REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT MALINDI
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CIVIL APPEAL NO. E073 OF 2025
JOSEPH KIRAGU MUCHAI……………………………………..APPELLANT
VERSUS
IBRAHIM RASHID ROCHA......………………………………RESPONDENT
(Being an appeal from the judgment and decree of Hon. James Ongondo Senior Principal Magistrate, in Malindi Magistrate’s Court Civil Suit No. E208 of 2024 delivered on 28 th May 2025)
JUDGMENT
Background
1. This appeal through the memorandum dated 26 th June 2025 is on assessment of damages only because even as the first ground of appeal is generally on proof of the case by the respondent thereby appearing to be on both liability and assessment of damages, the subsequent grounds and the submissions address the issue of assessment of damages only. The appeal seeks to set aside the decree (which seems not to have been extracted) of the learned trial magistrate arising from a judgment of the trial court dated 28 th May 2025 to the extent of assessment of damages.
Case before the trial court
2. The respondent sued the appellant through a plaint dated 20 th June 2024 claiming general and special damages, costs of future medication, diminished earning capacity, costs of the suit and interest for injuries arising out of a road traffic accident that occurred on 13 th August 2022 along the Malindi-Kilifi road at Mtondia area. The respondent was a passenger in the appellant’s motor vehicle registration number KCV 109H and driven by his authorized driver, servant or agent. As a result, the respondent sustained the following injuries:
a. Fracture of the left tibia leg bone.
b. Fracture of the right clavicle collar bone.
c. Head injury.
d. Development of newly diagnosed hypertension.
3. The defendant filed a defence dated 25 th July 2024 and denied the suit in toto. He alleged in the alternative that the respondent contributed to the accident by his negligence.
4. The case was heard heard viva voce . The respondent Ibrahim Rocha, testified as PW 1 and called tow witnesses PW 2, Cpl James Kibet of Traffic police base and PW 3, Dr. Ajoni Adede who examined the respondent.
5. The appellant did not offer any evidence at the hearing.
6. Upon considering the evidence tendered, the submissions and authorities cited by the parties the learned trial magistrate awarded to the respondent a sum of KShs 700,000/= as general damages for pain, suffering and loss of amenities, KShs 200,000/= as future medical expenses, KShs 528,600/= in patient costs, KShs 2,000/= cost of medical report and KShs 550/= cost of motor vehicle search fees. The claim for diminished earning capacity was declined as not having been proved.
7. The appellant was dissatisfied with the judgment and filed this appeal.
Grounds of appeal
8. The appeal is based on the following grounds:
a. The learned magistrate erred in law and in fact in finding that the respondent had proved his case on a balance of probabilities.
b. The learned magistrate erred in law and in fact in his failure to examine the receipt evidence tendered by the respondent thereby reaching a wrong decision.
c. The learned magistrate erred in law and in fact in his failure to properly consider the submissions by the appellant, particularly with regard to special damages, thereby reaching a wrong conclusion.
d. The learned magistrate erred in law and in fact in failing to accord due regard to the appellant’s submissions and authorities/or case precedents in awarding damages.
9. The appellant therefore prays that the judgment of the trial court be set aside and this court makes an appropriate judgment and the respondent be condemned to pay the costs of the appeal.
Submissions
10. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent.
11. The appellant’s submissions raise two issues for determination:
a. Whether the trial magistrate failed to examine the receipts tendered by the respondent and the appellant’s submissions on the same thereby reaching a wrong conclusion.
b. Whether the trial magistrate erred in failing to consider case precedents in awarding general damages.
12. Learned counsel for the respondent has raised the following issues for determination:
a. Whether the receipts produced by consent can be challenged on appeal.
b. Whether the award for special damages was proved.
c. Whether the award for general damages is comparable to similar injuries.
13. The issues raised by both counsels are similar and will be considered as such.
Analysis
14. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
15. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
16. In determining the issue of quantum of damages and whether the trial court erred or was correct in its determination, this court is guided by the Court of Appeal decision in Kenya Bus Services Limited vs. Jane Karambu Gituma Civil Appeal Case No. 241 of 2000 as cited in George & another v Babu [2024] KEHC 5986 (KLR) where the court stated:
“…in this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account of some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low so as to represent a wholly erroneous estimate of the damages.”
