REPUBLIC OF KENYA
IN THE HIGH COURT AT VIHIGA
CIVIL APPEAL NO E051 OF 2024
MAUREEN AKINYI………………………………………………………..APPELLANT
VERSUS
EZEKIEL ABUTO (Suing as the next friend
and father to Felix Abuto)…………………………………………..RESPONDENT
(Being an appeal from the Judgment and Decree of Hon J. A. Agonda (PM) delivered at Vihiga in Principal Magistrate’s Court Case No E125 of 2022 on 10th September 2024)
Coram: Before Justice R. Nyakundi
M/s M.A Okumu & Co Advocates
M/s Peter M. Karanja & Co Advocates
JUDGMENT
1. The brief background of this Appeal is that the Respondent who was the Plaintiff at the trial Court sued the Appellant vide an Amended Plaint dated 8th August 2022 for the following reliefs: -
a. General damages and loss of amenities.
b. Future medical expenses.
c. Special damages
d. Costs of the suit.
e. Interest on 1 and 2 above at 14% interest rates from the date of filing suit until payment in full.
f. Any relief that this court may deem fit and just to grant.
2. The facts of the case were that the Respondent herein who was the Plaintiff sustained injuries in a road traffic accident which occurred on 30th June 2022 along Luanda-Siaya road at Esalwa area involving the Respondent who was a lawful pedestrian and the Defendant’s Motor vehicle registration number KDC868P Toyota Pick Up which was recklessly driven at a high speed that it ran down the mirror thereby causing serious injuries to the Plaintiff. The Plaintiff blamed the Defendant’s driver for the occurrence of this accident by attributing negligence on his part and gave the particulars of the negligence.
3. The Defendant denied virtually all the averments made by the Plaintiff vide a Statement of Defence dated 26th July 2022. In particular, the Defendant denied that he was the registered owner of the motor vehicle registration number KDC 868P; the occurrence of any accident on 30th January 2022, the particulars of negligence imputed on her part and on a without prejudice basis that if any such accident occurred then it was occasioned by the Plaintiff’s negligence and gave the particulars of the same. The Appellant who was the Respondent prayed that the suit be dismissed with costs.
4. The matter proceeded for a full trial. The Learned Trial Magistrate delivered her judgment on 10th September 2024 where she found the Appellant herein to have been fully liable for the injuries sustained by the Respondent. She entered Judgment in favour of the Respondent as against the Appellant as follows: -
Liability 100%
General Damages Kshs 1, 000,000/=
Special Damages Kshs 38,860/=
Total Kshs 1,038,860/=
Plus, costs of the suit and interest at court rates from the date of judgment until payment in full.
5. The Appellant herein being dissatisfied with the Judgment and decree of the Trial Court appealed against the said judgment/decree vide a Memorandum of Appeal dated 2nd October 2024 based on the following grounds: -
a. The Learned Magistrate erred in law and fact in making the award of general damages in the said judgment that was manifestly excessive in the circumstances as to amount to an erroneous estimate of the loss suffered by the Respondent.
b. The Learned Trial Magistrate erred in law and in fact in failing to correctly appreciate the Plaintiff’s injuries and in misapprehending the same and thus arriving at an erroneous award of damages.
c. The Learned Magistrate erred in law and fact entering judgement for general damages without considering the applicable principles as established by precedent that comparable injuries ought to attract comparable damages and by so doing reached a figure of damages that is inordinately high, arbitrary and totally unsupportive by any authority or precedent.
d. The Learned Magistrate totally ignored and/or paid lip service to the Applicant’s submissions and authorities cited therein.
e. The estimate of general damages is erroneous, oppressive and punitive.
f. The Learned Magistrate failed to take into account all relevant considerations and principles in assessing the quantum of general damages.
6. The Appellant sought that this appeal be allowed and for orders that: -
a. The judgment and decree be set aside or otherwise varied.
b. The judgment/decree on quantum of general damages for pain, suffering and loss of amenities and future medical expenses be set aside, varied and or be substituted with suitable awards.
c. That the costs of this appeal and of court below be paid by the Respondent to the Appellant.
