JUDGMENT
A. INTRODUCTION
1. This appeal arises from the judgment of the Honourable W. C. Keter (RM) delivered on 3rd July 2024 in Kisii CMCC No. E984 of 2023.
2. The Appellant, who was the Plaintiff before the trial court, challenges the award of Kshs. 180, 000/= as general damages, contending that the same was inordinately low and not commensurate with the injuries sustained.
3. Liability was settled by consent at 90:10 in favour of the Plaintiff, leaving quantum as the only issue for determination.
B. BACKGROUND
4. The Appellant’s claim arose from a road traffic accident that occurred on 2nd November 2023 along Kisii–Migori Road involving motor vehicle registration number KCR 656E.
5. The Appellant, a pillion passenger on a motorcycle, sustained the following injuries:
o Left shoulder joint contusion with resultant dislocation
o Left elbow joint contusion with resultant dislocation
o Left hip joint contusion
o Left shoulder bruises
o Left leg abrasions and contusion
6. Medical evidence on record confirms dislocations of the shoulder and elbow joints with multiple soft tissue injuries, with complaints of persistent pain.
7. The trial court, after hearing the matter, awarded Kshs. 180,000/= general damages and Kshs. 7,690/= special damages.
C. GROUNDS OF APPEAL
8. The appeal is premised on the grounds that:
a. The learned trial magistrate failed to consider the Appellant’s submissions;
b. The award of general damages was inordinately low;
c. The trial court misapprehended the evidence and applicable principles on quantum.
D. DUTY OF THE FIRST APPELLATE COURT
9. This being a first appeal, this Court is under a duty to re-evaluate the evidence afresh and arrive at its own independent conclusions, bearing in mind that it did not see or hear the witnesses as was held in the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123, and reiterated in Peters v Sunday Post Ltd [1958] EA 424.
E. ISSUE FOR DETERMINATION
11. The sole issue for determination is:
Whether the award of general damages was inordinately low so as to warrant interference by this Court.
F. PRINCIPLES ON APPELLATE INTERFERENCE WITH QUANTUM
12. The law on interference with quantum is settled. In Butt v Khan [1981] KLR 349, the Court held that an appellate court will only interfere where:
• The trial court acted on wrong principles;
• Took into account irrelevant factors;
• Failed to consider relevant factors; or
• The award is so inordinately low or high as to represent an erroneous estimate.
13. Similarly, in Kemfro Africa Ltd t/a Meru Express Service v Lubia [1982-88] 1 KAR 727, the Court emphasized that interference is justified where the award is plainly wrong.
G. ANALYSIS AND DETERMINATION
(i) Nature and Extent of Injuries
14. The Appellant pleaded joint dislocations (shoulder and elbow) in addition to multiple soft tissue injuries.
15. The medical report indicates:
• Reduction of dislocations
• Persistent joint pain
• Risk of post-traumatic complications
16. The medical report by Dr Daniel Nyameino dated 15.11.23 and the P3 form supported the said injuries . The 2nd medical report of Dr M.S Malik dated 12.2.24 indicated that the appellant sustained the following injuries ;
• Pain in the left shoulder joint
• Pain in the left elbow joint
• Pain the left hip joint
• Abrassions on the left lower leg .
• No evidence of dislocation to the left shoulder joint and left elbow joint as per the X-ray films and his physical examination.
17. I have a seen the case of Ndungu Dennis v Ann Wangari Ndirangu & Eddah Mwihaki [2018] KEHC 8799 (KLR) where the court was faced with a similar situation where the findings in the two medical reports produced by the parties differed on the injuries sustained and the held that ‘’ 26. I will begin by ascertaining the injuries suffered by the Respondent. The injuries described in the treatment card, discharge card and P3 form are fairly consistent. The injuries included minor bruises on the back; no fractures on the tibia or fibula area of the right leg which was hit; tenderness on the right leg. All these three conclude that the injuries are “soft tissue injuries.” However, the medical report tendered by Dr. G.K. Mwaura, who testified for the Respondent adds the following injuries to these: blunt injury; head concussion (brief loss of consciousness); blunt injuries to the chest and both hands. That report also says that the Respondent still experiences back pains and chest pains on exertion.
