(Being an appeal from the judgment and decree of Hon. S.N. ABUYA (C.M) delivered on 11/11/2025 in the Trial Court File No. KISII CMCC NO EO64/2025)
Background of the appeal
1. This appeal emanates from the judgment delivered on 11 th November, 2025 in Kisii CMCC No. E064 of 2025 . The suit was initiated vide a plaint dated 7 th February, 2025 and filed by Peter Oichoe Rosana being the Plaintiff in the lower court (hereafter the Appellant) against Lenny Kipkoech , the Defendant in the lower court (hereafter the Respondent).
2. The claim was for general damages and special damages in the sum of Kshs. 18,500/- arising out of a road traffic accident which occurred on or about the 8 th of November, 2024 . It was alleged that the Respondent was at all material times the registered owner of the Motor Vehicle Registration No. KBC 550G .
3. It was further alleged that the Appellant was travelling as a lawful passenger aboard motor vehicle registration No. KCV 759G on the material day; along Kisii-Kilgoris Road; near Gekomu SDA Church when the Respondent’s motor vehicle was so negligently, carelessly driven, controlled and/or managed that it veered off the road and rammed into KCV 759G and as a result of which the Plaintiff sustained bodily injuries. The Appellant attributed the accident to negligence on the part of the Respondent, by setting out the particulars therein.
4. Upon service of summons, the Respondent entered appearance and filed a statement of defence dated 28 th February, 2025, vehemently denying the averments in the plaint and liability in toto . Alternatively, the Respondent pleaded that the Appellant was negligent hence caused the accident, setting out the particulars thereof in the statement of defence.
5. The suit proceeded to hearing, the Appellant testified that he was involved in a road traffic accident on 8 th November 2024 . As a result, he suffered harm bodily injuries; chest injury, bruises on the right leg, right elbow, left leg and left elbow. He equally suffered blunt trauma to the neck, physical and psychological pains and blood loss.
6. On 10 th September 2025 parties consented to apportion liability on a ratio of 85:15% in favour of the Appellant against the Respondent. Subsequently parties agreed to submit on quantum. The Appellant filed his written submissions dated 25 th September 2025 and the Respondent filed his written submissions dated 26 th September 2025.
7. In its judgment, the trial court determined the suit in favour of the Appellant thereby holding that the Appellant had proved his case beyond the balance of probabilities against the Respondent and judgment against the Respondent entered as follows:
a. Liability at a ratio of 85:15% as agreed by parties;
b. General damages of Kshs. 100,000/-;
c. Special Damages of Kshs. 18,500/-; and
d. Costs and interests.
8. The Appellant aggrieved, preferred this appeal by way of the memorandum of appeal dated 10 th December, 2025 which is premised on the ground that the learned trial magistrate erred in fact and law by failing to applying proper legal principles, parties’ submissions, comparable awards, effluxion of time in awarding Kshs 100,000 subject to 15% liability as General damages on quantum, which award was inordinately and manifestly low in the circumstance.
9. In summation, the Appellant prayed that, the Judgment and/or Decree of the learned trial court be set aside, varied and or quashed. Subsequently this court be pleased to re-visit the issue of assessment of quantum of general damages payable and assess, review and/or vary the same to the reasonable amount commensurate with the evidence tendered by the Appellant. The Appellant further prayed for costs and/or any other order the court may be deemed to grant.
10. On 22 nd May 2026 , this Court directed that the appeal be canvassed by way of written submissions. The Appellant confirmed to have filed his written submissions dated 21 st May 2026 and the Respondent’s submissions are dated 22 nd May 2025 . The court reserved the 17 th day of September 2026 for delivery of its judgment.
Submissions
11. The Appellant confined his submissions to one sole issue: quantum, where he submits that the trial magistrate's award of Kshs 100,000/= less 15% conceded liability as general damages for pain and suffering is extremely and manifestly low. The Appellant recounts that he called one witness and tendered documentary evidence to wit ; discharge card, treatment notes, P3 form, medical report, receipts, police abstract, demand notice, and motor vehicle registration search records. Whilst the Respondent upon a partial consent closed his case without calling any witness or producing any documents.
12. The Appellant relies on and cites the well settled principle from Butt v Khan [1978] KECA 24 (KLR) and Peters V Sunday post Limited (1958) EA at page 424 as reiterated in Karanja Mwangi Jackson & another v Nancy Wanjira Nyaga [2021] KEHC 8391 (KLR ), that an appellate court will not disturb an award of damages unless it is shown the trial court proceeded on wrong principles, misapprehended the evidence, or arrived at a figure so inordinately high or low as to be an entirely erroneous estimate, and that the first appellate court has a duty to re-evaluate the evidence afresh and reach its own conclusions.