7. The Appeal was canvassed by way of Written submissions.
Appellant’s Written Submissions
8. The Appellant filed her written submissions dated 19th February 2026 through her Learned Counsel Mr. Baraza. The Learned Counsel submitted that the Appellant’s appeal is only against the quantum of damages which were awarded at kshs. 1,000,000/=. He submitted that the minor’s injuries were confirmed by PW-3 Dr. Neema Mbaruku, an orthopedic Surgeon who examined the minor and produced a medical report as Exhibit 3. The Learned Counsel added that from the medical report, it was an impression that the minor sustained a healed tibia plafond fracture and amputated 4th toe and assessed disability at 40%. Counsel further submitted that an X-ray by Dr. Kouko showed that the minor had periostitis of distal tibia and fibula, osteopenia of the ankle and foot bones and an amputation of the 4th toe. Counsel further made reference to the evidence of PW4 Dr. Odongo who testified that he treated the minor who suffered a fracture of the ankle joint (with talus bone lost and soft tissue injuries and the 4th toe developed gangrene and was amputated. He also stated that the minor’s fracture was treated by placement of Exofit to fuse the tibia and calcar bone and concluded that the minor’s main injury was fracture of the right ankle and disarticulation of the 4th toe.
9. Counsel furthermore submitted that the trial Magistrate made serious errors in assessment of damages which were excessive and erroneous and that the trial court failed to appreciate and apply the principle that comparable injuries attract comparable awards. He placed reliance on the cases of Ram Gopal Gupta vs Nairobi Tea Packers Limited & 2 Others[2017]eKLR, Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini vs AMM Lubia & Another[1982-88]1 KAR and Denshire Muteti Wambua vs Kenya Power & Lighting Co Ltd[2013]eKLR where the common thread was 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 that it must be satisfied that either the Judge in assessing the damages took into account an irrelevant factor or left out of account a relevant factor or that the amount is so ordinately low or so high that it must be a wholly erroneous estimate of the damage.
10. Counsel further stated that the authorities applied by the Trial Court did not show similar injuries to those of the Respondent and were thus inappropriate guides. He also blamed the Trial Court for failing to consider the authorities cited by the parties thus misdirected itself as to the appropriate award. It was his submission that save for two authorities cited by the Respondent, the rest were irrelevant. She reiterated her submissions at the Trial Court and cited the authorities she had cited at the Trial Court. She proposed that an award of Kshs 500,000/= would have been sufficient in the circumstances of this case. In this regard, he relied on several cases among them the cases of Gerald Oyugi Vs Evans Okeyo Mochere [2019] eKLR and Nyambura Vs Njuguna & Another [2024] KEHC 4185 where awards of Kshs 300,000/= and Kshs 400,000/= general damages were made in 2018 and 2024 respectively for tibia fibula fractures and tore amputation. He urged this court to allow her appeal with costs.
Respondents Written Submissions
11. The Respondent filed her written submissions dated 8th April 2026 through his learned Counsel Mrs. Okumu. The Learned Counsel placed reliance on the several cases among them, the case of Butt Vs Khan Civil Appeal No 40 of 1997 where it was held that an appellate court would not disturb an award of damages unless it was so inordinately high or low as to represent an entirely erroneous estimate. She contended that the principle informing an award of damages were that an award must be in tandem with the previous awards for similar injuries, it must not be too high or too low so as to occasion an injustice to the victim and that the court must consider the aspect of inflation.
12. She placed reliance on several cases among them the cases of Godfrey Wamalwa Wamba & Another Vs Kyalo Wambua[2018]eKLR where the court upheld an award of Kshs 700,000/= as general damages for a fracture of the tibia fibula, leg shortening of 2cm due to muscle wasting and Francis Ndungu Wambui & 2 Others Vs VK (a minor suing through next friend and mother MCWK) [2019] eKLR where the court upheld an award of Kshs 1,000,000/= for a fracture of the tibia fibula with nil resultant incapacitation.
13. It was the Learned Counsel’s contention that the minor herein had suffered grave injuries than the victims in the above -mentioned cases as his fourth toe was disarticulated and beside the fracture of the tibia and fibula, he also had a calcaneal bone which had left him with 40% incapacitation. She further relied on the case of Sosines Orindo Vs Emkay Builders Limited [2019]eKLR where the Court of Appeal observed that the High Court had failed to consider the aspect of inflation when it reduced the award that had been previously made by the lower court of Kshs 900,000/= to Kshs 500,000/=. She urged this court not to interfere with the award by the Trial Court which was not only on general damages but also loss of amenities by the minor. It also urged the court to consider that the award was within range and not inordinately high as perceived by the Appellant.
Analysis and Determination
14. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. This court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters Vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows: -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
15. It must be borne in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. 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..."
16. I have read and considered the Memorandum of Appeal and the rival submissions. There is only one issue manifest for determination by this Honourable Court: -
Whether the quantum that was awarded was excessive?
17. This Appeal being on quantum only, the principles guiding this Court as the first Appellate Court have crystalized. This is in recognition that the award of Damages in discretionary. The Court of Appeal in Catholic Diocese of Kisumu Vs Sophia Achieng Tele Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an Appellate court can interfere with an award of damages in the following term: -
“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 won for that awarded by the court below simply because it would have awarded different figure if it had tried the case at first instance. The appellant 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.”
