REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. E069 OF 2025
LESPHINE INVESTMENT LIMITED ...............................APPELLANT
=VERSUS=
BENEDICT OUMA OGUTU ALIAS OKOTH ...............RESPONDENT
(Being an Appeal from the Judgment of Hon. D.K. Mtai, Principal Magistrate,
delivered on 21st February 2025 in Chief Magistrates' Court at Winam in
Winam CMCC No. E242 of 2022)
JUDGMENT
INTRODUCTION
This is an appeal against quantum of damages awarded by the Senior Principal Magistrate's Court at Winam in Civil Case No. E242 of 2022. The Respondent, Benedict Ouma Ogutu alias Okoth, instituted a suit against the Appellant, Lesphine Investment Limited, arising from a road traffic accident that occurred on 30th August 2022 at Coptic area along the Kakamega-Kisumu Road. By its judgment delivered on 21st February 2025, the trial court entered judgment in favour of the Respondent and awarded general damages of Kshs. 1,500,000/= and special damages of Kshs. 152,050/=, totalling Kshs. 1,652,050/=, plus costs and interest.
The Appellant is aggrieved by the quantum of general damages and has filed this appeal contending that the award is excessive and ought to be substituted with a lesser sum. The Respondent opposes the appeal and urges the Court to uphold the trial court's award.
BACKGROUND
On 30th August 2022, the Respondent was lawfully riding his motorcycle registration No. KMEW 700A along the Kakamega-Kisumu Road. At Coptic area, the Respondent's motorcycle was struck by motor vehicle registration No. KBD 353G/ZC 9190 Nissan Prime Mover Lorry/Trailer, which was registered in the name of the Appellant. The Appellant's driver is alleged to have been driving carelessly and recklessly at excessive speed, causing the cabin of the lorry to detach from its trailer. The driver lost control of the trailer, which veered off the road into the Respondent's lane, striking his motorcycle and causing the accident.
As a result of the accident, the Respondent sustained the following injuries as pleaded in the Amended Plaint and supported by the medical evidence on record:
a. Head injury with multiple fractures — CT scan revealed right temporal hemorrhagic contusion, mid bifrontal subdural hygroma, right superior orbital rim and lateral wall orbit displaced fracture, non-displaced fracture of the right lateral wall maxillary sinus, nasal bone fractures associated with maxillary hemosinus;
b. Facial injuries with cut wounds and bruises;
c. Injury to the chest;
d. Injury on the right shoulder joint with swelling;
e. Injury on the right wrist joint with cut wound;
f. Injury to the right 1st, 2nd and 5th phalanges with cut wounds; and
g. Injury to the left knee with cut wounds.
The P3 form was completed by CRO Philip Kilimo in his report dated 14th September 2022. Dr. Hamisi Benard's medical report dated 1st October 2022 corroborated the details of the injuries captured in the P3, the treatment documents, and the Respondent's own testimony in court. Both medical practitioners classified the injuries as Grievous Harm. Dr. Hamisi Benard further noted that the injuries negatively impaired the Respondent's health and productivity, and that the Respondent had not fully recovered at the time of the report, requiring further Neurologist review, analgesics, and physiotherapy. The Respondent was admitted at Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH) for approximately two weeks.
The Respondent testified in court while seated in a wheelchair, demonstrating the severity of the physical impairment resulting from his injuries. He stated that he continued to suffer headaches and was unable to write with his right hand, which remained unstable. The Defendant did not call any witness in defence, and did not commission any independent medical examination of the Respondent.
The trial court, having found the Appellant 100% liable, entered judgment in favour of the Respondent. On quantum, the court awarded general damages of Kshs. 1,500,000/= and special damages of Kshs. 152,050/=, the latter being proved by receipts produced in evidence.
