(Being an appeal from the Judgement and Decree of Hon. Martin N. Mutua Adjudicator in Milimani SCCCOMM CLAIM E662 OF 2021 delivered on 20th February 2023)
JUDGMENT
1. The appellant sued the 1st, 2nd, and 3rd respondents before the Small Claims Court (SCC) for negligence, with the 1st and 2nd respondents as the registered owners of motor vehicle registration number KBB 167X and the 3rd respondent as the driver or beneficial owner thereof. The appellant alleged that on 1st August 2021, the respondents caused an accident along Kangundo Road in the Slaughter House area through the negligent or reckless driving of the said motor vehicle by the 3rd respondent, for which the 1st and 2nd respondents were vicariously liable, by causing motor vehicle registration number KBL 691Q, in which the appellant was a passenger, to ram into motor vehicle registration number KBB 167X. Consequently, the appellant suffered severe bodily injuries, occasioning her damage and loss. She thus claimed compensation against the 1st, 2nd, and 3rd respondents.
2. The 1st, 2nd and 3rd respondents filed a joint response dated 15th December 2021. They did not deny that the accident occurred or the manner in which it occurred. Their only pleading was that the plaintiff (should be claimant) was negligent and they listed the particulars of negligence against him (should be her). They did not raise any third-party claim in their response. I have read the response to the statement of claim, which is a standard form filled by the respondent, and under paragraph 7 which provides for “Claim against Third Party” the same is filled as “N/A” which I presume means not applicable.
3. However, I have seen a ruling dated 10th June 2022 in which the learned Adjudicator stated that the claim leading to the present appeal was selected as the lead file for two others being Milimani Commercial SCCC E659 of 2021 and E663 of 2021. Further that the respondent filed a statement of claim and proposed one Alice Wairimu Maina to be a third party in SCCC E659 of 2021 and E662 of 2021 (the claim leading to the present appeal). However, it appears to have been erroneous to indicate E662 of 2021 because as stated above the response to the claim did not bear a pleading against a third party. The SCC granted the 1st, 2nd and 3rd respondents leave to file third party proceedings which they did and the proposed third party filed a preliminary objection on the same. In the said ruling the SCC dismissed the preliminary objection. The 4th respondent was therefore joined to the proceedings as a third party.
4. Seemingly, the 4th respondent was the owner and also a passenger in motor vehicle registration number KBL 691Q in which the appellant was travelling. However, the fact of her being the owner was not explicitly clear from the evidence and documents filed in court in file No. E662 of 2021. It may have been stated in the other two related claims. The pleadings on the preliminary objection, including the submissions are not part of the record of appeal nor are they in the lower court file that was made available to this court. I have not seen any pleading filed by the third party. The only document that mentions a third party in its heading is dated 14th October 2022 and is shown to be filed as the third party’s witness statement filed by Alice Wairimu Maina, the 4th respondent and the only one who has respondent to this appeal.
5. I have had to state the issue of the third party extensively because of the decision of the learned Adjudicator on liability.
6. The case proceeded by way of the pleadings and witness statements filed by the parties under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya. Section 30 of the SCCA provides that:
S. 30. Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.
7. Upon considering the evidence the learned Adjudicator rendered his decision on liability as follows:
“Claim proceeded by way of documents. The evidence was unchallenged as it is on record that KBB 167X caused the accident and In my view claimant has proved negligence on the part of the driver of KBB 167X. The claimant did not indicate if they had a safety belt on and they shall shoulder 10%. The respondents have proved their claim against the third party. The third party shall be liable for the accident at 90%.”
8. There is no appeal by any of the parties on that finding. The appeal is only on the assessment of damages.
9. The court entered judgment stating as follows:
“In the event judgment is entered in favour of the plaintiff and against the third party in the following terms:
i. Liability: 90%
ii. General damages KShs 70,000/=
iii. Special damages KShs 5,500/=
Total KShs 75,500/= less 10% = KShs 67,950/=.”
10. The appellant was dissatisfied with the judgment and has appealed to this court through the memorandum of appeal dated 24th March 2023 on the following grounds:
a. The learned trial magistrate erred in law and in fact in finding that the Claimant was entitled to general damages of KShs 70,000/= which was too much on the lower side in view of the injuries suffered by the Claimant that it presented a miscarriage of justice.
b. The learned trial magistrate erred in law and in fact by failing to consider the appellant’s submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum.
c. The learned trial magistrate erred in law and in fact by failing to consider conventional awards for general damages in caes of similar injuries and awarded general damages for pain, suffering and loss of amenities which is very low.
d. the learned trial magistrate erred in law and in fact when making her award by failing to consider the passage of time and incidence of inflation.
e. The learned magistrate wholly erred in law and fact by arriving at the said judgment.
