'(Being an appeal from the judgment and decree of Hon. D. O. Mbeja (SRM) in Milimani Magistrates Court Civil Suit No. E1737 of 2019 delivered on 4th November 2020)
1. This appeal filed through the memorandum amended on 14th March 2024 seeks to set aside the decree of the learned trial magistrate arising from a judgment dated 4th November 2020 on both liability and assessment of damages. However, submissions were based only on the assessment of quantum of damages.
2. The respondent sued the appellant through a plaint dated 1st March 2019 claiming general and special damages for injuries arising out of a road traffic accident which occurred on 9th April 2017 along Nairobi-Thika Superhighway at Kenyatta road area. The respondent’s case before the trial court was that she was a lawful passenger in the appellant’s motor vehicle registration number KCF 081B when the vehicle was so negligently driven and/or managed that it left its lane and landed in a ditch thereby causing the accident. As a result, the respondent sustained the following injuries as a result of which she has suffered loss and damage:
a. Blunt injury – scalp.
b. Blunt injury – chest.
c. Bruise – left leg.
3. Upon considering the evidence, the submissions and authorities tendered by the parties the learned trial magistrate found the appellant was 100% liable for the accident and awarded the respondent a sum of KShs 350,000/= as general damages for pain, suffering and loss of amenities.
4. The appellant was dissatisfied with the judgment and has filed this appeal based on several listed grounds but which can be summed into one, that the learned trial magistrate erred by finding the appellant wholly liable for the accident and awarding the respondent an inordinately high amount of general damages for pain and suffering for the injuries sustained.
5. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent.
6. In his submissions, learned counsel for the appellant said he would sum up his grounds of appeal into one, that of quantum. That means he abandoned the grounds contesting the findings on liability.
7. Learned counsel for the appellant submits that the general damages awarded were KShs 300,000/= but the correct position is that the trial court awarded KShs 350,000/= general damages for pain, suffering and loss of amenities.
8. The appellant’s submissions in this case reiterate his grounds of appeal that the damages are inordinately high while the submissions by the respondent support the trial court’s award as being fair compensation for the respondent’s injuries.
9. Learned counsel for the respondent submits first that the appeal is incompetent because the record of appeal lacks essential documents namely submissions, proceedings and the decree and the appellant has not offered any explanation why. For that reason, it should be struck out. Learned counsel cites the case of Jayantkumar Vrajlal Shah & another v Midco Holdings Limited & another [2003] KECA 135 (KLR) to support that submission.
10. Learned counsel for the respondent submits further that at the trial, they had proposed an award of KShs 400,000/= and therefore the award of KShs 350,000/= was modest and reasonable and this court should not interfere with it.
11. This is a first appeal. The duty of this court is to consider, re-evaluate, re-analyze 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. There is no dispute on the injuries sustained by the respondent. They were as set out above. The respondent proposed an award of KShs 400,000/= as general damages before the trial court. There is no indication that the appellant made any proposal to that effect.
14. The learned trial magistrate relied on the case of Francis Ochieng & another v Alice Kajimba [2015] KEHC 4703 (KLR) cited by learned counsel for the respondent (plaintiff at the trial) in arriving at his assessment of damages of KShs 350,000/= awarded to the respondent.
15. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturb the same as was held in the case 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.”
16. 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.”
17. 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.
18. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided cases 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.”
19. In this appeal, learned counsel for the appellant now proposes an award of KShs 100,000/=but ends his submissions with different proposal of KShs 80,000/= general damages for pain, suffering and loss of amenities. He has cited the following cases to support that proposal:
a. Civil Appeal No. 54 of 2016: Ndung’u Dennis v Ann Wangari Ndirangu & another (2018) eKLR where the Respondent suffered bruises on the neck, tenderness on the right leg, blunt injury to the chest and both hands, back and chest pains. The trial court awarded KShs. 300,000/= which was reduced to KShs 100,000/= on appeal.
b. HB (Minor suing through mother & next friend DKM) vs. Jasper Nchonga Magari & another [2021] eKLR, the appellant sustained blunt object injury to the head and neck, thorax, abdomen and limbs. On routine examination, Dr. Adede opined that the injuries suffered amounted to soft tissue injuries. The High Court on appeal sustained the award of KShs 60,000/= general damages for pain, suffering, and loss of amenities in 2021.
20. On the respondent’s part, learned counsel relies on the cases of Charles Gichuki v Emily Kawira Mbuba & another (2018) eKLR, where the respondent suffered a blunt injury (tender) on the right side of the face, a blunt injury (tender) on the shoulders, a blunt injury (tender) on the chest and a blunt injury (tender) to the left thigh. Sergon J. substituted the trial court’s award of Kshs 400,000/= with Kshs 300,000/= and Francis Ochieng & another v Alice Kajimba [2015] KEHC 4703 (KLR).