GROUNDS OF APPEAL
The Appellant's Memorandum of Appeal dated 19th March 2025 raises the following grounds:
a. That the Honourable Learned Magistrate erred in law and in fact by not stating any legal backing to his judgment;
b. That the quantum of damages is excessive and an erroneous estimate of the general damages that may be awarded to the Respondent, having regard to the circumstances of the case and the weight of precedents in similar circumstances;
c. That the Honourable Learned Magistrate erred in law and in facts in relying on extraneous evidence not before the court in arriving at the decision on general damages; and
d. That the Honourable Learned Magistrate erred in law and in fact by awarding the Respondent an excessive and exorbitant amount of Kshs. 1,500,000/= as general damages in total disregard of the submissions by parties herein.
The Appellant asks that the appeal be allowed and the quantum of damages be assessed downwards to Kshs. 500,000/= as general damages, with the Respondent bearing the costs of the appeal.
ISSUE FOR DETERMINATION
The sole issue for determination in this appeal is whether the trial court's award of Kshs. 1,500,000/= as general damages was excessive and ought to be interfered with.
ANALYSIS AND DETERMINATION
The jurisdiction of this Court in an appeal of this nature is to re-evaluate the evidence tendered before the trial court and arrive at its own conclusions, while bearing in mind that this Court neither heard nor saw the witnesses testify. The principle governing appellate interference with an award of damages is well settled. This Court will only interfere with a trial court's assessment of damages if satisfied that the trial court applied a wrong principle of law, took into account some irrelevant matter, or arrived at a figure that is so inordinately high or low as to be plainly wrong and to amount to a miscarriage of justice.
The general principle that guides assessment of damages in personal injury cases is that comparable injuries should, as far as possible, be compensated by comparable awards. In making this assessment, the Court must have regard to the nature and extent of the injuries, the medical evidence on record, the residual effects of the injuries, and the current trends in comparable awards, adjusted for inflation.
Turning to the specific submissions made before this Court, the Appellant submitted that the award of Kshs. 1,500,000/= as general damages was excessive and relied on the following authorities in support of a reduced award of Kshs. 500,000/=:
i. Elizaphen Mokaya Bogonko v Fredrick Omondi Ouna [2022] eKLR — where an appellate court reduced general damages to Kshs. 500,000/= for injuries comprising head injury with loss of consciousness, fracture of the right zygoma (facial bone), multiple facial lacerations, blunt injury to the shoulders, and blunt injury and bruises to both lower limbs;
ii. Specialized Aluminium Renovators Limited & another v Stephen Mutuku Musyoka [2021] eKLR — where the High Court awarded Kshs. 500,000/= in general damages for fracture of the frontal nasal bones, fracture of nasal bones, fracture of right orbit, frontal lobe hemorrhage contusion and bleeding into sinuses;
iii. Moiz Motors Limited & another v Harun Ngethe Wanjiru [2021] eKLR — where the High Court reduced an award to Kshs. 500,000/= in general damages for multiple facial lacerations, a depressed skull frontal bone, soft tissue injury right upper chest, multiple bruises both hands dorsal aspect, multiple bruises both hips, swollen toes right leg and bruises of both knees; and
iv. GA (Minor suing thro' her father and next friend BZ) v Paul Muthiku [2020] eKLR — where the High Court increased an award to Kshs. 500,000/= for multiple fractures of the frontal left orbital roof (comminuted), multiple fractures of right temporal bones (petrous), bleeding in the skull airspaces (haemosinus), cut on the head (frontal) and cut on the chin.
The Respondent, through Odero Okoyo & Co. Advocates, submitted that the appeal lacks merit and urged this Court to dismiss it with costs. The Respondent relied on the following authorities:
i. Kumar v Ruto (Civil Appeal E022 of 2024) [2025] KEHC 14190 (KLR) (9 October 2025) — where the High Court at Bomet, on appeal, substituted the trial court's award of Kshs. 3,500,000/= with an award of Kshs. 800,000/= in general damages for injuries that included head injury with loss of consciousness, depressed frontal bone fracture extending to superior orbital margin and right orbital roof with displaced fragments, base of skull fractures, basal frontal acute subarachnoid haemorrhage, left internal capsule haemorrhage, acute frontal subdural haematoma, brain oedema, pneumocephalus, bruises on both upper limbs, and blunt trauma to the right knee — with a permanent disability assessed at 20%; and
ii. James Wambua Kimila v Sinohydro Corporation Ltd & another [2021] KEHC 2463 (KLR) — where the High Court at Nairobi awarded Kshs. 2,500,000/= in general damages for severe head injuries including compound comminuted depressed frontal bone of the skull, fracture of left orbital bone, fracture of left maxilla, extradural haemorrhage, injuries to the left eye leading to total blindness, and fracture bimalleolar of the right ankle joint, with a disability assessment of 80%.
