(Being an appeal from the judgment and decree of Hon. Ireri (Mr), PM, in Magistrate’s Court at Baricho Civil Suit No. E076 of 2023 delivered on 6th March 2024)
Background
1. This appeal through the memorandum dated 3rd May 2024 is on both liability and quantum of damages. The appeal seeks to set aside the decree arising from a judgment of the trial court dated 6th March 2024 where the appellant was found fully liable for causing the accident and general damages for pain, suffering and loss of amenities assessed at KShs 2,000,000/=, loss of earning capacity KShs 600,000/=, future medical expenses KShs 300,000/= and special damages assessed at KShs 10,550/= making a total of KShs 2,910,550/=.
Grounds of appeal
2. The appellant was dissatisfied with the judgment of the trial court and has filed this appeal based on seven grounds all of which can be summarized into one, that he was aggrieved by the trial court’s finding on liability and assessment of damages. It is his position that he should not have been found wholly liable for the accident and that the general damages awarded for pain, suffering and loss of amenities and for future medical expenses were inordinately high and damages for loss of earning capacity should not have been assessed and awarded separately.
3. He therefore prays that the judgment and decree of the trial court be set aside and vacated and costs of the appeal be borne by the respondent.
Submissions
4. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent which are considered in the analysis following.
Duty of the appellate court
5. This is a first appeal. Learned counsels for both parties call upon this court to review the evidence before the trial court. Indeed, 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.
Case before the trial court
6. The parties adopted the “otherwise orders” mode of hearing their case as provided for hearing civil suits under Order 18 rule 2 of the Civil Procedure Rules which provides as follows:
2. Unless the court otherwise orders—
(1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence, and may then address the court generally on the case. (3) The party beginning may then reply.
7. So that a consent was recorded by the trial court on 10/11/2023 in the following terms:
“By consent:
i. Witness statement by plaintiff and defendant be adopted as their evidence.
ii. The plaintiff’s documents and defendant’s documents be admitted as exhibits.
iii. Parties file submissions on the issue of quantum.”
8. The method of disposal of the suit by way of adoption of witness statements and admission of documents without attendance of a witness is unconventional because under the conventional method, a witness would attend court if only to formally adopt the witness statement under oath and produce the documents listed as exhibits.
9. In Lehmann’s (East Africa) Ltd vs. R Lehmann & Co. Ltd [1973] EA 167 it was held that:
“The supposed short-cuts in procedure almost always confuse and obscure the true issues and almost always result in prolonged litigation and unsatisfactory decision. However, if the parties to a civil suit agree to adopt a certain procedure and the judge, however wrongly permits such a course, then there is little that a Court of Appeal can do other than seek to make the best of an unsatisfactory position.”
Liability
10. The finding in the foregoing case has relevant application to the present case because further to the parties adopting the unconventional method of disposal of their case, they also agreed that Civil Suit No. E075 of 2023 be adopted as the test suit for purposes of determination on liability and the determination in that suit to apply in the present suit. The trial court in its judgment remarked that it had already found the defendant (appellant herein) 100% liable for the accident in the said suit and that judgment on liability applied and was adopted in the suit leading to the present appeal.
11. Both learned counsels in their respective submissions acknowledge that there was a civil suit No. E075 of 2023 and that judgment on liability was entered therein where the appellant was found 100% liable for the accident that caused the respondent to suffer injuries. Learned counsel for the respondent has gone further to submit that the appeal against the judgment in Civil Suit No. E075 of 2023 was filed as Civil Appeal No. E045 of 2024. He therefore submits that the only issue for determination in the primary suit subject to this appeal was the issue of quantum. Learned counsel has however not indicated whether Civil Appeal No. E045 of 2024 has been disposed of or not. Whether that is out of convenience or inadvertence, I cannot tell.
12. Yet the appellant herein wishes this court to overturn the trial court finding on liability determined in a different suit, Civil Suit No. E075 of 2023 in this appeal and his learned counsel has quite ably submitted herein on that issue. Learned counsel for the appellant has not in his submissions indicated that Civil Appeal No. E045 of 2024 is pending. Would he now wish this court to make a different finding on liability from that made in Civil Appeal No. E045 of 2024? That cannot be because the judgment in the primary suit is not before this court on appeal. This court can only follow the judgment made by the appellate court in that appeal. This court will therefore not consider the issue of liability.
