCC No. E5650 of 2022 seeking general damages and special damages in respect of injuries he sustained in a Road Traffic Accident (RTA).
The Respondent sued the Appellant in that case seeking general damages and special damages for injuries the Respondent sustained in the said Road Traffic Accident.
The Appellant denied negligence, attributed negligence to the Respondent, and sought to have the suit dismissed.
The Respondent testified as PW1 and stated that he suffered the following injuries: i. Comminuted fracture on the left humerus, and ii. Wrist drop paralysis due to radial nerve injury. The same was corroborated in the Medical Report adduced by Dr. G.K. Mwaura, which confirmed the said injuries.
The Trial Court found the Appellant liable in negligence and awarded general damages in the sum of Kshs. 600,000/= and future Medical Expenses in the sum of Kshs. 200,000/=.
The Appellant has appealed to this court against quantum on the following grounds: -
i. That the Learned Trial Magistrate erred in law and in fact by issuing an erroneous judgment on damages.
ii. That the Learned Trial Magistrate erred in law and in fact in finding
that the Plaintiff herein was entitled to damages of Kshs.
600,000/= for fracture of the Humerus.
iii. That the Learned Trial Magistrate erred in law and in fact in failing to appreciate the long-established principle of stare decisis and precedent law, thus bringing the law into confusion and thereby deriving an erroneous finding, in particular in relation to damages.
The parties filed written submissions as follows: The Appellant submitted that the appeal challenges the judgment of Milimani Nairobi CMCC No. E5650 of 2022.
The Appellant submitted that the Lower Court failed to appreciate the relevant principles, case law, and the submissions on record in assessing damages, and thereby arrived at a very erroneous award on damages.
The Appellant maintained that the appeal is strictly on quantum, contending that the Trial Court made an erroneous judgment on damages.
The Appellant further pointed out from the Doctor’s opinion that the Plaintiff suffered a lot of pain from the injuries he sustained, which were confirmed and classified as Grievous Harm.
The Appellant argued that comparative case law supports a judgment in favor of the Appellant against the Respondents to lower the assessment.
The Appellant seeks that the judgment of the Lower Court be set aside and this court do re-assess the judgment on quantum based on the evidence on record.
The Respondent submitted that the appeal lacks merit and should be dismissed with costs.
The Respondent argued that the Trial Court’s award was reasonable, precedented, and within judicial discretion, urging the Appellate Court not to disturb it.
LEGAL ANALYSIS AND DETERMINATION .
It is settled law that the duty of a first Appellate Court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
This was aptly stated in the case of Selle & Another Vs Associated Motor Boat Co Ltd & Others (1968) EA 123, where the court therein held that the Appellate Court was not bound by the findings of fact of the Trial Court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
Having looked at the Grounds of Appeal and the respective parties’ written Submissions, it appears to this court that all the grounds of appeal are related and the issues that have been placed before it for determination are as follows: -
a) Whether or not the Learned Trial Magistrate failed to appreciate the relevant principles, case law, and the submissions on record in assessing damages, and thereby arrived at a very erroneous award on damages;
b) Whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court.
As I have stated herein above, the first Appellate court acts as the last court of facts and must ensure a proper re-evaluation of evidence while correcting any errors in the trial court’s Judgment. The first appellate court must re-examine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law.
It cannot simply rely on the Trial Court’s findings but must apply its own mind to the record. The central issue for determination in this appeal is on quantum.
On the issue of quantum, it is the lower court’s finding that indeed an accident did occur on the material date and as a result of the accident, the respondent sustained injuries. The issue of liability having been resolved in the Lower Court; this court is confined to evaluating the propriety of the damages awarded.
The injuries sustained by the respondent include a comminuted fracture of the left humerus and wrist drop paralysis due to a radial nerve injury. I have noted from the medical report which was presented as evidence by the respondent that the injuries are severe and left medical complications affecting the structural and neurological functionality of the upper limb.