11. The appellant therefore prays that the appeal be allowed and the court sets aside the judgment of the SCC delivered on 20th February 2023 and reassess the general damages payable to the Claimant and the respondents pay the costs of the appeal.
12. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the 4th respondent. The same are considered in the analysis that follows.
13. The 1st, 2nd and 3rd respondents did not participate in the appeal.
14. As is evident from the grounds, and the submissions of learned counsel for the appellant the only issue for determination is the award of damages by the learned Adjudicator was so low as to represent an erroneous award and therefore a point of law for the determination of this court under section 38 of the Small Claims Court Act (Cap. 10A) Laws of Kenya.
15. I wish to commend on the manner of drafting the grounds of appeal as laid out in the memorandum by the appellant where she keeps indicating that the “the learned trial magistrate erred in law and in fact.” In the first place, the Judicial Officer who presides over the Small Claims Court is an Adjudicator and not a magistrate. That distinction may appear innocuous but it is of great significance when it comes to appreciating that the workings of the SCC as provided for under the SCCA are different from those of the Magistrates Court.
16. Secondly, appeals to this court under section 38 of the SCCA are on points of law only. In the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) the Court of Appeal while commending on drafting grounds of appeal based on points of law only stated as follows:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
17. Therefore, the reference by learned counsel in the grounds of appeal to the presiding officer of the SCC as a magistrate and adverting to errors of fact, although harmless, was erroneous and ought to be corrected in future.
18. Further, in the case of M’Riungu v. Republic [1983] KLR 455, the Court of Appeal explained how an appellate court would proceed to determine an appeal based on points of law thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
19. Therefore, while considering this appeal, this court is accordingly guided not to interfere with the findings of the SCC on findings of fact unless it is apparent that on evidence, the decision was bad in law.
20. Learned counsel for the appellant submits that the appellant ought to have been awarded general damages of KShs 400,000/= as submitted. He relies on the cases made in submissions before the SCC.
21. Learned counsel appreciates that assessment of general damages is an exercise of discretion by the trial court and it is settled law that an appellate court will not lightly disturb an award so made unless it is so inordinately high or low as to represent an entirely erroneous estimate. He has cited the case of Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR).
22. Learned counsel for the 4th respondent submits two issues for determination:
a. whether the appeal is on matters of law or on matters of fact.
b. whether the award was so inordinately low to warrant interference by this court.
23. On the first issue, learned counsel submits that assessment of damages is a question of fact and not of law and therefore, this appeal does not fall for determination under section 38 of the SCCA. He has cited the case of John Wambua v Mathew Makau Mwololo & another [2020] KEHC 1602 (KLR).
24. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturb the same as was held in the case of Butt v Khan [1978] KECA 24 (KLR) 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.”
25. Similarly, 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.”
26. In Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held further that:
“In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”
The appellate court can only interfere with the award of damages where it finds that the trial court applied wrong principles of law by taking into account some irrelevant factor, leaving out of account some relevant ones and therefore arriving at an erroneous estimate of damages to be awarded.
27. It follows that where the appellate court finds that the award made by the lower court is so inordinately high or low as to represent an erroneous estimate, then it is entitled to interfere as a matter of law.
28. If it does interfere, the appellate court will consider awards made in cases with similar injuries so that they attract comparable 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 present case, the appeal is based on the ground that the amount awarded was so inordinately low that it represents an erroneous award. Taking the principles set out in the cited case into account, this court has to consider whether the award of KShs 70,000/= general damages made by the SCC is comparable to awards made for other cases with more or less similar injuries.
30. There is no dispute on the injuries sustained by the appellant which were indicated in the statement of claim and the medical report dated 24th September 2021 of Dr. Cyprianus Okoth Okere. They were:
a. Blunt chest injury.
b. Blunt injury to the pelvis.
31. The doctor classified the injuries as harm. He observed that the appellant had complaints of recurrent chest pains and recurrent pains on the pelvis. On physical examination, the chest was slightly tender on deep palpation and the pelvis was likewise tender on deep palpation.
