ISAAC NDEGWA MUTHEE………..…………………………RESPONDENT
(Being an appeal from the judgment and decree of Hon. Kivuti (Ms), SRM, in Baricho Magistrate’s Court Civil Case No. 52 of 2019 delivered on 16/9/2021)
Background
1. This appeal through the memorandum dated 30/9/2021 is on both liability and assessment of damages. The appeal seeks to set aside the decree arising from a judgment of the trial court dated 16/9/2021 where the appellant and respondent were found equally liable for the accident and apportioned 50:50 liability ratio and general damages for pain, suffering and loss of amenities assessed at KShs 100,000/= and special damages assessed at KShs 2,850/= making a total of KShs 102,850/=.
Grounds of appeal
2. The appellant was dissatisfied with the judgment of the trial court and has filed this appeal based on seven grounds all which can be summarized into one, that he was aggrieved by the trial court’s finding on liability and assessment of damages.
Submissions
3. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent which are considered in the analysis following.
Duty of the appellate court
4. This is a first appeal. Learned counsels for both parties call upon this court to review the evidence before the trial court. Indeed, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
Case before the trial court
5. Evidence at the trial for the appellant who was the plaintiff was given by the appellant as PW 2 who called PW 1, CPl Everlyn Muthengi, the investigating officer from Sagana police station. The respondent as defendant also gave evidence as DW 1. The appellant and the respondent both testified adopting their respective witness statements filed alongside their pleadings as their evidence in chief.
6. PW 2, the appellant gave evidence that on 23/9/2018 at around 8.00 p.m. he was a pillion passenger on motor cycle registration number KMEK 960A along Sagana-Karatina road at Kibirigwi area when it was hit on the side by the respondent’s lorry registration number KBZ 606J with its body. The motor cyclist lost control and the motor cycle veered off the road and fell off the road on the left side. He lost consciousness and came to while at Karatina district hospital. He sustained injuries which are more explained later in the judgment. He blamed the driver of the lorry for the accident.
7. PW 1, the investigating officer testified that the accident was reported at Sagana police station the rider of the motor cycle was Benson Maina while the driver of the lorry was Simeon Kaundu. The motor cycle and lorry were heading in the same direction from Karatina towards Sagana general direction. At Kwa Mwega area, the lorry overtook the motor cycle and in the process the lorry hit the motor cycle with its rear part. The motor cycle fell on the left side and as a result the appellant who was a pillion passenger was injured on his right hand and left leg. The lorry driver did not stop until after 500 metres when a motorist informed him that he knocked the cyclist.
8. PW 1 said she visited the scene and found the motor cycle and lorry there.
9. DW 1, the respondent stated in evidence that he did not cause the accident. He said that while driving the lorry he saw the motor cycle ahead of him. It was carrying three pillion passengers and he safely passed it as they were riding on the left hand side. After moving for about 500 metres, he was stopped by a driver of a private car who told him that he had allegedly caused an accident. He went back to the scene and found a rioting mob who beat him up. He did not get to see the victims of the accident.
10. Upon considering the evidence, the submissions and authorities tendered by the parties the learned trial magistrate found that the vehicle and the motor cycle were inspected but the inspection reports were not produced in evidence. She found it baffling how the lorry was overtaking a motor cycle which was on the pavement while he was driving on the road and on the left lane. She found that the points of impact on both the motor cycle and lorry were unknown and PW 1 who investigated the case blamed the driver for the accident but she did not support her findings with any document such as the Occurrence Book (O.B.) or contents of her investigations in the police file, if at all. She then found that under the circumstances, it was difficult to tell who between the parties was telling the truth. She cited the case of Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) where upon considering various decisions in cases involving road traffic accidents where it was not possible to determine who of the two drivers was to blame, the Court of Appeal held each driver equally to blame as there was no concrete evidence to determine who was to blame between the two drivers.
Analysis
11. I have considered the grounds of appeal filed herein, the submissions by learned counsels for the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the trial court was right in finding the cyclist and lorry driver equally liable for the accident and whether general damages awarded by the trial court are so inordinately low as to be erroneous and subject to be upset.
