REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CIVIL APPEAL NO. E098 OF 2022
PETER KARANJA…………………………………………..1ST APPELLANT
RUTH WANJIRU MUGWERU…………………………..2ND APPELLANT
VERSUS
JOSEPH NDEGWA WAWERU………………………………RESPONDENT
(Being an appeal from the judgment and decree of Hon. D. M. Ireri, Senior Resident Magistrate, in Baricho Magistrate’s Court Civil Suit No. 17 of 2022 delivered on 2/9/2022)
JUDGMENT
Background
1. This appeal through the memorandum dated 17/10/2022 is on assessment of damages only. Liability was agreed on by consent of the parties as recorded by the trial court on 13/7/2022 in the ratio 80:20 for the respondent (plaintiff in the trial court) against the appellants (1st and 2nd defendants in the trial court). There was a 3rd defendant, Equity Bank Ltd that was struck out from the proceedings on 19/5/2021. The appeal seeks to set aside the decree (which seems not to have been extracted) of the learned trial magistrate arising from a judgment of the trial court dated 2/9/2022 to the extent of assessment of damages only.
Case before the trial court
2. The respondent sued the appellants through a plaint dated 30/1/2020 claiming general and special damages for injuries arising out of a road traffic accident that occurred on 19/7/2019 along the Sagana-Karatina road. The respondent was a turnboy in the 2nd appellant’s motor vehicle registration number KCN 993R and driven by the 1st appellant when the accident happened. As a result, the respondent sustained the following injuries:
a. blunt and abrasion injuries on the scalp.
b. compound (open) fracture of the right ulna.
c. compound (open) fracture of the right radius.
3. Upon considering the evidence tendered, the submissions and authorities tendered by the parties the learned trial magistrate awarded a sum of KShs 850,000/= as general damages for pain, suffering and loss of amenities.
Grounds of appeal
4. The appellant was dissatisfied with the judgment and has filed this appeal based on the following grounds that the award of KShs 850,000/= general damages was manifestly high considering the evidence and submissions tendered before the trial court on the nature of injuries being “left mid shaft radio ulna fracture without any complications” I have italicized the injuries as appearing in the grounds of appeal to show that they are different from those pleaded by the respondent and considered by the trial court in its judgment. However, in the submissions he has cited the correct injuries. There is an issue about these injuries that the court has to look at more intently in the analysis following.
Submissions
5. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent.
6. The appellant’s submissions reiterate his grounds of appeal that the damages are inordinately high. Learned counsel submits that the injuries sustained by the respondent were blunt abrasion injuries of the scalp and fracture of the right ulna and radius. Further that the respondent sought to split one injury being a fracture of the right arm into two.
7. Further that the injuries relied upon by the learned trial magistrate were not similar to those suffered by the respondent herein. He relies on the case of Patrisia Adhiambo Omolo v Emily Mandala [2020] eKLR where the appellant sustained a fracture of the left forearm radius and ulna bones, colles fracture of the left forearm, swollen deformed distal aspect of the left forearm, multiple bodily injuries and injuries on the left forearm with swelling and the High Court in May 2020 sustained an award of KShs 180,000/= made by the trial court.
8. Learned counsel for the respondent submits that the award of KShs 850,000/= was modest and reasonable and this court should not interfere with it. He submits further that this court should be guided by the Court of Appeal decision in Kenya Bus Services Limited vs. Jane Karambu Gituma Civil Appeal Case No. 241 of 2000 as cited in George & another v Babu [2024] KEHC 5986 (KLR) where the court stated:
“…in this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account of some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low so as to represent a wholly erroneous estimate of the damages.”
9. Learned counsel for the respondent points out the injuries sustained by the appellant as outlined in the plaint being:
a. blunt and abrasion injuries on the scalp.
b. compound (open) fracture of the right ulna.
c. compound (open) fracture of the right radius.
10. Learned counsel submits that the injuries sustained by the respondent herein have attracted awards of KShs 1,200,000/= in comparable cases as he had proposed at the trial. He has cited the case of Antony Mwondu Maina v Samuel Gitau [2006] eKLR where the plaintiff sustained head injuries, a compound fracture of the ulna and radius of the left arm, fracture of the olecranon process of the left elbow, impacted fracture of the surgical neck on the left humerus bone and fracture of the acromion process of the left clavicle and on the blade of the scapula bone. The High Court assessed general damages for pain, suffering and loss of amenities at Ksh 1,200,000/=.