32. At the trial court the appellant proposed an award of KShs 400,000/= as general damages for pain, suffering and loss of amenities and cited the following cases:
a. Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [2021] eKLR , the High Court upheld the trial court award of general damages of KShs. 350,000/- for the plaintiff, who had sustained the following injuries: -
i. Blunt injury to the chest.
ii. Bruises to lower abdomen.
iii. Bruises of the right hip joint.
iv. Bruises of the thigh; and
v. Bruises on the knee.
b. Francis Ndungu Wambui & 2 others v Benson Maina Gatia [2019] KEHC 2210 (KLR) the injuries sustained by the respondent according to the medical report of Dr. Mulwa, severe head injuries – transient loss of consciousness with extra-crannial haematoma, blunt trauma on the right shoulder and soft tissue injuries to the right hip point. According to Dr. Wokabi’s report the respondent suffered a head injury with loss of consciousness while the other injuries were soft tissue. He recovered fully from the injuries. The High Court on appeal set aside and substituted the lower court award of KShs 400,000/= with an award of KShs 300,000/= general damages for pain, suffering and loss of amenities.
In this case, I have noted that the appellant only indicated that the respondent in that case suffered soft tissue injuries without pointing out the aspect of injury to the head with loss of consciousness. This then misrepresents the degree of injuries sustained and therefore does not offer a proper guide to the court on comparing the injuries.
c. Lake Naivasha Growers v Muigai Thuka [2020] eKLR the High Court in 2020 upheld the award of KShs. 250,000/- awarded by the trial court for severe soft tissue injuries of the left thigh and soft tissue injuries of the left leg.
33. The 2nd and 3rd respondents proposed an award of KShs 70,000/=. I have not seen submissions made by the 4th respondent (Third Party before the SCC) before the SCC. In this appeal, the 4th respondent submits that the award of KShs 70,000/= made by the SCC was reasonable and this court should not interfere with it. Learned counsel has cited the following authorities:
a. Oyoo v John [2023] KEHC 2027 (KLR)
b. Analo v Irungu [2024] KEHC 3611 (KLR)
c. Machogu v Irungu [2023] KEHC 22715 (KLR)
d. Eva Karemi & 5 others v Koskei Kieng & another [2020] KEHC 5940 (KLR)
34. In all the above cases, the plaintiffs before the lower courts sustained what the High Court on appeal found to be soft tissue injuries and made awards ranging from KShs 45,000/= to KShs 80,000/= general damages for pain, suffering and loss of amenities.
35. Considering the wide disparities between the cases cited by the appellant and those by the 4th respondent in the awards made at the High Court level, I have looked up authorities from the Court of Appeal on soft tissue injuries as follows:
a. In Simon Muchemi Atako & another v Gordon Osore [2013] KECA 128 (KLR) the two appellants sustained injuries as as per the evidence of Dr Peter N. Njagi who testified on their behalf and produced two medical reports. As regards the first appellant, the medical report indicated the injuries that he sustained as:
i. Injury to the nose with nose bleeding;
ii. blunt injury to the chest;
iii. blunt injury to the right hip;
iv. cut wound on the base of the left thumb with partial loss of the nail; and
v. bruise wound on the right knee.
The medical report in respect of the second appellant indicated his injuries as:
i. Blunt chest injury;
ii. cut wound on the left leg;
iii. bruise wound on the right knee;
iv. blunt injury to the left shoulder;
v. cut wound above the right elbow;
vi. cut wound over the occipital part of the head; and
vii. cut wound on the palmas aspect of the left thumb.
The Court of Appeal noted on appeal from the High Court that the appellants suffered mainly soft tissue injuries which healed fairly well leaving no permanent or residual disability and awarded KShs.120,000/= as general damages for pain and suffering to each of the appellants.
b. Arrow Car Limited v , Elijah Shamalla Bimomo & 2 others [2004] KECA 136 (KLR). The Court of Appeal, on appeal from the High Court found that the 1st respondent, Shamalla suffered the following injuries:-
i. Sprain to neck with severe pain;
ii. Soft tissue injury at the neck
iii. Sprain to the left ankle joint with soft tissue swelling of the joint;
iv. Soft tissue injury to the right ankle joints;
v. Lacerated cut wound with soft tissue loss to the ankle region.