The test for interference with the decision of the lower court is not whether the award was generous or conservative, but rather whether it was manifestly excessive or based on wrong principles. The essence of awarding general damages is to compensate the victim for the injury suffered and try as much as possible to restore them to the position they were in before suffering the injury.
In the case of Nyambati Nyaswabu Erick Vs Toyota Kenya Limited & 2 Others (2019) eKLR , the court observed that while courts should consider comparable awards for comparable injuries, there is a fundamental need to consider each case on its own unique merits and peculiar circumstances.
I have carefully considered the respective submissions as well as the authorities relied on by both the respondent and the appellant. Equally, I have looked at the nature and the circumstances in which the road traffic accident occurred and the serious neurological and orthopedic consequences visited upon the respondent.
I am guided by the case of Anne Wambui Ndiritu Vs Joseph Kiprono Ropkoi & Another (2005) 1 EA 3346 where it was held that as a general proposition under Section 107(1) of the Evidence Act Cap 80 (Laws of Kenya), the legal burden of proof lay with the party who invoked the aid of the law and substantially asserted the affirmativeness of the issue.
Further, this court places reliance on the case of Isaac K. Chemjor & Another Vs Laban Kiptoo (2019) eKLR where it was held that the Respondent therein had discharged his burden of proof under Sections 107 and 108 of the Evidence Act where no evidence could lead to any other probability that another person was involved or caused the accident.
This court is fortified that there are well-known principles for interference of an award of damages by a trial court as laid out in the case of Nance Vs British Columbia Electric Railway Co Ltd (1951) A.C 601, 613 where it was held that before an Appellate Court could intervene, it had to be satisfied that either the Judge, in assessing the damages, applied a wrong principle of law such as taking into account some irrelevant factor or left out of account some relevant one or that the amount awarded was so inordinately low or so inordinately high that it had to be a wholly erroneous estimate of the damage.
The Respondent submitted that it is inescapably evident that the injuries herein subjected the respondent to untold pain, suffering, psychological torture and emotional distress whose effects will be felt throughout his life.
The respondent produced a discharge summary from Avenue Hospital, a copy of the P3 Form, medical report, invoice and receipts to prove the injuries that he sustained.
This court places reliance on the case of Mwangi Vs Wambugu (1984) KLR 453 where it was held that an Appellate Court would not normally interfere with a finding of fact by the Trial Court unless such finding was not based on any evidence or it was based on a misapprehension of the evidence or where the court had clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of evidence.
It is trite law that an appellate court would not disturb an award of general damages unless the same was so manifestly high or inordinately excessive or manifestly or inordinately low or that a trial court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of Margaret T. Nyaga Vs Victoria Wambua Kioko (2004) eKLR .
It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money could remove the pain that a person went through no matter how small an injury appeared to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person has sustained. It is merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who had suffered an injury.
However, this assessment is not without limits. A court has to ascertain the sum of general damages that courts and especially appellate courts would ordinarily have awarded in respect of a particular injury.
A court therefore has to be guided by precedents. Indeed, in the case of Kigaraari Vs Aya (1982-88) 1 KAR 768 , it was stated that damages had to be within the limits set out by decided cases and also within the limits the Kenyan economy could afford.
This court also has due regard to the case of Lim Vs Camden HA (1980) AC 174 where it was held that even in assessing compensatory damages, the law sought to indemnify the victim for the loss suffered and not to punish the tortfeasor for the injury that he had caused.
Similar injuries ought to attract comparable awards. However, in the quest for consistency, courts also had to recognize that no case was exactly the same as the other. It must be noted that cases cannot contain exact injuries and they are merely for comparison purposes. Each case therefore had to be decided according to its own peculiar circumstances but keeping in mind that any monies awarded had to be sustainable.