Analysis
11. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
12. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset.
13. The first issue to determine is what injuries were sustained by the respondent?
14. The injuries pleaded in the plaint were:
a. blunt and abrasion injuries on the scalp.
b. compound (open) fracture of the right ulna.
c. compound (open) fracture of the right radius.
15. These were as per the medical report dated 26/9/2019 by Dr. W.M. Wokabi who assessed the degree of permanent disability at 8%. The learned trial magistrate then observed that in their submissions the defendants had asked the court to strike out the medical report by Dr. Wokabi for reasons that it was inconsistent with other medical documents viz discharge summary from Karatina hospital, discharge summary from Afya Bora hospital and the P3 form. He went on to state that he had noted from the last part of that medical report that Dr. Wokabi referred to the discharge abstract from Karatina district hospital, discharge summary from Afya Bora hospital, X-ray and P3 form to come up with his report. He then went on to state the defendants had not provided another medical report or any other opinion by a different medical expert and so the court had no option but to rely on the report by Dr. Wokabi.
16. In order to appreciate those statements by the learned trial magistrate, one has to look at the other medical documents provided to see the injuries captured therein which the learned trial magistrate made no comment upon. The discharge abstract from Karatina district hospital where the respondent was admitted on 19/7/2019 and discharged on 20/7/ and where, according to his witness statement, the respondent received the first medical attention indicates the admission history as presenting with scalp swelling, bruises on face and pain on left forearm; the diagnosis as mild head injury with STI plus open forearm fracture; investigations done and results as X-ray of left forearm, skull x-ray. This would show that the fracture was on the left forearm. The discharge summary from Afya Bora hospital where he was admitted on 20/7/2019 and discharged on 25/7/2019 indicates the diagnosis as left radia/ulna fracture. This also shows that the fracture was on the left forearm. The P3 from used a symbol that I cannot decipher to indicate the side of the forearm that sustained the fracture.
17. It is apparent from the primary documents of treatment from the two hospitals that the respondent sustained a fracture of the left forearm. Therefore, the indication by Dr. Wokabi that it was the right forearm was not correct. It was erroneous for the learned trial magistrate to rely on the same. Here again lies the challenge of the unconventional ways adopted by courts of taking consents for parties to adopt their witness statements without being sworn or by way of affidavit. If the respondent had been called upon to adopt the statement under oath, he would have stated in his words which forearm sustained the fracture and even shown it to court as evidence. The court may then have noticed this disparity and probably had the plaintiff amend his pleadings accordingly.
18. The respondents’ case is however saved by the fact that there was another medical report prepared by Dr. Kimathi Kioga and which interestingly has been brought to this court’s attention through the submissions by learned counsel for the respondent. He submits, adopting that report that:
“I would however like to bring to bring to your attention, the list of documents relied on by the Defendant/Appellant’s herein one being Medical Report dated 13th April 2022 by their preferred Doctor Kimathi Kioga.”
19. He then goes on to outline Dr. Kimathi’s findings on the respondent’s injuries. The said report is available in the record of appeal at pp 34-35.
20. This means that the learned trial magistrate’s remark that the appellants had not provided a medical report of their own and so he had no other report to rely upon other than that of Dr. Wokabi was not correct. He therefore proceeded to award the damages based on the wrong injuries. There is no doubt that a fracture of the left forearm, as captured in the discharge summaries from the two hospitals and the medical reprt f Dr. Kimathi Kioga presents different injuries from a fracture of the right forearm indicated in the medical report of Dr. Wokabi and for that reason. The medical report by Dr. Kimathi Kioga, being consistent with the two hspoital discharge documents would be the accurate one to rely upon.
21. Indeed, the respondent’s advocate in is submissions raised issues for determination and again interestingly one of them was “whether the learned trial Magistrate failed to appreciate the nature of the injuries suffered by the Plaintiff mainly a left hand radio ulna fracture without any complications..." thereby conceding that in fact the fracture was on the left forearm and not the right forearm as indicated by Dr. Wokabi and upon which the trial court based its assessment of damages. Consequently, I find that the fracture was on the left forearm.
22. At the trial the appellant proposed as general damages for pain suffering and loss of amenities an award of KShs 180,000/= based on the case of Patrisia Adhiambo Omolo (Supra) while the respondent proposed an award of KShs 1,200,000/= based on the case of Antony Mwondu Maina (supra).