12. I am aware that even as this court examines and re-evaluates the evidence on record, it should be slow to upset the findings of fact reached by the trial court for reasons that it had the advantage of seeing the witnesses and determining their demeanor. This was expressed by the Court of Appeal in the case of Jabane v Olenja [1986] KLR 661, 664 thus:
“I accept this proposition, so far as it goes, and that this court does have the power to examine and re-evaluate the evidence and the findings of fact of the trial court in order to determine whether the conclusion reached on the evidence should stand – see–Peters v Sunday Post [1958] EA 424. More recently, however, this court has held that it will not lightly differ from the findings of fact of a trial judge who had had the benefit of seeing and hearing all the witnesses, and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did – see in particular Ephantus Mwangi v Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni v Kenya Bus Services (1982- 88) 1 KAR 870.”
a) Liability
13. On liability, it is submitted by learned counsel for the appellant that the learned trial magistrate did not properly analyze the evidence of the circumstances of the accident. That she misapprehended the evidence tendered at the trial. Learned counsel submitted extensively on the fact that the trial court had wrongly apportioned liability to the motor cycle rider who was never made a party to the proceedings in spite of a third-party notice being issued against him. He cited many authorities in support of that submission.
14. Learned counsel for the respondent on his part submits that the trial court properly analyzed the evidence and found that there was no concrete evidence tendered by the appellant and therefore apportioned liability in the ratio of 50:50. He cited the case of Michael Hubert Kloss & another v David Seroney & 5 others [2009] KECA 146 (KLR) where the Court of Appeal held that:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it……………………………………………………………
“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
15. Learned counsel submitted that the trial court was unable to determine who was to blame on a balance of probability due to lack of crucial evidence such as inspection reports, occurrence book and investigation file detailing the circumstances of the accident and the ambiguity in the police abstract.
16. The evidence presented before the trial court came from the appellant, PW 2, who was an eye witness to the accident and said that the lorry hit their motor cycle while they were riding on their correct lane. The other eye witness was DW 1, the driver of the lorry who said he did not even notice an accident had occurred until he was stopped by another motorist and told he had caused an accident. He went back to the scene and confirmed that indeed an accident had happened. It was therefore apparent, that indeed the accident had occurred. Yet in his evidence, he said that he had properly seen the motor cycle on the road ahead.
17. Besides the evidence of PW 2, the appellant, the investigating officer who visited the scene shortly after the accident occurred established that indeed the motor cycle and the lorry were involved and from her investigations she was satisfied that the lorry driver was to blame. Her conclusion was supported by the evidence of the appellant.
18. Considering the fact that the driver did not even notice that he had caused the accident, it means he did not have a proper look out or he was not paying attention to other road users on the road at the time so as not to hit the motor cycle. He was probably honest to say that he did not notice that he had hit the motor cycle because it appears to have been on the left edge of the road towards the cab/embankment. It would mean that when he was overtaking the motor cycle, he did not leave sufficient space on his left so as to enable the lorry to pass without hitting it.
19. Therefore, from the evidence of the appellant, the investigating officer and the driver of the lorry, it all points to the driver as the one to blame and therefore negligent in the circumstances. The investigating officer having been at the scene, what she observed is what would be contained in the documents that the learned magistrate thought should have been made available to prove the case. Those documents, including the OB entry, investigation diary and inspection reports would be secondary evidence to what the officer perceived with her senses and what she gathered at the scene which then was the primary evidence. The learned trial magistrate was therefore in error first to dismiss the investigating officer’s evidence as unreliable and second to find that it was difficult to tell who between the parties was telling the truth.
20. For these reasons, I find that the learned trial magistrate’s findings on liability were based on a misapprehension of the evidence and therefore must be and are hereby set aside and substituted with a finding that the driver of the lorry and therefore the respondent herein who was his employer was 100% liable for the accident.
b. Quantum of damages
21. On the issue of quantum of damages, there is no dispute on the injuries sustained by the appellant. They were:
a. Bruises on the right forearm
b. Bruises on the right leg.