An appellate court ought not to interfere with the discretion of a Trial Court merely because it could have awarded a lower or higher sum than that which was awarded by the trial court. It could only interfere where the award of general damages was so manifestly high or manifestly low or where a trial court had proceeded on the wrong principles or misapprehended the evidence as was held in the case of Margaret T. Nyaga Vs Victoria Wambua Kioko (Supra).
The Respondent in his Plaint indicated that he suffered a communited fracture of the left humerus and a wrist drop (paralysis) due to radial nerve injury.
The Medical Report of Dr G. K. Mwaura dated 7 th September 2022 confirmed the aforesaid injuries. At the time of the medical examination, the respondent complained of pain on the left upper arm on exertion and weakness.
The doctor assessed his injuries as “grievous harm.” and indicated that the respondent still needed further treatment and the removal of implants.
This court has to maintain fidelity to the doctrine of stare decisis and taking the inflationary trends into consideration, it is the considered view of this court that general damages in the sum of Kshs. 600,000/= that was awarded by the trial court was not unreasonable. This court will not therefore disturb the same.
Further, I uphold the award given by the trial magistrate as regards future medical expenses in the sum of Kshs. 200,000/=.
I am cognizant of the fact that the issue of special damages was not in contention between parties and this court finds no reason to interfere with the same.
DISPOSITION.
For the foregoing reasons, the upshot of this court’s decision is that the appellant’s appeal dated 10 th December 2024 is devoid of merit. For the avoidance of doubt as it was not clear from the decision of the Trial Court that was delivered on 12 th November 2024, interest on special damages will accrue at court rates from the date of filing suit while interest on general damages will accrue at court rates from the date of judgment. The order that interest would accrue on costs be and is hereby set aside and/or vacated.
Consequently, I dismiss this appeal but with no order as costs. Orders accordingly.
Dated, Signed and delivered at KAKAMEGA virtually this 8 th day of July 2026.
D. O. ONYANGO
JUDGE.
2
JUDGMENT
The Respondent filed Nairobi CMCC No. E5650 of 2022 seeking general damages and special damages in respect of injuries he sustained in a Road Traffic Accident (RTA).
The Respondent sued the Appellant in that case seeking general damages and special damages for injuries the Respondent sustained in the said Road Traffic Accident.
The Appellant denied negligence, attributed negligence to the Respondent, and sought to have the suit dismissed.
The Respondent testified as PW1 and stated that he suffered the following injuries: i. Comminuted fracture on the left humerus, and ii. Wrist drop paralysis due to radial nerve injury. The same was corroborated in the Medical Report adduced by Dr. G.K. Mwaura, which confirmed the said injuries.
The Trial Court found the Appellant liable in negligence and awarded general damages in the sum of Kshs. 600,000/= and future Medical Expenses in the sum of Kshs. 200,000/=.
The Appellant has appealed to this court against quantum on the following grounds: -
i. That the Learned Trial Magistrate erred in law and in fact by issuing an erroneous judgment on damages.
ii. That the Learned Trial Magistrate erred in law and in fact in finding
that the Plaintiff herein was entitled to damages of Kshs.
600,000/= for fracture of the Humerus.
iii. That the Learned Trial Magistrate erred in law and in fact in failing to appreciate the long-established principle of stare decisis and precedent law, thus bringing the law into confusion and thereby deriving an erroneous finding, in particular in relation to damages.
The parties filed written submissions as follows: The Appellant submitted that the appeal challenges the judgment of Milimani Nairobi CMCC No. E5650 of 2022.
The Appellant submitted that the Lower Court failed to appreciate the relevant principles, case law, and the submissions on record in assessing damages, and thereby arrived at a very erroneous award on damages.
The Appellant maintained that the appeal is strictly on quantum, contending that the Trial Court made an erroneous judgment on damages.
The Appellant further pointed out from the Doctor’s opinion that the Plaintiff suffered a lot of pain from the injuries he sustained, which were confirmed and classified as Grievous Harm.
The Appellant argued that comparative case law supports a judgment in favor of the Appellant against the Respondents to lower the assessment.