23. The learned trial magistrate relied on the following authority in arriving at his assessment of damages of KShs 850,000/= awarded to the respondent:
a. Easy Coach Limited v Emily Nyangasi [2017] eKLR in which the respondent sustained facial injuries, injury to chest, injury to back, injury to right hand with cut wound and injury to right leg with cut wounds. The most serious injuries were on the right hand which healed with a 10 cm scar with keloid formation on the elbow, and on the right leg which was treated through grafting and healed with healed 18cm scar right thigh, 26 cm scar right leg, 28 cm scar right leg below the knee and 12 cm scar right foot with keloid formation. The High Court on appeal in 2017 sustained an award by the trial court of Kshs.700,000/= on general damages for pain and suffering and loss of amenities.
b. Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichubi [2005] eKLR. There were several Plaintiffs in the case. Each suffered various injuries and the High Court in 1998 made various awards for general damages as follows:
i. The First Plaintiff suffered injury on the left ankle, injuries on the legs and injuries on the chest. An award of KShs 300,000/= was made.
ii. The Second Plaintiff suffered injury on the back. An award of KShs 100,000/= was made.
iii. The Third Plaintiff suffered injuries, multiple soft tissue injuries, injury on the left elbow joint, and injuries on both ankles. An award of KShs 350,000/=.
iv. The Fourth Plaintiff suffered injury on the neck and had headache. An award of KShs 100,000/= was made.
24. The learned trial magistrate relied on the award made to the 3rd plaintiff. In both cases, the learned trial magistrate commended that the awards were made that much even though there were no fractures. He went further and remarked that apart from the injuries sustained by the plaintiff he also suffered a permanent disability of 8% meaning that the learned magistrate was dissociating the injuries from the incapacity and not considering the incapacity as being a consequence of the injuries.
Appellate court’s duty
25. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR 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.”
26. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated 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.”
27. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award.
28. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
29. It is a hallowed principle in assessment of general damages that similar injuries will attract similar 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.”
30. In the case of Michael Maina Gitonga v. Serah Njuguna [2012] eKLR, Ouko, J (as he then was) reiterated the principles to be borne in mind when assessing damages in personal injury claims as follows:
a. Assessment of damages is a matter of opinion and discretion and depends on the facts and circumstances of each case.
b. Money (an award) cannot renew a physical frame that has been battered and shattered. The award is only to give reasonable compensation.
c. Awards must be assessed with moderation.
d. It is desirable that so far as possible comparable injuries should be compensated with comparable awards.
e. In awarding damages fairness must be observed to both the Plaintiff and the Defendant as it is ultimately the taxpayers who have to pay, thereby injuring the body politic.
31. Similarly, in the case of John Kamore & another v. Simon Irungu Ngugi [2014] eKLR the High court adopted the lower court’s observations on the relevant factors considered in making awards thus:
“Normally courts consider the nature of injuries, the period of healing and whether the healing is full or partial, the residual incapacity if any, the inconvenience or deprivation encountered by the plaintiff, inflationary trends, cost of living and lapse of time from the time of any availed decided authorities.
The plaintiff is only entitled to what is fair, just and reasonable. Money cannot renew a physical frame that has been shattered and battered. Assessment must be done with moderation. The aim is not to enrich the plaintiff. It is not also the aim to punish the defendant.”
32. I have taken these factors into account in the assessment of damages herein.
Determination
33. I find that the whole approach adopted by the learned trial magistrate was erroneous for failing to follow the laid down principles on assessment of damages. The two cases he relied upon did not involve fracture of the radius and ulna of the left arm. He seemed to suggest that the percentage of permanent disability suffered should be considered as a separate issue from the injuries sustained and the case of Catherine Wanjiru Kingori & 3 others which was decided in 1998 is so outdated that I find it out of tune and incomparable to the present circumstances. The case of Emily Nyangasi involved far more serious injuries than in the present case. Similarly, the case of Antony Mwondu cited by learned counsel for the respondent at the trial involved far more serious injuries.
34. I find that the award made by the trial court was inordinately high and I am satisfied that this is a proper case to interfere with the trial court’s award.
35. The case of Patrisia Adhiambo Omolo which was cited by learned counsel for the appellant appears to me to present more comparable injuries and it is also more recent.