27. It might be fair to say that the Learned Trial Magistrate based his finding on quantum on this Report by Dr. Mwaura. I, however, find the Report less reliable than the Treatment notes, the Discharge card and the P3 form which are all consistent. The Treatment notes were filled immediately after the accident by the treating medical practitioner without any interest in the case. It is fairly categorical that the Respondent was conscious when brought to the health facility and that she suffered soft tissue injuries. Soft tissue injuries do not lead to long-term pain upon exertion as the Medical Report by Dr. Mwaura suggests. Similarly, the Treatment notes do not speak of any blunt trauma to the chest or hands. I would therefore discount the Medical Report by Dr. Mwaura and rely on the other three documents which are consistent that the Respondent suffered soft tissue injuries to the lower right leg and soft tissue injuries to the back (trunk)
18. The report by Dr Malik was produced by consent and his findings were thus not challenged . The X-ray films were not produced . I admit the report by Dr Malik as the conclusive proof of the injuries sustained It is clear to me that the injuries of the appellant were exaggerated in the plaint and the medical documents produced by him .
19. I find that the appellant sustained soft tissue injuries to the left shoulder joint , left elbow joint , left hip joint and abrassions on the lower leg
(ii) Whether the Award Was Inordinately Low
20. The trial court awarded Kshs. 180,000/= Our Kenyan courts have consistently held that comparable injuries should attract comparable awards, subject to inflation and prevailing economic conditions.
21. Comparable authorities cited by the Appellant include:
• Lilian Wanja v Cyprian Mugendi Igonga & 2 Others [2016] eKLR – Kshs. 500,000/=
• Barret v Barret & Another [2023] KEHC 2586 (KLR) – comparable injuries attracted higher awards
19. The Court of Appeal in Sosphinaf Company Ltd v Daniel Ng’ang’a Kanyi emphasized that damages must be reasonable and reflective of comparable decisions.
20. In the said Ndungu Dennis v Ann Wangari Ndirangu & Eddah Mwihaki [2018] KEHC 8799 (KLR) , the Respondent suffered soft tissue injuries to the lower right leg and soft tissue injuries to the back (trunk) and was awarded general damages in the sum of Kshs 300,000/= by the lower court but this was reduced to Kshs 100,000/= on appeal in the year 2018. The Injuries in the cases cited by the respondent were more serious than the ones sustained by the appellant herein . The injuries in the said Ndungu Denis case (Supra ) are comparable to the ones sustained by the appellant herein .
(iii) whether the learned trial magistrate erred in awarding of general damages in sum of Ksh. 180,000/=
21. I find that the Learned Trial Magistrate Properly evaluated the evidence and considered the soft tissue injuries suffered by the appellant , and comparable injuries in the authorities and the inflation factors and correctly arrived at the award of Ksh, 180,000/= which was adequate recompense .
22. Special damages this was specifically pleaded and strictly proved as required at Kshs. 7690/= . The same was however not taken into account when considering the 10% negligence on the part of the appellant . I will thus take it into account .
23. In the upshot the appeal is dismissed .
24. The judgment of the trial court on quantum is upheld . I proceed to enter judgment for the appellant against the respondent as follows :
a. General damages: Kshs. 180,000/=
b. Special damages: Kshs. 7,690/=
c. Less 10% contributory negligence- Kshs 18,769/=
Total - Kshs 168,921/= .
d. I also award Interest on the said sum at court rates from the date of the Judgment of the lower court till payment in full .
e. No orders are to costs .
25. It is so ordered.
T.A ODERA
JUDGE
25.3.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF MISS GOGI FOR THE APPELLANT & NO APPEARANCE FOR THE RESPONDENT & COURT ASSISTANT MR ONKUNDI
A. INTRODUCTION
1. This appeal arises from the judgment of the Honourable W. C. Keter (RM) delivered on 3rd July 2024 in Kisii CMCC No. E984 of 2023.
