The Appellant sued the Respondent in Plaint dated 30th July, 2021 seeking special damages, general damages and costs of the suit and interest. The Respondent’s case was that on 20th June 2021 he was lawfully walking along the verge of Ram Hospital – Kisii TRH Mortuary road when opposite Guardian Offices a motor vehicle Reg. No. 45 CG 208 A Isuzu DMAX which was being driven on the said road at a very high speed veered of the road to knock the Respondent and he suffered multiple injuries enumerated in the Plaint as follows:
-scalp contusion
-facial abrasions
-chest contusion with resultant chest wall bruising and rib fracture
-back contusion
-contusion
-contusion and bruising of both forearms
-fractures of the right tibia/fibula bones
Upon consideration of the evidence on record the Trial Magistrate found the Respondent liable 100 percent for the accident and assessed general damages at Kshs. 700,000/= together with Kshs. 19,130/= as special damages. with costs of the suit and interest from date of judgement.
The Appellant was aggrieved by the judgement and appealed against the said judgement vide Memorandum of Appeal dated 12th March, 2024 on the following grounds:
1. THAT the award of General Damages was manifestly and inordinately excessive in the circumstances.
2. THAT the Learned Trial Magistrate erred in law and infact in holding that the Appellant was 100 percent liable.
3. THAT the Learned Trial Magistrate erred in law and fact when he failed to appreciate that the claim before him was fraudulent as the injuries were exaggerated to inflate the award.
4. THAT the Learned Trial Magistrate acted in error when the same failed to properly evaluate the evidence on record thus reaching erroneous decision.
5. THAT the Learned Trial Magistrate erred when he misapprehended the principle applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice.
6. The Learned Trial Magistrate erred in law and fact when he relied on extraneous issues as a basis of his determination on liability.
It is proposed to ask the court for orders that:
i) The judgement and/ or decree of the Trial Magistrate date 13th September 2023 beset aside, varied and / or quashed.
ii) The court be pleased to dismiss the plaintiff’s suit with costs to the Appellant.
iii) In the alternative, to re-visit the issue of assessment of liability and quantum of damages payable and assess/ review/ vary the same to reasonable amount which is commensurate with the injuries sustained by the Respondent and the ratio of liability the deceased having substantially occasioned or contributed to the accident.
iv) Costs of the appeal be borne by the Respondent.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 3rd December 2024 and are to the effect that when the Respondent testified in court he gave the wrong description of the accident motor vehicle that allegedly hit and injured him and as such there cannot be liability without fault as both sides are blaming each other for causing the accident. It was submitted that PW1 P. C. Walumbe was not at the scene of the accident and therefore gave hearsay evidence with no skid marks or sketch marks on the occurrence of the accident. It was submitted that PW1 did not produce the inquiry file and neither did he visit the scene and he was not the investigating officer and did not know how the accident occurred.
The Appellant’s counsel urged the court to find that the accident was caused by those involved i.e the driver and the Respondent and cited the case of Nicholas Nyangwench Miyogo Joseph Vs James Nyakundi Nyamrai & 2 Others (2019) eklr where it was held:
“The trial court was presented with two plausible versions of the accident. No sketch plan was prepared by the police to aid in ascertaining who was to blame between the two sides and in the absence of an independent witness, it is impossible to see how one account was more plausible than the other”
The Appellant’s counsel also cited the holding in Hussein Omar Farah Vs Lento Agencies CA NAI Civil Appeal 34 of 2005 [2006] Eklr where the Court of Appeal held:
“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In …………………………”
On quantum the Appellant’s Counsel submitted that the Respondent failed to table any evidence that he went for further treatment. The Appellant cited the case of Reamic Investment Limited Vs Joaz Amenya Samuel [2021] Eklr where the appellate court substituted an award of Kshs. 600,000/= with Kshs. 350,000/= where the Plaintiff had suffered open femur fracture, abrasion on the left knee, face, neck, right upper lip and contusion on the anterior chest.
The Appellant equally relied on the case of Jitan Nagra Vs Abidnego Nyandusi Oigo[2018] Eklr where Kshs. 450,000/= was awarded for lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extendingto thee right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow and compound fracture of the right tibia/fibula.
The Appellant’s Counsel proposed that an award of Kshs. 450,000/= be assessed for general damages taking into consideration the comparatives including similar injuries in the recent past.
The Appellant’s Counsel urged the court to allow the appeal.