36. In an older case of Peris Mwikali Mutua v Peter Munyao Kimata [2008] eKLR the Respondent (Plaintiff in the lower court) sustained the following injuries:
a. marked pain and tenderness of the left hip joint;
b. marked swelling and severe tenderness of the left forearm;
c. bruises on the left forearm;
d. fracture of the ulna and radius (Colle’s fracture) of the left distal forearm.
The doctor who examined the Respondent noted that the injuries were serious and had left a significant permanent disability. The High Court on appeal sustained the lower court’s award of KShs. 450,000/= which the High Court found to be reasonable and fair in the circumstances of the case in 2008.
37. In a more recent case of Gogni Rajope Construction Company Limited v Francis Ojuok Olewe [2015] KEHC 8459 (KLR) the respondent sustained a fracture of the left distal radius and ulna and dislocation of the left elbow. On appeal, the High Court, Majanja, J. substituted the trial court’s award of KShs 800,000/= general damages for pain, suffering and loss of amenities with an award of KShs 350,000/= in 2015.
38. The Peris Mwikali Mutua case is much older and the award is more than twice the damages in the Patrisia Adhiambo Omolo case which is more recent yet the injuries are not so disparate. However, I find the award in the Patrisia Adhiambo case to be on the lower side for multiple fractures of the left arm. I find the Francis Ojuok Olewe case to be more recent, involves more comparable injuries to those sustained by the respondent in the present case and is a more appropriate guide.
39. Applying the principles on assessment of general damages for pain, loss and suffering and considering the injuries sustained by the respondent, I am satisfied that a sum of KShs 350,000/= would be adequate compensation.
40. Consequently, the award of the trial court is reduced from 850,000/= to KShs 350,000/= general damages for pain, suffering and loss of amenities. The rest of the awards will remain as made by the trial court.
41. Consequently, the decision by learned trial magistrate on assessment of general damages for pain, suffering and loss of amenities is hereby set aside and substituted with an award of KShs 350,000/=.
42. The appeal is successful to that extend.
43. Each party will bear its own costs.
44. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 9th day of June 2025 in the presence of:
Wambua for the appellants.
Githinji (Ms) Mwanzia for the respondent.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE
IN THE HIGH COURT OF KENYA AT KERUGOYA
APPELLATE SIDE
(Coram: Andayi W. F, J.)
CIVIL APPEAL NO. E098 OF 2022
PETER KARANJA…………………………………………..1ST APPELLANT
RUTH WANJIRU MUGWERU…………………………..2ND APPELLANT
VERSUS
JOSEPH NDEGWA WAWERU………………………………RESPONDENT
(Being an appeal from the judgment and decree of Hon. D. M. Ireri, Senior Resident Magistrate, in Baricho Magistrate’s Court Civil Suit No. 17 of 2022 delivered on 2/9/2022)
JUDGMENT
Background
1. This appeal through the memorandum dated 17/10/2022 is on assessment of damages only. Liability was agreed on by consent of the parties as recorded by the trial court on 13/7/2022 in the ratio 80:20 for the respondent (plaintiff in the trial court) against the appellants (1st and 2nd defendants in the trial court). There was a 3rd defendant, Equity Bank Ltd that was struck out from the proceedings on 19/5/2021. The appeal seeks to set aside the decree (which seems not to have been extracted) of the learned trial magistrate arising from a judgment of the trial court dated 2/9/2022 to the extent of assessment of damages only.
Case before the trial court
2. The respondent sued the appellants through a plaint dated 30/1/2020 claiming general and special damages for injuries arising out of a road traffic accident that occurred on 19/7/2019 along the Sagana-Karatina road. The respondent was a turnboy in the 2nd appellant’s motor vehicle registration number KCN 993R and driven by the 1st appellant when the accident happened. As a result, the respondent sustained the following injuries:
a. blunt and abrasion injuries on the scalp.
b. compound (open) fracture of the right ulna.
c. compound (open) fracture of the right radius.
3. Upon considering the evidence tendered, the submissions and authorities tendered by the parties the learned trial magistrate awarded a sum of KShs 850,000/= as general damages for pain, suffering and loss of amenities.
Grounds of appeal
4. The appellant was dissatisfied with the judgment and has filed this appeal based on the following grounds that the award of KShs 850,000/= general damages was manifestly high considering the evidence and submissions tendered before the trial court on the nature of injuries being “left mid shaft radio ulna fracture without any complications” I have italicized the injuries as appearing in the grounds of appeal to show that they are different from those pleaded by the respondent and considered by the trial court in its judgment. However, in the submissions he has cited the correct injuries. There is an issue about these injuries that the court has to look at more intently in the analysis following.
