(Appeal from the Judgment and decree of Hon. A.C. Munyuny, Resident Magistrate, delivered on 26 th March 2025 in Migori CMCC No. E012 of 2023.)
JUDGMENT.
1. This is an appeal from the Judgment and decree of Hon. A.C. Munyuny, Resident Magistrates delivered at Migori in Civil Suit No. E012 of 2023, Joshua Okoth Johana vs Kenneth Muturi. The court upon hearing the parties proceeded to make a determination in the following terms:
a. Liability 90:10 in favour of the Plaintiff.
b. General damages Kshs. 2,500,000.00
c. Future medical expenses Kshs. 240,000.00
d. Loss of income Kshs. 37,723.30
e. Special damages, Nil
f. Costs and interest awarded to the Plaintiff.
2. The Defendant was dissatisfied with the judgment of the trial learned Magistrate on the award of General Damages and has appealed on the same.
3. This being a first appeal, this court is enjoined to re-evaluate the evidence adduced before the trial court and made its own independent finding on the issues the subject of the appeal. As already stated, the only issue for determination, is whether the award made by the trial court on general damages was excessive in the circumstances. In so doing, I am guided by the determination in both Okeno vs. Republic [1972] E.A 32 and Selle and Another Vs Associated Motor Boat Co. Ltd (1968) EA 123 . In the latter case, the court had this to say:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally” .
Analysis and determination .
4. As the issue is one on the quantum of damages, I am inclined to consider the evidence on record in regard to the Plaintiffs injuries. The Plaintiff/Respondent suffered the following injuries:
i. Amputation of the left lower limb below the knee.
ii. Bruises on the right hand
iii. Degloving injury to the left leg .
He was treated at Migori County Referral Hospital where he was admitted for 2 weeks and discharged on medication after the amputation of the left leg. He was later attended for management at the orthopaedic clinic for two weeks. When first seen by for the preparation of the P3 Form on 7 th November 2022, he had scars and difficulty in walking.
5. The Plaintiff was also examined by Dr. Neema Mbaruku on the 18 th of March 2023 and the doctor confirmed the injuries cited above. At that time, the Plaintiff was walking with two crutches and the amputation stamp was bandaged but was clean and had healed. The doctor opined that the disability was 100% and the Plaintiff would Kshs. 250,000.00 for a prosthesis.
6. The Plaintiff was also re-examined on the 15 th May 2023 by Dr. James Obondi. It was his finding that the Plaintiff could not walk without crutches and he would need Kshs. 70,000.00 for the prosthesis.
7. The trial Magistrate considered the submissions made by the respective Counsel and settled on a sum of Kshs. 2,500,000.00 in general damages. The Plaintiffs Advocates had proposed Kshs. 4,000,000.00 cited Mbasu & Another vs Swaka (2024) eKLR, Uchumi Supermarket Limited & Another vs Boniface Ouma Were (2021) eKLR and Mumias Sugar Co. Limited vs Francis Wanalo (2007) eKLR .
8. The Defendants proposed general damages of Kshs. 500,000.00 and cited the cases of Joseph Seremani & Julius Otachi vs Stella Bosibori Moreka, Civil Appeal No. 100 of 2018 (2019) eKLR, Akhwaba Olubuliera Nicodemus vs Dickson Shikuku (2020) Civil Appeal No. 169 OF 2018, eKLR .
9. The trail Magistrate analysed the cited cases by both parties and made a determination that current awards as presented by the parties were in the range of Kshs. 2,000,000.00 to Kshs. 2,500,000.00. The trial Magistrate proceeded to award Kshs. 2,500,000.00 citing inflation.
10. In determining the award of general damages, courts are guided by principles as laid out in the cases herein next: In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR, the court laid out the following directions on the assessment of general damages:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
11. In the case of Butt v. Khan Civil Appeal No. 40 of 1997 , the court held thus:
“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 arrive at a figure which was either inordinately high or low.”
12. Finally, in the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 , the court stated:
“It is trite law that the assessment of general 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 below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
13. The court has carefully considered the cited cases and the determination of the court. I do not find that the trial Magistrate misapprehended or applied the wrong considerations in reaching the sum of Kshs. 2,500,000.00 in general damages save that the cases the trial court finally settled on had additional severe injuries in addition to the amputation of the left lower limb. In the present case, though stated that the Plaintiff had three injuries, the amputation was a result of the severe injury to the left limb leading to the amputation of the lower leg.
14. That said and considered and cognisant of the cited authorities, I will be inclined to review slightly the award on general damages to a sum of Kshs. 2,000,000.00.
15. I will therefore set aside the award of Kshs. 2,500,000.00 and substitute the same with a sum of Kshs. 2,000,000.00. Interest is awarded to the Plaintiff/Respondent on the awards from the date of judgment by the trial court.
16. Each party to bear their costs of the appeal .
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026.
HCCA NO. E069 OF 2025 KENNETH MUTURI VS JOSHUA OKOTH JOHANA JUDGMENT Pg. 5
JUDGMENT.