17. The first issue for determination in this appeal is whether the trial court failed to examine the receipts tendered by the respondent and the appellant’s submissions and thereby reaching a wrong conclusion. Learned counsel for the appellant submits that although the respondent produced cash receipts from Mombasa hospital as proof of payment of the medical bill, he admitted in cross-examination that he did not produce any invoices for the corresponding receipts. Further that the receipts did not indicate what the payment was in respect of as there was no corresponding bill breakdown for the receipts for the amount paid. According to the appellant, the respondent just threw figures at the court and sought to be compensated on the same yet the trial court was silent on that issue and went ahead to award the special damages as pleaded by the respondent.
18. Learned counsel for the respondent submits that the appellant did not object to the production of the receipts at trial and cannot raise the issue on appeal. To support his submissions he has cited the cases of KANAMPIU M’LIBUA v JACOB M’ABUANGA & 2 others [2006] KEHC 1854 (KLR) and Otieno v Mwea County Medical Centre Ltd & 2 others [2023] KEHC 22474 (KLR) .
19. I have looked at the receipts produced by the respondent from Mombasa hospital. There is evidence that the appellant was admitted to Mombasa hospital following the accident. The receipts are on the letter head of Mombasa hospital and they also bare the hospital stamp for the dates they were respectively paid.
20. There is no dispute that the respondent was admitted to the hospital and received medical attention there. There is no contrary evidence from the appellant that his medical bills could have been settled by any other person other that by way of the payments he made, evidence which he provided by way of the receipts. I therefore find no merit in the submission that the respondent ought to have provided invoices to substantiate what the payments were made for. I am inclined to find that the complaint by the appellant that it is not clear what payments the receipts produced were in respect of is baseless.
21. The next ground of appeal is that the trial court, while assessing general damages, failed to consider the submissions by the appellant and the precedents provided and therefore arrived at an erroneous decision.
22. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturb the same.
23. Learned counsel for the appellant submits that in his own submissions the respondent relied on an authority where the court had awarded general damages of KShs 500,000/= for comparable injuries and at the same time the appellant provided a more recent authority where KShs 500,000/= was awarded as general damages but that the trial court disregarded the appellant’s said authority on grounds that the injuries sustained were not comparable to those suffered by the respondent.
24. Learned counsel for the respondent on his part submits that the award of KShs 700,000/= is fair and reasonable for the fractures that resulted in 15% permanent disability to the respondent. He has cited the following cases to this court.
a. Lawrence Wairimu Wainyoike & another v Joseph Letting [2021] KEHC 801 (KLR) where the court affirmed an award of KShs. 800,000/= for deep cut wound on the forehead, fracture left clavicle, blunt injury to the chest and blunt injury to the shoulder with no permanent disability.
b. Joseph Kimanthi Nzau v Johnson Macharia [2019] KEHC 6491 (KLR) where the respondent sustained injuries to the head, chest and lower limb injuries. He had a hematoma of the scalp, chest and severe tenderness in the right chest and right hip. He also had a fracture on the skull, two ribs and on the clavicle bone. He further had severe tenderness in the right chest anteriorly with haematoma formation in the same region and tenderness on right hip. For these injuries, the court of appeal reduced the High Court’s award of KShs.1,000,000 to KShs. 800,000.
c. Jackline Kamunyi Kamau v Simon Kiiru Njoki [2018] KEHC 6333 (KLR) the court awarded KShs. 1,200,000/= as general damages for fracture of the right femur which resulted in incapacity for one year and permanent disability that was assessed at 15%.
25. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
26. In the case of MICHAEL MAINA GITONGA V SERAH NJUGUNA [2012] KEHC 3808 (KLR) Ouko, J (as he then was) reiterated the principles to be borne in mind when assessing damages in personal injury claims as follows:
a. Assessment of damages is a matter of opinion and discretion and depends on the facts and circumstances of each case.
b. Money (an award) cannot renew a physical frame that has been battered and shattered. The award is only to give reasonable compensation.
c. Awards must be assessed with moderation.
d. It is desirable that so far as possible comparable injuries should be compensated with comparable awards.
e. In awarding damages fairness must be observed to both the Plaintiff and the Defendant as it is ultimately the taxpayers who have to pay, thereby injuring the body politic.
27. Similarly, in the case of John Kamore & another v Simon Irungu Ngugi [2014] KEHC 5057 (KLR) the High court endorsed the lower court’s observations on the relevant factors considered in making awards thus:
“Normally courts consider the nature of injuries, the period of healing and whether the healing is full or partial, the residual incapacity if any, the inconvenience or deprivation encountered by the plaintiff, inflationary trends, cost of living and lapse of time from the time of any availed decided authorities.