Submissions
5. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent.
6. The appellant’s submissions reiterate his grounds of appeal that the damages are inordinately high. Learned counsel submits that the injuries sustained by the respondent were blunt abrasion injuries of the scalp and fracture of the right ulna and radius. Further that the respondent sought to split one injury being a fracture of the right arm into two.
7. Further that the injuries relied upon by the learned trial magistrate were not similar to those suffered by the respondent herein. He relies on the case of Patrisia Adhiambo Omolo v Emily Mandala [2020] eKLR where the appellant sustained a fracture of the left forearm radius and ulna bones, colles fracture of the left forearm, swollen deformed distal aspect of the left forearm, multiple bodily injuries and injuries on the left forearm with swelling and the High Court in May 2020 sustained an award of KShs 180,000/= made by the trial court.
8. Learned counsel for the respondent submits that the award of KShs 850,000/= was modest and reasonable and this court should not interfere with it. He submits further that this court should be guided by the Court of Appeal decision in Kenya Bus Services Limited vs. Jane Karambu Gituma Civil Appeal Case No. 241 of 2000 as cited in George & another v Babu [2024] KEHC 5986 (KLR) where the court stated:
“…in this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account of some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low so as to represent a wholly erroneous estimate of the damages.”
9. Learned counsel for the respondent points out the injuries sustained by the appellant as outlined in the plaint being:
a. blunt and abrasion injuries on the scalp.
b. compound (open) fracture of the right ulna.
c. compound (open) fracture of the right radius.
10. Learned counsel submits that the injuries sustained by the respondent herein have attracted awards of KShs 1,200,000/= in comparable cases as he had proposed at the trial. He has cited the case of Antony Mwondu Maina v Samuel Gitau [2006] eKLR where the plaintiff sustained head injuries, a compound fracture of the ulna and radius of the left arm, fracture of the olecranon process of the left elbow, impacted fracture of the surgical neck on the left humerus bone and fracture of the acromion process of the left clavicle and on the blade of the scapula bone. The High Court assessed general damages for pain, suffering and loss of amenities at Ksh 1,200,000/=.
Analysis
11. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
12. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset.
13. The first issue to determine is what injuries were sustained by the respondent?
14. The injuries pleaded in the plaint were:
a. blunt and abrasion injuries on the scalp.
b. compound (open) fracture of the right ulna.
c. compound (open) fracture of the right radius.
15. These were as per the medical report dated 26/9/2019 by Dr. W.M. Wokabi who assessed the degree of permanent disability at 8%. The learned trial magistrate then observed that in their submissions the defendants had asked the court to strike out the medical report by Dr. Wokabi for reasons that it was inconsistent with other medical documents viz discharge summary from Karatina hospital, discharge summary from Afya Bora hospital and the P3 form. He went on to state that he had noted from the last part of that medical report that Dr. Wokabi referred to the discharge abstract from Karatina district hospital, discharge summary from Afya Bora hospital, X-ray and P3 form to come up with his report. He then went on to state the defendants had not provided another medical report or any other opinion by a different medical expert and so the court had no option but to rely on the report by Dr. Wokabi.
16. In order to appreciate those statements by the learned trial magistrate, one has to look at the other medical documents provided to see the injuries captured therein which the learned trial magistrate made no comment upon. The discharge abstract from Karatina district hospital where the respondent was admitted on 19/7/2019 and discharged on 20/7/ and where, according to his witness statement, the respondent received the first medical attention indicates the admission history as presenting with scalp swelling, bruises on face and pain on left forearm; the diagnosis as mild head injury with STI plus open forearm fracture; investigations done and results as X-ray of left forearm, skull x-ray. This would show that the fracture was on the left forearm. The discharge summary from Afya Bora hospital where he was admitted on 20/7/2019 and discharged on 25/7/2019 indicates the diagnosis as left radia/ulna fracture. This also shows that the fracture was on the left forearm. The P3 from used a symbol that I cannot decipher to indicate the side of the forearm that sustained the fracture.
17. It is apparent from the primary documents of treatment from the two hospitals that the respondent sustained a fracture of the left forearm. Therefore, the indication by Dr. Wokabi that it was the right forearm was not correct. It was erroneous for the learned trial magistrate to rely on the same. Here again lies the challenge of the unconventional ways adopted by courts of taking consents for parties to adopt their witness statements without being sworn or by way of affidavit. If the respondent had been called upon to adopt the statement under oath, he would have stated in his words which forearm sustained the fracture and even shown it to court as evidence. The court may then have noticed this disparity and probably had the plaintiff amend his pleadings accordingly.