Quantum of damages
13. The respondent pleaded the following injuries in his plaint dated 24/4/2023:
i. Fracture of the pelvis with a severe urethral injury.
ii. Cut wound on the left upper arm.
iii. Cut wound on the scalp occipital and parietal areas.
iv. Erectile dysfunction due to urethral injury.
v. Loss of consciousness for a brief period.
vi. Soft tissue injuries of the chest and abdomen.
14. There were two medical reports. The report by Dr. Kenneth W. Munyi dated 15/5/2023 reflects the above injuries pleaded in the plaint. Dr. Munyi estimated the permanent incapacity at 40% and future medical expenses at KShs 100,000/= for medication and KShs 500,000/= for physiotherapy, psychotherapy and doctor visits.
15. The report by Dr. Michelle Muhanda dated 31/8/2023 about three and a half months after the initial reports captures the above injuries. Dr. Muhanda’s opinion and prognosis was that the injuries sustained were:
i. Soft tissue injuries of the chest and abdomen.
ii. Fracture of the pelvis with a severe urethral injury.
iii. Cut wound on the left upper arm and on the scalp at the occipital and parietal areas.
iv. Erectile dysfunction due to urethral injury.
The doctor observed further that the sustained urethral injury was the cause of the respondent’s anxiety and post-traumatic stress. She estimated the degree of permanent incapacity at 10% and estimated cost of future medical attention at 85,000/= which would cover urologists reviews for the supra pubic catheter and urethral injury.
16. The injuries indicated by the two doctors are more or less similar. Disparities occur in their estimations of the degree of permanent incapacity and cost of future medical attention.
17. At the trial the appellant proposed as general damages for pain suffering and loss of amenities an award of KShs 400,000/= based on the cases of:
i. In Jitan Nagra v Abidnego Nyandusi Oigo [2018] KEHC 3078 (KLR) where the respondent was awarded a sum of Kshs. 450,000/= in general damages for lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound, fracture of the right tibia/fibula, segmental distal fracture of the right femur.
ii. Akamba Public Road Services v Abdikadir Adan Galgalo [2016] KEHC 2339 (KLR) the Respondent sustained a fracture right tibia leg bone malleolus and right fibular bone and a blunt injury to the right ankle. In his prognosis, Dr Ajoni Adede stated that the Respondent had a permanent partial disability of the right tibia and fibula due to fracture, fracture site weak point, post fracture arthritis and pain. He estimated the permanent partial disability at three (3%) per cent. It was his opinion that the soft tissue injuries would leave no residual disability. The Appellate Court reversed the quantum issued by the trial Magistrate from Kshs. 800,000/= to Kshs. 500,000/=.
iii. Akemo Valley Hospital and Maternity v Napoleon Mecha Ogaki [2019] KEHC 8402 (KLR) where the respondent sustained a cut wound on the right forehead, bruises on the right and left hand, contusion on the left elbow and a segmented fracture on the right leg. The High Court on appeal set aside the award of Kshs. 700,000/- and substituted it with an award of Kshs. 400,000/- as general damages subject to the agreed contribution of 70:30.
18. in the trial court the appellant proposed an award of KShs 3,000,000/= general damages for pain, suffering and loss of amenities and relied on the following cases:
i. Christine Mwigina Akonya v Samuel Kairu Chege [2017] KEHC 1484 (KLR) where the plaintiff, who sustained a fracture of the right femur, fracture of the 3rd to 6th ribs, pain in the right side of the chest and the right thigh and persistent pain in the right knee, was awarded Kshs.4,000,000 as general damages.
ii. Penina Waithira Kaburu v LP [2019] KEHC 10833 (KLR) where the respondent sustained multiple fractures of the pelvis including bilateral superior and inferior pubic rami and rapture of the urethra. His doctor went further to warn that besides the recurrence of the stricture and the need for an operation, the respondent was also exposed to the danger of impotence. The High Court on appeal sustained an award of KShs 2,000,000/= awarded by the trial court.
Appellate court’s duty on assessment of damages
19. The issue is whether the award by the trial court of KShs 2,000,000/= general damages for pain, suffering and loss of amenities was inordinately high as submitted by learned counsel for the appellant.