The plaintiff is only entitled to what is fair, just and reasonable. Money cannot renew a physical frame that has been shattered and battered. Assessment must be done with moderation. The aim is not to enrich the plaintiff. It is not also the aim to punish the defendant.”
28. I have taken these factors into account in the assessment of damages herein.
29. Learned counsel for the appellant submits that the trial court failed to follow the precedent the appellant had submitted of Civicon Limited v Richard Njomo Omwancha & 2 others [2019] KEHC 8373 (KLR) . In that case, the 1 st respondent sustained swollen lacerated iliac region, bruises on the left knee joint, swollen and tender left knee, bruised and tender left ankle joint, bruises on the left foot and pelvic fractures. The High Court found that the medical reports produced in evidence confirmed that the 1 st respondent sustained pelvic fractures. Although, the he had healed, he was still walking with a slight limp and a cane and both doctors who assessed him, one on 30 th February 2018 and the other on 2 nd March 2018 did not assess any disability.
30. It is immediately clear that the injuries sustained by the 1 st appellant in the cited case cannot be said to be similar and comparable to those sustained by the respondent in the present case. It was therefore not an appropriate authority to guide the trial court and the failure to apply it in its determination was not an error.
31. The trial court relied on the case of China Wu Yi Limited & another v Irene Leah Musau [2022] KEHC 2549 (KLR) where the respondent sustained serious injuries of cracked upper left molar tooth, soft tissue injuries to the left upper limb and fractured left humorous bone, fractured pelvic bone and dislocation of the right hip joint and was admitted at Kenyatta Hospital for one month. At the time of the examination, the Respondent complained of pain in the right hip joint and had a sore ending to the right limb. The respondent further had restriction of movement in the right limb.
32. I do not find that case to involve comparable injuries to those suffered by the respondent herein which involved fracture of the tibia and clavicle. I have found above that the case relied on by the appellant did not involve injuries comparable to the ones at hand.
33. On the other hand the cases cited by the respondent of Lawrence Wairimu Wainyoike & another v Joseph Letting [2021] KEHC 801 (KLR) and that of Joseph Kimanthi Nzau v Johnson Macharia [2019] KEHC 6491 (KLR) involve comparable injuries.
34. In addition, I also find the case of Transline Classic Safaris Limited v Cleophas [2024] KEHC 1517 (KLR) to be more recent, and involves comparable injuries to those sustained by the respondent in the present case. In that case the respondent sustained the following injuries:
a. Fractured right clavicle;
b. Dislocation of left ankle joint;
c. Blunt injury to the anterior chest wall leading to soft tissue injuries;
d. Deep cut wounds on the forehead.
The doctor who examined the respondent testified that he suffered inter alia , a fracture right clavicle, dislocation of the left ankle joint, blunt injury to the anterior chest wall leading to soft tissue injuries and deep cut wound on the forehead.
The High Court on appeal substituted the lower court award of KShs 700,000/= general damages for pain, suffering and loss of amenities with an award of KShs 550,000/=.
35. In the above case, the case of Board of Trustees Anglican Church of Kenya Diocese of Marsabit v Adano Isacko [2019] KEHC 4185 (KLR) is cited and I find that it too is relevant in the present case as it involves comparable injuries. In that case the appellate court upheld the trial court’s award of KShs. 700,000 where respondent, a police officer, suffered a fracture of the right clavicle and could no longer shoot his G3 rifle.
Determination
36. Applying the principles on assessment of general damages for pain, suffering and loss of amenities and considering the injuries sustained by the respondent and remembering that assessment of damages is at the discretion of the trial court and this court should be slow to upset the the same, I am satisfied that the award made by the trial court for general damages was not so inordinately high as to represent an erroneous estimate. Although the trial court did not explain much on how it arrived at the award, I am satisfied that the assessment was correct and this court has no reason to interfere.
37. Consequently, the award of the trial court of KShs 700,000/= general damages for pain, suffering and loss of amenities is sustained. The rest of the awards will remain as made by the trial court. Overall the appeal fails and is dismissed.
38. The respondent shall get the costs of the appeal.
39. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 10 th day of July 2026 with counsels appearing as below and the judgment being uploaded afterwards:
Muronji (Ms) for the appellant.
Nyabuto (Ms) for the respondent.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
Court: Stay of execution is granted for 30 days.
