The matter in the trial court was in a series of others where civil suit number E227 of 2022 had been selected as a test suit on liability. The suits involved an accident which occurred on 26-05-2022 involving motor vehicle registration number KCE 061V. The said test suit returned a verdict of 100 per cent liability against the appellant herein. On 21-12-2023, the trial court assessed damages for pain and suffering in favour of the respondent at Kshs 700,000.00 and special damages at Kshs 27,200.00
The appellant preferred this appeal against the said judgment raising the following grounds;
a. THAT the learned Magistrate misdirected himself in the final computation of the awards payable to the plaintiff/respondent.
b. THAT the learned Magistrate misdirected himself by limiting the application of its apportionment of general damages for the personal injuries leading to an excessive award.
c. THAT the learned Magistrate erred in law and fact in failing to subject the final ward of damages to its apportionment and liability leading to an excessive award.
d. THAT the learned Magistrate erred in law and in fact in awarding the entire costs of the suit to the plaintiff/respondent in view of its finding on the issue of liability.
e. THAT the learned Magistrate erred in law and in fact in failing to adhere to precedents on the matter.
f. THAT the Honourable learned Magistrate erred in law and in fact in failing to consider the submissions of the defendant/appellant while arriving at the judgment.
It is clear to me that grounds (a), (c) and (d) are misplaced as there was nothing to be computed or apportioned in terms of liability. This would have been necessary or the case if the liability in the test suit had been apportioned to some percentage. However, the same was at 100 per cent against the appellant and as such the issue of apportionment or costs related to finding on liability does not arise. The appellant has not in his submissions mentioned anything touching on apportionment and I need say no more.
This is a first appeal and as such, this court is called upon to re-visit, re-evaluate and re-analyse the evidence produced in the trial court and come to its own independent conclusion but keep in mind that it did not take the evidence of the parties neither did it see the demeanour of the witnesses and give due allowance for that.
In Mursal & another (suing as the legal administrator of Dalphine Kanini Manesa) [2022] KEHC 282 (KLR), it was restated that;
‘A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.’
General damages
This being an appeal on quantum only, I will restrict my consideration and evaluation of the evidence to the parts that relate to quantum. Those are the parts bespeaking the nature, extent and effect of the injuries on the respondent. The respondent’s next friend told the trial court that the respondent sustained loss of consciousness, brain swelling, fractures of the facial bones and loss of one lower incisor tooth. According to the medical report and testimony of Dr. Wokabi who testified as the respondent’s witness, he was admitted to Kenyatta National Hospital where he was treated conservatively. Except for the tooth which was missing, the rest were firm and the respondent had completely healed.
The discharge summary that was produced as the respondent’s exhibit 3 shows that he was in hospital from 26-05-2022 but the date of discharge is not indicated. However, at the bottom of the summary, it is indicated that he was to visit a follow up clinic on 14-06-2022. There are receipts which were produced as exhibit 5 that show that the respondent paid for consultation on 14-06-2022, 21-06-2022 and 16-08-2022. No other documents showed that the respondent had any complications from the injuries or visited hospital for further treatment.
In assessing damages for pain and suffering, the court evaluates and considers the nature and extent of injuries and their effect to the claimant as narrated to the court and the medical documents produced as exhibits as well as the opinion of the medical experts. The court would also be entitled to assess the condition of the victim as far as it can discern in relation to the case before it.
The appellant has submitted that the sum awarded for pain and suffering is too high and excessive. He has called for reduction of the same to Kshs 500,000.00 and urged the court to find the cases of Kenya Power & Lighting Company Ltd v Rose Anyango & another [2020) eKLR, BK v Wilson Gitari Mburugu [2020] KEHC 4882 (KLR); Naftali Onsere Mang’era v G4S Security Services Kenya Limited [2019] eKLR; Moiz Motors Limited & another v Harun Ngethe Wanjiru [2021] eKLR and Specialized Aluminium Renovators Limited & another v Stephen Mutuku Musyoka [2021] KEHV 5094 KLR fairly comparable to the respondent’s case.