21. The trial court relied on the case of Francis Ochieng & another v Alice Kajimba [2015] KEHC 4703 (KLR) where the High Court on appeal reviewed the medical documents relied upon by the respondent to support her case on the injuries sustained and particularly the respondent’s contention that she had lost seven teeth in the accident. The High Court found that the discharge summary from St. Joseph’s Mission Hospital, Migori showed that the respondent was scanned for head injury and that she had headache, back pain and bleeding from the left ear. When she was taken to Aga Khan Hospital, Kisumu, the external transfer form dated 17th January 2013 showed that she had a mild head injury with bilateral temporo–parietal scalp heamatoma. The discharge form from Milimani Maternity Hospital showed that the respondent sustained head injuries, sub-conjuctival haemorrhage and periorbital sccymosis on both eyes. It showed further that she was admitted on 17th January 2013 and discharged on 23rd January 2013. The High Court set aside the award of KShs 500,000/= made by the subordinate court in respect of general damages and substituted it with an award of Kshs. 350,000/- in 2015.
22. It is apparent that in that case involved far more serious injuries than those sustained by the respondent herein. The respondent was admitted to various hospitals for a considerable periods of time for the management of her injuries unlike in the present case.
23. 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. 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.
24. I have considered all the decisions cited by learned counsels for both parties and the award made by the trial court. I find that the injuries sustained in the case of Ndung’u Dennis v Ann Wangari Ndirangu & another (2018) eKLR above cited by learned counsel for the appellant are fairly comparable to those sustained by the respondent herein. I note that the case was decided some seven years back.
25. Besides the cases cited by learned counsels I have looked up the case of Amref Health Africa v Obadha [2024] KEHC 14210 (KLR) where the respondent sustained injuries nearly similar to those in the present case as follows: a. tenderness on the neck with stiffness. b. tenderness on the chest. c. minor bruises on the upper limb. d. swollen right elbow with tenderness. e. tenderness on the lower limbs. The High Court in 2024 sustained an award of KShs 200,000/= awarded by the lower court.
26. Taking into account the incidence of inflation, effluxion of time and other relevant factors, I find that an award of KShs 150,000/= would be adequate compensation for the respondent for pain, suffering and loss of amenities.
27. Consequently, the award of KShs 350,000/= made by the lower court is set aside and substituted with an award of KShs 150,000/= general damages for pain, suffering and loss of amenities. The rest of the awards will remain as made by the trial court.
28. 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 150,000/=.
29. The appeal is successful to that extend.
30. Each party will bear its own costs.
31. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the virtual platform, Teams this 18th day of November 2025 in the presence of:
N/A for the appellant.
Ndiege (Ms) h/b for Waiganjo for the respondent.
Ummu h/b for Amina: Court assistant.
'
1. This appeal filed through the memorandum amended on 14th March 2024 seeks to set aside the decree of the learned trial magistrate arising from a judgment dated 4th November 2020 on both liability and assessment of damages. However, submissions were based only on the assessment of quantum of damages.
2. The respondent sued the appellant through a plaint dated 1st March 2019 claiming general and special damages for injuries arising out of a road traffic accident which occurred on 9th April 2017 along Nairobi-Thika Superhighway at Kenyatta road area. The respondent’s case before the trial court was that she was a lawful passenger in the appellant’s motor vehicle registration number KCF 081B when the vehicle was so negligently driven and/or managed that it left its lane and landed in a ditch thereby causing the accident. As a result, the respondent sustained the following injuries as a result of which she has suffered loss and damage:
a. Blunt injury – scalp.
b. Blunt injury – chest.
c. Bruise – left leg.
3. Upon considering the evidence, the submissions and authorities tendered by the parties the learned trial magistrate found the appellant was 100% liable for the accident and awarded the respondent a sum of KShs 350,000/= as general damages for pain, suffering and loss of amenities.
4. The appellant was dissatisfied with the judgment and has filed this appeal based on several listed grounds but which can be summed into one, that the learned trial magistrate erred by finding the appellant wholly liable for the accident and awarding the respondent an inordinately high amount of general damages for pain and suffering for the injuries sustained.
5. The appeal was disposed of by way of written submissions filed by learned counsels for the appellant and the respondent.
6. In his submissions, learned counsel for the appellant said he would sum up his grounds of appeal into one, that of quantum. That means he abandoned the grounds contesting the findings on liability.
7. Learned counsel for the appellant submits that the general damages awarded were KShs 300,000/= but the correct position is that the trial court awarded KShs 350,000/= general damages for pain, suffering and loss of amenities.
8. The appellant’s submissions in this case reiterate his grounds of appeal that the damages are inordinately high while the submissions by the respondent support the trial court’s award as being fair compensation for the respondent’s injuries.
9. Learned counsel for the respondent submits first that the appeal is incompetent because the record of appeal lacks essential documents namely submissions, proceedings and the decree and the appellant has not offered any explanation why. For that reason, it should be struck out. Learned counsel cites the case of Jayantkumar Vrajlal Shah & another v Midco Holdings Limited & another [2003] KECA 135 (KLR) to support that submission.