20. I am aware that assessment of damages is at the discretion of the trial court which an appellate court should not lightly disturb as was held in the case of Butt v Khan (1982 -1988) 1 KAR 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.”
21. 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.”
22. 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.
23. 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.”
24. 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:
i. Assessment of damages is a matter of opinion and discretion and depends on the facts and circumstances of each case.
ii. Money (an award) cannot renew a physical frame that has been battered and shattered. The award is only to give reasonable compensation.
iii. Awards must be assessed with moderation.
iv. It is desirable that so far as possible comparable injuries should be compensated with comparable awards.
v. 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.
25. I have considered the judgement of the trial court. The trial court evaluated the rival submissions and held that an award of Kshs.2,000,000/= was adequate compensation for the respondent as general damages for pain, suffering and loss of amenities. The learned trial magistrate was guided by the case of Penina Waithira Kaburu (supra) cited by learned counsel for the respondent which I am satisfied had comparable injuries. All the decisions cited by the appellant including the second case cited by counsel for the respondent did not contain injuries comparable to those sustained by the respondent herein notably fracture of the pelvis with severe urethral injury leading to erectile dysfunction. I am therefore in agreement with the assessment of damages by the trial court. The assessment is not based on the wrong principles of law relating to assessment of damages and it is also not so inordinately high as to represent an erroneous award. It is in line with similar awards for comparable injuries.
26. On the award of loss of earning capacity learned counsel for the appellant submits that the same falls in the category of special damages and should be specifically pleaded and strictly proved. That submission is not correct. However, I see that learned counsel was mixing up the heads of damages for loss of earning capacity and loss of future earnings. The respondent pleaded for loss of earning capacity which falls under the head of general damages. The two decisions of Mumias Sugar Company Limited v Francis Wanalo [2007] KECA 485 (KLR) and S J v Francesco Di Nello & another [2015] KECA 606 (KLR) cited by learned counsel for the respondent before the trial court are quite clear on that issue.
27. The learned trial magistrate was therefore in order to assess the damages for loss of earning capacity separately as general damages and I do not find the award to be so inordinately high as to attract this court’s interference. He relied on the Mumias Sugar Company Limited case above where a sum of KShs 500,000/= was awarded under that head. The award will therefore, remain as made by the trial court.
28. On the award for future medical expenses, the latest medical report was by Dr. Michelle Muhanda who recommended a sum of KShs 85,000/= for follow up treatment to cover urologists review for the supra pubic catheter and urethral injury. I agree with learned counsel for the respondent that the doctor did not factor in management of the respondent’s anxiety and post-traumatic stress caused by the urethral injury. No doubt this was a condition that was going to last for long if not have permanent effect on the respondent. In his assessment of future medical expenses Dr. Munyi had indicated physiotherapy, psychotherapy and Dr. visits which Dr. Muhanda did not. Given that the latest medical examination showed that the respondent was assessed to be in fair medical condition with most systems functioning normally and permanent incapacity assessed at 10%, with guidance from the two doctors’ reports, I would estimate future medical expenses at 150,000/=. I am therefore constrained to interfere with the award for future medical expenses. The trial court award is accordingly set aside and substituted with this sum.
Determination
29. In the final analysis, the appeal on liability will follow the outcome in High Court Civil Appeal No. E045 of 2024. The appeal on assessment of general damages for pain, suffering and loss of amenities and loss of earning capacity is found to lack merit and is hereby dismissed. The appeal on assessment of damages for future medical expenses is allowed and the sum awarded is revised from KShs 300,000/= to KShs 150,000/= and special damages remain as awarded by the trial court.
30. In summary, the awards now due to the respondent but subject to the outcome on liability in High Court Civil Appeal No. E045 of 2024 are:
(i) General damages for pain, suffering and loss of amenities KShs 2,000,000/=.
(ii) General damages for loss of earning capacity KShs 600,000/=.
(iii) Future medical expenses KShs 150,000/=.
(iv) Special damages KShs 10,550/=.
Total KShs 2,760,550/=.
31. Costs of the appeal are awarded to the respondent.
32. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 13th day of August 2025 in the presence of:
Mwangi (Ms) for the appellant.
Lumumba (Ms) h/b for Mwangi the respondent.
Job: Court assistant.