18. The respondents’ case is however saved by the fact that there was another medical report prepared by Dr. Kimathi Kioga and which interestingly has been brought to this court’s attention through the submissions by learned counsel for the respondent. He submits, adopting that report that:
“I would however like to bring to bring to your attention, the list of documents relied on by the Defendant/Appellant’s herein one being Medical Report dated 13th April 2022 by their preferred Doctor Kimathi Kioga.”
19. He then goes on to outline Dr. Kimathi’s findings on the respondent’s injuries. The said report is available in the record of appeal at pp 34-35.
20. This means that the learned trial magistrate’s remark that the appellants had not provided a medical report of their own and so he had no other report to rely upon other than that of Dr. Wokabi was not correct. He therefore proceeded to award the damages based on the wrong injuries. There is no doubt that a fracture of the left forearm, as captured in the discharge summaries from the two hospitals and the medical reprt f Dr. Kimathi Kioga presents different injuries from a fracture of the right forearm indicated in the medical report of Dr. Wokabi and for that reason. The medical report by Dr. Kimathi Kioga, being consistent with the two hspoital discharge documents would be the accurate one to rely upon.
21. Indeed, the respondent’s advocate in is submissions raised issues for determination and again interestingly one of them was “whether the learned trial Magistrate failed to appreciate the nature of the injuries suffered by the Plaintiff mainly a left hand radio ulna fracture without any complications..." thereby conceding that in fact the fracture was on the left forearm and not the right forearm as indicated by Dr. Wokabi and upon which the trial court based its assessment of damages. Consequently, I find that the fracture was on the left forearm.
22. At the trial the appellant proposed as general damages for pain suffering and loss of amenities an award of KShs 180,000/= based on the case of Patrisia Adhiambo Omolo (Supra) while the respondent proposed an award of KShs 1,200,000/= based on the case of Antony Mwondu Maina (supra).
23. The learned trial magistrate relied on the following authority in arriving at his assessment of damages of KShs 850,000/= awarded to the respondent:
a. Easy Coach Limited v Emily Nyangasi [2017] eKLR in which the respondent sustained facial injuries, injury to chest, injury to back, injury to right hand with cut wound and injury to right leg with cut wounds. The most serious injuries were on the right hand which healed with a 10 cm scar with keloid formation on the elbow, and on the right leg which was treated through grafting and healed with healed 18cm scar right thigh, 26 cm scar right leg, 28 cm scar right leg below the knee and 12 cm scar right foot with keloid formation. The High Court on appeal in 2017 sustained an award by the trial court of Kshs.700,000/= on general damages for pain and suffering and loss of amenities.
b. Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichubi [2005] eKLR. There were several Plaintiffs in the case. Each suffered various injuries and the High Court in 1998 made various awards for general damages as follows:
i. The First Plaintiff suffered injury on the left ankle, injuries on the legs and injuries on the chest. An award of KShs 300,000/= was made.
ii. The Second Plaintiff suffered injury on the back. An award of KShs 100,000/= was made.
iii. The Third Plaintiff suffered injuries, multiple soft tissue injuries, injury on the left elbow joint, and injuries on both ankles. An award of KShs 350,000/=.
iv. The Fourth Plaintiff suffered injury on the neck and had headache. An award of KShs 100,000/= was made.
24. The learned trial magistrate relied on the award made to the 3rd plaintiff. In both cases, the learned trial magistrate commended that the awards were made that much even though there were no fractures. He went further and remarked that apart from the injuries sustained by the plaintiff he also suffered a permanent disability of 8% meaning that the learned magistrate was dissociating the injuries from the incapacity and not considering the incapacity as being a consequence of the injuries.
Appellate court’s duty
25. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case cited by learned counsel for the respondent of Butt v Khan (1982 -1988) 1 KAR 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.”
26. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated 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.”
27. In the present case, the appeal is based on the ground that the amount awarded was so inordinately high that it represents an erroneous award.
28. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
29. It is a hallowed principle in assessment of general damages that similar injuries will attract similar 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.”