The Appellant seeks that the judgment of the Lower Court be set aside and this court do re-assess the judgment on quantum based on the evidence on record.
The Respondent submitted that the appeal lacks merit and should be dismissed with costs.
The Respondent argued that the Trial Court’s award was reasonable, precedented, and within judicial discretion, urging the Appellate Court not to disturb it.
LEGAL ANALYSIS AND DETERMINATION .
It is settled law that the duty of a first Appellate Court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify.
This was aptly stated in the case of Selle & Another Vs Associated Motor Boat Co Ltd & Others (1968) EA 123, where the court therein held that the Appellate Court was not bound by the findings of fact of the Trial Court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect.
Having looked at the Grounds of Appeal and the respective parties’ written Submissions, it appears to this court that all the grounds of appeal are related and the issues that have been placed before it for determination are as follows: -
a) Whether or not the Learned Trial Magistrate failed to appreciate the relevant principles, case law, and the submissions on record in assessing damages, and thereby arrived at a very erroneous award on damages;
b) Whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court.
As I have stated herein above, the first Appellate court acts as the last court of facts and must ensure a proper re-evaluation of evidence while correcting any errors in the trial court’s Judgment. The first appellate court must re-examine the entire evidence (oral and documentary) and arrive at its own independent conclusions on facts and law.
It cannot simply rely on the Trial Court’s findings but must apply its own mind to the record. The central issue for determination in this appeal is on quantum.
On the issue of quantum, it is the lower court’s finding that indeed an accident did occur on the material date and as a result of the accident, the respondent sustained injuries. The issue of liability having been resolved in the Lower Court; this court is confined to evaluating the propriety of the damages awarded.
The injuries sustained by the respondent include a comminuted fracture of the left humerus and wrist drop paralysis due to a radial nerve injury. I have noted from the medical report which was presented as evidence by the respondent that the injuries are severe and left medical complications affecting the structural and neurological functionality of the upper limb.
The test for interference with the decision of the lower court is not whether the award was generous or conservative, but rather whether it was manifestly excessive or based on wrong principles. The essence of awarding general damages is to compensate the victim for the injury suffered and try as much as possible to restore them to the position they were in before suffering the injury.
In the case of Nyambati Nyaswabu Erick Vs Toyota Kenya Limited & 2 Others (2019) eKLR , the court observed that while courts should consider comparable awards for comparable injuries, there is a fundamental need to consider each case on its own unique merits and peculiar circumstances.
I have carefully considered the respective submissions as well as the authorities relied on by both the respondent and the appellant. Equally, I have looked at the nature and the circumstances in which the road traffic accident occurred and the serious neurological and orthopedic consequences visited upon the respondent.
I am guided by the case of Anne Wambui Ndiritu Vs Joseph Kiprono Ropkoi & Another (2005) 1 EA 3346 where it was held that as a general proposition under Section 107(1) of the Evidence Act Cap 80 (Laws of Kenya), the legal burden of proof lay with the party who invoked the aid of the law and substantially asserted the affirmativeness of the issue.
Further, this court places reliance on the case of Isaac K. Chemjor & Another Vs Laban Kiptoo (2019) eKLR where it was held that the Respondent therein had discharged his burden of proof under Sections 107 and 108 of the Evidence Act where no evidence could lead to any other probability that another person was involved or caused the accident.
This court is fortified that there are well-known principles for interference of an award of damages by a trial court as laid out in the case of Nance Vs British Columbia Electric Railway Co Ltd (1951) A.C 601, 613 where it was held that before an Appellate Court could intervene, it had to be satisfied that either the Judge, in assessing the damages, applied a wrong principle of law such as taking into account some irrelevant factor or left out of account some relevant one or that the amount awarded was so inordinately low or so inordinately high that it had to be a wholly erroneous estimate of the damage.