10. Learned counsel for the respondent submits further that at the trial, they had proposed an award of KShs 400,000/= and therefore the award of KShs 350,000/= was modest and reasonable and this court should not interfere with it.
11. This is a first appeal. The duty of this court is to consider, re-evaluate, re-analyze 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. There is no dispute on the injuries sustained by the respondent. They were as set out above. The respondent proposed an award of KShs 400,000/= as general damages before the trial court. There is no indication that the appellant made any proposal to that effect.
14. The learned trial magistrate relied on the case of Francis Ochieng & another v Alice Kajimba [2015] KEHC 4703 (KLR) cited by learned counsel for the respondent (plaintiff at the trial) in arriving at his assessment of damages of KShs 350,000/= awarded to the respondent.
15. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturb the same as was held in the case 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.”
16. 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.”
17. 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.
18. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided cases 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.”
19. In this appeal, learned counsel for the appellant now proposes an award of KShs 100,000/=but ends his submissions with different proposal of KShs 80,000/= general damages for pain, suffering and loss of amenities. He has cited the following cases to support that proposal:
a. Civil Appeal No. 54 of 2016: Ndung’u Dennis v Ann Wangari Ndirangu & another (2018) eKLR where the Respondent suffered bruises on the neck, tenderness on the right leg, blunt injury to the chest and both hands, back and chest pains. The trial court awarded KShs. 300,000/= which was reduced to KShs 100,000/= on appeal.
b. HB (Minor suing through mother & next friend DKM) vs. Jasper Nchonga Magari & another [2021] eKLR, the appellant sustained blunt object injury to the head and neck, thorax, abdomen and limbs. On routine examination, Dr. Adede opined that the injuries suffered amounted to soft tissue injuries. The High Court on appeal sustained the award of KShs 60,000/= general damages for pain, suffering, and loss of amenities in 2021.
20. On the respondent’s part, learned counsel relies on the cases of Charles Gichuki v Emily Kawira Mbuba & another (2018) eKLR, where the respondent suffered a blunt injury (tender) on the right side of the face, a blunt injury (tender) on the shoulders, a blunt injury (tender) on the chest and a blunt injury (tender) to the left thigh. Sergon J. substituted the trial court’s award of Kshs 400,000/= with Kshs 300,000/= and Francis Ochieng & another v Alice Kajimba [2015] KEHC 4703 (KLR).
21. The trial court relied on the case of Francis Ochieng & another v Alice Kajimba [2015] KEHC 4703 (KLR) where the High Court on appeal reviewed the medical documents relied upon by the respondent to support her case on the injuries sustained and particularly the respondent’s contention that she had lost seven teeth in the accident. The High Court found that the discharge summary from St. Joseph’s Mission Hospital, Migori showed that the respondent was scanned for head injury and that she had headache, back pain and bleeding from the left ear. When she was taken to Aga Khan Hospital, Kisumu, the external transfer form dated 17th January 2013 showed that she had a mild head injury with bilateral temporo–parietal scalp heamatoma. The discharge form from Milimani Maternity Hospital showed that the respondent sustained head injuries, sub-conjuctival haemorrhage and periorbital sccymosis on both eyes. It showed further that she was admitted on 17th January 2013 and discharged on 23rd January 2013. The High Court set aside the award of KShs 500,000/= made by the subordinate court in respect of general damages and substituted it with an award of Kshs. 350,000/- in 2015.
22. It is apparent that in that case involved far more serious injuries than those sustained by the respondent herein. The respondent was admitted to various hospitals for a considerable periods of time for the management of her injuries unlike in the present case.
23. 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. 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.
24. I have considered all the decisions cited by learned counsels for both parties and the award made by the trial court. I find that the injuries sustained in the case of Ndung’u Dennis v Ann Wangari Ndirangu & another (2018) eKLR above cited by learned counsel for the appellant are fairly comparable to those sustained by the respondent herein. I note that the case was decided some seven years back.
25. Besides the cases cited by learned counsels I have looked up the case of Amref Health Africa v Obadha [2024] KEHC 14210 (KLR) where the respondent sustained injuries nearly similar to those in the present case as follows: a. tenderness on the neck with stiffness. b. tenderness on the chest. c. minor bruises on the upper limb. d. swollen right elbow with tenderness. e. tenderness on the lower limbs. The High Court in 2024 sustained an award of KShs 200,000/= awarded by the lower court.
26. Taking into account the incidence of inflation, effluxion of time and other relevant factors, I find that an award of KShs 150,000/= would be adequate compensation for the respondent for pain, suffering and loss of amenities.
27. Consequently, the award of KShs 350,000/= made by the lower court is set aside and substituted with an award of KShs 150,000/= general damages for pain, suffering and loss of amenities. The rest of the awards will remain as made by the trial court.
28. 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 150,000/=.
29. The appeal is successful to that extend.
30. Each party will bear its own costs.
31. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the virtual platform, Teams this 18th day of November 2025 in the presence of:
N/A for the appellant.
Ndiege (Ms) h/b for Waiganjo for the respondent.
Ummu h/b for Amina: Court assistant.
'