The Respondent further submitted that the Appellant's own conduct is instructive — in seeking a stay of execution pending the determination of this appeal, the Appellant conceded to the release of one half of the decretal sum to the Respondent's counsel. The amount so released exceeded Kshs. 500,000/=, which is itself the sum the Appellant now asks this Court to substitute as the full award. The Respondent argues this demonstrates the absence of merit in the appeal.
This Court has carefully considered the submissions, the authorities cited by both parties, and the evidence on record. The starting point is a close examination of the nature and severity of the Respondent's injuries.
The injuries sustained by the Respondent in the present case are, on any fair reading of the evidence, severe. The CT scan findings alone reveal a constellation of intracranial and craniofacial injuries: right temporal hemorrhagic contusion, mid bifrontal subdural hygroma, a displaced fracture of the right superior orbital rim and lateral wall, a non-displaced fracture of the right lateral wall maxillary sinus, nasal bone fractures, and associated maxillary hemosinus. These were accompanied by soft tissue injuries to the face, chest, right shoulder, right wrist, right phalanges and left knee. Both the P3 completing officer and the examining physician, Dr. Hamisi Benard, independently classified the injuries as Grievous Harm. The Respondent was admitted to JOOTRH for approximately two weeks. He testified that he remained unable to write with his right hand, continued to suffer headaches attributable to the head injury, and appeared in court in a wheelchair.
The Court now turns to compare the injuries in the present case with those in the authorities cited by the Appellant. The cases advanced by the Appellant — Elizaphen Mokaya Bogonko v Fredrick Omondi Ouna, Specialized Aluminium Renovators v Musyoka, Moiz Motors v Wanjiru, and GA (Minor) v Paul Muthiku — involved various head, skull and soft tissue injuries. However, none of these cases presents the same combination of intracranial haemorrhage, subdural hygroma, orbital rim fracture, maxillary sinus fracture, and multi-limb soft tissue injury that characterises the Respondent's injuries. In each of those cases, the award was Kshs. 500,000/=. While this Court accepts those decisions as relevant comparisons, the distinctly more severe and multi-system nature of the Respondent's injuries, including the bilateral cerebral effects evidenced by the CT scan and the prolonged functional impairment, places the present case in a more serious category than the Appellant's cited authorities.
The Respondent's authorities are also instructive, though this Court must evaluate them critically. In Kumar v Ruto [2025] KEHC 14190 (KLR), where injuries were arguably more severe — including depressed frontal bone fracture with displaced fragments, subarachnoid haemorrhage, internal capsule haemorrhage, acute subdural haematoma, and brain oedema — the High Court at Bomet on appeal reduced the award and settled on Kshs. 800,000/= in general damages. The disability in that case was formally assessed at 20%. In James Wambua Kimila v Sinohydro [2021] KEHC 2463 (KLR), the court awarded Kshs. 2,500,000/= but the injuries in that case were significantly more catastrophic, resulting in total blindness in one eye and an 80% disability assessment. The Wambua Kimila case therefore provides a ceiling rather than a direct comparator.
The Court notes that while no formal disability percentage was assessed in the present case, the functional impairment demonstrated by the Respondent — inability to write with his right hand and chronic headaches — is consistent with moderate residual disability following a head injury of the severity described. This Court further takes judicial notice of the prevailing inflationary trends since the earlier comparative cases were decided.