On his part, the 3rd respondent Dr Maleche suffered the following injuries:-
i. Cut wound on the face which was done stitching;
ii. Bruising of the arm which was cleaned with antiseptic;
iii. Bruises of the right anterior knee which was cleaned;
iv. Blunt injury to the head.”
The Court of Appeal found that the general conclusion by the medical evidence was that 1st and 3rd respondents suffered soft tissue injuries and set aside the award of KShs 350,000/= awarded by the High Court for each of them and substituted it with an award of KShs 150,000/=.
36. Taking into account all factors, such as the nature and seriousness of the injuries, inflation and comparable awards by the Court of Appeal, I am persuaded that the award by the learned Adjudicator was manifestly low as to represent an erroneous award. On the other hand, I am not persuaded that the sum proposed by the appellant is reasonable and fair, in light of the injuries suffered.
37. Upon considering the damages awarded in the authorities from the Court of Appeal and their age, which I appreciate are quite advanced, with one being over twenty years old and the other over ten years old, I find that an award of KShs 200,000/= to be reasonable and adequate to compensate the appellant for the injuries suffered.
38. Accordingly, I allow the appeal and set aside the award of KShs 70,000/= made by the learned Adjudicator and substitute it with an award of KShs 200,000/= general damages for pain, suffering and loss of amenities. I do not wish to comment on the issue of contribution as the appeal was confined to assessment of damages.
39. The appellant shall get the costs of the appeal.
Dated, Signed and Delivered on the virtual platform Teams this 30th day of April 2026.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the appellant.
N/A for the 1st, 2nd and 3rd Respondents.
N/A for the 4th Respondent.
Job: Court Assistant.
JUDGMENT
1. The appellant sued the 1st, 2nd, and 3rd respondents before the Small Claims Court (SCC) for negligence, with the 1st and 2nd respondents as the registered owners of motor vehicle registration number KBB 167X and the 3rd respondent as the driver or beneficial owner thereof. The appellant alleged that on 1st August 2021, the respondents caused an accident along Kangundo Road in the Slaughter House area through the negligent or reckless driving of the said motor vehicle by the 3rd respondent, for which the 1st and 2nd respondents were vicariously liable, by causing motor vehicle registration number KBL 691Q, in which the appellant was a passenger, to ram into motor vehicle registration number KBB 167X. Consequently, the appellant suffered severe bodily injuries, occasioning her damage and loss. She thus claimed compensation against the 1st, 2nd, and 3rd respondents.
2. The 1st, 2nd and 3rd respondents filed a joint response dated 15th December 2021. They did not deny that the accident occurred or the manner in which it occurred. Their only pleading was that the plaintiff (should be claimant) was negligent and they listed the particulars of negligence against him (should be her). They did not raise any third-party claim in their response. I have read the response to the statement of claim, which is a standard form filled by the respondent, and under paragraph 7 which provides for “Claim against Third Party” the same is filled as “N/A” which I presume means not applicable.
3. However, I have seen a ruling dated 10th June 2022 in which the learned Adjudicator stated that the claim leading to the present appeal was selected as the lead file for two others being Milimani Commercial SCCC E659 of 2021 and E663 of 2021. Further that the respondent filed a statement of claim and proposed one Alice Wairimu Maina to be a third party in SCCC E659 of 2021 and E662 of 2021 (the claim leading to the present appeal). However, it appears to have been erroneous to indicate E662 of 2021 because as stated above the response to the claim did not bear a pleading against a third party. The SCC granted the 1st, 2nd and 3rd respondents leave to file third party proceedings which they did and the proposed third party filed a preliminary objection on the same. In the said ruling the SCC dismissed the preliminary objection. The 4th respondent was therefore joined to the proceedings as a third party.
4. Seemingly, the 4th respondent was the owner and also a passenger in motor vehicle registration number KBL 691Q in which the appellant was travelling. However, the fact of her being the owner was not explicitly clear from the evidence and documents filed in court in file No. E662 of 2021. It may have been stated in the other two related claims. The pleadings on the preliminary objection, including the submissions are not part of the record of appeal nor are they in the lower court file that was made available to this court. I have not seen any pleading filed by the third party. The only document that mentions a third party in its heading is dated 14th October 2022 and is shown to be filed as the third party’s witness statement filed by Alice Wairimu Maina, the 4th respondent and the only one who has respondent to this appeal.