The Respondent in his submissions dated 10th December 2024 contended that the appeal on liability cannot stand as the Appellant did not adduce any evidence to prove the Respondent was to blame for the accident. That there was also no proof that the Respondent was drunk.
It was further submitted that there was no dispute as to the ownership of the accident motor vehicle and the fact that the Respondent was injured was not challenged. It was therefore the Respondent’s case that the general damages awarded were not inordinately excessive and does not warrant being interfered with. The respondent cited the case of Easy Coach Ltd Vs Joyce Moraa Asiago Kisii High Court Civil Appeal No. 78 of 2020 to support their Submissions and urged that the Appeal be dismissed with costs.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
Having considered the grounds of appeal and Appellant’s submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are:-
1. Whether the Learned Trial Magistrate properly evaluated the evidence on record and applied appropriate principles to determine liability.
2. Whether the Learned Trial Magistrate properly evaluated the evidence on record and applied appropriate principles in assessment of general damages.
3. Whether the injuries relied upon in assessment of general damages were fraudulently exaggerated to inflate the award.
4. Who bears the costs of the Appeal?
On whether the Learned Trial Magistrate properly evaluated the evidence on record and applied appropriate principles to determine liability, the Court of Appeal in Michael Hubert Kloss & Another V David Seroney & 5 Others [2009] eKLR stated;
“The determination of liability in a road traffic accident is not a scientific affair, Lord Reid put it more graphically in Stapley V Gypsum Mines Ltd (2) (1953) A.C 663 at pg 681 as follows;
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide ……………………………………
“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally”.
Similarly, in Farah V Lento Agencies [2006] 1 KLR 124, 125, the Court of Appeal held that:
“Where there is no concrete evidence to determine who is to blame between the two drivers, both should be held equally to blame. As no side could establish the fault of the opposite party, liability for the accident could be equally on both the drivers. Therefore, each driver was to blame”.
Guided by the above cited authorities it is my view that in determining liability this court must consider the facts of the case and establish what mainly contributed to the cause of the accident. The court will always consider the manner of driving, conduct of the pedestrian and identify the person who was at fault and place the blame on him/her. Where the facts and circumstances are such that it is not clear who was at fault and who was to blame, the court will apportion liability.
This court has considered the evidence adduced before the trial court. It is not in dispute that DW1 Evans Onyancha was the driver of motor vehicle registration number 45 CG 208 A on 20th of June 2021. It is also not in dispute that the said motor vehicle was involved in an accident with the Respondent whom DW1 alleged was a drunk tout.
The Respondent testified that he was walking along the verge of the road when the Appellant’s motor-vehicle veered off the road and knocked him down and he sustained severe multiple injuries. He was treated at Kisii Teaching and Referral Hospital and PW2 produced Treatment Notes (Exhibit 4) and P3 form (Exhibit 3) indicating that the Respondent suffered scalp contusion, facial abrasions, chest contusion with resultant chest wall bruising and rib fracture, back contusion, contusion, contusion and bruising of both forearms, and fractures of the right tibia/fibula bone. PW2 also produced the Medical Report Exhibit 2(a) in which the Respondent was said to have permanent disability assessed at 3%. He also produced the Clinical appointment card as Exhibit 5. The Respondent during his testimony said that he had not healed and was still buying medication from the Chemist.
As established by the Trial Magistrate, the Appellant did not adduce evidence to show that the Respondent was a tout and that he was drunk or that he contributed in any way to the occurrence of the accident. The Respondent’s witness PW1- PC Kenneth Walumbe confirmed that the Appellant’s subject motor vehicle was involved in a road accident with motor vehicle KCR 658 N and a pedestrian and that the case was pending investigations. PW1 produced the police abstract confirming the accident occurred and that the Respondent was injured. The Respondent said he was a pedestrian walking lawfully at the verge of the road when he was knocked. There is evidence that there was a confrontation between the Appellant’s enforcement officers and matatu drivers and touts when the accident occurred involving the Appellant’s motor-vehicle and a matatu as shown in the police abstract.
Consequently, this court finds that the decision by the Trial Magistrate finding the Appellants 100% liable was not erroneous and therefore the same cannot be set aside.
On whether the Learned Trial Magistrate properly evaluated the evidence on record and applied appropriate principles in assessment of general damages, the Court of Appeal in Kemfro Africa Ltd t/a Meru Express & Another v A.M. Lubia & another (No.2) (1987)) KLR 30 stated as follows: -
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by the trial judge were held by the former court of Eastern Africa to be that it must be satisfied that either the judge in assessing damages took into account a relevant or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly.”