13. After identifying the guiding principles, the Appellant submits that his injuries as particularized were sufficiently proved, uncontroverted and recognized by the trial court as so, however the trial court in its judgment, failed to appreciate their multiplicity and severity, made no comparative analysis against similar cases, and gave no reasons for the low award. The Appellant contrasts his case with three authorities the Respondent cited and assumedly that the trial court considered; Rege v Cweya [2022] KEHC 16606 (KLR) where the High Court awarded a substituted amount of Kshs 80,000 for bruises to the right hand and chest contusion, Edward Mutevu Maithya & another v Edwin Nyamweya [2022] KEHC 2855 (KLR) where the High Court awarded a substituted amount Kshs 100,000 for cut wounds and bruises, and LNK (A Minor Suing Through CNK As Next Friend) & 2 others v Simon Gatuni Njukia [2022] KEHC 2497 (KLR ) where the High Court awarded an enhanced amount Kshs 80,000/= for cut wounds and soft tissue injuries arguing that his injuries are markedly more severe than in each cited case, so the parity of award with these lesser injury cases was unjustified.
14. In further support of the appeal the Appellant cites Easy Coach Limited v Emily Nyangasi [2017] KEHC 5131 (KLR) where Kshs 700,000 was awarded for comparable and more severe injuries; facial injuries, chest and back injury, cut wounds to the hand and leg, and on Penina Waithira Kaburu v LP [2019] KEHC 10833 (KLR) and Naom Momanyi v G4s Security Services Kenya Limited & another [2018] KEHC 6218 (KLR ), for the propositions that comparability of awards is necessary for consistency, and that current economic conditions must be factored in to ensure fair not merely nominal compensation. On that basis, the Appellant proposes Kshs 1,000,000/= as just compensation.
15. The Respondent, in his submissions, confirms that liability was agreed at 85:15 in favour of the Appellant, leaving quantum as an outstanding issue. On the injuries pleaded the Respondent characterises it as soft tissue injuries, and relies on the same three authorities the Appellant sought to distinguish.
16. The Respondent submits that comparable injuries must be assessed by reference to the degree of disability occasioned, and submits that the Appellant's injuries are nearly similar in degree to those in the cited authorities, warranting a similarly modest award. On that footing, the Respondent contends that Kshs 100,000 less the agreed contributory negligence is reasonable, particularly since the injuries have fully healed, the Appellant is in a stable condition, is undergoing no treatment, has suffered no disability, and contrary to the Appellant's inflation argument the time elapsed since the comparator decisions is of no material significance to the shilling's value. The Respondents prays that the trial court decision be upheld and the appeal be dismissed.
Analysis and determination
17. This Court has considered the memorandum and record of appeal, respective submissions and the trial court record. I am guided by the Court of Appeal for East Africa Selle v Associated Motor Boat Co. [1968] EA 123, that set out the cautious duty of the first appellate court not to ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or on wrong principles. See also Ephantus Mwangi & Another v Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.
18. As submitted and agreed by parties this appeal turns on one issue; quantum. The issue of liability was also settled by consent adopted in court at a ratio of 85:15 in favour of the Appellant hence this court will not disturb that.
19. The question left for this appellate court to decide, is whether the learned trial court properly exercised its discretion in assessing and awarding general damages.
20. Turning to the evidence adduced, the Appellant testified as the sole witness. In his oral testimony, he stated that he was involved in an accident on 8 th November 2024 , an accident that was allegedly and negligently caused by the Respondent’s car KBC 550G. He testified to have sustained several injuries as exhibited through the discharge card from Hema Hospital P Exh 1(a), treatment notes from Hema Hospital P Exh 1(b), P3 Form P Exh 2 and a report by Doctor Morebu P Exh 3 (a). Besides adopting his statement as evidence in chief, he testified that he was injured on the chest and neck, and bruised on his legs and hands. On cross examination, he confirmed the injuries as healed and he was not fractured.
21. The trial court in its judgment captured the injuries as follows;
i. Chest injury
ii. Bruises on the right leg, right elbow, left leg and left elbow.
iii. Blunt trauma on the neck
iv. Physical and Psychological pains
v. Blood loss
22. The aforesaid injuries were equally summarized and produced through a medical report produced as P Exb 3(a). From the perusal of the record, it is not in dispute that the accident happened, parties even consented on liability. The injuries were not disputed neither did production of the medical record and reports objected. In the absence of any contrary evidence therefore, the court is satisfied that the Appellant had proved his case to the required standard, as the trial court correctly found.
23. Having established the foregoing, the main issue in this appeal is in respect of general damages for pain and suffering, which the Appellant deemed to be inordinately low in comparison to the injuries sustained.
24. That being said, this court is therefore guided by the principles enunciated by the Court of Appeal in the case of Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30. It was held in that case that:
“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are 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 damages.”
25. At the submissions stage, the Appellant proposed an award of Kshs. 1,000,000/= on general damages for pain and suffering and loss of amenities, whilst placing reliance on the decision in Easy Coach Limited v Emily Nyangasi [2017] KEHC 5131 (KLR where Kshs 700,000 was awarded to a plaintiff who had suffered facial injuries, chest and back injury, cut wounds to the hand and leg. The Respondent proposed a sum of Kshs 100,000/= and cited Rege v Cweya (Supra) where awarded Kshs 80,000/= for bruises to the right hand and chest contusion, Edward Mutevu Maithya & another v Edwin Nyamweya (Supra) where the awarded Kshs 100,000/= for cut wounds and bruises, and LNK & 2 others v Simon Gatuni Njukia (Supra ) where Court awarded a Kshs 80,000/= for cut wounds and soft tissue injuries
26. Upon considering the above-cited decisions which have been primarily cited by both parties, this court finds that the same entailed injuries which are either compounded, less severe or more serious in nature and cannot therefore offer comparable awards.