Applying the principle that comparable injuries should attract comparable awards, and having regard to the current level of awards in similar cases, this Court is of the considered view that the award of Kshs. 1,500,000/= as general damages by the trial court, while generous, is not so inordinately high as to warrant radical reduction. The Respondent's injuries, supported by cogent medical evidence and uncontroverted by any defence medical witness, were severe, classified as Grievous Harm, resulted in a prolonged period of hospitalisation, and left residual functional impairment. The Appellant elected not to call any witness in the trial court to challenge the injuries or the quantum claimed, and did not refer the Respondent for an independent medical examination.
Nevertheless, this Court is mindful of the need to keep awards consistent with established judicial practice. Having regard to all the above — the nature of the injuries, the medical evidence, the comparative cases, and the current judicial trend — this Court finds that the appropriate award for general damages in this case is Kshs. 1,200,000/=. The trial court's award of Kshs. 1,500,000/= is accordingly reduced to Kshs. 1,200,000/=.
As regards special damages, the Appellant did not specifically contest the sum of Kshs. 152,050/= awarded by the trial court. The trial court was satisfied that Kshs. 152,050/= was proved by documentary evidence. This Court upholds the award of special damages at Kshs. 152,050/=.
DISPOSITION
In the upshot, the appeal partially succeeds. This Court makes the following orders:
i. The appeal against the award of general damages is partially allowed. The trial court's award of Kshs. 1,500,000/= as general damages is hereby set aside and substituted with an award of Kshs. 1,200,000/=.
ii. The award of special damages of Kshs. 152,050/= is hereby affirmed and upheld.
iii. The total sum payable to the Respondent is accordingly Kshs. 1,352,050/=.
iv. Interest on general damages shall accrue from the date of delivery of the trial court's judgment until payment in full. Interest on special damages shall accrue from the date of filing of the suit until payment in full, all at court rates.
v. Each party shall bear their own costs of this appeal.
IT IS SO ORDERED.
JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT MAKADARA THIS .......30TH ... DAY OF ............JUNE............. 2026.
JUDGE ALEX ITHUKU
HIGH COURT OF KENYA AT MAKADARA
In the presence of : Ms Nyiva for Appellant
Respondent: Absent
IN THE HIGH COURT OF KENYA AT KISUMU
CIVIL APPEAL NO. E069 OF 2025
LESPHINE INVESTMENT LIMITED ...............................APPELLANT
=VERSUS=
BENEDICT OUMA OGUTU ALIAS OKOTH ...............RESPONDENT
(Being an Appeal from the Judgment of Hon. D.K. Mtai, Principal Magistrate,
delivered on 21st February 2025 in Chief Magistrates' Court at Winam in
Winam CMCC No. E242 of 2022)
JUDGMENT
INTRODUCTION
This is an appeal against quantum of damages awarded by the Senior Principal Magistrate's Court at Winam in Civil Case No. E242 of 2022. The Respondent, Benedict Ouma Ogutu alias Okoth, instituted a suit against the Appellant, Lesphine Investment Limited, arising from a road traffic accident that occurred on 30th August 2022 at Coptic area along the Kakamega-Kisumu Road. By its judgment delivered on 21st February 2025, the trial court entered judgment in favour of the Respondent and awarded general damages of Kshs. 1,500,000/= and special damages of Kshs. 152,050/=, totalling Kshs. 1,652,050/=, plus costs and interest.
The Appellant is aggrieved by the quantum of general damages and has filed this appeal contending that the award is excessive and ought to be substituted with a lesser sum. The Respondent opposes the appeal and urges the Court to uphold the trial court's award.
BACKGROUND
On 30th August 2022, the Respondent was lawfully riding his motorcycle registration No. KMEW 700A along the Kakamega-Kisumu Road. At Coptic area, the Respondent's motorcycle was struck by motor vehicle registration No. KBD 353G/ZC 9190 Nissan Prime Mover Lorry/Trailer, which was registered in the name of the Appellant. The Appellant's driver is alleged to have been driving carelessly and recklessly at excessive speed, causing the cabin of the lorry to detach from its trailer. The driver lost control of the trailer, which veered off the road into the Respondent's lane, striking his motorcycle and causing the accident.