18. The Court of Appeal also pronounced itself succinctly on the principles of disturbing awards of damages in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another Vs Lubia & another (No 2) [1985] eKLR 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 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.
19. The foregoing principle was comprehensively explained by Sir Kenneth O’Connor P in the case of Henry Hinga Vs Manyoka [1961] EA 705 at page 713, while restating the common law principles earlier set out by the Privy Council in Nance Vs British Columbia Electric Railway Co. Ltd where the Learned Judge ably pronounced himself as follows regarding disturbing quantum of damages: -
'The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance.'
20. I take cognizance that the Plaintiff’s particulars of injuries as pleaded in the Amended Plaint were as follows: -
a. Cut wounds at the back of the hand which were stitched.
b. Cut wounds on the eyelids which were stitched.
c. Multiple cut wounds on the head.
d. Chest and shoulder tenderness.
e. Bruises on the shoulder joints.
f. Tenderness and bruises on the neck.
g. Multiple bruises and lacerations on the lower limbs.
h. Fracture of the right tibia and calcaneal bone.
i. Disarticulation of the 4th toe of the right leg.
21. The Plaintiff also pleaded that she suffered the following injuries: -
a. Periostitis of the distal tibia and fibula.
b. Osteopaenia of the ankle and foot bones.
c. Inability to stand or walk with his right foot.
22. To buttress the above injuries, the Plaintiff at the trial Court provided the following: -
a. Paeditriac discharge summary from Vihiga County Referral Hospital dated 25/12/2019.
b. A Copy of the P3 Form.
c. Medical report by Dr. Neema dated 20/05/2022.
23. I would also like to make reference to the testimonies of the different witnesses at the trial court. Dr. Neema Mbaruku testified as PW3 the orthopedic surgeon. He examined the minor in February, 2022 and he prepared medical report where the child was admitted for 3 ½ months. It was her evidence that he had amputated toe and there was external fixation applied left lower limb. The child had scars on left face, scalp and had external fixation in situ. The child had deformity of foot, scars on knees and elbow, torso and back injuries. She averred that there was remnant of implant to stabilize the foot. He had a lot of scarring of due to injuries. She stated that a disability be amputation and she assessed the permanent disability at 40% due to inability to use his lower limb and injuries sustained during the accident. The child was treated as they needed to remove external fixation. There was limited movement and needed physiotherapy at a cost of Kshs. 45,000/= considering the number of sessions done. She produced the medical report “PExh.3.” She charged Kshs. 10,000/= as court attendance fees.
24. Dr. Kouko testified as PW4 a radiologist. It was his evidence that he examined the child aged 3 ½ years. It was four months after the accident. The child had external fixation of the right ankle. He relied on discharge summary from Vihiga County Referral hospital and P3 form. The injuries were documented immediately after the accident on the lower limb, loss of talus right ankle fracture, gangrene of 4th toe. She awarded on permanent disability at 40% for inability to use the limb and that she had not seen the child herein. She stated that rehabilitation prosthesis was done and the child would walk given that the disability had reduced and he produced radiologist report and receipt “PExh.3(a)” and “PExh.3(b).”.
25. Erik Odongo testified as PW5 the clinical officer. It was his evidence that he worked at Homeland Community Medical Centre but in 2023 he was at Vihiga County Referral hospital where he attended to the child vide Ref No. 1578/2023. He stated that the child had been hit by moving vehicle and sustained multiple injuries i.e ankle joint fracture on right limb, lacerations on the head and unconscious, mild head injuries and multiple soft tissue injuries. The child was admitted for one month. The 4th toe was amputated due to gangrene formation. He stated that Dr. Embayura signed the discharge summary as they worked together at the time and he produced Pediatric report “PExh.2.”.
26. Dr. George Mwita testified as PW6 who worked at Ahero County hospital. It was his evidence that in 2022 he examined a child on 9th March, 2022 having been attended at Vihiga County Referral hospital. He was diagnosed with cut wound stitched on head; cut wound on eyelid stitched, bruises on the shoulder; multiple bruises and laceration on left leg; 4th toe removed and he signed the P3 form dated 9th March, 2022 “PExh.4.”
27. In a nutshell, I have reevaluated the evidence as testified at the trial court. The Respondent sustained serious injuries following the accident. PW3 Dr. Neema Mbaruku testified that the Respondent suffered: -
a. Healed tibia plafond fracture;
b. Amputation/disarticulation of the 4th toe;
c. Osteopenia of ankle and foot bones; and
d. Permanent incapacity assessed at 40%.
