Being an appeal from the judgement of Hon Thibaru adjudicator/ RM dated 12th May 2025 in Machakos Small Claims number E404 of 2025.
This appeal arises from the judgement delivered on the 12th May 2025 in Machakos Small Claims case number E404 of 2025. The proceedings before the Small Claims Court concerned a road traffic accident that occurred on the 1st April 2024 along Kangundo - Machakos road involving motor vehicle registration number KBD 539P and motorcycle registration number KMGF 030R.
In the said judgement the adjudicator: found the defendant 100% liable for the accident and awarded the claimant Ksh 150,000 being general damages for pain and injury; Ksh 159,650 being special damages plus costs of the claim.
The appellant in the memorandum of appeal dated 19th May 2025 has appealed against the said judgement on the following grounds:
1. The learned adjudicator erred in law and in fact in finding that the appellant was entitled to general damages of Ksh 150,000.
2. The learned adjudicator erred in law and in fact in assessing general damages for pain and suffering awardable to the appellant which is unfairly low considering the injuries sustained by the appellant and the evidence therein on the same.
3. The learned adjudicator erred in law and in fact in failing to consider the appellant's evidence on quantum.
4. The learned adjudicator erred in law and in fact in failing to consider conventional awards in cases of similar nature.
They prayed that:
1. The appeal be allowed with costs
2. The judgement for quantum of damages of 12th May 2025 be set aside and the same be assessed afresh.
Parties then filed written submissions.
APPELLANT'S SUBMISSIONS
They are dated 31st March 2026. It was submitted that the suit was not defended by the respondent within the prescribed timelines despite proper service and interlocutory judgement was consequently entered against them on 28th April 2025. The primary suit then proceeded via documents.
On 12th May 2025 judgement was entered in favor of the appellant as above mentioned.
It was their submission that the decision of the trial court on quantum was not supported by any evidence, documents on record and the principles laid down for awarding damages for pain and suffering. The claimant had produced various materials and documentary evidence in support of the injuries sustained which include P3 form, medical report by Dr Titus Ndeti Nzina, discharge summary from Universal Family Health Services, radiology request from Universal Family Health Services among other documents as evidence in support of the injuries sustained.
According to the medical report dated 20th February 2025 and the treatment notes the appellant sustained the following injuries:
a. Blunt injuries to the right thigh;
b. Blunt injuries to the back,
c. Laceration on the right tie,
d. Pain on the injured site,
e. Tenderness on the back,
f. Scar on the right proximal thigh.
It was therefore their contention that the above injuries were very serious yet the court treated them as mere soft tissue injuries. This is because the appellant underwent surgical toileting, debridement and his secondary closure, vacuum dressing and debridement. The extent of the injuries is also well informed by the cost of medical expenses in card to manage the injuries. The appellant proved medical expenses of Ksh 154,100 which is a testimony of the seriousness of the injuries and the extensive treatment procedures and a taken on the appellant. Moreover the appellant relied on the P3 form which was produced and it showed that the injuries had been classified as ‘grievous harm’.
They proposed an award of Ksh 900,000. They relied on the following authorities:
1. Kakuzi Limited versus Stephen Njoroge Mungai and another (2020) eKLR
2. Easy Coach Limited versus Emily Nyangasi (2017) eKLR
RESPONDENT'S SUBMISSIONS
They are dated 20th March 2026. They submitted that the principles governing interference with quantum of damages are well established. In Butt versus Khan (1981) KLR 349 the Court of Appeal stated:
“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.”
They submitted that considering the nature of the injuries, the award of Ksh 150,000 is reasonable and not excessive as it aligns with awards in similar cases. If anything, the same should be lowered to Ksh 100,000. They relied on the case of Okalo versus Sumba (Civil Appeal E010 of 2025) (2026) KEHC 1389 KLR.
On the authorities relied on, the appellant, they submitted that they relate to more severe and extensive injuries than those sustained in the present case. In the Kakuzi Limited versus Stephen Njoroge (2020) eKLR the plaintiff sustained significant injuries which included a fracture of the left radius and ulna, degloving injuries to the left forearm, right wrist joint and right knee as well as deep cut wounds to the right thigh following a hippopotamus attack.
Concerning the medical expenses of Ksh 154,100 which have been claimed, they submitted that they are not commensurate to the alleged injuries as the medical receipts from Gabby Chemist as shown in the record of appeal show the receipts to be unclear and do not even indicate the specific medication purchased or the nature of the medical expenses in card. They merely reflect debts and amounts without any description linking the purchases to treatment arising from the accident. It is therefore not possible to ascertain whether the expenses were incurred as a direct consequence of this accident.
On the costs of the suit, it was submitted that it is a settled legal principle that costs follow the event as provided under section 27(1) of the Civil Procedure Act. This legal principle emphasizes that the awarding of cost is generally at the discretion of the court and that discretion must be exercised judiciously.