2. The Appellant, who was the Plaintiff before the trial court, challenges the award of Kshs. 180, 000/= as general damages, contending that the same was inordinately low and not commensurate with the injuries sustained.
3. Liability was settled by consent at 90:10 in favour of the Plaintiff, leaving quantum as the only issue for determination.
B. BACKGROUND
4. The Appellant’s claim arose from a road traffic accident that occurred on 2nd November 2023 along Kisii–Migori Road involving motor vehicle registration number KCR 656E.
5. The Appellant, a pillion passenger on a motorcycle, sustained the following injuries:
o Left shoulder joint contusion with resultant dislocation
o Left elbow joint contusion with resultant dislocation
o Left hip joint contusion
o Left shoulder bruises
o Left leg abrasions and contusion
6. Medical evidence on record confirms dislocations of the shoulder and elbow joints with multiple soft tissue injuries, with complaints of persistent pain.
7. The trial court, after hearing the matter, awarded Kshs. 180,000/= general damages and Kshs. 7,690/= special damages.
C. GROUNDS OF APPEAL
8. The appeal is premised on the grounds that:
a. The learned trial magistrate failed to consider the Appellant’s submissions;
b. The award of general damages was inordinately low;
c. The trial court misapprehended the evidence and applicable principles on quantum.
D. DUTY OF THE FIRST APPELLATE COURT
9. This being a first appeal, this Court is under a duty to re-evaluate the evidence afresh and arrive at its own independent conclusions, bearing in mind that it did not see or hear the witnesses as was held in the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123, and reiterated in Peters v Sunday Post Ltd [1958] EA 424.
E. ISSUE FOR DETERMINATION
11. The sole issue for determination is:
Whether the award of general damages was inordinately low so as to warrant interference by this Court.
F. PRINCIPLES ON APPELLATE INTERFERENCE WITH QUANTUM
12. The law on interference with quantum is settled. In Butt v Khan [1981] KLR 349, the Court held that an appellate court will only interfere where:
• The trial court acted on wrong principles;
• Took into account irrelevant factors;
• Failed to consider relevant factors; or
• The award is so inordinately low or high as to represent an erroneous estimate.
13. Similarly, in Kemfro Africa Ltd t/a Meru Express Service v Lubia [1982-88] 1 KAR 727, the Court emphasized that interference is justified where the award is plainly wrong.
G. ANALYSIS AND DETERMINATION
(i) Nature and Extent of Injuries
14. The Appellant pleaded joint dislocations (shoulder and elbow) in addition to multiple soft tissue injuries.
15. The medical report indicates:
• Reduction of dislocations
• Persistent joint pain
• Risk of post-traumatic complications
16. The medical report by Dr Daniel Nyameino dated 15.11.23 and the P3 form supported the said injuries . The 2nd medical report of Dr M.S Malik dated 12.2.24 indicated that the appellant sustained the following injuries ;
• Pain in the left shoulder joint
• Pain in the left elbow joint
• Pain the left hip joint
• Abrassions on the left lower leg .
• No evidence of dislocation to the left shoulder joint and left elbow joint as per the X-ray films and his physical examination.
17. I have a seen the case of Ndungu Dennis v Ann Wangari Ndirangu & Eddah Mwihaki [2018] KEHC 8799 (KLR) where the court was faced with a similar situation where the findings in the two medical reports produced by the parties differed on the injuries sustained and the held that ‘’ 26. I will begin by ascertaining the injuries suffered by the Respondent. The injuries described in the treatment card, discharge card and P3 form are fairly consistent. The injuries included minor bruises on the back; no fractures on the tibia or fibula area of the right leg which was hit; tenderness on the right leg. All these three conclude that the injuries are “soft tissue injuries.” However, the medical report tendered by Dr. G.K. Mwaura, who testified for the Respondent adds the following injuries to these: blunt injury; head concussion (brief loss of consciousness); blunt injuries to the chest and both hands. That report also says that the Respondent still experiences back pains and chest pains on exertion.
