(Being an Appeal against the judgment and decree of Hon. K. Kibellion (PM) in Nakuru C MCCC No. E432 of 2022 delivered on 28 th September 2023)
JUDGMENT
1. The Appellant instituted this suit via an Amended Plaint dated 1 st March 2022 before the Magistrate’s court at Nakuru contending that the Respondents caused an accident occasioning her serious injuries. It was her contention that on 17 th November 2021 while lawfully travelling in motor vehicle registration number KCY 351S, registered to the 1 st Defendant and beneficially owned by the 2 nd Respondent, it was so recklessly driven causing it to collide with motor vehicle registration number KCL 108 N at Technology along the Nakuru-Njoro road. According to the Appellant motor vehicle KCY 351S, was being driven at excessive speeds, recklessly and without regard to traffic rules. It was her case that she suffered serious injuries for which she has not fully healed. Moreover, she contended that she was a business lady earning Kshs 30,000/= which earnings she had lost. As a result of the foregoing, she urged the court to award her general damages, damages for loss of earnings and earning capacity, future medical expenses, special damages, costs and interests of the suit as well as interest.
2. The Respondents opposed the suit via a defence dated 2 nd June 2022. They denied the averments in the Amended Plaint and invited the Plaintiff to strict proof thereof.
3. Before the matter proceeded to full hearing, the parties recorded a consent on liability whereby liability for the accident was apportioned at 85% against the Respondents and 15% against the Appellant.
4. Upon assessment of damages the trial court entered judgment on 28 th September 2023, awarding the Appellant Special damages of Kshs 360,810/=, future medical expenses of Kshs 100,000/=, general damages of Kshs 1,000,000/= and loss of earning capacity of Kshs 1,000,000/=, less 15% contribution making a net sum of Kshs 2,091,688.50/=.
5. The Appellant was dissatisfied and she lodged a Memorandum of Appeal with this court on 17 th October 2023 contending that, the trial magistrate erred in law and in fact by failing to consider the nature of the injuries suffered hence arriving at a very low amount in the circumstances. In view of the foregoing the Appellant urges the court to enhance the award of general damages and to award her costs of the appeal.
6. The appeal was canvassed by way of written submissions. Both parties filed submissions.
APPELLANT’S SUBMISSIONS
The appellant submitted that the trial court failed to take into account the extent of injuries suffered by her and thereby awarded an amount that was inordinately low. The appellant in particular referred the court to the medical report by Dr Wellington Kiamba which had concluded that the appellant had suffered permanent incapacity assessed at forty percent. The appellant cited the case of Joseph Musee Mua v Julius Mbogo Mugi & 3 Others (2013 ) where a sum of Kshs 1,300,000 was awarded.
The appellant proposed an award of Kshs 2,500,000 as general damages.
RESPONDENTS’ SUBMISSIONS
7. From the outset the Respondents submits that the award of damages was in line with principles governing awards of damages and was arrived at after proper evaluation of the evidence on record. The foregoing notwithstanding they urge the court to either uphold or review the amount downwards. They further urge the court to be guided by its duty as a first appellate court to re-evaluate and reconsider the evidence and draw its own conclusions bearing in mind that it did not hear the witnesses first hand. Reliance is placed on Selle and Another v Associated Motor Boat Company Ltd & Others [1968] 1EA 123 and Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR .
8. Further buttressing their position on quantum, they draw the court’s attention to Millicent Atieno Ochounyo v Katola Richard (2015) eKLR. Jabane v Olenja (1986) KLR 1 and Charles Oriwo Odeyo v Apollo Justus Andabwa & Another [2017] eKLR , where it was underscored that comparable injuries should attract comparable awards.
9. In support of an award of Kshs 500,000/= in general damages, they rely on Magembe & 2 Others v Shisia (Civil Appeal E496 of 2023) KEHC 11720 (KLR), Ndwiga & Another v Mukimba [2022] KEHC 11793 (KLR), Jitan Nagra v Abidnego Nyandusi Oigo [2018] eKLR and Daniel Otieno Owino & Another v Elizabeth Atieno Owuor [2020] eKLR , in which comparable injuries were sustained.
10. Accordingly, they urge the court to dismiss the appeal with costs or in the alternative review the damages downwards.
ANALYSIS AND DETERMINATION
11. This being a first appeal, this court is enjoined to re-evaluate, reassess and re-analyse the evidence that was tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was succinctly stated in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and reiterated by the Court of Appeal in Peters v Sunday Post Ltd [1958] EA 424 .
12. From the Memorandum of Appeal, the Appellant's grievance is that the award of Kshs.1,000,000/= as general damages for pain, suffering and loss of amenities was inordinately low in view of the injuries sustained. The Appellant consequently urges this court to enhance the award.