Further, the Court of Appeal in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated as follows:-
“comparable injuries should attract comparable awards”.
In assessing quantum, the Trial Magistrate considered the injuries sustained by the Respondent and confirmed by PW2. From the pleadings, and the material on record the Respondent suffered scalp contusion, facial abrasions, chest contusion with resultant chest wall bruising and rib fracture, back contusion, contusion, contusion and bruising of both forearms, and fractures of the right tibia/fibula bone. The Trial Court further considered the authorities relied on by the parties awarded general damages of Kshs. 700,000/=.
In Gitonga v Kalunge (Civil Appeal E034 of 2021) [2022] KEHC 3070 (KLR) (30 June 2022) (Judgment) where the Respondent suffered Brain contusion with loss of consciousness for 2 hours and disorientation for 4 days, soft tissue injuries anterior chest, soft tissue injuries left shoulder, left acetabulum fracture with posterior hip dislocation the Judge found that the authority relied upon by the Trial Magistrate namely Geoffrey Maraka Kimchong v Frechiah Hugiru [2020] eKLR where an award of 1,000,000/= for, cut wound on the cheek which was tender, blunt trauma to the pelvis which was tender and, fracture of the right acetabulum were less severe and set aside the general damages and awarded Kshs. 1,700,000/=.
The Trial Magistrate relied on the case of Dennis Matagaro Vs NKO (2021) eKLR to assess damages. In that case the injuries suffered were mild head injury, tenderness on the neck, dislocation of the left shoulder, tenderness on the back, deep lacerated cut wounds on the forearms and a fracture of the left tibia and fibula and awarded Kshs. 700,00/= which was awarded in that case.
The injuries suffered by the Respondent in this case are similar to the ones in Dennis Matagaro v NKO (Supra) where an award of Kshs. 700,000/= was made on 17th May 2019. Being persuaded by the authority in Gitonga v Kalunge (Supra) where injuries were also similar to the ones of the Respondent herein I find that an award of Kshs. 700,000/= was in the circumstances low considering the injuries sustained.
In the result, the appeal herein fails. It is hereby ordered that the award for general damages is set aside and is hereby substituted with an award of Kshs. 1,000,000/= in favour of the Respondent. Special Damages remain as awarded by the Trial Court to accrue interest from the date of filing of the suit. Interest on general damages to accrue from the date of judgement. Costs of the appeal and in the subordinate Court to the Respondent.
Dated, Signed and Delivered at Kisii this 24th Day of June, 2025
-scalp contusion
-facial abrasions
-chest contusion with resultant chest wall bruising and rib fracture
-back contusion
-contusion
-contusion and bruising of both forearms
-fractures of the right tibia/fibula bones
Upon consideration of the evidence on record the Trial Magistrate found the Respondent liable 100 percent for the accident and assessed general damages at Kshs. 700,000/= together with Kshs. 19,130/= as special damages. with costs of the suit and interest from date of judgement.
The Appellant was aggrieved by the judgement and appealed against the said judgement vide Memorandum of Appeal dated 12th March, 2024 on the following grounds:
1. THAT the award of General Damages was manifestly and inordinately excessive in the circumstances.
2. THAT the Learned Trial Magistrate erred in law and infact in holding that the Appellant was 100 percent liable.
3. THAT the Learned Trial Magistrate erred in law and fact when he failed to appreciate that the claim before him was fraudulent as the injuries were exaggerated to inflate the award.
4. THAT the Learned Trial Magistrate acted in error when the same failed to properly evaluate the evidence on record thus reaching erroneous decision.
5. THAT the Learned Trial Magistrate erred when he misapprehended the principle applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice.
6. The Learned Trial Magistrate erred in law and fact when he relied on extraneous issues as a basis of his determination on liability.
It is proposed to ask the court for orders that:
i) The judgement and/ or decree of the Trial Magistrate date 13th September 2023 beset aside, varied and / or quashed.
ii) The court be pleased to dismiss the plaintiff’s suit with costs to the Appellant.
iii) In the alternative, to re-visit the issue of assessment of liability and quantum of damages payable and assess/ review/ vary the same to reasonable amount which is commensurate with the injuries sustained by the Respondent and the ratio of liability the deceased having substantially occasioned or contributed to the accident.
iv) Costs of the appeal be borne by the Respondent.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 3rd December 2024 and are to the effect that when the Respondent testified in court he gave the wrong description of the accident motor vehicle that allegedly hit and injured him and as such there cannot be liability without fault as both sides are blaming each other for causing the accident. It was submitted that PW1 P. C. Walumbe was not at the scene of the accident and therefore gave hearsay evidence with no skid marks or sketch marks on the occurrence of the accident. It was submitted that PW1 did not produce the inquiry file and neither did he visit the scene and he was not the investigating officer and did not know how the accident occurred.