HC CA No. E073 of 202512. assessment of damages
IN THE HIGH COURT OF KENYA AT MALINDI
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CIVIL APPEAL NO. E073 OF 2025
JOSEPH KIRAGU MUCHAI……………………………………..APPELLANT
VERSUS
IBRAHIM RASHID ROCHA......………………………………RESPONDENT
(Being an appeal from the judgment and decree of Hon. James Ongondo Senior Principal Magistrate, in Malindi Magistrate’s Court Civil Suit No. E208 of 2024 delivered on 28 th May 2025)
JUDGMENT
Background
1. This appeal through the memorandum dated 26 th June 2025 is on assessment of damages only because even as the first ground of appeal is generally on proof of the case by the respondent thereby appearing to be on both liability and assessment of damages, the subsequent grounds and the submissions address the issue of assessment of damages only. The appeal seeks to set aside the decree (which seems not to have been extracted) of the learned trial magistrate arising from a judgment of the trial court dated 28 th May 2025 to the extent of assessment of damages.
Case before the trial court
2. The respondent sued the appellant through a plaint dated 20 th June 2024 claiming general and special damages, costs of future medication, diminished earning capacity, costs of the suit and interest for injuries arising out of a road traffic accident that occurred on 13 th August 2022 along the Malindi-Kilifi road at Mtondia area. The respondent was a passenger in the appellant’s motor vehicle registration number KCV 109H and driven by his authorized driver, servant or agent. As a result, the respondent sustained the following injuries:
a. Fracture of the left tibia leg bone.
b. Fracture of the right clavicle collar bone.
c. Head injury.
d. Development of newly diagnosed hypertension.
3. The defendant filed a defence dated 25 th July 2024 and denied the suit in toto. He alleged in the alternative that the respondent contributed to the accident by his negligence.
4. The case was heard heard viva voce . The respondent Ibrahim Rocha, testified as PW 1 and called tow witnesses PW 2, Cpl James Kibet of Traffic police base and PW 3, Dr. Ajoni Adede who examined the respondent.
5. The appellant did not offer any evidence at the hearing.
6. Upon considering the evidence tendered, the submissions and authorities cited by the parties the learned trial magistrate awarded to the respondent a sum of KShs 700,000/= as general damages for pain, suffering and loss of amenities, KShs 200,000/= as future medical expenses, KShs 528,600/= in patient costs, KShs 2,000/= cost of medical report and KShs 550/= cost of motor vehicle search fees. The claim for diminished earning capacity was declined as not having been proved.
7. The appellant was dissatisfied with the judgment and filed this appeal.
Grounds of appeal
8. The appeal is based on the following grounds:
a. The learned magistrate erred in law and in fact in finding that the respondent had proved his case on a balance of probabilities.
b. The learned magistrate erred in law and in fact in his failure to examine the receipt evidence tendered by the respondent thereby reaching a wrong decision.
c. The learned magistrate erred in law and in fact in his failure to properly consider the submissions by the appellant, particularly with regard to special damages, thereby reaching a wrong conclusion.
d. The learned magistrate erred in law and in fact in failing to accord due regard to the appellant’s submissions and authorities/or case precedents in awarding damages.
9. The appellant therefore prays that the judgment of the trial court be set aside and this court makes an appropriate judgment and the respondent be condemned to pay the costs of the appeal.
Submissions
10. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent.
11. The appellant’s submissions raise two issues for determination:
a. Whether the trial magistrate failed to examine the receipts tendered by the respondent and the appellant’s submissions on the same thereby reaching a wrong conclusion.
b. Whether the trial magistrate erred in failing to consider case precedents in awarding general damages.
12. Learned counsel for the respondent has raised the following issues for determination:
a. Whether the receipts produced by consent can be challenged on appeal.
b. Whether the award for special damages was proved.
c. Whether the award for general damages is comparable to similar injuries.
13. The issues raised by both counsels are similar and will be considered as such.
Analysis
14. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
15. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
16. In determining the issue of quantum of damages and whether the trial court erred or was correct in its determination, this court is guided by the Court of Appeal decision in Kenya Bus Services Limited vs. Jane Karambu Gituma Civil Appeal Case No. 241 of 2000 as cited in George & another v Babu [2024] KEHC 5986 (KLR) where the court stated:
“…in this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account of some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low so as to represent a wholly erroneous estimate of the damages.”