c. Blunt injury to the right shoulder
22. At the trial the appellants proposed as general damages for pain suffering and loss of amenities an award of KShs 200,000/= based on the cases of:
a. Yusuf M. Hamza & Hanafi Abdi Shughuli v Farida Pendo Kapumu aka Pendo George aka Frida Pendo [2016] KEHC 1329 (KLR) where the respondent’s injuries were 3 x 4 cm lacerations on the dorsum of the left hand and general lacerations on the left forearm. The doctor observed that the respondent had several scars with early keloid formation on the left hand. The High Court on appeal sustained an award of KShs 180,000/= general damages for pain, suffering and loss of amenities.
b. Swiss Contact Ltd & Peter Munguti Kieti v Esther another [2019] KEHC 3622 (KLR) where the appellant sustained injuries on the back, ribs and chest. The doctor found no scars or swelling on the head, back and the right gluteal region. She reported pain on palpation of the gluteal region. His conclusion was that the appellant sustained blunt soft tissue injuries to the forehead, the back and to the right gluteal region. The High Court on appeal reduced the award of KShs 550,000/= by the trial court to KShs 200,000/= in 2019.
23. In this case the respondent proposed an award of KShs 100,000/= general damages for pain, suffering and loss of amenities based on the case of Ndung’u Dennis v Ann Wangari Ndirangu & another (2018) eKLR where the respondent suffered bruises on the neck, tenderness on the right leg, blunt injury to the chest and both hands, back and chest pains. The trial court awarded KShs. 300,000/= which was reduced to KShs. 100,000/= on appeal.
Appellate court’s duty on assessment of damages
24. The final issue is whether the award of KShs 100,000/= general damages for pain, suffering and loss of amenities was inordinately low as submitted by learned counsel for the appellant.
25. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR where the court pronounced itself on the issue as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
26. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“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 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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
27. In the present case, the appeal is based on the ground that the amount awarded was so inordinately low that it represents an erroneous award.
28. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
29. In the case of Michael Maina Gitonga v. Serah Njuguna [2012] eKLR, Ouko, J (as he then was) reiterated the principles to be borne in mind when assessing damages in personal injury claims as follows:
a. Assessment of damages is a matter of opinion and discretion and depends on the facts and circumstances of each case.
b. Money (an award) cannot renew a physical frame that has been battered and shattered. The award is only to give reasonable compensation.
c. Awards must be assessed with moderation.
d. It is desirable that so far as possible comparable injuries should be compensated with comparable awards.
e. In awarding damages fairness must be observed to both the Plaintiff and the Defendant as it is ultimately the taxpayers who have to pay, thereby injuring the body politic.
30. Similarly, in the case of John Kamore & another v. Simon Irungu Ngugi [2014] eKLR the High court adopted the lower court’s observations on the relevant factors considered in making awards thus:
“Normally courts consider the nature of injuries, the period of healing and whether the healing is full or partial, the residual incapacity if any, the inconvenience or deprivation encountered by the plaintiff, inflationary trends, cost of living and lapse of time from the time of any availed decided authorities.
The plaintiff is only entitled to what is fair, just and reasonable. Money cannot renew a physical frame that has been shattered and battered. Assessment must be done with moderation. The aim is not to enrich the plaintiff. It is not also the aim to punish the defendant.”
31. I have considered the judgement of the trial court. The trial court evaluated the rival submissions and held that an award of Kshs.100,000/= was adequate compensation for the appellant. I do agree with that finding. It is not based on the wrong principles of law relating to assessment of damages and it is also not so inordinately low as to represent an erroneous award. The learned trial magistrate was guided by the case of Ndung’u Dennis (supra) cited by learned counsel for the respondent which had comparable injuries. I am therefore in agreement with the assessment of damages by the trial court.
Determination
32. In the final analysis, the appeal on liability succeeds and the trial court’s finding thereon is set aside and substituted with a finding that the respondent has to bear 100% liability while the appeal on assessment of general damages for pay, suffering and loss of amenities is found to lack merit and is hereby dismissed. The assessment of special damages remains as awarded by the trial court.
33. In summary, the awards now due to the respondent are:
(i) General damages for pain, suffering and loss of amenities KShs 100,000/=.
(ii) Special damages KShs 2,850/=.
Total KShs 102,850/=.
34. Each party will bear its own costs.
35. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 9th day of June 2025 in the presence of:
Mutua for the appellant.
Kirui for the respondent.
Job: Court assistant.