1. This is an appeal from the Judgment and decree of Hon. A.C. Munyuny, Resident Magistrates delivered at Migori in Civil Suit No. E012 of 2023, Joshua Okoth Johana vs Kenneth Muturi. The court upon hearing the parties proceeded to make a determination in the following terms:
a. Liability 90:10 in favour of the Plaintiff.
b. General damages Kshs. 2,500,000.00
c. Future medical expenses Kshs. 240,000.00
d. Loss of income Kshs. 37,723.30
e. Special damages, Nil
f. Costs and interest awarded to the Plaintiff.
2. The Defendant was dissatisfied with the judgment of the trial learned Magistrate on the award of General Damages and has appealed on the same.
3. This being a first appeal, this court is enjoined to re-evaluate the evidence adduced before the trial court and made its own independent finding on the issues the subject of the appeal. As already stated, the only issue for determination, is whether the award made by the trial court on general damages was excessive in the circumstances. In so doing, I am guided by the determination in both Okeno vs. Republic [1972] E.A 32 and Selle and Another Vs Associated Motor Boat Co. Ltd (1968) EA 123 . In the latter case, the court had this to say:
“I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally” .
Analysis and determination .
4. As the issue is one on the quantum of damages, I am inclined to consider the evidence on record in regard to the Plaintiffs injuries. The Plaintiff/Respondent suffered the following injuries:
i. Amputation of the left lower limb below the knee.
ii. Bruises on the right hand
iii. Degloving injury to the left leg .
He was treated at Migori County Referral Hospital where he was admitted for 2 weeks and discharged on medication after the amputation of the left leg. He was later attended for management at the orthopaedic clinic for two weeks. When first seen by for the preparation of the P3 Form on 7 th November 2022, he had scars and difficulty in walking.
5. The Plaintiff was also examined by Dr. Neema Mbaruku on the 18 th of March 2023 and the doctor confirmed the injuries cited above. At that time, the Plaintiff was walking with two crutches and the amputation stamp was bandaged but was clean and had healed. The doctor opined that the disability was 100% and the Plaintiff would Kshs. 250,000.00 for a prosthesis.
6. The Plaintiff was also re-examined on the 15 th May 2023 by Dr. James Obondi. It was his finding that the Plaintiff could not walk without crutches and he would need Kshs. 70,000.00 for the prosthesis.
7. The trial Magistrate considered the submissions made by the respective Counsel and settled on a sum of Kshs. 2,500,000.00 in general damages. The Plaintiffs Advocates had proposed Kshs. 4,000,000.00 cited Mbasu & Another vs Swaka (2024) eKLR, Uchumi Supermarket Limited & Another vs Boniface Ouma Were (2021) eKLR and Mumias Sugar Co. Limited vs Francis Wanalo (2007) eKLR .
8. The Defendants proposed general damages of Kshs. 500,000.00 and cited the cases of Joseph Seremani & Julius Otachi vs Stella Bosibori Moreka, Civil Appeal No. 100 of 2018 (2019) eKLR, Akhwaba Olubuliera Nicodemus vs Dickson Shikuku (2020) Civil Appeal No. 169 OF 2018, eKLR .
9. The trail Magistrate analysed the cited cases by both parties and made a determination that current awards as presented by the parties were in the range of Kshs. 2,000,000.00 to Kshs. 2,500,000.00. The trial Magistrate proceeded to award Kshs. 2,500,000.00 citing inflation.
10. In determining the award of general damages, courts are guided by principles as laid out in the cases herein next: In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR, the court laid out the following directions on the assessment of general damages:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
11. In the case of Butt v. Khan Civil Appeal No. 40 of 1997 , the court held thus:
“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 arrive at a figure which was either inordinately high or low.”
12. Finally, in the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 , the court stated:
“It is trite law that the assessment of general 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 below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
13. The court has carefully considered the cited cases and the determination of the court. I do not find that the trial Magistrate misapprehended or applied the wrong considerations in reaching the sum of Kshs. 2,500,000.00 in general damages save that the cases the trial court finally settled on had additional severe injuries in addition to the amputation of the left lower limb. In the present case, though stated that the Plaintiff had three injuries, the amputation was a result of the severe injury to the left limb leading to the amputation of the lower leg.
14. That said and considered and cognisant of the cited authorities, I will be inclined to review slightly the award on general damages to a sum of Kshs. 2,000,000.00.
15. I will therefore set aside the award of Kshs. 2,500,000.00 and substitute the same with a sum of Kshs. 2,000,000.00. Interest is awarded to the Plaintiff/Respondent on the awards from the date of judgment by the trial court.
16. Each party to bear their costs of the appeal .
Dated, signed and delivered virtually via Microsoft Teams this 13 th Day of August 2026.
HCCA NO. E069 OF 2025 KENNETH MUTURI VS JOSHUA OKOTH JOHANA JUDGMENT Pg. 5