28. PW4 Dr. Odongo also testified that the Respondent sustained a fracture of the ankle joint with talus bone loss, soft tissue injuries and gangrene of the 4th toe which eventually necessitated amputation. The medical evidence on record therefore demonstrates that the injuries sustained by the minor were not minor soft tissue injuries. The injuries were grave, permanent and resulted in substantial disability assessed at 40%.
29. This Court appreciates that Courts have impressively expressed the extend of application of an expert opinion in judicial proceedings and the general trend is that such evidence is not necessarily conclusive and binding. As was held in Shah and Another Vs Shah and Others [2003] 1 EA 290: -
“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.”
30. Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros Vs Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that: -
“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”
31. The Appellant has argued that the award of Kshs. 1,000,000/= was excessive and that an award of Kshs. 500,000/= would have been sufficient. Reliance was placed on authorities where lesser awards were granted for fractures of tibia/fibula and toe amputations. On the other hand, the Respondent submitted that the injuries herein were more severe than those in the authorities cited by the Appellant because apart from the tibia/fibula fractures, the minor also suffered disarticulation of the 4th toe, calcaneal injury and permanent incapacitation of 40%.
32. I have carefully considered the rival submissions and authorities cited by both parties. The law is settled that comparable injuries should attract comparable awards while taking into account the prevailing economic conditions and inflationary trends. The Court of Appeal in Odinga Jacktone Ouma Vs Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards.” The principle on the award of damages is settled. In Charles Oriwo Odeyo Vs Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to;
a) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
b) The award should be commensurable with the injuries sustained.
c) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
d) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
e) The awards should not be inordinately low or high.
33. The duty of this Court is thus to analyze similar injury cases to arrive at the decision whether the learned magistrate did not factor in the principles applicable to the award of general damages. I understand no single case is typically identical to the other. In Penina Waithira Kaburu v LP [2019] eKLR, the Court stated thus on the issue of award of general damages: -
“While no injuries occurring in different circumstances can be similar in every respect and hence the possibility of varied awards in general damages, the trial court must always make a comparative analysis of the injuries sustained and the extent of the awards made for similar injuries in previous decisions. As I have stated elsewhere, if not for anything else, the comparison is necessary for purposes of certainty and uniformity; the award, must, as far as possible, be comparable to any other award made in a previous case where the injuries for which the award are relatively similar.”
34. In the case of David Mutembei Vs Maurice Ochieng Odoyo (2019) eKLR, the Respondent suffered injuries of a fracture of the right femur and a proximal fracture of the left tibia. An award of Ksh 1, 600, 000/= was reduced on appeal to Kshs. 800, 000/=.
35. In Reuben Mongare Keba Vs LPN (2016) eKLR the respondent suffered fracture of the tibia-fibula bones of right leg, dislocation of the right hip joint, bruises on the chin, fracture of the right femur and delving injury of the right leg. An award of kshs. 800,000/= was made in general damages.
36. In Mary Pamela Oyioma Vs Yess Holdings Limited (2011) eKLR the court awarded Kshs 900,000/= in general damages for comminuted fracture of the right femur, compound fracture of the left tibia, soft tissue injuries of the right shoulder and multiple cut wounds all over the body.
37. I take note that the authorities relied upon by the Appellant involved injuries that were comparatively less severe than the injuries suffered by the Respondent herein. For instance, some involved ordinary tibia/fibula fractures without permanent disability or significant loss of body parts. In contrast, the Respondent herein suffered permanent incapacity of 40%, amputation of the 4th toe and severe ankle complications involving the talus and calcaneal bones. These injuries undoubtedly affected the Respondent’s mobility and quality of life.
38. Upon evaluating the injuries sustained by the Respondent, the degree of permanent incapacity, the comparable authorities and prevailing economic conditions, I am not persuaded that the award of Kshs. 1,000,000/= was inordinately high or based on wrong principles. The Learned Trial Magistrate properly appreciated the nature and extent of the injuries suffered by the Respondent and arrived at an award that was within the acceptable range for comparable injuries. The Appellant has failed to demonstrate that the Learned Trial Magistrate took into account irrelevant considerations or failed to consider relevant factors. This Court thus finds no basis upon which to interfere with the discretion exercised by the Trial Court in assessment of damages.
39. Consequently, the Appeal lacks merit and is hereby dismissed. The Judgment and Decree of the Trial Court delivered on 10th September 2024 is hereby upheld. The Respondent shall have costs of the Appeal together with interest at court rates.