(Being an appeal from the judgment and decree of Hon. Kivuti (Ms), SRM, in Baricho Magistrate’s Court Civil Case No. 52 of 2019 delivered on 16/9/2021)
Background
1. This appeal through the memorandum dated 30/9/2021 is on both liability and assessment of damages. The appeal seeks to set aside the decree arising from a judgment of the trial court dated 16/9/2021 where the appellant and respondent were found equally liable for the accident and apportioned 50:50 liability ratio and general damages for pain, suffering and loss of amenities assessed at KShs 100,000/= and special damages assessed at KShs 2,850/= making a total of KShs 102,850/=.
Grounds of appeal
2. The appellant was dissatisfied with the judgment of the trial court and has filed this appeal based on seven grounds all which can be summarized into one, that he was aggrieved by the trial court’s finding on liability and assessment of damages.
Submissions
3. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent which are considered in the analysis following.
Duty of the appellate court
4. This is a first appeal. Learned counsels for both parties call upon this court to review the evidence before the trial court. Indeed, the duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
Case before the trial court
5. Evidence at the trial for the appellant who was the plaintiff was given by the appellant as PW 2 who called PW 1, CPl Everlyn Muthengi, the investigating officer from Sagana police station. The respondent as defendant also gave evidence as DW 1. The appellant and the respondent both testified adopting their respective witness statements filed alongside their pleadings as their evidence in chief.
6. PW 2, the appellant gave evidence that on 23/9/2018 at around 8.00 p.m. he was a pillion passenger on motor cycle registration number KMEK 960A along Sagana-Karatina road at Kibirigwi area when it was hit on the side by the respondent’s lorry registration number KBZ 606J with its body. The motor cyclist lost control and the motor cycle veered off the road and fell off the road on the left side. He lost consciousness and came to while at Karatina district hospital. He sustained injuries which are more explained later in the judgment. He blamed the driver of the lorry for the accident.
7. PW 1, the investigating officer testified that the accident was reported at Sagana police station the rider of the motor cycle was Benson Maina while the driver of the lorry was Simeon Kaundu. The motor cycle and lorry were heading in the same direction from Karatina towards Sagana general direction. At Kwa Mwega area, the lorry overtook the motor cycle and in the process the lorry hit the motor cycle with its rear part. The motor cycle fell on the left side and as a result the appellant who was a pillion passenger was injured on his right hand and left leg. The lorry driver did not stop until after 500 metres when a motorist informed him that he knocked the cyclist.
8. PW 1 said she visited the scene and found the motor cycle and lorry there.
9. DW 1, the respondent stated in evidence that he did not cause the accident. He said that while driving the lorry he saw the motor cycle ahead of him. It was carrying three pillion passengers and he safely passed it as they were riding on the left hand side. After moving for about 500 metres, he was stopped by a driver of a private car who told him that he had allegedly caused an accident. He went back to the scene and found a rioting mob who beat him up. He did not get to see the victims of the accident.
10. Upon considering the evidence, the submissions and authorities tendered by the parties the learned trial magistrate found that the vehicle and the motor cycle were inspected but the inspection reports were not produced in evidence. She found it baffling how the lorry was overtaking a motor cycle which was on the pavement while he was driving on the road and on the left lane. She found that the points of impact on both the motor cycle and lorry were unknown and PW 1 who investigated the case blamed the driver for the accident but she did not support her findings with any document such as the Occurrence Book (O.B.) or contents of her investigations in the police file, if at all. She then found that under the circumstances, it was difficult to tell who between the parties was telling the truth. She cited the case of Hussein Omar Farah v Lento Agencies [2006] KECA 388 (KLR) where upon considering various decisions in cases involving road traffic accidents where it was not possible to determine who of the two drivers was to blame, the Court of Appeal held each driver equally to blame as there was no concrete evidence to determine who was to blame between the two drivers.
Analysis
11. I have considered the grounds of appeal filed herein, the submissions by learned counsels for the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the trial court was right in finding the cyclist and lorry driver equally liable for the accident and whether general damages awarded by the trial court are so inordinately low as to be erroneous and subject to be upset.