17. The first issue for determination in this appeal is whether the trial court failed to examine the receipts tendered by the respondent and the appellant’s submissions and thereby reaching a wrong conclusion. Learned counsel for the appellant submits that although the respondent produced cash receipts from Mombasa hospital as proof of payment of the medical bill, he admitted in cross-examination that he did not produce any invoices for the corresponding receipts. Further that the receipts did not indicate what the payment was in respect of as there was no corresponding bill breakdown for the receipts for the amount paid. According to the appellant, the respondent just threw figures at the court and sought to be compensated on the same yet the trial court was silent on that issue and went ahead to award the special damages as pleaded by the respondent.
18. Learned counsel for the respondent submits that the appellant did not object to the production of the receipts at trial and cannot raise the issue on appeal. To support his submissions he has cited the cases of KANAMPIU M’LIBUA v JACOB M’ABUANGA & 2 others [2006] KEHC 1854 (KLR) and Otieno v Mwea County Medical Centre Ltd & 2 others [2023] KEHC 22474 (KLR) .
19. I have looked at the receipts produced by the respondent from Mombasa hospital. There is evidence that the appellant was admitted to Mombasa hospital following the accident. The receipts are on the letter head of Mombasa hospital and they also bare the hospital stamp for the dates they were respectively paid.
20. There is no dispute that the respondent was admitted to the hospital and received medical attention there. There is no contrary evidence from the appellant that his medical bills could have been settled by any other person other that by way of the payments he made, evidence which he provided by way of the receipts. I therefore find no merit in the submission that the respondent ought to have provided invoices to substantiate what the payments were made for. I am inclined to find that the complaint by the appellant that it is not clear what payments the receipts produced were in respect of is baseless.
21. The next ground of appeal is that the trial court, while assessing general damages, failed to consider the submissions by the appellant and the precedents provided and therefore arrived at an erroneous decision.
22. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturb the same.
23. Learned counsel for the appellant submits that in his own submissions the respondent relied on an authority where the court had awarded general damages of KShs 500,000/= for comparable injuries and at the same time the appellant provided a more recent authority where KShs 500,000/= was awarded as general damages but that the trial court disregarded the appellant’s said authority on grounds that the injuries sustained were not comparable to those suffered by the respondent.
24. Learned counsel for the respondent on his part submits that the award of KShs 700,000/= is fair and reasonable for the fractures that resulted in 15% permanent disability to the respondent. He has cited the following cases to this court.
a. Lawrence Wairimu Wainyoike & another v Joseph Letting [2021] KEHC 801 (KLR) where the court affirmed an award of KShs. 800,000/= for deep cut wound on the forehead, fracture left clavicle, blunt injury to the chest and blunt injury to the shoulder with no permanent disability.
b. Joseph Kimanthi Nzau v Johnson Macharia [2019] KEHC 6491 (KLR) where the respondent sustained injuries to the head, chest and lower limb injuries. He had a hematoma of the scalp, chest and severe tenderness in the right chest and right hip. He also had a fracture on the skull, two ribs and on the clavicle bone. He further had severe tenderness in the right chest anteriorly with haematoma formation in the same region and tenderness on right hip. For these injuries, the court of appeal reduced the High Court’s award of KShs.1,000,000 to KShs. 800,000.
c. Jackline Kamunyi Kamau v Simon Kiiru Njoki [2018] KEHC 6333 (KLR) the court awarded KShs. 1,200,000/= as general damages for fracture of the right femur which resulted in incapacity for one year and permanent disability that was assessed at 15%.
25. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
26. In the case of MICHAEL MAINA GITONGA V SERAH NJUGUNA [2012] KEHC 3808 (KLR) Ouko, J (as he then was) reiterated the principles to be borne in mind when assessing damages in personal injury claims as follows:
a. Assessment of damages is a matter of opinion and discretion and depends on the facts and circumstances of each case.
b. Money (an award) cannot renew a physical frame that has been battered and shattered. The award is only to give reasonable compensation.
c. Awards must be assessed with moderation.
d. It is desirable that so far as possible comparable injuries should be compensated with comparable awards.
e. In awarding damages fairness must be observed to both the Plaintiff and the Defendant as it is ultimately the taxpayers who have to pay, thereby injuring the body politic.
27. Similarly, in the case of John Kamore & another v Simon Irungu Ngugi [2014] KEHC 5057 (KLR) the High court endorsed the lower court’s observations on the relevant factors considered in making awards thus:
“Normally courts consider the nature of injuries, the period of healing and whether the healing is full or partial, the residual incapacity if any, the inconvenience or deprivation encountered by the plaintiff, inflationary trends, cost of living and lapse of time from the time of any availed decided authorities.