40. Orders accordingly.
DATED, SIGNED AND DELIVERED VIA EMAIL AND CTS AT VIHIGA THIS 28TH DAY OF MAY 2026
IN THE HIGH COURT AT VIHIGA
CIVIL APPEAL NO E051 OF 2024
MAUREEN AKINYI………………………………………………………..APPELLANT
VERSUS
EZEKIEL ABUTO (Suing as the next friend
and father to Felix Abuto)…………………………………………..RESPONDENT
(Being an appeal from the Judgment and Decree of Hon J. A. Agonda (PM) delivered at Vihiga in Principal Magistrate’s Court Case No E125 of 2022 on 10th September 2024)
Coram: Before Justice R. Nyakundi
M/s M.A Okumu & Co Advocates
M/s Peter M. Karanja & Co Advocates
JUDGMENT
1. The brief background of this Appeal is that the Respondent who was the Plaintiff at the trial Court sued the Appellant vide an Amended Plaint dated 8th August 2022 for the following reliefs: -
a. General damages and loss of amenities.
b. Future medical expenses.
c. Special damages
d. Costs of the suit.
e. Interest on 1 and 2 above at 14% interest rates from the date of filing suit until payment in full.
f. Any relief that this court may deem fit and just to grant.
2. The facts of the case were that the Respondent herein who was the Plaintiff sustained injuries in a road traffic accident which occurred on 30th June 2022 along Luanda-Siaya road at Esalwa area involving the Respondent who was a lawful pedestrian and the Defendant’s Motor vehicle registration number KDC868P Toyota Pick Up which was recklessly driven at a high speed that it ran down the mirror thereby causing serious injuries to the Plaintiff. The Plaintiff blamed the Defendant’s driver for the occurrence of this accident by attributing negligence on his part and gave the particulars of the negligence.
3. The Defendant denied virtually all the averments made by the Plaintiff vide a Statement of Defence dated 26th July 2022. In particular, the Defendant denied that he was the registered owner of the motor vehicle registration number KDC 868P; the occurrence of any accident on 30th January 2022, the particulars of negligence imputed on her part and on a without prejudice basis that if any such accident occurred then it was occasioned by the Plaintiff’s negligence and gave the particulars of the same. The Appellant who was the Respondent prayed that the suit be dismissed with costs.
4. The matter proceeded for a full trial. The Learned Trial Magistrate delivered her judgment on 10th September 2024 where she found the Appellant herein to have been fully liable for the injuries sustained by the Respondent. She entered Judgment in favour of the Respondent as against the Appellant as follows: -
Liability 100%
General Damages Kshs 1, 000,000/=
Special Damages Kshs 38,860/=
Total Kshs 1,038,860/=
Plus, costs of the suit and interest at court rates from the date of judgment until payment in full.
5. The Appellant herein being dissatisfied with the Judgment and decree of the Trial Court appealed against the said judgment/decree vide a Memorandum of Appeal dated 2nd October 2024 based on the following grounds: -
a. The Learned Magistrate erred in law and fact in making the award of general damages in the said judgment that was manifestly excessive in the circumstances as to amount to an erroneous estimate of the loss suffered by the Respondent.
b. The Learned Trial Magistrate erred in law and in fact in failing to correctly appreciate the Plaintiff’s injuries and in misapprehending the same and thus arriving at an erroneous award of damages.
c. The Learned Magistrate erred in law and fact entering judgement for general damages without considering the applicable principles as established by precedent that comparable injuries ought to attract comparable damages and by so doing reached a figure of damages that is inordinately high, arbitrary and totally unsupportive by any authority or precedent.
d. The Learned Magistrate totally ignored and/or paid lip service to the Applicant’s submissions and authorities cited therein.
e. The estimate of general damages is erroneous, oppressive and punitive.
f. The Learned Magistrate failed to take into account all relevant considerations and principles in assessing the quantum of general damages.
6. The Appellant sought that this appeal be allowed and for orders that: -
a. The judgment and decree be set aside or otherwise varied.
b. The judgment/decree on quantum of general damages for pain, suffering and loss of amenities and future medical expenses be set aside, varied and or be substituted with suitable awards.
c. That the costs of this appeal and of court below be paid by the Respondent to the Appellant.