30. In the case of Michael Maina Gitonga v. Serah Njuguna [2012] eKLR, Ouko, J (as he then was) reiterated the principles to be borne in mind when assessing damages in personal injury claims as follows:
a. Assessment of damages is a matter of opinion and discretion and depends on the facts and circumstances of each case.
b. Money (an award) cannot renew a physical frame that has been battered and shattered. The award is only to give reasonable compensation.
c. Awards must be assessed with moderation.
d. It is desirable that so far as possible comparable injuries should be compensated with comparable awards.
e. In awarding damages fairness must be observed to both the Plaintiff and the Defendant as it is ultimately the taxpayers who have to pay, thereby injuring the body politic.
31. Similarly, in the case of John Kamore & another v. Simon Irungu Ngugi [2014] eKLR the High court adopted the lower court’s observations on the relevant factors considered in making awards thus:
“Normally courts consider the nature of injuries, the period of healing and whether the healing is full or partial, the residual incapacity if any, the inconvenience or deprivation encountered by the plaintiff, inflationary trends, cost of living and lapse of time from the time of any availed decided authorities.
The plaintiff is only entitled to what is fair, just and reasonable. Money cannot renew a physical frame that has been shattered and battered. Assessment must be done with moderation. The aim is not to enrich the plaintiff. It is not also the aim to punish the defendant.”
32. I have taken these factors into account in the assessment of damages herein.
Determination
33. I find that the whole approach adopted by the learned trial magistrate was erroneous for failing to follow the laid down principles on assessment of damages. The two cases he relied upon did not involve fracture of the radius and ulna of the left arm. He seemed to suggest that the percentage of permanent disability suffered should be considered as a separate issue from the injuries sustained and the case of Catherine Wanjiru Kingori & 3 others which was decided in 1998 is so outdated that I find it out of tune and incomparable to the present circumstances. The case of Emily Nyangasi involved far more serious injuries than in the present case. Similarly, the case of Antony Mwondu cited by learned counsel for the respondent at the trial involved far more serious injuries.
34. I find that the award made by the trial court was inordinately high and I am satisfied that this is a proper case to interfere with the trial court’s award.
35. The case of Patrisia Adhiambo Omolo which was cited by learned counsel for the appellant appears to me to present more comparable injuries and it is also more recent.
36. In an older case of Peris Mwikali Mutua v Peter Munyao Kimata [2008] eKLR the Respondent (Plaintiff in the lower court) sustained the following injuries:
a. marked pain and tenderness of the left hip joint;
b. marked swelling and severe tenderness of the left forearm;
c. bruises on the left forearm;
d. fracture of the ulna and radius (Colle’s fracture) of the left distal forearm.
The doctor who examined the Respondent noted that the injuries were serious and had left a significant permanent disability. The High Court on appeal sustained the lower court’s award of KShs. 450,000/= which the High Court found to be reasonable and fair in the circumstances of the case in 2008.
37. In a more recent case of Gogni Rajope Construction Company Limited v Francis Ojuok Olewe [2015] KEHC 8459 (KLR) the respondent sustained a fracture of the left distal radius and ulna and dislocation of the left elbow. On appeal, the High Court, Majanja, J. substituted the trial court’s award of KShs 800,000/= general damages for pain, suffering and loss of amenities with an award of KShs 350,000/= in 2015.
38. The Peris Mwikali Mutua case is much older and the award is more than twice the damages in the Patrisia Adhiambo Omolo case which is more recent yet the injuries are not so disparate. However, I find the award in the Patrisia Adhiambo case to be on the lower side for multiple fractures of the left arm. I find the Francis Ojuok Olewe case to be more recent, involves more comparable injuries to those sustained by the respondent in the present case and is a more appropriate guide.
39. Applying the principles on assessment of general damages for pain, loss and suffering and considering the injuries sustained by the respondent, I am satisfied that a sum of KShs 350,000/= would be adequate compensation.
40. Consequently, the award of the trial court is reduced from 850,000/= to KShs 350,000/= general damages for pain, suffering and loss of amenities. The rest of the awards will remain as made by the trial court.
41. Consequently, the decision by learned trial magistrate on assessment of general damages for pain, suffering and loss of amenities is hereby set aside and substituted with an award of KShs 350,000/=.
42. The appeal is successful to that extend.
43. Each party will bear its own costs.
44. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 9th day of June 2025 in the presence of:
Wambua for the appellants.
Githinji (Ms) Mwanzia for the respondent.
Job: Court assistant.
ANDAYI W. FRANCIS
JUDGE