13. The law is settled that assessment of damages is a matter of judicial discretion and an appellate court will not interfere with such discretion unless it is shown that the trial court acted on wrong principles, took into account irrelevant factors, failed to consider relevant factors or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damage suffered. This principle was laid down by the Court of Appeal in Kemfro Africa Ltd t/a Meru Express Services & Another v Lubia & Another (No. 2) [1987] KLR 30 and reaffirmed in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR.
14. Having perused the judgment appealed from, it is evident that the learned trial magistrate considered the pleadings, the medical evidence but failed to consider decided cases that had been cited before him in arriving at the award of Kshs.1,000,000/= as general damages.
15. It bears repeating that an appellate court does not interfere with an award merely because it would itself have awarded a different figure. In Butt v Khan [1981] KLR 349 , the Court of Appeal held that an appellate court can only interfere where the award is so inordinately high or low as to represent an entirely erroneous estimate.
16. From the record, the appellant sustained the following injuries;
-Fracture of the left tibia and fibula
-Fracture on the lateral malleolus
-Huge hematoma on the left region
-Soft tissue injuries on the left side of the chest, forehead, right forearm, right knee, right foot and lacerations
The two doctors who examined her concluded that she had suffered a disability which was permanent. DR M. S Malik who examined her at the instance of the defence/respondent did not assess the percentage of disability. Dr Kiamba placed the disability at 40%.
The learned magistrate did not indicate how he arrived at the figure of Kshs 1.000, 000.No decided case law in support of the said award was cited and it is my finding that the trial court proceeded on a wrong footing. I have examined the decided cases cited by the parties. Most of the cited cases are fairly old and may not be a proper guide considering the inflation trend in our country. In the case of Zachary Kariithi v Jashon Ochola (2016) Eklr the claimant who suffered right tibia/fibula fracture and fracture of femur bone midshaft plus soft tissue injuries was awarded Kshs 1,500,000 as general damages for pain and suffering. The foregoing case is in almost ‘on all fours’ with the case herein. The learned magistrate having failed to give reasons for the award arrived at, I find this to be a fit case to interfere with the exercise of discretion in the award of damages.
Consequently, the award of Kshs 1,000,000 was a wrong estimate of the award of damages payable to the appellant considering the permanent nature of the effect of her injuries. I find that an award of Kshs 1,600,000 to be adequate compensation as general damages for pain and suffering.
17. Accordingly, the appeal has merit and is hereby allowed. The award of general damages is increased to Kshs 1,600,000.The other awards shall remain undisturbed. The appellant shall have costs of the appeal.
DATED, SIGNED AND DELIVERED in KAKAMEGA via teams this 20 th July 2026.
D.O. ONYANGO
JUDGE
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JUDGMENT
1. The Appellant instituted this suit via an Amended Plaint dated 1 st March 2022 before the Magistrate’s court at Nakuru contending that the Respondents caused an accident occasioning her serious injuries. It was her contention that on 17 th November 2021 while lawfully travelling in motor vehicle registration number KCY 351S, registered to the 1 st Defendant and beneficially owned by the 2 nd Respondent, it was so recklessly driven causing it to collide with motor vehicle registration number KCL 108 N at Technology along the Nakuru-Njoro road. According to the Appellant motor vehicle KCY 351S, was being driven at excessive speeds, recklessly and without regard to traffic rules. It was her case that she suffered serious injuries for which she has not fully healed. Moreover, she contended that she was a business lady earning Kshs 30,000/= which earnings she had lost. As a result of the foregoing, she urged the court to award her general damages, damages for loss of earnings and earning capacity, future medical expenses, special damages, costs and interests of the suit as well as interest.
2. The Respondents opposed the suit via a defence dated 2 nd June 2022. They denied the averments in the Amended Plaint and invited the Plaintiff to strict proof thereof.
3. Before the matter proceeded to full hearing, the parties recorded a consent on liability whereby liability for the accident was apportioned at 85% against the Respondents and 15% against the Appellant.
4. Upon assessment of damages the trial court entered judgment on 28 th September 2023, awarding the Appellant Special damages of Kshs 360,810/=, future medical expenses of Kshs 100,000/=, general damages of Kshs 1,000,000/= and loss of earning capacity of Kshs 1,000,000/=, less 15% contribution making a net sum of Kshs 2,091,688.50/=.
5. The Appellant was dissatisfied and she lodged a Memorandum of Appeal with this court on 17 th October 2023 contending that, the trial magistrate erred in law and in fact by failing to consider the nature of the injuries suffered hence arriving at a very low amount in the circumstances. In view of the foregoing the Appellant urges the court to enhance the award of general damages and to award her costs of the appeal.
6. The appeal was canvassed by way of written submissions. Both parties filed submissions.
APPELLANT’S SUBMISSIONS
The appellant submitted that the trial court failed to take into account the extent of injuries suffered by her and thereby awarded an amount that was inordinately low. The appellant in particular referred the court to the medical report by Dr Wellington Kiamba which had concluded that the appellant had suffered permanent incapacity assessed at forty percent. The appellant cited the case of Joseph Musee Mua v Julius Mbogo Mugi & 3 Others (2013 ) where a sum of Kshs 1,300,000 was awarded.
