REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILLIMANI LAW COURTS
CIVIL APPEAL NO. E1015 OF 2022
OINGWE BOAZ AINEA…….……………………….……………… APPELLANT
VERSUS
EXEKIEL MWANIKI IRERI………………………………..…….RESPONDENT
( BEING AN APPEAL FROM THE JUDGMENT AND DECREE OF HONOURABLE S.A. OPANDE (PM) DELIVERED ON THE 24 th DAY OF NOVEMBER 2022 IN MILIMANI CMCC N0 E1731 OF 2021)
BETWEEN
OINGWE BOAZ AINEA …….……………………….…………………..PLAINTIFF
VERSUS
EXEKIEL MWANIKI IRERI ………………………………………… DEFENDANT
J U D G M E N T
A. INTRODUCTION
1. This Appeal arises from the judgment/decree of Honourable S.A OPANDE (PM) delivered on the 24 th day of November 2022 where he upheld the consent on liability award at 60%: 40% ration as agreed in favour of the Appellant and proceeded to assess general damages for pain and suffering at, Kshs 850,000/= plus costs and interest of the suit.
2. The background to this appeal is that the appellant filed the primary suit where he stated that on 25 th April 2020 he was lawfully driving motor vehicle registration Number KCE 242X TOYOTA CANTER ( hereinafter referred to as the 1 st suit motor vehicle ), when the respondents motor vehicle registration Number KCL 144G TOYOTA CANTER (hereinafter referred to as the 2 nd suit motor vehicle ) was recklessly driven, controlled and/or managed that its driver caused it to have an accident with the 1 st suit motor vehicle and as a direct result thereof the appellant sustained serious bodily injuries.
3. The appellant particularized the negligence of the respondent’s driver and stated that as a result of the said accident, he had suffered a fracture of the right femur, which was assessed to have caused him 40% incapacitation and therefore prayed to be compensated for the same. In defence the respondent denied all the particulars of damage’s alleged in the plaint and without prejudice also averred that if the accident did occur as alleged the same was solely caused and/or substantially contributed to by the appellants negligence. The respondent also denied the appellant’s assertion, that he sustained the injuries pleaded and/or that the said injuries had caused him to suffer 40% incapacitation as alleged and put the appellant to strict proof thereof.
4. At trial the parties adopted a consent on liability at the ration of 60.40% in favour of the appellant, the documents relied on by both parties were admitted as exhibits and the parties proceeded to file submissions on quantum for the court’s determination. The trial court did consider the same and held that going by the relevant case law an award of Kshs 850,000/= was appropriate compensation for the injury suffered. The Appellant being dissatisfied by the trial courts finding on quantum filed his memorandum of appeal dated 13 th December 2022 raising two (2) grounds of appeal namely: -
a) That the learned trial magistrate erred in law and fact in failing to apricate the relevant principles and case law in assessing damages and thereby arrived at a very low award on damages.
b) That the learned magistrate misdirected himself and failed to give any due and proper consideration to the pleadings and evidence on record and submissions and thereby made an erroneous judgment on damages.
5. The Appellant herein thus prayed that this court be pleased to set aside the trial courts award and do re assess the damages afresh based on the evidence and submissions on record.
B. ANALYSIS AND DETEMINATION
6. I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123
7. A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act , a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph AIR 1969 Kerala 316
8. In this appeal, the Appellant is only challenging the quantum of damages as awarded by the trial court. It is common ground that as a result of the said accident, the appellant did sustain a fracture of the mid shaft right femur which was treated with internal fixation using metal implants. The appellants doctor assessed permanent incapacitation at 40%, which was rebutted by the respondent’s doctor who placed that incapacitation at 4% as the appellant was expected to fully heal except that he had a 2.0cm shorten limb.
9. Determination of quantum is a matter of judicial discretion which can only be interfered with if the court is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. ( See Mbogo Vrs Shah (1968) EA 93 and Kamfro Africa Limited T/A Meru Express Services (1976) & Another Vrs Lubia & Another No 2 (1987) KLR 30.)
10. The Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No. 284 of 2001[2004]eKLR 55 set out circumstances under which an appellant court can interfere with an award of damages in the following terms:-
“ It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case in the first instance. The appellate court can justifiably interfere with quantum of damage’s awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factors or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate”.
11. Similarly, In Mohamed Mahmoud Jabane Vrs High shine Butty Tongoi CA No 2 of (1986) KLR Vol1 the court of Appeal stated that the correct Approach in award of damages are ;
(1) Each case depends on its own facts.