They concluded that the appeal be dismissed with costs to the respondent.
From the medical evidence relied on by the appellant, it is clear to me that the injuries sustained by the appellant are not mere soft tissue injuries but very serious injuries. In the P3 form the injuries were assessed as grievous harm while in the medical report the doctor's opinion was that the appellant had sustained severe multiple self tissue injuries.
This is a first appeal and this court is empowered to review and analyze the evidence on record and arrive at its independent conclusions. (See Selle & another vs Associated Motor Boat Co Limited and others (1968) EA 123). In Peters versus Sunday Post Limited (1958) EA 424 the court stated:
“An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
In conclusion, it is my finding after evaluating the available documents, memorandum of appeal and submissions by the parties that although the injuries sustained by the appellant are soft tissue injuries, the same are very serious compared to normal soft tissue injuries. I therefore find that the assessment by the trial magistrate was too low taking into account the medical evidence on record. The authorities relied on by the appellant show severe injuries compared to those sustained by the appellant. I now set aside the award by the trial magistrate and replace it with an assessment of general damages of Ksh 500,000. I have been guided by the authority of Shem Shituyi vs Recon Shinyonga (2014) KEHC 4512 KLR
On the special damages claimed, it is my finding that the receipts from Gabby Chemist are not clear on which exact medicines were supplied to the appellant. There is therefore no proof that these receipts have any connection to the accident in issue here. I will therefore not award the sums claimed through these receipts. There are also receipts for Ksh 500, 650 and 950 which are not clear. I will also not award the sums claimed through them
I found the sums claimed through the following receipts proved:
1. NTSA dated 12th February 2025 Ksh 2,000
2. Dr Titus Ndeti dated 20th February 2025 Ksh 2000
3. Eric Ragalo dated 13th April 2024 Ksh 50,000
4. Universal Family Health Services dated 1st April 2024 Ksh 1000
5. Universal Family Health Services Ksh 7,500
6. Universal Family Health Services Ksh 4,000
7. Real-time medical laboratories dated 31st May 2024 Ksh 2000
8. Real-time medical laboratories dated 6th May 2024 Ksh 2000
TOTAL KSH 75,500
I award Ksh 75,500 as special damages. Costs of the appeal to the appellant.
READ AND PUBLISHED IN THE CTS ON 4TH SEPTEMBER 2026 IN THE PRESENCE OF:
NO APPEARANCE BY EITHER PARTY
BEFORE HON JOYCE GANDANI
JUDGE HIGH COURT
This appeal arises from the judgement delivered on the 12th May 2025 in Machakos Small Claims case number E404 of 2025. The proceedings before the Small Claims Court concerned a road traffic accident that occurred on the 1st April 2024 along Kangundo - Machakos road involving motor vehicle registration number KBD 539P and motorcycle registration number KMGF 030R.
In the said judgement the adjudicator: found the defendant 100% liable for the accident and awarded the claimant Ksh 150,000 being general damages for pain and injury; Ksh 159,650 being special damages plus costs of the claim.
The appellant in the memorandum of appeal dated 19th May 2025 has appealed against the said judgement on the following grounds:
1. The learned adjudicator erred in law and in fact in finding that the appellant was entitled to general damages of Ksh 150,000.
2. The learned adjudicator erred in law and in fact in assessing general damages for pain and suffering awardable to the appellant which is unfairly low considering the injuries sustained by the appellant and the evidence therein on the same.
3. The learned adjudicator erred in law and in fact in failing to consider the appellant's evidence on quantum.
4. The learned adjudicator erred in law and in fact in failing to consider conventional awards in cases of similar nature.
They prayed that:
1. The appeal be allowed with costs
2. The judgement for quantum of damages of 12th May 2025 be set aside and the same be assessed afresh.
Parties then filed written submissions.
APPELLANT'S SUBMISSIONS
They are dated 31st March 2026. It was submitted that the suit was not defended by the respondent within the prescribed timelines despite proper service and interlocutory judgement was consequently entered against them on 28th April 2025. The primary suit then proceeded via documents.
On 12th May 2025 judgement was entered in favor of the appellant as above mentioned.
It was their submission that the decision of the trial court on quantum was not supported by any evidence, documents on record and the principles laid down for awarding damages for pain and suffering. The claimant had produced various materials and documentary evidence in support of the injuries sustained which include P3 form, medical report by Dr Titus Ndeti Nzina, discharge summary from Universal Family Health Services, radiology request from Universal Family Health Services among other documents as evidence in support of the injuries sustained.
According to the medical report dated 20th February 2025 and the treatment notes the appellant sustained the following injuries:
a. Blunt injuries to the right thigh;
b. Blunt injuries to the back,
c. Laceration on the right tie,
d. Pain on the injured site,
e. Tenderness on the back,
f. Scar on the right proximal thigh.