Background
1. This appeal through the memorandum dated 3rd May 2024 is on both liability and quantum of damages. The appeal seeks to set aside the decree arising from a judgment of the trial court dated 6th March 2024 where the appellant was found fully liable for causing the accident and general damages for pain, suffering and loss of amenities assessed at KShs 2,000,000/=, loss of earning capacity KShs 600,000/=, future medical expenses KShs 300,000/= and special damages assessed at KShs 10,550/= making a total of KShs 2,910,550/=.
Grounds of appeal
2. The appellant was dissatisfied with the judgment of the trial court and has filed this appeal based on seven grounds all of which can be summarized into one, that he was aggrieved by the trial court’s finding on liability and assessment of damages. It is his position that he should not have been found wholly liable for the accident and that the general damages awarded for pain, suffering and loss of amenities and for future medical expenses were inordinately high and damages for loss of earning capacity should not have been assessed and awarded separately.
3. He therefore prays that the judgment and decree of the trial court be set aside and vacated and costs of the appeal be borne by the respondent.
Submissions
4. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent which are considered in the analysis following.
Duty of the appellate court
5. This is a first appeal. Learned counsels for both parties call upon this court to review the evidence before the trial court. Indeed, 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.
Case before the trial court
6. The parties adopted the “otherwise orders” mode of hearing their case as provided for hearing civil suits under Order 18 rule 2 of the Civil Procedure Rules which provides as follows:
2. Unless the court otherwise orders—
(1) On the day fixed for the hearing of the suit, or on any other day to which the hearing is adjourned, the party having the right to begin shall state his case and produce his evidence in support of the issues which he is bound to prove.
(2) The other party shall then state his case and produce his evidence, and may then address the court generally on the case. (3) The party beginning may then reply.
7. So that a consent was recorded by the trial court on 10/11/2023 in the following terms:
“By consent:
i. Witness statement by plaintiff and defendant be adopted as their evidence.
ii. The plaintiff’s documents and defendant’s documents be admitted as exhibits.
iii. Parties file submissions on the issue of quantum.”
8. The method of disposal of the suit by way of adoption of witness statements and admission of documents without attendance of a witness is unconventional because under the conventional method, a witness would attend court if only to formally adopt the witness statement under oath and produce the documents listed as exhibits.
9. In Lehmann’s (East Africa) Ltd vs. R Lehmann & Co. Ltd [1973] EA 167 it was held that:
“The supposed short-cuts in procedure almost always confuse and obscure the true issues and almost always result in prolonged litigation and unsatisfactory decision. However, if the parties to a civil suit agree to adopt a certain procedure and the judge, however wrongly permits such a course, then there is little that a Court of Appeal can do other than seek to make the best of an unsatisfactory position.”
Liability
10. The finding in the foregoing case has relevant application to the present case because further to the parties adopting the unconventional method of disposal of their case, they also agreed that Civil Suit No. E075 of 2023 be adopted as the test suit for purposes of determination on liability and the determination in that suit to apply in the present suit. The trial court in its judgment remarked that it had already found the defendant (appellant herein) 100% liable for the accident in the said suit and that judgment on liability applied and was adopted in the suit leading to the present appeal.
11. Both learned counsels in their respective submissions acknowledge that there was a civil suit No. E075 of 2023 and that judgment on liability was entered therein where the appellant was found 100% liable for the accident that caused the respondent to suffer injuries. Learned counsel for the respondent has gone further to submit that the appeal against the judgment in Civil Suit No. E075 of 2023 was filed as Civil Appeal No. E045 of 2024. He therefore submits that the only issue for determination in the primary suit subject to this appeal was the issue of quantum. Learned counsel has however not indicated whether Civil Appeal No. E045 of 2024 has been disposed of or not. Whether that is out of convenience or inadvertence, I cannot tell.
12. Yet the appellant herein wishes this court to overturn the trial court finding on liability determined in a different suit, Civil Suit No. E075 of 2023 in this appeal and his learned counsel has quite ably submitted herein on that issue. Learned counsel for the appellant has not in his submissions indicated that Civil Appeal No. E045 of 2024 is pending. Would he now wish this court to make a different finding on liability from that made in Civil Appeal No. E045 of 2024? That cannot be because the judgment in the primary suit is not before this court on appeal. This court can only follow the judgment made by the appellate court in that appeal. This court will therefore not consider the issue of liability.