12. I am aware that even as this court examines and re-evaluates the evidence on record, it should be slow to upset the findings of fact reached by the trial court for reasons that it had the advantage of seeing the witnesses and determining their demeanor. This was expressed by the Court of Appeal in the case of Jabane v Olenja [1986] KLR 661, 664 thus:
“I accept this proposition, so far as it goes, and that this court does have the power to examine and re-evaluate the evidence and the findings of fact of the trial court in order to determine whether the conclusion reached on the evidence should stand – see–Peters v Sunday Post [1958] EA 424. More recently, however, this court has held that it will not lightly differ from the findings of fact of a trial judge who had had the benefit of seeing and hearing all the witnesses, and will only interfere with them if they are based on no evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching the findings he did – see in particular Ephantus Mwangi v Duncan Mwangi Wambugu (1982-88) 1 KAR 278 and Mwanasokoni v Kenya Bus Services (1982- 88) 1 KAR 870.”
a) Liability
13. On liability, it is submitted by learned counsel for the appellant that the learned trial magistrate did not properly analyze the evidence of the circumstances of the accident. That she misapprehended the evidence tendered at the trial. Learned counsel submitted extensively on the fact that the trial court had wrongly apportioned liability to the motor cycle rider who was never made a party to the proceedings in spite of a third-party notice being issued against him. He cited many authorities in support of that submission.
14. Learned counsel for the respondent on his part submits that the trial court properly analyzed the evidence and found that there was no concrete evidence tendered by the appellant and therefore apportioned liability in the ratio of 50:50. He cited the case of Michael Hubert Kloss & another v David Seroney & 5 others [2009] KECA 146 (KLR) where the Court of Appeal held that:
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:
“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it……………………………………………………………
“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
15. Learned counsel submitted that the trial court was unable to determine who was to blame on a balance of probability due to lack of crucial evidence such as inspection reports, occurrence book and investigation file detailing the circumstances of the accident and the ambiguity in the police abstract.
16. The evidence presented before the trial court came from the appellant, PW 2, who was an eye witness to the accident and said that the lorry hit their motor cycle while they were riding on their correct lane. The other eye witness was DW 1, the driver of the lorry who said he did not even notice an accident had occurred until he was stopped by another motorist and told he had caused an accident. He went back to the scene and confirmed that indeed an accident had happened. It was therefore apparent, that indeed the accident had occurred. Yet in his evidence, he said that he had properly seen the motor cycle on the road ahead.
17. Besides the evidence of PW 2, the appellant, the investigating officer who visited the scene shortly after the accident occurred established that indeed the motor cycle and the lorry were involved and from her investigations she was satisfied that the lorry driver was to blame. Her conclusion was supported by the evidence of the appellant.
18. Considering the fact that the driver did not even notice that he had caused the accident, it means he did not have a proper look out or he was not paying attention to other road users on the road at the time so as not to hit the motor cycle. He was probably honest to say that he did not notice that he had hit the motor cycle because it appears to have been on the left edge of the road towards the cab/embankment. It would mean that when he was overtaking the motor cycle, he did not leave sufficient space on his left so as to enable the lorry to pass without hitting it.
19. Therefore, from the evidence of the appellant, the investigating officer and the driver of the lorry, it all points to the driver as the one to blame and therefore negligent in the circumstances. The investigating officer having been at the scene, what she observed is what would be contained in the documents that the learned magistrate thought should have been made available to prove the case. Those documents, including the OB entry, investigation diary and inspection reports would be secondary evidence to what the officer perceived with her senses and what she gathered at the scene which then was the primary evidence. The learned trial magistrate was therefore in error first to dismiss the investigating officer’s evidence as unreliable and second to find that it was difficult to tell who between the parties was telling the truth.
20. For these reasons, I find that the learned trial magistrate’s findings on liability were based on a misapprehension of the evidence and therefore must be and are hereby set aside and substituted with a finding that the driver of the lorry and therefore the respondent herein who was his employer was 100% liable for the accident.
b. Quantum of damages
21. On the issue of quantum of damages, there is no dispute on the injuries sustained by the appellant. They were:
a. Bruises on the right forearm
b. Bruises on the right leg.