The appellant proposed an award of Kshs 2,500,000 as general damages.
RESPONDENTS’ SUBMISSIONS
7. From the outset the Respondents submits that the award of damages was in line with principles governing awards of damages and was arrived at after proper evaluation of the evidence on record. The foregoing notwithstanding they urge the court to either uphold or review the amount downwards. They further urge the court to be guided by its duty as a first appellate court to re-evaluate and reconsider the evidence and draw its own conclusions bearing in mind that it did not hear the witnesses first hand. Reliance is placed on Selle and Another v Associated Motor Boat Company Ltd & Others [1968] 1EA 123 and Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR .
8. Further buttressing their position on quantum, they draw the court’s attention to Millicent Atieno Ochounyo v Katola Richard (2015) eKLR. Jabane v Olenja (1986) KLR 1 and Charles Oriwo Odeyo v Apollo Justus Andabwa & Another [2017] eKLR , where it was underscored that comparable injuries should attract comparable awards.
9. In support of an award of Kshs 500,000/= in general damages, they rely on Magembe & 2 Others v Shisia (Civil Appeal E496 of 2023) KEHC 11720 (KLR), Ndwiga & Another v Mukimba [2022] KEHC 11793 (KLR), Jitan Nagra v Abidnego Nyandusi Oigo [2018] eKLR and Daniel Otieno Owino & Another v Elizabeth Atieno Owuor [2020] eKLR , in which comparable injuries were sustained.
10. Accordingly, they urge the court to dismiss the appeal with costs or in the alternative review the damages downwards.
ANALYSIS AND DETERMINATION
11. This being a first appeal, this court is enjoined to re-evaluate, reassess and re-analyse the evidence that was tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was succinctly stated in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123 and reiterated by the Court of Appeal in Peters v Sunday Post Ltd [1958] EA 424 .
12. From the Memorandum of Appeal, the Appellant's grievance is that the award of Kshs.1,000,000/= as general damages for pain, suffering and loss of amenities was inordinately low in view of the injuries sustained. The Appellant consequently urges this court to enhance the award.
13. The law is settled that assessment of damages is a matter of judicial discretion and an appellate court will not interfere with such discretion unless it is shown that the trial court acted on wrong principles, took into account irrelevant factors, failed to consider relevant factors or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damage suffered. This principle was laid down by the Court of Appeal in Kemfro Africa Ltd t/a Meru Express Services & Another v Lubia & Another (No. 2) [1987] KLR 30 and reaffirmed in Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR.
14. Having perused the judgment appealed from, it is evident that the learned trial magistrate considered the pleadings, the medical evidence but failed to consider decided cases that had been cited before him in arriving at the award of Kshs.1,000,000/= as general damages.
15. It bears repeating that an appellate court does not interfere with an award merely because it would itself have awarded a different figure. In Butt v Khan [1981] KLR 349 , the Court of Appeal held that an appellate court can only interfere where the award is so inordinately high or low as to represent an entirely erroneous estimate.
16. From the record, the appellant sustained the following injuries;
-Fracture of the left tibia and fibula
-Fracture on the lateral malleolus
-Huge hematoma on the left region
-Soft tissue injuries on the left side of the chest, forehead, right forearm, right knee, right foot and lacerations
The two doctors who examined her concluded that she had suffered a disability which was permanent. DR M. S Malik who examined her at the instance of the defence/respondent did not assess the percentage of disability. Dr Kiamba placed the disability at 40%.
The learned magistrate did not indicate how he arrived at the figure of Kshs 1.000, 000.No decided case law in support of the said award was cited and it is my finding that the trial court proceeded on a wrong footing. I have examined the decided cases cited by the parties. Most of the cited cases are fairly old and may not be a proper guide considering the inflation trend in our country. In the case of Zachary Kariithi v Jashon Ochola (2016) Eklr the claimant who suffered right tibia/fibula fracture and fracture of femur bone midshaft plus soft tissue injuries was awarded Kshs 1,500,000 as general damages for pain and suffering. The foregoing case is in almost ‘on all fours’ with the case herein. The learned magistrate having failed to give reasons for the award arrived at, I find this to be a fit case to interfere with the exercise of discretion in the award of damages.
Consequently, the award of Kshs 1,000,000 was a wrong estimate of the award of damages payable to the appellant considering the permanent nature of the effect of her injuries. I find that an award of Kshs 1,600,000 to be adequate compensation as general damages for pain and suffering.
17. Accordingly, the appeal has merit and is hereby allowed. The award of general damages is increased to Kshs 1,600,000.The other awards shall remain undisturbed. The appellant shall have costs of the appeal.
DATED, SIGNED AND DELIVERED in KAKAMEGA via teams this 20 th July 2026.
D.O. ONYANGO
JUDGE
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