As a result of the accident, the Respondent sustained the following injuries as pleaded in the Amended Plaint and supported by the medical evidence on record:
a. Head injury with multiple fractures — CT scan revealed right temporal hemorrhagic contusion, mid bifrontal subdural hygroma, right superior orbital rim and lateral wall orbit displaced fracture, non-displaced fracture of the right lateral wall maxillary sinus, nasal bone fractures associated with maxillary hemosinus;
b. Facial injuries with cut wounds and bruises;
c. Injury to the chest;
d. Injury on the right shoulder joint with swelling;
e. Injury on the right wrist joint with cut wound;
f. Injury to the right 1st, 2nd and 5th phalanges with cut wounds; and
g. Injury to the left knee with cut wounds.
The P3 form was completed by CRO Philip Kilimo in his report dated 14th September 2022. Dr. Hamisi Benard's medical report dated 1st October 2022 corroborated the details of the injuries captured in the P3, the treatment documents, and the Respondent's own testimony in court. Both medical practitioners classified the injuries as Grievous Harm. Dr. Hamisi Benard further noted that the injuries negatively impaired the Respondent's health and productivity, and that the Respondent had not fully recovered at the time of the report, requiring further Neurologist review, analgesics, and physiotherapy. The Respondent was admitted at Jaramogi Oginga Odinga Teaching and Referral Hospital (JOOTRH) for approximately two weeks.
The Respondent testified in court while seated in a wheelchair, demonstrating the severity of the physical impairment resulting from his injuries. He stated that he continued to suffer headaches and was unable to write with his right hand, which remained unstable. The Defendant did not call any witness in defence, and did not commission any independent medical examination of the Respondent.
The trial court, having found the Appellant 100% liable, entered judgment in favour of the Respondent. On quantum, the court awarded general damages of Kshs. 1,500,000/= and special damages of Kshs. 152,050/=, the latter being proved by receipts produced in evidence.
GROUNDS OF APPEAL
The Appellant's Memorandum of Appeal dated 19th March 2025 raises the following grounds:
a. That the Honourable Learned Magistrate erred in law and in fact by not stating any legal backing to his judgment;
b. That the quantum of damages is excessive and an erroneous estimate of the general damages that may be awarded to the Respondent, having regard to the circumstances of the case and the weight of precedents in similar circumstances;
c. That the Honourable Learned Magistrate erred in law and in facts in relying on extraneous evidence not before the court in arriving at the decision on general damages; and
d. That the Honourable Learned Magistrate erred in law and in fact by awarding the Respondent an excessive and exorbitant amount of Kshs. 1,500,000/= as general damages in total disregard of the submissions by parties herein.
The Appellant asks that the appeal be allowed and the quantum of damages be assessed downwards to Kshs. 500,000/= as general damages, with the Respondent bearing the costs of the appeal.
ISSUE FOR DETERMINATION
The sole issue for determination in this appeal is whether the trial court's award of Kshs. 1,500,000/= as general damages was excessive and ought to be interfered with.
ANALYSIS AND DETERMINATION
The jurisdiction of this Court in an appeal of this nature is to re-evaluate the evidence tendered before the trial court and arrive at its own conclusions, while bearing in mind that this Court neither heard nor saw the witnesses testify. The principle governing appellate interference with an award of damages is well settled. This Court will only interfere with a trial court's assessment of damages if satisfied that the trial court applied a wrong principle of law, took into account some irrelevant matter, or arrived at a figure that is so inordinately high or low as to be plainly wrong and to amount to a miscarriage of justice.
The general principle that guides assessment of damages in personal injury cases is that comparable injuries should, as far as possible, be compensated by comparable awards. In making this assessment, the Court must have regard to the nature and extent of the injuries, the medical evidence on record, the residual effects of the injuries, and the current trends in comparable awards, adjusted for inflation.