On his part, the respondent has submitted that the trial court was justified to award the damages as it did and in doing so, it considered and addressed all factual and legal issues. He has urged that, the appellants have not demonstrated that the trial court proceeded on wrong principles or that it misapprehended the evidence in some material aspect. He adds that the facial fractures deserved the award and relied on the cases of Easy Coach Limited v Emily Nyangasi [2017] eKLR, Lucy Ntibuka v Bernard Mutwiri & others [2007] eKLR and Stephen Mutisya Muumbi v Peter Mutuku Katuli [2008] eKLR where sums of Kshs 700,000.00, Kshs 500,000.00 and Kshs 600,000.00 respectively were awarded.
It is trite that an appellate court would not interfere with award of damages by the trial court unless the same is inordinately too high or low so as to amount to an erroneous estimate once compared to other similar cases and the conventional trend of awards. It is also the position in law that an appellate court will interfere with an award of the trial court if it is demonstrated that the trial court considered a factor which was irrelevant or failed to consider a relevant factor or applied wrong principles.
I have gone through the authorities submitted by the parties. In addressing them, I will start with the respondent’s. In the Easy Coach case, the respondent had sustained facial injuries, injury to the chest, injury to the back, injury to the right hand with cut wound and injury to the right leg with cuts. It indicates that the respondent’s right hand healed with a 10 cm scar with keloid formation on the elbow. The right leg was treated through grafting and healed with 18 cm scar on right thigh. She also had a 26 cm scar on the right leg, 28 cm scar on right leg and 12 cm scar on the right foot with keloid formation. In the case before me, the medical report by Dr. Wokabi shows that the respondent had completely healed with no mention of any scar or effect of cosmetic importance.
In the Lucy Ntibuka case, the medical report showed that the plaintiff suffered head injuries, lacerations on the lateral side of the right eye and lacerations and cut wound on the left arm. She was at the time of the hearing which was 27 years after the accident still experiencing headaches with weakness in her left leg. In this matter, there was no post-treatment complications and the respondent completely healed barely three months after the accident.
In the case of Stephen Mutisya, it is obvious to me that the respondent had suffered more severe injuries than the respondent in this matter. The injuries in the authority were; compound fracture of the left tibia-fibula, injuries to the lower limb and swelling and deformity of the left leg. He had persistent pains in the leg and was unable to walk for long distances. In these circumstances, it is my opinion that the authorities cited by the respondent were not comparable to his case.
I turn to the authorities cited by the appellant. The case of Kenya Power involved a respondent who had sustained a head injury with hoss of consciousness and injury to the right knee with swelling and the court awarded KSsh 100,000.00. This case is far from any compassion with the respondent’s injuries. It did not involve any fracture of the bones or admission in hospital.
In BK v Wilson case, the respondent was awarded Kshs 400,000.00 for soft tissue injuries to the face, thorax, abdomen and upper and lower limbs, severe injuries to the maxilla and mandible resulting to removal of five teeth and a cut on the lip. The injuries left the appellant with cosmetic damage to the mouth which would require future surgical consultations for functional or cosmetic reasons. I find this case fairly comparable to the respondent’s case.
In Naftali Onsere case, the appellant had sustained tender swollen upper limb, hyperemic gums with traumatic extraction of two upper incisor teeth, blunt injury to the chin and blunt injury to the lower limbs and was awarded Kshs 250,000.00 on appeal. This authority is not in my view a fair comparison to the respondent’s case because it did not involve fracture of the facial or any bones.
The High court in Moiz Motors case reduced award of Kshs 700,000.00 to Kshs 500,000.00 for depressed frontal bone fracture of the skull, severe soft tissue injuries to the face, soft tissue injury to the chest, soft tissue injury to both knees, soft tissue injury to both hip joints and soft tissue injury to the toes of the right leg. In my view, this authority is fairly comparable to the respondent’s case though with slightly more serious injuries.
Finally in the Specialized Aluminium case, the Honourable Judge reduced an award of Kshs 800,000.00 to Kshs 500,000.00 which had been awarded for fracture of the frontal nasal bones, fracture of nasal bones, fracture of the right orbit, haemorrhage on frontal lobe and bleeding into sinuses. I once again find this authority fairly comparable and well in range with the respondent’s case.
Having said the above and having sieved through the authorities, I feel persuaded and guided by BK v Wilson, Moiz Motors and Specialized Aluminium cases. The judgments were delivered in 2020 and 2021 and noting that they involved slightly different injuries and noting that no injuries can ever be the same in different cases, I am inclined to hold that the award by the trial court was excessive in the circumstances. I hold the view that a sum of Kshs 500,000.00 would be adequate compensation to the respondents and I proceed to award the same in place of the Kshs 700,000.00 awarded by the trial court.