5. I have had to state the issue of the third party extensively because of the decision of the learned Adjudicator on liability.
6. The case proceeded by way of the pleadings and witness statements filed by the parties under section 30 of the Small Claims Court Act (Cap. 10A) Laws of Kenya. Section 30 of the SCCA provides that:
S. 30. Subject to agreement of all parties to the proceedings, the Court may determine any claim and give such orders as it considers fit and just on the basis of documents and written submissions, statements or other submissions presented to the Court.
7. Upon considering the evidence the learned Adjudicator rendered his decision on liability as follows:
“Claim proceeded by way of documents. The evidence was unchallenged as it is on record that KBB 167X caused the accident and In my view claimant has proved negligence on the part of the driver of KBB 167X. The claimant did not indicate if they had a safety belt on and they shall shoulder 10%. The respondents have proved their claim against the third party. The third party shall be liable for the accident at 90%.”
8. There is no appeal by any of the parties on that finding. The appeal is only on the assessment of damages.
9. The court entered judgment stating as follows:
“In the event judgment is entered in favour of the plaintiff and against the third party in the following terms:
i. Liability: 90%
ii. General damages KShs 70,000/=
iii. Special damages KShs 5,500/=
Total KShs 75,500/= less 10% = KShs 67,950/=.”
10. The appellant was dissatisfied with the judgment and has appealed to this court through the memorandum of appeal dated 24th March 2023 on the following grounds:
a. The learned trial magistrate erred in law and in fact in finding that the Claimant was entitled to general damages of KShs 70,000/= which was too much on the lower side in view of the injuries suffered by the Claimant that it presented a miscarriage of justice.
b. The learned trial magistrate erred in law and in fact by failing to consider the appellant’s submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum.
c. The learned trial magistrate erred in law and in fact by failing to consider conventional awards for general damages in caes of similar injuries and awarded general damages for pain, suffering and loss of amenities which is very low.
d. the learned trial magistrate erred in law and in fact when making her award by failing to consider the passage of time and incidence of inflation.
e. The learned magistrate wholly erred in law and fact by arriving at the said judgment.
11. The appellant therefore prays that the appeal be allowed and the court sets aside the judgment of the SCC delivered on 20th February 2023 and reassess the general damages payable to the Claimant and the respondents pay the costs of the appeal.
12. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the 4th respondent. The same are considered in the analysis that follows.
13. The 1st, 2nd and 3rd respondents did not participate in the appeal.
14. As is evident from the grounds, and the submissions of learned counsel for the appellant the only issue for determination is the award of damages by the learned Adjudicator was so low as to represent an erroneous award and therefore a point of law for the determination of this court under section 38 of the Small Claims Court Act (Cap. 10A) Laws of Kenya.
15. I wish to commend on the manner of drafting the grounds of appeal as laid out in the memorandum by the appellant where she keeps indicating that the “the learned trial magistrate erred in law and in fact.” In the first place, the Judicial Officer who presides over the Small Claims Court is an Adjudicator and not a magistrate. That distinction may appear innocuous but it is of great significance when it comes to appreciating that the workings of the SCC as provided for under the SCCA are different from those of the Magistrates Court.
16. Secondly, appeals to this court under section 38 of the SCCA are on points of law only. In the case of Independent Electoral and Boundaries Commission & another v Mule & 3 others [2014] KECA 890 (KLR) the Court of Appeal while commending on drafting grounds of appeal based on points of law only stated as follows:
“Those points in an appeal of the kind before us, being from an election court’s decision, are further circumscribed by Section 85A of the Elections Act which limits appeals to the Court of Appeal to matters of law only. It is therefore quite strange and improper that each of the seventeen grounds, without exception, commences with a standard expression “the judge erred in fact and law” or “the learned Judge erred in law and in fact.” Clearly the drafters of the memorandum did not have the legal provision in active contemplation. Had they done so, they would have found that by invoking factual errors, they were inviting jurisdictional objections to their entire appeal.”
17. Therefore, the reference by learned counsel in the grounds of appeal to the presiding officer of the SCC as a magistrate and adverting to errors of fact, although harmless, was erroneous and ought to be corrected in future.
18. Further, in the case of M’Riungu v. Republic [1983] KLR 455, the Court of Appeal explained how an appellate court would proceed to determine an appeal based on points of law thus:
“where a right of appeal is confined to question of law, an appellate court has loyalty to accept the findings of fact of the lower court(s) and resist the temptation to treat findings of fact as holdings of fact and law and it should not interfere with the decision of the trial court or the first appellate court unless it is apparent that on evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding that the decision is bad in law”.