Turning to the specific submissions made before this Court, the Appellant submitted that the award of Kshs. 1,500,000/= as general damages was excessive and relied on the following authorities in support of a reduced award of Kshs. 500,000/=:
i. Elizaphen Mokaya Bogonko v Fredrick Omondi Ouna [2022] eKLR — where an appellate court reduced general damages to Kshs. 500,000/= for injuries comprising head injury with loss of consciousness, fracture of the right zygoma (facial bone), multiple facial lacerations, blunt injury to the shoulders, and blunt injury and bruises to both lower limbs;
ii. Specialized Aluminium Renovators Limited & another v Stephen Mutuku Musyoka [2021] eKLR — where the High Court awarded Kshs. 500,000/= in general damages for fracture of the frontal nasal bones, fracture of nasal bones, fracture of right orbit, frontal lobe hemorrhage contusion and bleeding into sinuses;
iii. Moiz Motors Limited & another v Harun Ngethe Wanjiru [2021] eKLR — where the High Court reduced an award to Kshs. 500,000/= in general damages for multiple facial lacerations, a depressed skull frontal bone, soft tissue injury right upper chest, multiple bruises both hands dorsal aspect, multiple bruises both hips, swollen toes right leg and bruises of both knees; and
iv. GA (Minor suing thro' her father and next friend BZ) v Paul Muthiku [2020] eKLR — where the High Court increased an award to Kshs. 500,000/= for multiple fractures of the frontal left orbital roof (comminuted), multiple fractures of right temporal bones (petrous), bleeding in the skull airspaces (haemosinus), cut on the head (frontal) and cut on the chin.
The Respondent, through Odero Okoyo & Co. Advocates, submitted that the appeal lacks merit and urged this Court to dismiss it with costs. The Respondent relied on the following authorities:
i. Kumar v Ruto (Civil Appeal E022 of 2024) [2025] KEHC 14190 (KLR) (9 October 2025) — where the High Court at Bomet, on appeal, substituted the trial court's award of Kshs. 3,500,000/= with an award of Kshs. 800,000/= in general damages for injuries that included head injury with loss of consciousness, depressed frontal bone fracture extending to superior orbital margin and right orbital roof with displaced fragments, base of skull fractures, basal frontal acute subarachnoid haemorrhage, left internal capsule haemorrhage, acute frontal subdural haematoma, brain oedema, pneumocephalus, bruises on both upper limbs, and blunt trauma to the right knee — with a permanent disability assessed at 20%; and
ii. James Wambua Kimila v Sinohydro Corporation Ltd & another [2021] KEHC 2463 (KLR) — where the High Court at Nairobi awarded Kshs. 2,500,000/= in general damages for severe head injuries including compound comminuted depressed frontal bone of the skull, fracture of left orbital bone, fracture of left maxilla, extradural haemorrhage, injuries to the left eye leading to total blindness, and fracture bimalleolar of the right ankle joint, with a disability assessment of 80%.
The Respondent further submitted that the Appellant's own conduct is instructive — in seeking a stay of execution pending the determination of this appeal, the Appellant conceded to the release of one half of the decretal sum to the Respondent's counsel. The amount so released exceeded Kshs. 500,000/=, which is itself the sum the Appellant now asks this Court to substitute as the full award. The Respondent argues this demonstrates the absence of merit in the appeal.
This Court has carefully considered the submissions, the authorities cited by both parties, and the evidence on record. The starting point is a close examination of the nature and severity of the Respondent's injuries.
The injuries sustained by the Respondent in the present case are, on any fair reading of the evidence, severe. The CT scan findings alone reveal a constellation of intracranial and craniofacial injuries: right temporal hemorrhagic contusion, mid bifrontal subdural hygroma, a displaced fracture of the right superior orbital rim and lateral wall, a non-displaced fracture of the right lateral wall maxillary sinus, nasal bone fractures, and associated maxillary hemosinus. These were accompanied by soft tissue injuries to the face, chest, right shoulder, right wrist, right phalanges and left knee. Both the P3 completing officer and the examining physician, Dr. Hamisi Benard, independently classified the injuries as Grievous Harm. The Respondent was admitted to JOOTRH for approximately two weeks. He testified that he remained unable to write with his right hand, continued to suffer headaches attributable to the head injury, and appeared in court in a wheelchair.