7. The Appeal was canvassed by way of Written submissions.
Appellant’s Written Submissions
8. The Appellant filed her written submissions dated 19th February 2026 through her Learned Counsel Mr. Baraza. The Learned Counsel submitted that the Appellant’s appeal is only against the quantum of damages which were awarded at kshs. 1,000,000/=. He submitted that the minor’s injuries were confirmed by PW-3 Dr. Neema Mbaruku, an orthopedic Surgeon who examined the minor and produced a medical report as Exhibit 3. The Learned Counsel added that from the medical report, it was an impression that the minor sustained a healed tibia plafond fracture and amputated 4th toe and assessed disability at 40%. Counsel further submitted that an X-ray by Dr. Kouko showed that the minor had periostitis of distal tibia and fibula, osteopenia of the ankle and foot bones and an amputation of the 4th toe. Counsel further made reference to the evidence of PW4 Dr. Odongo who testified that he treated the minor who suffered a fracture of the ankle joint (with talus bone lost and soft tissue injuries and the 4th toe developed gangrene and was amputated. He also stated that the minor’s fracture was treated by placement of Exofit to fuse the tibia and calcar bone and concluded that the minor’s main injury was fracture of the right ankle and disarticulation of the 4th toe.
9. Counsel furthermore submitted that the trial Magistrate made serious errors in assessment of damages which were excessive and erroneous and that the trial court failed to appreciate and apply the principle that comparable injuries attract comparable awards. He placed reliance on the cases of Ram Gopal Gupta vs Nairobi Tea Packers Limited & 2 Others[2017]eKLR, Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini vs AMM Lubia & Another[1982-88]1 KAR and Denshire Muteti Wambua vs Kenya Power & Lighting Co Ltd[2013]eKLR where the common thread was 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 that it must be satisfied that either the Judge in assessing the damages took into account an irrelevant factor or left out of account a relevant factor or that the amount is so ordinately low or so high that it must be a wholly erroneous estimate of the damage.
10. Counsel further stated that the authorities applied by the Trial Court did not show similar injuries to those of the Respondent and were thus inappropriate guides. He also blamed the Trial Court for failing to consider the authorities cited by the parties thus misdirected itself as to the appropriate award. It was his submission that save for two authorities cited by the Respondent, the rest were irrelevant. She reiterated her submissions at the Trial Court and cited the authorities she had cited at the Trial Court. She proposed that an award of Kshs 500,000/= would have been sufficient in the circumstances of this case. In this regard, he relied on several cases among them the cases of Gerald Oyugi Vs Evans Okeyo Mochere [2019] eKLR and Nyambura Vs Njuguna & Another [2024] KEHC 4185 where awards of Kshs 300,000/= and Kshs 400,000/= general damages were made in 2018 and 2024 respectively for tibia fibula fractures and tore amputation. He urged this court to allow her appeal with costs.
Respondents Written Submissions
11. The Respondent filed her written submissions dated 8th April 2026 through his learned Counsel Mrs. Okumu. The Learned Counsel placed reliance on the several cases among them, the case of Butt Vs Khan Civil Appeal No 40 of 1997 where it was held that an appellate court would not disturb an award of damages unless it was so inordinately high or low as to represent an entirely erroneous estimate. She contended that the principle informing an award of damages were that an award must be in tandem with the previous awards for similar injuries, it must not be too high or too low so as to occasion an injustice to the victim and that the court must consider the aspect of inflation.
12. She placed reliance on several cases among them the cases of Godfrey Wamalwa Wamba & Another Vs Kyalo Wambua[2018]eKLR where the court upheld an award of Kshs 700,000/= as general damages for a fracture of the tibia fibula, leg shortening of 2cm due to muscle wasting and Francis Ndungu Wambui & 2 Others Vs VK (a minor suing through next friend and mother MCWK) [2019] eKLR where the court upheld an award of Kshs 1,000,000/= for a fracture of the tibia fibula with nil resultant incapacitation.
13. It was the Learned Counsel’s contention that the minor herein had suffered grave injuries than the victims in the above -mentioned cases as his fourth toe was disarticulated and beside the fracture of the tibia and fibula, he also had a calcaneal bone which had left him with 40% incapacitation. She further relied on the case of Sosines Orindo Vs Emkay Builders Limited [2019]eKLR where the Court of Appeal observed that the High Court had failed to consider the aspect of inflation when it reduced the award that had been previously made by the lower court of Kshs 900,000/= to Kshs 500,000/=. She urged this court not to interfere with the award by the Trial Court which was not only on general damages but also loss of amenities by the minor. It also urged the court to consider that the award was within range and not inordinately high as perceived by the Appellant.
Analysis and Determination
14. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. This court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters Vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows: -
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”
15. It must be borne in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. 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..."
16. I have read and considered the Memorandum of Appeal and the rival submissions. There is only one issue manifest for determination by this Honourable Court: -
Whether the quantum that was awarded was excessive?
17. This Appeal being on quantum only, the principles guiding this Court as the first Appellate Court have crystalized. This is in recognition that the award of Damages in discretionary. The Court of Appeal in Catholic Diocese of Kisumu Vs Sophia Achieng Tele Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an Appellate court can interfere with an award of damages in the following term: -
“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 won for that awarded by the court below simply because it would have awarded different figure if it had tried the case at first instance. The appellant 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.”