19. Therefore, while considering this appeal, this court is accordingly guided not to interfere with the findings of the SCC on findings of fact unless it is apparent that on evidence, the decision was bad in law.
20. Learned counsel for the appellant submits that the appellant ought to have been awarded general damages of KShs 400,000/= as submitted. He relies on the cases made in submissions before the SCC.
21. Learned counsel appreciates that assessment of general damages is an exercise of discretion by the trial court and it is settled law that an appellate court will not lightly disturb an award so made unless it is so inordinately high or low as to represent an entirely erroneous estimate. He has cited the case of Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR).
22. Learned counsel for the 4th respondent submits two issues for determination:
a. whether the appeal is on matters of law or on matters of fact.
b. whether the award was so inordinately low to warrant interference by this court.
23. On the first issue, learned counsel submits that assessment of damages is a question of fact and not of law and therefore, this appeal does not fall for determination under section 38 of the SCCA. He has cited the case of John Wambua v Mathew Makau Mwololo & another [2020] KEHC 1602 (KLR).
24. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturb the same as was held in the case of Butt v Khan [1978] KECA 24 (KLR) 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.”
25. Similarly, 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.”
26. In Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2 KAR 288; [1990-1994] EA 47, the Court of Appeal held further that:
“In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency.”
The appellate court can only interfere with the award of damages where it finds that the trial court applied wrong principles of law by taking into account some irrelevant factor, leaving out of account some relevant ones and therefore arriving at an erroneous estimate of damages to be awarded.
27. It follows that where the appellate court finds that the award made by the lower court is so inordinately high or low as to represent an erroneous estimate, then it is entitled to interfere as a matter of law.
28. If it does interfere, the appellate court will consider awards made in cases with similar injuries so that they attract comparable 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 present case, the appeal is based on the ground that the amount awarded was so inordinately low that it represents an erroneous award. Taking the principles set out in the cited case into account, this court has to consider whether the award of KShs 70,000/= general damages made by the SCC is comparable to awards made for other cases with more or less similar injuries.
30. There is no dispute on the injuries sustained by the appellant which were indicated in the statement of claim and the medical report dated 24th September 2021 of Dr. Cyprianus Okoth Okere. They were:
a. Blunt chest injury.
b. Blunt injury to the pelvis.
31. The doctor classified the injuries as harm. He observed that the appellant had complaints of recurrent chest pains and recurrent pains on the pelvis. On physical examination, the chest was slightly tender on deep palpation and the pelvis was likewise tender on deep palpation.
32. At the trial court the appellant proposed an award of KShs 400,000/= as general damages for pain, suffering and loss of amenities and cited the following cases:
a. Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [2021] eKLR , the High Court upheld the trial court award of general damages of KShs. 350,000/- for the plaintiff, who had sustained the following injuries: -
i. Blunt injury to the chest.
ii. Bruises to lower abdomen.
iii. Bruises of the right hip joint.
iv. Bruises of the thigh; and
v. Bruises on the knee.
b. Francis Ndungu Wambui & 2 others v Benson Maina Gatia [2019] KEHC 2210 (KLR) the injuries sustained by the respondent according to the medical report of Dr. Mulwa, severe head injuries – transient loss of consciousness with extra-crannial haematoma, blunt trauma on the right shoulder and soft tissue injuries to the right hip point. According to Dr. Wokabi’s report the respondent suffered a head injury with loss of consciousness while the other injuries were soft tissue. He recovered fully from the injuries. The High Court on appeal set aside and substituted the lower court award of KShs 400,000/= with an award of KShs 300,000/= general damages for pain, suffering and loss of amenities.
In this case, I have noted that the appellant only indicated that the respondent in that case suffered soft tissue injuries without pointing out the aspect of injury to the head with loss of consciousness. This then misrepresents the degree of injuries sustained and therefore does not offer a proper guide to the court on comparing the injuries.
c. Lake Naivasha Growers v Muigai Thuka [2020] eKLR the High Court in 2020 upheld the award of KShs. 250,000/- awarded by the trial court for severe soft tissue injuries of the left thigh and soft tissue injuries of the left leg.