The Respondent submitted that it is inescapably evident that the injuries herein subjected the respondent to untold pain, suffering, psychological torture and emotional distress whose effects will be felt throughout his life.
The respondent produced a discharge summary from Avenue Hospital, a copy of the P3 Form, medical report, invoice and receipts to prove the injuries that he sustained.
This court places reliance on the case of Mwangi Vs Wambugu (1984) KLR 453 where it was held that an Appellate Court would not normally interfere with a finding of fact by the Trial Court unless such finding was not based on any evidence or it was based on a misapprehension of the evidence or where the court had clearly failed on some material point to take into account of particular circumstances or probabilities material to an estimate of evidence.
It is trite law that an appellate court would not disturb an award of general damages unless the same was so manifestly high or inordinately excessive or manifestly or inordinately low or that a trial court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of Margaret T. Nyaga Vs Victoria Wambua Kioko (2004) eKLR .
It must be understood that money can never really compensate a person who has sustained any injuries. No amount of money could remove the pain that a person went through no matter how small an injury appeared to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person has sustained. It is merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who had suffered an injury.
However, this assessment is not without limits. A court has to ascertain the sum of general damages that courts and especially appellate courts would ordinarily have awarded in respect of a particular injury.
A court therefore has to be guided by precedents. Indeed, in the case of Kigaraari Vs Aya (1982-88) 1 KAR 768 , it was stated that damages had to be within the limits set out by decided cases and also within the limits the Kenyan economy could afford.
This court also has due regard to the case of Lim Vs Camden HA (1980) AC 174 where it was held that even in assessing compensatory damages, the law sought to indemnify the victim for the loss suffered and not to punish the tortfeasor for the injury that he had caused.
Similar injuries ought to attract comparable awards. However, in the quest for consistency, courts also had to recognize that no case was exactly the same as the other. It must be noted that cases cannot contain exact injuries and they are merely for comparison purposes. Each case therefore had to be decided according to its own peculiar circumstances but keeping in mind that any monies awarded had to be sustainable.
An appellate court ought not to interfere with the discretion of a Trial Court merely because it could have awarded a lower or higher sum than that which was awarded by the trial court. It could only interfere where the award of general damages was so manifestly high or manifestly low or where a trial court had proceeded on the wrong principles or misapprehended the evidence as was held in the case of Margaret T. Nyaga Vs Victoria Wambua Kioko (Supra).
The Respondent in his Plaint indicated that he suffered a communited fracture of the left humerus and a wrist drop (paralysis) due to radial nerve injury.
The Medical Report of Dr G. K. Mwaura dated 7 th September 2022 confirmed the aforesaid injuries. At the time of the medical examination, the respondent complained of pain on the left upper arm on exertion and weakness.
The doctor assessed his injuries as “grievous harm.” and indicated that the respondent still needed further treatment and the removal of implants.
This court has to maintain fidelity to the doctrine of stare decisis and taking the inflationary trends into consideration, it is the considered view of this court that general damages in the sum of Kshs. 600,000/= that was awarded by the trial court was not unreasonable. This court will not therefore disturb the same.
Further, I uphold the award given by the trial magistrate as regards future medical expenses in the sum of Kshs. 200,000/=.
I am cognizant of the fact that the issue of special damages was not in contention between parties and this court finds no reason to interfere with the same.
DISPOSITION.
For the foregoing reasons, the upshot of this court’s decision is that the appellant’s appeal dated 10 th December 2024 is devoid of merit. For the avoidance of doubt as it was not clear from the decision of the Trial Court that was delivered on 12 th November 2024, interest on special damages will accrue at court rates from the date of filing suit while interest on general damages will accrue at court rates from the date of judgment. The order that interest would accrue on costs be and is hereby set aside and/or vacated.
Consequently, I dismiss this appeal but with no order as costs. Orders accordingly.
Dated, Signed and delivered at KAKAMEGA virtually this 8 th day of July 2026.
D. O. ONYANGO
JUDGE.
2