(2) Awards should not be excessive for the sake of those who have to pay premiums, medical fees or taxes (the body politic).
(3) Comparable injuries should attract comparable awards.
(4) Inflation should be taken into account.
(5) Loss of future earnings has to be pleaded.
(6) Loss of earning power is part of the general damages
12. I have carefully considered all the pleadings filed, and evidence tendered in court especially on the issue of injuries sustained by the appellant. The question which then arises is whether the award of damages of Kshs. 850,000/= was adequate compensation for the injuries suffered. The appellant sought to be awarded Kshs 2,500,000/= and relied on the case of Micheal Njagi Karimi Vs Gideon Ndungu Nduribu & Another (2013) Eklr , while the respondents did submit that an award of between Kshs 400,000/= to Kshs 550,000/= would be adequate compensation.
13. While considering comparable awards; Kurgat & Another Vrs Onyiero Civil Appeal E425 OF 2021)(2024) KEHC 7162 (KLR), Masaremo Vs Ashley & Another ( Civl Appeal E025 of 2021)(2024)KEHC 14090(KLR) and Ndavi Vs Mwangangi (Civl Appeal 764 of 2019)2024 KEHC 8106(KLR) , i do find that the said award of Ksh 850,000/= was fair and comparable to similar award damages. The trial magistrate did therefore exercise his discretion judiciously and did not err in principle or law to justify any interference by the appellate court.
C. DISPOSITION
14. This Appeal therefore lacks merit and the same is dismissed with costs to the respondent.
15. The costs are assessed at Kshs 120,000/= all inclusive.
16. It is so ordered.
Dated, signed and delivered in open court at MARSABIT this ...............24th.................day of MARCH , 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this …24th…day of MARCH,2026.
In the presence of : -
………………………N/A………………………………..Appellant
………………………N/A………………………………. Respondent
……………………JARSO………………………………….Court Assistant
MILIMANI HCCA NO E1015 OF 20228
IN THE HIGH COURT OF KENYA AT NAIROBI
MILLIMANI LAW COURTS
CIVIL APPEAL NO. E1015 OF 2022
OINGWE BOAZ AINEA…….……………………….……………… APPELLANT
VERSUS
EXEKIEL MWANIKI IRERI………………………………..…….RESPONDENT
( BEING AN APPEAL FROM THE JUDGMENT AND DECREE OF HONOURABLE S.A. OPANDE (PM) DELIVERED ON THE 24 th DAY OF NOVEMBER 2022 IN MILIMANI CMCC N0 E1731 OF 2021)
BETWEEN
OINGWE BOAZ AINEA …….……………………….…………………..PLAINTIFF
VERSUS
EXEKIEL MWANIKI IRERI ………………………………………… DEFENDANT
J U D G M E N T
A. INTRODUCTION
1. This Appeal arises from the judgment/decree of Honourable S.A OPANDE (PM) delivered on the 24 th day of November 2022 where he upheld the consent on liability award at 60%: 40% ration as agreed in favour of the Appellant and proceeded to assess general damages for pain and suffering at, Kshs 850,000/= plus costs and interest of the suit.
2. The background to this appeal is that the appellant filed the primary suit where he stated that on 25 th April 2020 he was lawfully driving motor vehicle registration Number KCE 242X TOYOTA CANTER ( hereinafter referred to as the 1 st suit motor vehicle ), when the respondents motor vehicle registration Number KCL 144G TOYOTA CANTER (hereinafter referred to as the 2 nd suit motor vehicle ) was recklessly driven, controlled and/or managed that its driver caused it to have an accident with the 1 st suit motor vehicle and as a direct result thereof the appellant sustained serious bodily injuries.
3. The appellant particularized the negligence of the respondent’s driver and stated that as a result of the said accident, he had suffered a fracture of the right femur, which was assessed to have caused him 40% incapacitation and therefore prayed to be compensated for the same. In defence the respondent denied all the particulars of damage’s alleged in the plaint and without prejudice also averred that if the accident did occur as alleged the same was solely caused and/or substantially contributed to by the appellants negligence. The respondent also denied the appellant’s assertion, that he sustained the injuries pleaded and/or that the said injuries had caused him to suffer 40% incapacitation as alleged and put the appellant to strict proof thereof.