The plaintiff is only entitled to what is fair, just and reasonable. Money cannot renew a physical frame that has been shattered and battered. Assessment must be done with moderation. The aim is not to enrich the plaintiff. It is not also the aim to punish the defendant.”
28. I have taken these factors into account in the assessment of damages herein.
29. Learned counsel for the appellant submits that the trial court failed to follow the precedent the appellant had submitted of Civicon Limited v Richard Njomo Omwancha & 2 others [2019] KEHC 8373 (KLR) . In that case, the 1 st respondent sustained swollen lacerated iliac region, bruises on the left knee joint, swollen and tender left knee, bruised and tender left ankle joint, bruises on the left foot and pelvic fractures. The High Court found that the medical reports produced in evidence confirmed that the 1 st respondent sustained pelvic fractures. Although, the he had healed, he was still walking with a slight limp and a cane and both doctors who assessed him, one on 30 th February 2018 and the other on 2 nd March 2018 did not assess any disability.
30. It is immediately clear that the injuries sustained by the 1 st appellant in the cited case cannot be said to be similar and comparable to those sustained by the respondent in the present case. It was therefore not an appropriate authority to guide the trial court and the failure to apply it in its determination was not an error.
31. The trial court relied on the case of China Wu Yi Limited & another v Irene Leah Musau [2022] KEHC 2549 (KLR) where the respondent sustained serious injuries of cracked upper left molar tooth, soft tissue injuries to the left upper limb and fractured left humorous bone, fractured pelvic bone and dislocation of the right hip joint and was admitted at Kenyatta Hospital for one month. At the time of the examination, the Respondent complained of pain in the right hip joint and had a sore ending to the right limb. The respondent further had restriction of movement in the right limb.
32. I do not find that case to involve comparable injuries to those suffered by the respondent herein which involved fracture of the tibia and clavicle. I have found above that the case relied on by the appellant did not involve injuries comparable to the ones at hand.
33. On the other hand the cases cited by the respondent of Lawrence Wairimu Wainyoike & another v Joseph Letting [2021] KEHC 801 (KLR) and that of Joseph Kimanthi Nzau v Johnson Macharia [2019] KEHC 6491 (KLR) involve comparable injuries.
34. In addition, I also find the case of Transline Classic Safaris Limited v Cleophas [2024] KEHC 1517 (KLR) to be more recent, and involves comparable injuries to those sustained by the respondent in the present case. In that case the respondent sustained the following injuries:
a. Fractured right clavicle;
b. Dislocation of left ankle joint;
c. Blunt injury to the anterior chest wall leading to soft tissue injuries;
d. Deep cut wounds on the forehead.
The doctor who examined the respondent testified that he suffered inter alia , a fracture right clavicle, dislocation of the left ankle joint, blunt injury to the anterior chest wall leading to soft tissue injuries and deep cut wound on the forehead.
The High Court on appeal substituted the lower court award of KShs 700,000/= general damages for pain, suffering and loss of amenities with an award of KShs 550,000/=.
35. In the above case, the case of Board of Trustees Anglican Church of Kenya Diocese of Marsabit v Adano Isacko [2019] KEHC 4185 (KLR) is cited and I find that it too is relevant in the present case as it involves comparable injuries. In that case the appellate court upheld the trial court’s award of KShs. 700,000 where respondent, a police officer, suffered a fracture of the right clavicle and could no longer shoot his G3 rifle.
Determination
36. Applying the principles on assessment of general damages for pain, suffering and loss of amenities and considering the injuries sustained by the respondent and remembering that assessment of damages is at the discretion of the trial court and this court should be slow to upset the the same, I am satisfied that the award made by the trial court for general damages was not so inordinately high as to represent an erroneous estimate. Although the trial court did not explain much on how it arrived at the award, I am satisfied that the assessment was correct and this court has no reason to interfere.
37. Consequently, the award of the trial court of KShs 700,000/= general damages for pain, suffering and loss of amenities is sustained. The rest of the awards will remain as made by the trial court. Overall the appeal fails and is dismissed.
38. The respondent shall get the costs of the appeal.
39. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 10 th day of July 2026 with counsels appearing as below and the judgment being uploaded afterwards:
Muronji (Ms) for the appellant.
Nyabuto (Ms) for the respondent.
Ummu: Court assistant.
ANDAYI W. FRANCIS
JUDGE
Court: Stay of execution is granted for 30 days.
HC CA No. E073 of 202512. assessment of damages