The Appellant’s counsel urged the court to find that the accident was caused by those involved i.e the driver and the Respondent and cited the case of Nicholas Nyangwench Miyogo Joseph Vs James Nyakundi Nyamrai & 2 Others (2019) eklr where it was held:
“The trial court was presented with two plausible versions of the accident. No sketch plan was prepared by the police to aid in ascertaining who was to blame between the two sides and in the absence of an independent witness, it is impossible to see how one account was more plausible than the other”
The Appellant’s counsel also cited the holding in Hussein Omar Farah Vs Lento Agencies CA NAI Civil Appeal 34 of 2005 [2006] Eklr where the Court of Appeal held:
“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In …………………………”
On quantum the Appellant’s Counsel submitted that the Respondent failed to table any evidence that he went for further treatment. The Appellant cited the case of Reamic Investment Limited Vs Joaz Amenya Samuel [2021] Eklr where the appellate court substituted an award of Kshs. 600,000/= with Kshs. 350,000/= where the Plaintiff had suffered open femur fracture, abrasion on the left knee, face, neck, right upper lip and contusion on the anterior chest.
The Appellant equally relied on the case of Jitan Nagra Vs Abidnego Nyandusi Oigo[2018] Eklr where Kshs. 450,000/= was awarded for lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extendingto thee right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow and compound fracture of the right tibia/fibula.
The Appellant’s Counsel proposed that an award of Kshs. 450,000/= be assessed for general damages taking into consideration the comparatives including similar injuries in the recent past.
The Appellant’s Counsel urged the court to allow the appeal.
The Respondent in his submissions dated 10th December 2024 contended that the appeal on liability cannot stand as the Appellant did not adduce any evidence to prove the Respondent was to blame for the accident. That there was also no proof that the Respondent was drunk.
It was further submitted that there was no dispute as to the ownership of the accident motor vehicle and the fact that the Respondent was injured was not challenged. It was therefore the Respondent’s case that the general damages awarded were not inordinately excessive and does not warrant being interfered with. The respondent cited the case of Easy Coach Ltd Vs Joyce Moraa Asiago Kisii High Court Civil Appeal No. 78 of 2020 to support their Submissions and urged that the Appeal be dismissed with costs.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..."
Having considered the grounds of appeal and Appellant’s submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are:-
1. Whether the Learned Trial Magistrate properly evaluated the evidence on record and applied appropriate principles to determine liability.
2. Whether the Learned Trial Magistrate properly evaluated the evidence on record and applied appropriate principles in assessment of general damages.
3. Whether the injuries relied upon in assessment of general damages were fraudulently exaggerated to inflate the award.
4. Who bears the costs of the Appeal?
On whether the Learned Trial Magistrate properly evaluated the evidence on record and applied appropriate principles to determine liability, the Court of Appeal in Michael Hubert Kloss & Another V David Seroney & 5 Others [2009] eKLR stated;
“The determination of liability in a road traffic accident is not a scientific affair, Lord Reid put it more graphically in Stapley V Gypsum Mines Ltd (2) (1953) A.C 663 at pg 681 as follows;
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide ……………………………………
“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally”.
Similarly, in Farah V Lento Agencies [2006] 1 KLR 124, 125, the Court of Appeal held that:
“Where there is no concrete evidence to determine who is to blame between the two drivers, both should be held equally to blame. As no side could establish the fault of the opposite party, liability for the accident could be equally on both the drivers. Therefore, each driver was to blame”.
Guided by the above cited authorities it is my view that in determining liability this court must consider the facts of the case and establish what mainly contributed to the cause of the accident. The court will always consider the manner of driving, conduct of the pedestrian and identify the person who was at fault and place the blame on him/her. Where the facts and circumstances are such that it is not clear who was at fault and who was to blame, the court will apportion liability.
This court has considered the evidence adduced before the trial court. It is not in dispute that DW1 Evans Onyancha was the driver of motor vehicle registration number 45 CG 208 A on 20th of June 2021. It is also not in dispute that the said motor vehicle was involved in an accident with the Respondent whom DW1 alleged was a drunk tout.