33. The 2nd and 3rd respondents proposed an award of KShs 70,000/=. I have not seen submissions made by the 4th respondent (Third Party before the SCC) before the SCC. In this appeal, the 4th respondent submits that the award of KShs 70,000/= made by the SCC was reasonable and this court should not interfere with it. Learned counsel has cited the following authorities:
a. Oyoo v John [2023] KEHC 2027 (KLR)
b. Analo v Irungu [2024] KEHC 3611 (KLR)
c. Machogu v Irungu [2023] KEHC 22715 (KLR)
d. Eva Karemi & 5 others v Koskei Kieng & another [2020] KEHC 5940 (KLR)
34. In all the above cases, the plaintiffs before the lower courts sustained what the High Court on appeal found to be soft tissue injuries and made awards ranging from KShs 45,000/= to KShs 80,000/= general damages for pain, suffering and loss of amenities.
35. Considering the wide disparities between the cases cited by the appellant and those by the 4th respondent in the awards made at the High Court level, I have looked up authorities from the Court of Appeal on soft tissue injuries as follows:
a. In Simon Muchemi Atako & another v Gordon Osore [2013] KECA 128 (KLR) the two appellants sustained injuries as as per the evidence of Dr Peter N. Njagi who testified on their behalf and produced two medical reports. As regards the first appellant, the medical report indicated the injuries that he sustained as:
i. Injury to the nose with nose bleeding;
ii. blunt injury to the chest;
iii. blunt injury to the right hip;
iv. cut wound on the base of the left thumb with partial loss of the nail; and
v. bruise wound on the right knee.
The medical report in respect of the second appellant indicated his injuries as:
i. Blunt chest injury;
ii. cut wound on the left leg;
iii. bruise wound on the right knee;
iv. blunt injury to the left shoulder;
v. cut wound above the right elbow;
vi. cut wound over the occipital part of the head; and
vii. cut wound on the palmas aspect of the left thumb.
The Court of Appeal noted on appeal from the High Court that the appellants suffered mainly soft tissue injuries which healed fairly well leaving no permanent or residual disability and awarded KShs.120,000/= as general damages for pain and suffering to each of the appellants.
b. Arrow Car Limited v , Elijah Shamalla Bimomo & 2 others [2004] KECA 136 (KLR). The Court of Appeal, on appeal from the High Court found that the 1st respondent, Shamalla suffered the following injuries:-
i. Sprain to neck with severe pain;
ii. Soft tissue injury at the neck
iii. Sprain to the left ankle joint with soft tissue swelling of the joint;
iv. Soft tissue injury to the right ankle joints;
v. Lacerated cut wound with soft tissue loss to the ankle region.
On his part, the 3rd respondent Dr Maleche suffered the following injuries:-
i. Cut wound on the face which was done stitching;
ii. Bruising of the arm which was cleaned with antiseptic;
iii. Bruises of the right anterior knee which was cleaned;
iv. Blunt injury to the head.”
The Court of Appeal found that the general conclusion by the medical evidence was that 1st and 3rd respondents suffered soft tissue injuries and set aside the award of KShs 350,000/= awarded by the High Court for each of them and substituted it with an award of KShs 150,000/=.
36. Taking into account all factors, such as the nature and seriousness of the injuries, inflation and comparable awards by the Court of Appeal, I am persuaded that the award by the learned Adjudicator was manifestly low as to represent an erroneous award. On the other hand, I am not persuaded that the sum proposed by the appellant is reasonable and fair, in light of the injuries suffered.
37. Upon considering the damages awarded in the authorities from the Court of Appeal and their age, which I appreciate are quite advanced, with one being over twenty years old and the other over ten years old, I find that an award of KShs 200,000/= to be reasonable and adequate to compensate the appellant for the injuries suffered.
38. Accordingly, I allow the appeal and set aside the award of KShs 70,000/= made by the learned Adjudicator and substitute it with an award of KShs 200,000/= general damages for pain, suffering and loss of amenities. I do not wish to comment on the issue of contribution as the appeal was confined to assessment of damages.
39. The appellant shall get the costs of the appeal.
Dated, Signed and Delivered on the virtual platform Teams this 30th day of April 2026.
ANDAYI W. F.
JUDGE
In the presence of:
N/A for the appellant.
N/A for the 1st, 2nd and 3rd Respondents.
N/A for the 4th Respondent.
Job: Court Assistant.