18. The Court of Appeal also pronounced itself succinctly on the principles of disturbing awards of damages in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another Vs Lubia & another (No 2) [1985] eKLR 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 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.
19. The foregoing principle was comprehensively explained by Sir Kenneth O’Connor P in the case of Henry Hinga Vs Manyoka [1961] EA 705 at page 713, while restating the common law principles earlier set out by the Privy Council in Nance Vs British Columbia Electric Railway Co. Ltd where the Learned Judge ably pronounced himself as follows regarding disturbing quantum of damages: -
'The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance.'
20. I take cognizance that the Plaintiff’s particulars of injuries as pleaded in the Amended Plaint were as follows: -
a. Cut wounds at the back of the hand which were stitched.
b. Cut wounds on the eyelids which were stitched.
c. Multiple cut wounds on the head.
d. Chest and shoulder tenderness.
e. Bruises on the shoulder joints.
f. Tenderness and bruises on the neck.
g. Multiple bruises and lacerations on the lower limbs.
h. Fracture of the right tibia and calcaneal bone.
i. Disarticulation of the 4th toe of the right leg.
21. The Plaintiff also pleaded that she suffered the following injuries: -
a. Periostitis of the distal tibia and fibula.
b. Osteopaenia of the ankle and foot bones.
c. Inability to stand or walk with his right foot.
22. To buttress the above injuries, the Plaintiff at the trial Court provided the following: -
a. Paeditriac discharge summary from Vihiga County Referral Hospital dated 25/12/2019.
b. A Copy of the P3 Form.
c. Medical report by Dr. Neema dated 20/05/2022.
23. I would also like to make reference to the testimonies of the different witnesses at the trial court. Dr. Neema Mbaruku testified as PW3 the orthopedic surgeon. He examined the minor in February, 2022 and he prepared medical report where the child was admitted for 3 ½ months. It was her evidence that he had amputated toe and there was external fixation applied left lower limb. The child had scars on left face, scalp and had external fixation in situ. The child had deformity of foot, scars on knees and elbow, torso and back injuries. She averred that there was remnant of implant to stabilize the foot. He had a lot of scarring of due to injuries. She stated that a disability be amputation and she assessed the permanent disability at 40% due to inability to use his lower limb and injuries sustained during the accident. The child was treated as they needed to remove external fixation. There was limited movement and needed physiotherapy at a cost of Kshs. 45,000/= considering the number of sessions done. She produced the medical report “PExh.3.” She charged Kshs. 10,000/= as court attendance fees.
24. Dr. Kouko testified as PW4 a radiologist. It was his evidence that he examined the child aged 3 ½ years. It was four months after the accident. The child had external fixation of the right ankle. He relied on discharge summary from Vihiga County Referral hospital and P3 form. The injuries were documented immediately after the accident on the lower limb, loss of talus right ankle fracture, gangrene of 4th toe. She awarded on permanent disability at 40% for inability to use the limb and that she had not seen the child herein. She stated that rehabilitation prosthesis was done and the child would walk given that the disability had reduced and he produced radiologist report and receipt “PExh.3(a)” and “PExh.3(b).”.
25. Erik Odongo testified as PW5 the clinical officer. It was his evidence that he worked at Homeland Community Medical Centre but in 2023 he was at Vihiga County Referral hospital where he attended to the child vide Ref No. 1578/2023. He stated that the child had been hit by moving vehicle and sustained multiple injuries i.e ankle joint fracture on right limb, lacerations on the head and unconscious, mild head injuries and multiple soft tissue injuries. The child was admitted for one month. The 4th toe was amputated due to gangrene formation. He stated that Dr. Embayura signed the discharge summary as they worked together at the time and he produced Pediatric report “PExh.2.”.
26. Dr. George Mwita testified as PW6 who worked at Ahero County hospital. It was his evidence that in 2022 he examined a child on 9th March, 2022 having been attended at Vihiga County Referral hospital. He was diagnosed with cut wound stitched on head; cut wound on eyelid stitched, bruises on the shoulder; multiple bruises and laceration on left leg; 4th toe removed and he signed the P3 form dated 9th March, 2022 “PExh.4.”
27. In a nutshell, I have reevaluated the evidence as testified at the trial court. The Respondent sustained serious injuries following the accident. PW3 Dr. Neema Mbaruku testified that the Respondent suffered: -
a. Healed tibia plafond fracture;
b. Amputation/disarticulation of the 4th toe;
c. Osteopenia of ankle and foot bones; and
d. Permanent incapacity assessed at 40%.