4. At trial the parties adopted a consent on liability at the ration of 60.40% in favour of the appellant, the documents relied on by both parties were admitted as exhibits and the parties proceeded to file submissions on quantum for the court’s determination. The trial court did consider the same and held that going by the relevant case law an award of Kshs 850,000/= was appropriate compensation for the injury suffered. The Appellant being dissatisfied by the trial courts finding on quantum filed his memorandum of appeal dated 13 th December 2022 raising two (2) grounds of appeal namely: -
a) That the learned trial magistrate erred in law and fact in failing to apricate the relevant principles and case law in assessing damages and thereby arrived at a very low award on damages.
b) That the learned magistrate misdirected himself and failed to give any due and proper consideration to the pleadings and evidence on record and submissions and thereby made an erroneous judgment on damages.
5. The Appellant herein thus prayed that this court be pleased to set aside the trial courts award and do re assess the damages afresh based on the evidence and submissions on record.
B. ANALYSIS AND DETEMINATION
6. I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. This being a first appeal, it is by way of a retrial, and this court, as the first appellate court, must re-evaluate, re-analyze, and re-consider the evidence afresh and draw its conclusions on it. The court should, however, bear in mind that it did not see the witnesses as they testified and give due allowance for that. (see Selle v Associated Motor Boat Co Ltd & Others [1968] EA 123) & Peters Vs Sunday Post Limited (1968) EA 123
7. A first appellate court is also the final court of fact, and litigants are entitled to full, fair, independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the Civil Procedure Act , a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko Vs Varkey Ouseph AIR 1969 Kerala 316
8. In this appeal, the Appellant is only challenging the quantum of damages as awarded by the trial court. It is common ground that as a result of the said accident, the appellant did sustain a fracture of the mid shaft right femur which was treated with internal fixation using metal implants. The appellants doctor assessed permanent incapacitation at 40%, which was rebutted by the respondent’s doctor who placed that incapacitation at 4% as the appellant was expected to fully heal except that he had a 2.0cm shorten limb.
9. Determination of quantum is a matter of judicial discretion which can only be interfered with if the court is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion. ( See Mbogo Vrs Shah (1968) EA 93 and Kamfro Africa Limited T/A Meru Express Services (1976) & Another Vrs Lubia & Another No 2 (1987) KLR 30.)
10. The Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No. 284 of 2001[2004]eKLR 55 set out circumstances under which an appellant court can interfere with an award of damages in the following terms:-
“ It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case in the first instance. The appellate court can justifiably interfere with quantum of damage’s awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factors or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate”.
11. Similarly, In Mohamed Mahmoud Jabane Vrs High shine Butty Tongoi CA No 2 of (1986) KLR Vol1 the court of Appeal stated that the correct Approach in award of damages are ;
(1) Each case depends on its own facts.
(2) Awards should not be excessive for the sake of those who have to pay premiums, medical fees or taxes (the body politic).
(3) Comparable injuries should attract comparable awards.
(4) Inflation should be taken into account.
(5) Loss of future earnings has to be pleaded.
(6) Loss of earning power is part of the general damages
12. I have carefully considered all the pleadings filed, and evidence tendered in court especially on the issue of injuries sustained by the appellant. The question which then arises is whether the award of damages of Kshs. 850,000/= was adequate compensation for the injuries suffered. The appellant sought to be awarded Kshs 2,500,000/= and relied on the case of Micheal Njagi Karimi Vs Gideon Ndungu Nduribu & Another (2013) Eklr , while the respondents did submit that an award of between Kshs 400,000/= to Kshs 550,000/= would be adequate compensation.
13. While considering comparable awards; Kurgat & Another Vrs Onyiero Civil Appeal E425 OF 2021)(2024) KEHC 7162 (KLR), Masaremo Vs Ashley & Another ( Civl Appeal E025 of 2021)(2024)KEHC 14090(KLR) and Ndavi Vs Mwangangi (Civl Appeal 764 of 2019)2024 KEHC 8106(KLR) , i do find that the said award of Ksh 850,000/= was fair and comparable to similar award damages. The trial magistrate did therefore exercise his discretion judiciously and did not err in principle or law to justify any interference by the appellate court.
C. DISPOSITION
14. This Appeal therefore lacks merit and the same is dismissed with costs to the respondent.
15. The costs are assessed at Kshs 120,000/= all inclusive.
16. It is so ordered.
Dated, signed and delivered in open court at MARSABIT this ...............24th.................day of MARCH , 2026.
FRANCIS RAYOLA OLEL
JUDGE
Delivered on the virtual platform, Team this …24th…day of MARCH,2026.
In the presence of : -
………………………N/A………………………………..Appellant
………………………N/A………………………………. Respondent
……………………JARSO………………………………….Court Assistant
MILIMANI HCCA NO E1015 OF 20228