27. It might be fair to say that the Learned Trial Magistrate based his finding on quantum on this Report by Dr. Mwaura. I, however, find the Report less reliable than the Treatment notes, the Discharge card and the P3 form which are all consistent. The Treatment notes were filled immediately after the accident by the treating medical practitioner without any interest in the case. It is fairly categorical that the Respondent was conscious when brought to the health facility and that she suffered soft tissue injuries. Soft tissue injuries do not lead to long-term pain upon exertion as the Medical Report by Dr. Mwaura suggests. Similarly, the Treatment notes do not speak of any blunt trauma to the chest or hands. I would therefore discount the Medical Report by Dr. Mwaura and rely on the other three documents which are consistent that the Respondent suffered soft tissue injuries to the lower right leg and soft tissue injuries to the back (trunk)
18. The report by Dr Malik was produced by consent and his findings were thus not challenged . The X-ray films were not produced . I admit the report by Dr Malik as the conclusive proof of the injuries sustained It is clear to me that the injuries of the appellant were exaggerated in the plaint and the medical documents produced by him .
19. I find that the appellant sustained soft tissue injuries to the left shoulder joint , left elbow joint , left hip joint and abrassions on the lower leg
(ii) Whether the Award Was Inordinately Low
20. The trial court awarded Kshs. 180,000/= Our Kenyan courts have consistently held that comparable injuries should attract comparable awards, subject to inflation and prevailing economic conditions.
21. Comparable authorities cited by the Appellant include:
• Lilian Wanja v Cyprian Mugendi Igonga & 2 Others [2016] eKLR – Kshs. 500,000/=
• Barret v Barret & Another [2023] KEHC 2586 (KLR) – comparable injuries attracted higher awards
19. The Court of Appeal in Sosphinaf Company Ltd v Daniel Ng’ang’a Kanyi emphasized that damages must be reasonable and reflective of comparable decisions.
20. In the said Ndungu Dennis v Ann Wangari Ndirangu & Eddah Mwihaki [2018] KEHC 8799 (KLR) , the Respondent suffered soft tissue injuries to the lower right leg and soft tissue injuries to the back (trunk) and was awarded general damages in the sum of Kshs 300,000/= by the lower court but this was reduced to Kshs 100,000/= on appeal in the year 2018. The Injuries in the cases cited by the respondent were more serious than the ones sustained by the appellant herein . The injuries in the said Ndungu Denis case (Supra ) are comparable to the ones sustained by the appellant herein .
(iii) whether the learned trial magistrate erred in awarding of general damages in sum of Ksh. 180,000/=
21. I find that the Learned Trial Magistrate Properly evaluated the evidence and considered the soft tissue injuries suffered by the appellant , and comparable injuries in the authorities and the inflation factors and correctly arrived at the award of Ksh, 180,000/= which was adequate recompense .
22. Special damages this was specifically pleaded and strictly proved as required at Kshs. 7690/= . The same was however not taken into account when considering the 10% negligence on the part of the appellant . I will thus take it into account .
23. In the upshot the appeal is dismissed .
24. The judgment of the trial court on quantum is upheld . I proceed to enter judgment for the appellant against the respondent as follows :
a. General damages: Kshs. 180,000/=
b. Special damages: Kshs. 7,690/=
c. Less 10% contributory negligence- Kshs 18,769/=
Total - Kshs 168,921/= .
d. I also award Interest on the said sum at court rates from the date of the Judgment of the lower court till payment in full .
e. No orders are to costs .
25. It is so ordered.
T.A ODERA
JUDGE
25.3.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM IN THE PRESENCE OF MISS GOGI FOR THE APPELLANT & NO APPEARANCE FOR THE RESPONDENT & COURT ASSISTANT MR ONKUNDI