Special damages
The appellant has argued that the court erred in awarding Kshs 27,200 in special damages. It is an established principle of law that special damages must not only be specifically pleaded but must also be strictly proved. The respondent had pleaded Kshs 9,700.00 for treatment expences, Kshs 3,000.00 for medical report and Kshs 10,000.00 for the doctor’s court attendance. He produced five receipts totaling to Kshs 9,700.00 for treatment expences and one receipt for Kshs 3,000.00 being cost of medical report.
When the doctor testified, he stated that he charged Kshs 10,000.00 for court attendance but the proceedings do not show him producing any receipt to that effect. I do not think that a mere statement that he was paid Kshs 10,000.00 without any document to prove the same amounts to strict proof. I note that the respondent on 3-11-2023 filed a supplementary list of documents containing a receipt dated 19-10-2023 for Kshs 10,000.00 for court attendance. The doctor testified on 19-10-2023 and it is not procedural for an exhibit to come after the testimony of the witnesses who was intended to produce them and after close of the parties’ cases unless the same is by consent.
In view of the above the claim for the attendance costs should not have been allowed as special damages. The appellant had submitted that the claim should have come as costs and not special mages. To me, it does not matter whether they are included as costs of the suit or special damages although it would be more desirable to have them allowed as witnesses expences. If the doctor had produced receipt for the payment, I would have allowed it despite the fact that it was pleaded as special damages and not costs.
The conclusion from the above is that this appeal succeeds in the following terms;
1. The trial court’s award of Kshs 700,000.00 in general damages for pain and suffering is set aside and in place thereof Kshs 500,000.00 is awarded to the respondent.
2. The trial court’s award of Kshs 27,700.00 for special damages is set aside and in place thereof Kshs 12,700.00 is awarded to the respondent.
3. The appellant shall have the cost of this appeal while the respondent shall have the costs in the trial court.
4. The sums in (1) above shall attract interest from the date of the trial court’s judgment until payment in full.
5. The sums in (2) above shall attract interest from the date of filing the suit in the lower court until payment in full.
Dated signed and delivered at Nairobi this 19 th day of June 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Judgment delivered in presence of Miss Muriithi holding brief for Mr. Mutinda for the respondent and in absence of the appellant.
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The appellant preferred this appeal against the said judgment raising the following grounds;
a. THAT the learned Magistrate misdirected himself in the final computation of the awards payable to the plaintiff/respondent.
b. THAT the learned Magistrate misdirected himself by limiting the application of its apportionment of general damages for the personal injuries leading to an excessive award.
c. THAT the learned Magistrate erred in law and fact in failing to subject the final ward of damages to its apportionment and liability leading to an excessive award.
d. THAT the learned Magistrate erred in law and in fact in awarding the entire costs of the suit to the plaintiff/respondent in view of its finding on the issue of liability.
e. THAT the learned Magistrate erred in law and in fact in failing to adhere to precedents on the matter.
f. THAT the Honourable learned Magistrate erred in law and in fact in failing to consider the submissions of the defendant/appellant while arriving at the judgment.
It is clear to me that grounds (a), (c) and (d) are misplaced as there was nothing to be computed or apportioned in terms of liability. This would have been necessary or the case if the liability in the test suit had been apportioned to some percentage. However, the same was at 100 per cent against the appellant and as such the issue of apportionment or costs related to finding on liability does not arise. The appellant has not in his submissions mentioned anything touching on apportionment and I need say no more.
This is a first appeal and as such, this court is called upon to re-visit, re-evaluate and re-analyse the evidence produced in the trial court and come to its own independent conclusion but keep in mind that it did not take the evidence of the parties neither did it see the demeanour of the witnesses and give due allowance for that.
In Mursal & another (suing as the legal administrator of Dalphine Kanini Manesa) [2022] KEHC 282 (KLR), it was restated that;
‘A first appellate court is mandated to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand.’
General damages
This being an appeal on quantum only, I will restrict my consideration and evaluation of the evidence to the parts that relate to quantum. Those are the parts bespeaking the nature, extent and effect of the injuries on the respondent. The respondent’s next friend told the trial court that the respondent sustained loss of consciousness, brain swelling, fractures of the facial bones and loss of one lower incisor tooth. According to the medical report and testimony of Dr. Wokabi who testified as the respondent’s witness, he was admitted to Kenyatta National Hospital where he was treated conservatively. Except for the tooth which was missing, the rest were firm and the respondent had completely healed.