It was therefore their contention that the above injuries were very serious yet the court treated them as mere soft tissue injuries. This is because the appellant underwent surgical toileting, debridement and his secondary closure, vacuum dressing and debridement. The extent of the injuries is also well informed by the cost of medical expenses in card to manage the injuries. The appellant proved medical expenses of Ksh 154,100 which is a testimony of the seriousness of the injuries and the extensive treatment procedures and a taken on the appellant. Moreover the appellant relied on the P3 form which was produced and it showed that the injuries had been classified as ‘grievous harm’.
They proposed an award of Ksh 900,000. They relied on the following authorities:
1. Kakuzi Limited versus Stephen Njoroge Mungai and another (2020) eKLR
2. Easy Coach Limited versus Emily Nyangasi (2017) eKLR
RESPONDENT'S SUBMISSIONS
They are dated 20th March 2026. They submitted that the principles governing interference with quantum of damages are well established. In Butt versus Khan (1981) KLR 349 the Court of Appeal stated:
“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.”
They submitted that considering the nature of the injuries, the award of Ksh 150,000 is reasonable and not excessive as it aligns with awards in similar cases. If anything, the same should be lowered to Ksh 100,000. They relied on the case of Okalo versus Sumba (Civil Appeal E010 of 2025) (2026) KEHC 1389 KLR.
On the authorities relied on, the appellant, they submitted that they relate to more severe and extensive injuries than those sustained in the present case. In the Kakuzi Limited versus Stephen Njoroge (2020) eKLR the plaintiff sustained significant injuries which included a fracture of the left radius and ulna, degloving injuries to the left forearm, right wrist joint and right knee as well as deep cut wounds to the right thigh following a hippopotamus attack.
Concerning the medical expenses of Ksh 154,100 which have been claimed, they submitted that they are not commensurate to the alleged injuries as the medical receipts from Gabby Chemist as shown in the record of appeal show the receipts to be unclear and do not even indicate the specific medication purchased or the nature of the medical expenses in card. They merely reflect debts and amounts without any description linking the purchases to treatment arising from the accident. It is therefore not possible to ascertain whether the expenses were incurred as a direct consequence of this accident.
On the costs of the suit, it was submitted that it is a settled legal principle that costs follow the event as provided under section 27(1) of the Civil Procedure Act. This legal principle emphasizes that the awarding of cost is generally at the discretion of the court and that discretion must be exercised judiciously.
They concluded that the appeal be dismissed with costs to the respondent.
From the medical evidence relied on by the appellant, it is clear to me that the injuries sustained by the appellant are not mere soft tissue injuries but very serious injuries. In the P3 form the injuries were assessed as grievous harm while in the medical report the doctor's opinion was that the appellant had sustained severe multiple self tissue injuries.
This is a first appeal and this court is empowered to review and analyze the evidence on record and arrive at its independent conclusions. (See Selle & another vs Associated Motor Boat Co Limited and others (1968) EA 123). In Peters versus Sunday Post Limited (1958) EA 424 the court stated:
“An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion.”
In conclusion, it is my finding after evaluating the available documents, memorandum of appeal and submissions by the parties that although the injuries sustained by the appellant are soft tissue injuries, the same are very serious compared to normal soft tissue injuries. I therefore find that the assessment by the trial magistrate was too low taking into account the medical evidence on record. The authorities relied on by the appellant show severe injuries compared to those sustained by the appellant. I now set aside the award by the trial magistrate and replace it with an assessment of general damages of Ksh 500,000. I have been guided by the authority of Shem Shituyi vs Recon Shinyonga (2014) KEHC 4512 KLR
On the special damages claimed, it is my finding that the receipts from Gabby Chemist are not clear on which exact medicines were supplied to the appellant. There is therefore no proof that these receipts have any connection to the accident in issue here. I will therefore not award the sums claimed through these receipts. There are also receipts for Ksh 500, 650 and 950 which are not clear. I will also not award the sums claimed through them
I found the sums claimed through the following receipts proved:
1. NTSA dated 12th February 2025 Ksh 2,000
2. Dr Titus Ndeti dated 20th February 2025 Ksh 2000
3. Eric Ragalo dated 13th April 2024 Ksh 50,000
4. Universal Family Health Services dated 1st April 2024 Ksh 1000
5. Universal Family Health Services Ksh 7,500
6. Universal Family Health Services Ksh 4,000
7. Real-time medical laboratories dated 31st May 2024 Ksh 2000
8. Real-time medical laboratories dated 6th May 2024 Ksh 2000
TOTAL KSH 75,500
I award Ksh 75,500 as special damages. Costs of the appeal to the appellant.
READ AND PUBLISHED IN THE CTS ON 4TH SEPTEMBER 2026 IN THE PRESENCE OF:
NO APPEARANCE BY EITHER PARTY
BEFORE HON JOYCE GANDANI
JUDGE HIGH COURT