Quantum of damages
13. The respondent pleaded the following injuries in his plaint dated 24/4/2023:
i. Fracture of the pelvis with a severe urethral injury.
ii. Cut wound on the left upper arm.
iii. Cut wound on the scalp occipital and parietal areas.
iv. Erectile dysfunction due to urethral injury.
v. Loss of consciousness for a brief period.
vi. Soft tissue injuries of the chest and abdomen.
14. There were two medical reports. The report by Dr. Kenneth W. Munyi dated 15/5/2023 reflects the above injuries pleaded in the plaint. Dr. Munyi estimated the permanent incapacity at 40% and future medical expenses at KShs 100,000/= for medication and KShs 500,000/= for physiotherapy, psychotherapy and doctor visits.
15. The report by Dr. Michelle Muhanda dated 31/8/2023 about three and a half months after the initial reports captures the above injuries. Dr. Muhanda’s opinion and prognosis was that the injuries sustained were:
i. Soft tissue injuries of the chest and abdomen.
ii. Fracture of the pelvis with a severe urethral injury.
iii. Cut wound on the left upper arm and on the scalp at the occipital and parietal areas.
iv. Erectile dysfunction due to urethral injury.
The doctor observed further that the sustained urethral injury was the cause of the respondent’s anxiety and post-traumatic stress. She estimated the degree of permanent incapacity at 10% and estimated cost of future medical attention at 85,000/= which would cover urologists reviews for the supra pubic catheter and urethral injury.
16. The injuries indicated by the two doctors are more or less similar. Disparities occur in their estimations of the degree of permanent incapacity and cost of future medical attention.
17. At the trial the appellant proposed as general damages for pain suffering and loss of amenities an award of KShs 400,000/= based on the cases of:
i. In Jitan Nagra v Abidnego Nyandusi Oigo [2018] KEHC 3078 (KLR) where the respondent was awarded a sum of Kshs. 450,000/= in general damages for lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound, fracture of the right tibia/fibula, segmental distal fracture of the right femur.
ii. Akamba Public Road Services v Abdikadir Adan Galgalo [2016] KEHC 2339 (KLR) the Respondent sustained a fracture right tibia leg bone malleolus and right fibular bone and a blunt injury to the right ankle. In his prognosis, Dr Ajoni Adede stated that the Respondent had a permanent partial disability of the right tibia and fibula due to fracture, fracture site weak point, post fracture arthritis and pain. He estimated the permanent partial disability at three (3%) per cent. It was his opinion that the soft tissue injuries would leave no residual disability. The Appellate Court reversed the quantum issued by the trial Magistrate from Kshs. 800,000/= to Kshs. 500,000/=.
iii. Akemo Valley Hospital and Maternity v Napoleon Mecha Ogaki [2019] KEHC 8402 (KLR) where the respondent sustained a cut wound on the right forehead, bruises on the right and left hand, contusion on the left elbow and a segmented fracture on the right leg. The High Court on appeal set aside the award of Kshs. 700,000/- and substituted it with an award of Kshs. 400,000/- as general damages subject to the agreed contribution of 70:30.
18. in the trial court the appellant proposed an award of KShs 3,000,000/= general damages for pain, suffering and loss of amenities and relied on the following cases:
i. Christine Mwigina Akonya v Samuel Kairu Chege [2017] KEHC 1484 (KLR) where the plaintiff, who sustained a fracture of the right femur, fracture of the 3rd to 6th ribs, pain in the right side of the chest and the right thigh and persistent pain in the right knee, was awarded Kshs.4,000,000 as general damages.
ii. Penina Waithira Kaburu v LP [2019] KEHC 10833 (KLR) where the respondent sustained multiple fractures of the pelvis including bilateral superior and inferior pubic rami and rapture of the urethra. His doctor went further to warn that besides the recurrence of the stricture and the need for an operation, the respondent was also exposed to the danger of impotence. The High Court on appeal sustained an award of KShs 2,000,000/= awarded by the trial court.
Appellate court’s duty on assessment of damages
19. The issue is whether the award by the trial court of KShs 2,000,000/= general damages for pain, suffering and loss of amenities was inordinately high as submitted by learned counsel for the appellant.