The discharge summary that was produced as the respondent’s exhibit 3 shows that he was in hospital from 26-05-2022 but the date of discharge is not indicated. However, at the bottom of the summary, it is indicated that he was to visit a follow up clinic on 14-06-2022. There are receipts which were produced as exhibit 5 that show that the respondent paid for consultation on 14-06-2022, 21-06-2022 and 16-08-2022. No other documents showed that the respondent had any complications from the injuries or visited hospital for further treatment.
In assessing damages for pain and suffering, the court evaluates and considers the nature and extent of injuries and their effect to the claimant as narrated to the court and the medical documents produced as exhibits as well as the opinion of the medical experts. The court would also be entitled to assess the condition of the victim as far as it can discern in relation to the case before it.
The appellant has submitted that the sum awarded for pain and suffering is too high and excessive. He has called for reduction of the same to Kshs 500,000.00 and urged the court to find the cases of Kenya Power & Lighting Company Ltd v Rose Anyango & another [2020) eKLR, BK v Wilson Gitari Mburugu [2020] KEHC 4882 (KLR); Naftali Onsere Mang’era v G4S Security Services Kenya Limited [2019] eKLR; Moiz Motors Limited & another v Harun Ngethe Wanjiru [2021] eKLR and Specialized Aluminium Renovators Limited & another v Stephen Mutuku Musyoka [2021] KEHV 5094 KLR fairly comparable to the respondent’s case.
On his part, the respondent has submitted that the trial court was justified to award the damages as it did and in doing so, it considered and addressed all factual and legal issues. He has urged that, the appellants have not demonstrated that the trial court proceeded on wrong principles or that it misapprehended the evidence in some material aspect. He adds that the facial fractures deserved the award and relied on the cases of Easy Coach Limited v Emily Nyangasi [2017] eKLR, Lucy Ntibuka v Bernard Mutwiri & others [2007] eKLR and Stephen Mutisya Muumbi v Peter Mutuku Katuli [2008] eKLR where sums of Kshs 700,000.00, Kshs 500,000.00 and Kshs 600,000.00 respectively were awarded.
It is trite that an appellate court would not interfere with award of damages by the trial court unless the same is inordinately too high or low so as to amount to an erroneous estimate once compared to other similar cases and the conventional trend of awards. It is also the position in law that an appellate court will interfere with an award of the trial court if it is demonstrated that the trial court considered a factor which was irrelevant or failed to consider a relevant factor or applied wrong principles.
I have gone through the authorities submitted by the parties. In addressing them, I will start with the respondent’s. In the Easy Coach case, the respondent had sustained facial injuries, injury to the chest, injury to the back, injury to the right hand with cut wound and injury to the right leg with cuts. It indicates that the respondent’s right hand healed with a 10 cm scar with keloid formation on the elbow. The right leg was treated through grafting and healed with 18 cm scar on right thigh. She also had a 26 cm scar on the right leg, 28 cm scar on right leg and 12 cm scar on the right foot with keloid formation. In the case before me, the medical report by Dr. Wokabi shows that the respondent had completely healed with no mention of any scar or effect of cosmetic importance.
In the Lucy Ntibuka case, the medical report showed that the plaintiff suffered head injuries, lacerations on the lateral side of the right eye and lacerations and cut wound on the left arm. She was at the time of the hearing which was 27 years after the accident still experiencing headaches with weakness in her left leg. In this matter, there was no post-treatment complications and the respondent completely healed barely three months after the accident.
In the case of Stephen Mutisya, it is obvious to me that the respondent had suffered more severe injuries than the respondent in this matter. The injuries in the authority were; compound fracture of the left tibia-fibula, injuries to the lower limb and swelling and deformity of the left leg. He had persistent pains in the leg and was unable to walk for long distances. In these circumstances, it is my opinion that the authorities cited by the respondent were not comparable to his case.
I turn to the authorities cited by the appellant. The case of Kenya Power involved a respondent who had sustained a head injury with hoss of consciousness and injury to the right knee with swelling and the court awarded KSsh 100,000.00. This case is far from any compassion with the respondent’s injuries. It did not involve any fracture of the bones or admission in hospital.