c. Blunt injury to the right shoulder
22. At the trial the appellants proposed as general damages for pain suffering and loss of amenities an award of KShs 200,000/= based on the cases of:
a. Yusuf M. Hamza & Hanafi Abdi Shughuli v Farida Pendo Kapumu aka Pendo George aka Frida Pendo [2016] KEHC 1329 (KLR) where the respondent’s injuries were 3 x 4 cm lacerations on the dorsum of the left hand and general lacerations on the left forearm. The doctor observed that the respondent had several scars with early keloid formation on the left hand. The High Court on appeal sustained an award of KShs 180,000/= general damages for pain, suffering and loss of amenities.
b. Swiss Contact Ltd & Peter Munguti Kieti v Esther another [2019] KEHC 3622 (KLR) where the appellant sustained injuries on the back, ribs and chest. The doctor found no scars or swelling on the head, back and the right gluteal region. She reported pain on palpation of the gluteal region. His conclusion was that the appellant sustained blunt soft tissue injuries to the forehead, the back and to the right gluteal region. The High Court on appeal reduced the award of KShs 550,000/= by the trial court to KShs 200,000/= in 2019.
23. In this case the respondent proposed an award of KShs 100,000/= general damages for pain, suffering and loss of amenities based on the case of Ndung’u Dennis v Ann Wangari Ndirangu & another (2018) eKLR where the respondent suffered bruises on the neck, tenderness on the right leg, blunt injury to the chest and both hands, back and chest pains. The trial court awarded KShs. 300,000/= which was reduced to KShs. 100,000/= on appeal.
Appellate court’s duty on assessment of damages
24. The final issue is whether the award of KShs 100,000/= general damages for pain, suffering and loss of amenities was inordinately low as submitted by learned counsel for the appellant.
25. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR where the court pronounced itself on the issue as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”
26. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A. stated:
“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 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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
27. In the present case, the appeal is based on the ground that the amount awarded was so inordinately low that it represents an erroneous award.
28. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
29. In the case of Michael Maina Gitonga v. Serah Njuguna [2012] eKLR, Ouko, J (as he then was) reiterated the principles to be borne in mind when assessing damages in personal injury claims as follows:
a. Assessment of damages is a matter of opinion and discretion and depends on the facts and circumstances of each case.
b. Money (an award) cannot renew a physical frame that has been battered and shattered. The award is only to give reasonable compensation.
c. Awards must be assessed with moderation.
d. It is desirable that so far as possible comparable injuries should be compensated with comparable awards.
e. In awarding damages fairness must be observed to both the Plaintiff and the Defendant as it is ultimately the taxpayers who have to pay, thereby injuring the body politic.
30. Similarly, in the case of John Kamore & another v. Simon Irungu Ngugi [2014] eKLR the High court adopted the lower court’s observations on the relevant factors considered in making awards thus:
“Normally courts consider the nature of injuries, the period of healing and whether the healing is full or partial, the residual incapacity if any, the inconvenience or deprivation encountered by the plaintiff, inflationary trends, cost of living and lapse of time from the time of any availed decided authorities.
The plaintiff is only entitled to what is fair, just and reasonable. Money cannot renew a physical frame that has been shattered and battered. Assessment must be done with moderation. The aim is not to enrich the plaintiff. It is not also the aim to punish the defendant.”
31. I have considered the judgement of the trial court. The trial court evaluated the rival submissions and held that an award of Kshs.100,000/= was adequate compensation for the appellant. I do agree with that finding. It is not based on the wrong principles of law relating to assessment of damages and it is also not so inordinately low as to represent an erroneous award. The learned trial magistrate was guided by the case of Ndung’u Dennis (supra) cited by learned counsel for the respondent which had comparable injuries. I am therefore in agreement with the assessment of damages by the trial court.
Determination
32. In the final analysis, the appeal on liability succeeds and the trial court’s finding thereon is set aside and substituted with a finding that the respondent has to bear 100% liability while the appeal on assessment of general damages for pay, suffering and loss of amenities is found to lack merit and is hereby dismissed. The assessment of special damages remains as awarded by the trial court.
33. In summary, the awards now due to the respondent are:
(i) General damages for pain, suffering and loss of amenities KShs 100,000/=.
(ii) Special damages KShs 2,850/=.
Total KShs 102,850/=.
34. Each party will bear its own costs.
35. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 9th day of June 2025 in the presence of:
Mutua for the appellant.
Kirui for the respondent.
Job: Court assistant.