The Respondent testified that he was walking along the verge of the road when the Appellant’s motor-vehicle veered off the road and knocked him down and he sustained severe multiple injuries. He was treated at Kisii Teaching and Referral Hospital and PW2 produced Treatment Notes (Exhibit 4) and P3 form (Exhibit 3) indicating that the Respondent suffered scalp contusion, facial abrasions, chest contusion with resultant chest wall bruising and rib fracture, back contusion, contusion, contusion and bruising of both forearms, and fractures of the right tibia/fibula bone. PW2 also produced the Medical Report Exhibit 2(a) in which the Respondent was said to have permanent disability assessed at 3%. He also produced the Clinical appointment card as Exhibit 5. The Respondent during his testimony said that he had not healed and was still buying medication from the Chemist.
As established by the Trial Magistrate, the Appellant did not adduce evidence to show that the Respondent was a tout and that he was drunk or that he contributed in any way to the occurrence of the accident. The Respondent’s witness PW1- PC Kenneth Walumbe confirmed that the Appellant’s subject motor vehicle was involved in a road accident with motor vehicle KCR 658 N and a pedestrian and that the case was pending investigations. PW1 produced the police abstract confirming the accident occurred and that the Respondent was injured. The Respondent said he was a pedestrian walking lawfully at the verge of the road when he was knocked. There is evidence that there was a confrontation between the Appellant’s enforcement officers and matatu drivers and touts when the accident occurred involving the Appellant’s motor-vehicle and a matatu as shown in the police abstract.
Consequently, this court finds that the decision by the Trial Magistrate finding the Appellants 100% liable was not erroneous and therefore the same cannot be set aside.
On whether the Learned Trial Magistrate properly evaluated the evidence on record and applied appropriate principles in assessment of general damages, the Court of Appeal in Kemfro Africa Ltd t/a Meru Express & Another v A.M. Lubia & another (No.2) (1987)) KLR 30 stated as follows: -
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by the trial judge were held by the former court of Eastern Africa to be that it must be satisfied that either the judge in assessing damages took into account a relevant or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly.”
Further, the Court of Appeal in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated as follows:-
“comparable injuries should attract comparable awards”.
In assessing quantum, the Trial Magistrate considered the injuries sustained by the Respondent and confirmed by PW2. From the pleadings, and the material on record the Respondent suffered scalp contusion, facial abrasions, chest contusion with resultant chest wall bruising and rib fracture, back contusion, contusion, contusion and bruising of both forearms, and fractures of the right tibia/fibula bone. The Trial Court further considered the authorities relied on by the parties awarded general damages of Kshs. 700,000/=.
In Gitonga v Kalunge (Civil Appeal E034 of 2021) [2022] KEHC 3070 (KLR) (30 June 2022) (Judgment) where the Respondent suffered Brain contusion with loss of consciousness for 2 hours and disorientation for 4 days, soft tissue injuries anterior chest, soft tissue injuries left shoulder, left acetabulum fracture with posterior hip dislocation the Judge found that the authority relied upon by the Trial Magistrate namely Geoffrey Maraka Kimchong v Frechiah Hugiru [2020] eKLR where an award of 1,000,000/= for, cut wound on the cheek which was tender, blunt trauma to the pelvis which was tender and, fracture of the right acetabulum were less severe and set aside the general damages and awarded Kshs. 1,700,000/=.
The Trial Magistrate relied on the case of Dennis Matagaro Vs NKO (2021) eKLR to assess damages. In that case the injuries suffered were mild head injury, tenderness on the neck, dislocation of the left shoulder, tenderness on the back, deep lacerated cut wounds on the forearms and a fracture of the left tibia and fibula and awarded Kshs. 700,00/= which was awarded in that case.
The injuries suffered by the Respondent in this case are similar to the ones in Dennis Matagaro v NKO (Supra) where an award of Kshs. 700,000/= was made on 17th May 2019. Being persuaded by the authority in Gitonga v Kalunge (Supra) where injuries were also similar to the ones of the Respondent herein I find that an award of Kshs. 700,000/= was in the circumstances low considering the injuries sustained.
In the result, the appeal herein fails. It is hereby ordered that the award for general damages is set aside and is hereby substituted with an award of Kshs. 1,000,000/= in favour of the Respondent. Special Damages remain as awarded by the Trial Court to accrue interest from the date of filing of the suit. Interest on general damages to accrue from the date of judgement. Costs of the appeal and in the subordinate Court to the Respondent.
Dated, Signed and Delivered at Kisii this 24th Day of June, 2025