In BK v Wilson case, the respondent was awarded Kshs 400,000.00 for soft tissue injuries to the face, thorax, abdomen and upper and lower limbs, severe injuries to the maxilla and mandible resulting to removal of five teeth and a cut on the lip. The injuries left the appellant with cosmetic damage to the mouth which would require future surgical consultations for functional or cosmetic reasons. I find this case fairly comparable to the respondent’s case.
In Naftali Onsere case, the appellant had sustained tender swollen upper limb, hyperemic gums with traumatic extraction of two upper incisor teeth, blunt injury to the chin and blunt injury to the lower limbs and was awarded Kshs 250,000.00 on appeal. This authority is not in my view a fair comparison to the respondent’s case because it did not involve fracture of the facial or any bones.
The High court in Moiz Motors case reduced award of Kshs 700,000.00 to Kshs 500,000.00 for depressed frontal bone fracture of the skull, severe soft tissue injuries to the face, soft tissue injury to the chest, soft tissue injury to both knees, soft tissue injury to both hip joints and soft tissue injury to the toes of the right leg. In my view, this authority is fairly comparable to the respondent’s case though with slightly more serious injuries.
Finally in the Specialized Aluminium case, the Honourable Judge reduced an award of Kshs 800,000.00 to Kshs 500,000.00 which had been awarded for fracture of the frontal nasal bones, fracture of nasal bones, fracture of the right orbit, haemorrhage on frontal lobe and bleeding into sinuses. I once again find this authority fairly comparable and well in range with the respondent’s case.
Having said the above and having sieved through the authorities, I feel persuaded and guided by BK v Wilson, Moiz Motors and Specialized Aluminium cases. The judgments were delivered in 2020 and 2021 and noting that they involved slightly different injuries and noting that no injuries can ever be the same in different cases, I am inclined to hold that the award by the trial court was excessive in the circumstances. I hold the view that a sum of Kshs 500,000.00 would be adequate compensation to the respondents and I proceed to award the same in place of the Kshs 700,000.00 awarded by the trial court.
Special damages
The appellant has argued that the court erred in awarding Kshs 27,200 in special damages. It is an established principle of law that special damages must not only be specifically pleaded but must also be strictly proved. The respondent had pleaded Kshs 9,700.00 for treatment expences, Kshs 3,000.00 for medical report and Kshs 10,000.00 for the doctor’s court attendance. He produced five receipts totaling to Kshs 9,700.00 for treatment expences and one receipt for Kshs 3,000.00 being cost of medical report.
When the doctor testified, he stated that he charged Kshs 10,000.00 for court attendance but the proceedings do not show him producing any receipt to that effect. I do not think that a mere statement that he was paid Kshs 10,000.00 without any document to prove the same amounts to strict proof. I note that the respondent on 3-11-2023 filed a supplementary list of documents containing a receipt dated 19-10-2023 for Kshs 10,000.00 for court attendance. The doctor testified on 19-10-2023 and it is not procedural for an exhibit to come after the testimony of the witnesses who was intended to produce them and after close of the parties’ cases unless the same is by consent.
In view of the above the claim for the attendance costs should not have been allowed as special damages. The appellant had submitted that the claim should have come as costs and not special mages. To me, it does not matter whether they are included as costs of the suit or special damages although it would be more desirable to have them allowed as witnesses expences. If the doctor had produced receipt for the payment, I would have allowed it despite the fact that it was pleaded as special damages and not costs.
The conclusion from the above is that this appeal succeeds in the following terms;
1. The trial court’s award of Kshs 700,000.00 in general damages for pain and suffering is set aside and in place thereof Kshs 500,000.00 is awarded to the respondent.
2. The trial court’s award of Kshs 27,700.00 for special damages is set aside and in place thereof Kshs 12,700.00 is awarded to the respondent.
3. The appellant shall have the cost of this appeal while the respondent shall have the costs in the trial court.
4. The sums in (1) above shall attract interest from the date of the trial court’s judgment until payment in full.
5. The sums in (2) above shall attract interest from the date of filing the suit in the lower court until payment in full.
Dated signed and delivered at Nairobi this 19 th day of June 2026.
B.M. MUSYOKI
JUDGE OF THE HIGH COURT .
Judgment delivered in presence of Miss Muriithi holding brief for Mr. Mutinda for the respondent and in absence of the appellant.
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