The Court now turns to compare the injuries in the present case with those in the authorities cited by the Appellant. The cases advanced by the Appellant — Elizaphen Mokaya Bogonko v Fredrick Omondi Ouna, Specialized Aluminium Renovators v Musyoka, Moiz Motors v Wanjiru, and GA (Minor) v Paul Muthiku — involved various head, skull and soft tissue injuries. However, none of these cases presents the same combination of intracranial haemorrhage, subdural hygroma, orbital rim fracture, maxillary sinus fracture, and multi-limb soft tissue injury that characterises the Respondent's injuries. In each of those cases, the award was Kshs. 500,000/=. While this Court accepts those decisions as relevant comparisons, the distinctly more severe and multi-system nature of the Respondent's injuries, including the bilateral cerebral effects evidenced by the CT scan and the prolonged functional impairment, places the present case in a more serious category than the Appellant's cited authorities.
The Respondent's authorities are also instructive, though this Court must evaluate them critically. In Kumar v Ruto [2025] KEHC 14190 (KLR), where injuries were arguably more severe — including depressed frontal bone fracture with displaced fragments, subarachnoid haemorrhage, internal capsule haemorrhage, acute subdural haematoma, and brain oedema — the High Court at Bomet on appeal reduced the award and settled on Kshs. 800,000/= in general damages. The disability in that case was formally assessed at 20%. In James Wambua Kimila v Sinohydro [2021] KEHC 2463 (KLR), the court awarded Kshs. 2,500,000/= but the injuries in that case were significantly more catastrophic, resulting in total blindness in one eye and an 80% disability assessment. The Wambua Kimila case therefore provides a ceiling rather than a direct comparator.
The Court notes that while no formal disability percentage was assessed in the present case, the functional impairment demonstrated by the Respondent — inability to write with his right hand and chronic headaches — is consistent with moderate residual disability following a head injury of the severity described. This Court further takes judicial notice of the prevailing inflationary trends since the earlier comparative cases were decided.
Applying the principle that comparable injuries should attract comparable awards, and having regard to the current level of awards in similar cases, this Court is of the considered view that the award of Kshs. 1,500,000/= as general damages by the trial court, while generous, is not so inordinately high as to warrant radical reduction. The Respondent's injuries, supported by cogent medical evidence and uncontroverted by any defence medical witness, were severe, classified as Grievous Harm, resulted in a prolonged period of hospitalisation, and left residual functional impairment. The Appellant elected not to call any witness in the trial court to challenge the injuries or the quantum claimed, and did not refer the Respondent for an independent medical examination.
Nevertheless, this Court is mindful of the need to keep awards consistent with established judicial practice. Having regard to all the above — the nature of the injuries, the medical evidence, the comparative cases, and the current judicial trend — this Court finds that the appropriate award for general damages in this case is Kshs. 1,200,000/=. The trial court's award of Kshs. 1,500,000/= is accordingly reduced to Kshs. 1,200,000/=.
As regards special damages, the Appellant did not specifically contest the sum of Kshs. 152,050/= awarded by the trial court. The trial court was satisfied that Kshs. 152,050/= was proved by documentary evidence. This Court upholds the award of special damages at Kshs. 152,050/=.
DISPOSITION
In the upshot, the appeal partially succeeds. This Court makes the following orders:
i. The appeal against the award of general damages is partially allowed. The trial court's award of Kshs. 1,500,000/= as general damages is hereby set aside and substituted with an award of Kshs. 1,200,000/=.
ii. The award of special damages of Kshs. 152,050/= is hereby affirmed and upheld.
iii. The total sum payable to the Respondent is accordingly Kshs. 1,352,050/=.
iv. Interest on general damages shall accrue from the date of delivery of the trial court's judgment until payment in full. Interest on special damages shall accrue from the date of filing of the suit until payment in full, all at court rates.
v. Each party shall bear their own costs of this appeal.
IT IS SO ORDERED.
JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT MAKADARA THIS .......30TH ... DAY OF ............JUNE............. 2026.
JUDGE ALEX ITHUKU
HIGH COURT OF KENYA AT MAKADARA
In the presence of : Ms Nyiva for Appellant
Respondent: Absent