20. I am aware that assessment of damages is at the discretion of the trial court which an appellate court should not lightly disturb as was held in the case of Butt v Khan (1982 -1988) 1 KAR 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.”
21. 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.”
22. 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.
23. 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.”
24. 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:
i. Assessment of damages is a matter of opinion and discretion and depends on the facts and circumstances of each case.
ii. Money (an award) cannot renew a physical frame that has been battered and shattered. The award is only to give reasonable compensation.
iii. Awards must be assessed with moderation.
iv. It is desirable that so far as possible comparable injuries should be compensated with comparable awards.
v. 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.
25. I have considered the judgement of the trial court. The trial court evaluated the rival submissions and held that an award of Kshs.2,000,000/= was adequate compensation for the respondent as general damages for pain, suffering and loss of amenities. The learned trial magistrate was guided by the case of Penina Waithira Kaburu (supra) cited by learned counsel for the respondent which I am satisfied had comparable injuries. All the decisions cited by the appellant including the second case cited by counsel for the respondent did not contain injuries comparable to those sustained by the respondent herein notably fracture of the pelvis with severe urethral injury leading to erectile dysfunction. I am therefore in agreement with the assessment of damages by the trial court. The assessment is not based on the wrong principles of law relating to assessment of damages and it is also not so inordinately high as to represent an erroneous award. It is in line with similar awards for comparable injuries.
26. On the award of loss of earning capacity learned counsel for the appellant submits that the same falls in the category of special damages and should be specifically pleaded and strictly proved. That submission is not correct. However, I see that learned counsel was mixing up the heads of damages for loss of earning capacity and loss of future earnings. The respondent pleaded for loss of earning capacity which falls under the head of general damages. The two decisions of Mumias Sugar Company Limited v Francis Wanalo [2007] KECA 485 (KLR) and S J v Francesco Di Nello & another [2015] KECA 606 (KLR) cited by learned counsel for the respondent before the trial court are quite clear on that issue.
27. The learned trial magistrate was therefore in order to assess the damages for loss of earning capacity separately as general damages and I do not find the award to be so inordinately high as to attract this court’s interference. He relied on the Mumias Sugar Company Limited case above where a sum of KShs 500,000/= was awarded under that head. The award will therefore, remain as made by the trial court.
28. On the award for future medical expenses, the latest medical report was by Dr. Michelle Muhanda who recommended a sum of KShs 85,000/= for follow up treatment to cover urologists review for the supra pubic catheter and urethral injury. I agree with learned counsel for the respondent that the doctor did not factor in management of the respondent’s anxiety and post-traumatic stress caused by the urethral injury. No doubt this was a condition that was going to last for long if not have permanent effect on the respondent. In his assessment of future medical expenses Dr. Munyi had indicated physiotherapy, psychotherapy and Dr. visits which Dr. Muhanda did not. Given that the latest medical examination showed that the respondent was assessed to be in fair medical condition with most systems functioning normally and permanent incapacity assessed at 10%, with guidance from the two doctors’ reports, I would estimate future medical expenses at 150,000/=. I am therefore constrained to interfere with the award for future medical expenses. The trial court award is accordingly set aside and substituted with this sum.
Determination
29. In the final analysis, the appeal on liability will follow the outcome in High Court Civil Appeal No. E045 of 2024. The appeal on assessment of general damages for pain, suffering and loss of amenities and loss of earning capacity is found to lack merit and is hereby dismissed. The appeal on assessment of damages for future medical expenses is allowed and the sum awarded is revised from KShs 300,000/= to KShs 150,000/= and special damages remain as awarded by the trial court.
30. In summary, the awards now due to the respondent but subject to the outcome on liability in High Court Civil Appeal No. E045 of 2024 are:
(i) General damages for pain, suffering and loss of amenities KShs 2,000,000/=.
(ii) General damages for loss of earning capacity KShs 600,000/=.
(iii) Future medical expenses KShs 150,000/=.
(iv) Special damages KShs 10,550/=.
Total KShs 2,760,550/=.
31. Costs of the appeal are awarded to the respondent.
32. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 13th day of August 2025 in the presence of:
Mwangi (Ms) for the appellant.
Lumumba (Ms) h/b for Mwangi the respondent.
Job: Court assistant.