28. PW4 Dr. Odongo also testified that the Respondent sustained a fracture of the ankle joint with talus bone loss, soft tissue injuries and gangrene of the 4th toe which eventually necessitated amputation. The medical evidence on record therefore demonstrates that the injuries sustained by the minor were not minor soft tissue injuries. The injuries were grave, permanent and resulted in substantial disability assessed at 40%.
29. This Court appreciates that Courts have impressively expressed the extend of application of an expert opinion in judicial proceedings and the general trend is that such evidence is not necessarily conclusive and binding. As was held in Shah and Another Vs Shah and Others [2003] 1 EA 290: -
“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.”
30. Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros Vs Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that: -
“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”
31. The Appellant has argued that the award of Kshs. 1,000,000/= was excessive and that an award of Kshs. 500,000/= would have been sufficient. Reliance was placed on authorities where lesser awards were granted for fractures of tibia/fibula and toe amputations. On the other hand, the Respondent submitted that the injuries herein were more severe than those in the authorities cited by the Appellant because apart from the tibia/fibula fractures, the minor also suffered disarticulation of the 4th toe, calcaneal injury and permanent incapacitation of 40%.
32. I have carefully considered the rival submissions and authorities cited by both parties. The law is settled that comparable injuries should attract comparable awards while taking into account the prevailing economic conditions and inflationary trends. The Court of Appeal in Odinga Jacktone Ouma Vs Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards.” The principle on the award of damages is settled. In Charles Oriwo Odeyo Vs Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to;
a) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.
b) The award should be commensurable with the injuries sustained.
c) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.
d) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.
e) The awards should not be inordinately low or high.
33. The duty of this Court is thus to analyze similar injury cases to arrive at the decision whether the learned magistrate did not factor in the principles applicable to the award of general damages. I understand no single case is typically identical to the other. In Penina Waithira Kaburu v LP [2019] eKLR, the Court stated thus on the issue of award of general damages: -
“While no injuries occurring in different circumstances can be similar in every respect and hence the possibility of varied awards in general damages, the trial court must always make a comparative analysis of the injuries sustained and the extent of the awards made for similar injuries in previous decisions. As I have stated elsewhere, if not for anything else, the comparison is necessary for purposes of certainty and uniformity; the award, must, as far as possible, be comparable to any other award made in a previous case where the injuries for which the award are relatively similar.”
34. In the case of David Mutembei Vs Maurice Ochieng Odoyo (2019) eKLR, the Respondent suffered injuries of a fracture of the right femur and a proximal fracture of the left tibia. An award of Ksh 1, 600, 000/= was reduced on appeal to Kshs. 800, 000/=.
35. In Reuben Mongare Keba Vs LPN (2016) eKLR the respondent suffered fracture of the tibia-fibula bones of right leg, dislocation of the right hip joint, bruises on the chin, fracture of the right femur and delving injury of the right leg. An award of kshs. 800,000/= was made in general damages.
36. In Mary Pamela Oyioma Vs Yess Holdings Limited (2011) eKLR the court awarded Kshs 900,000/= in general damages for comminuted fracture of the right femur, compound fracture of the left tibia, soft tissue injuries of the right shoulder and multiple cut wounds all over the body.
37. I take note that the authorities relied upon by the Appellant involved injuries that were comparatively less severe than the injuries suffered by the Respondent herein. For instance, some involved ordinary tibia/fibula fractures without permanent disability or significant loss of body parts. In contrast, the Respondent herein suffered permanent incapacity of 40%, amputation of the 4th toe and severe ankle complications involving the talus and calcaneal bones. These injuries undoubtedly affected the Respondent’s mobility and quality of life.
38. Upon evaluating the injuries sustained by the Respondent, the degree of permanent incapacity, the comparable authorities and prevailing economic conditions, I am not persuaded that the award of Kshs. 1,000,000/= was inordinately high or based on wrong principles. The Learned Trial Magistrate properly appreciated the nature and extent of the injuries suffered by the Respondent and arrived at an award that was within the acceptable range for comparable injuries. The Appellant has failed to demonstrate that the Learned Trial Magistrate took into account irrelevant considerations or failed to consider relevant factors. This Court thus finds no basis upon which to interfere with the discretion exercised by the Trial Court in assessment of damages.
39. Consequently, the Appeal lacks merit and is hereby dismissed. The Judgment and Decree of the Trial Court delivered on 10th September 2024 is hereby upheld. The Respondent shall have costs of the Appeal together with interest at court rates.
40. Orders accordingly.
DATED, SIGNED AND DELIVERED VIA EMAIL AND CTS AT VIHIGA THIS 28TH DAY OF MAY 2026