27. This Court has, as such, undertaken its own analysis of comparable cases. In the case of National Industrial Credit Ltd & 2 others v MNO (Minor Suing Thro’’Next of Friend and Mother (FNM) (2024) KEHC 3824 (KLR) the courts observed that the range for non-permanent soft tissue injuries is between Kshs. 250,000/= to Kshs. 300,000/=. In the case of Daniel Gatana Ndungu & another v Harrison Angore Katana [2020] KEHC 6806 (KLR ) the court awarded Kshs 140,000/= for a cut on the head, blunt injury to the right knee, and multiple bruises on the upper limbs and right knee.
28. Taking into account all the foregoing factors and circumstances, the comparable authorities cited above, I find that the trial court failed to take into consideration the multiplicity of the soft tissue injuries and as such awarded an inordinately low amount that warrants the interference of this Court.
Disposition
29. Accordingly, the appeal on quantum succeeds and as such, this court orders that;
a) The award of general damages on quantum by the trial court of Kshs. 100,000/= is hereby set aside and substituted with an award of Kshs. 200,000/= subject to the 15% liability of the Appellant.
b) The costs of this appeal to be awarded to the Appellant.
DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 17 th DAY OF SEPTEMBER 2026.
ANNE.M. OKUTOYI
JUDGE
In the Presence of:
Ms. Nyaenya for the Applicant.
Mr. Orucho for the Respondent.
Ms. Mokeira-Court Assistant.
Background of the appeal
1. This appeal emanates from the judgment delivered on 11 th November, 2025 in Kisii CMCC No. E064 of 2025 . The suit was initiated vide a plaint dated 7 th February, 2025 and filed by Peter Oichoe Rosana being the Plaintiff in the lower court (hereafter the Appellant) against Lenny Kipkoech , the Defendant in the lower court (hereafter the Respondent).
2. The claim was for general damages and special damages in the sum of Kshs. 18,500/- arising out of a road traffic accident which occurred on or about the 8 th of November, 2024 . It was alleged that the Respondent was at all material times the registered owner of the Motor Vehicle Registration No. KBC 550G .
3. It was further alleged that the Appellant was travelling as a lawful passenger aboard motor vehicle registration No. KCV 759G on the material day; along Kisii-Kilgoris Road; near Gekomu SDA Church when the Respondent’s motor vehicle was so negligently, carelessly driven, controlled and/or managed that it veered off the road and rammed into KCV 759G and as a result of which the Plaintiff sustained bodily injuries. The Appellant attributed the accident to negligence on the part of the Respondent, by setting out the particulars therein.
4. Upon service of summons, the Respondent entered appearance and filed a statement of defence dated 28 th February, 2025, vehemently denying the averments in the plaint and liability in toto . Alternatively, the Respondent pleaded that the Appellant was negligent hence caused the accident, setting out the particulars thereof in the statement of defence.
5. The suit proceeded to hearing, the Appellant testified that he was involved in a road traffic accident on 8 th November 2024 . As a result, he suffered harm bodily injuries; chest injury, bruises on the right leg, right elbow, left leg and left elbow. He equally suffered blunt trauma to the neck, physical and psychological pains and blood loss.
6. On 10 th September 2025 parties consented to apportion liability on a ratio of 85:15% in favour of the Appellant against the Respondent. Subsequently parties agreed to submit on quantum. The Appellant filed his written submissions dated 25 th September 2025 and the Respondent filed his written submissions dated 26 th September 2025.
7. In its judgment, the trial court determined the suit in favour of the Appellant thereby holding that the Appellant had proved his case beyond the balance of probabilities against the Respondent and judgment against the Respondent entered as follows:
a. Liability at a ratio of 85:15% as agreed by parties;
b. General damages of Kshs. 100,000/-;
c. Special Damages of Kshs. 18,500/-; and
d. Costs and interests.
8. The Appellant aggrieved, preferred this appeal by way of the memorandum of appeal dated 10 th December, 2025 which is premised on the ground that the learned trial magistrate erred in fact and law by failing to applying proper legal principles, parties’ submissions, comparable awards, effluxion of time in awarding Kshs 100,000 subject to 15% liability as General damages on quantum, which award was inordinately and manifestly low in the circumstance.
9. In summation, the Appellant prayed that, the Judgment and/or Decree of the learned trial court be set aside, varied and or quashed. Subsequently this court be pleased to re-visit the issue of assessment of quantum of general damages payable and assess, review and/or vary the same to the reasonable amount commensurate with the evidence tendered by the Appellant. The Appellant further prayed for costs and/or any other order the court may be deemed to grant.
10. On 22 nd May 2026 , this Court directed that the appeal be canvassed by way of written submissions. The Appellant confirmed to have filed his written submissions dated 21 st May 2026 and the Respondent’s submissions are dated 22 nd May 2025 . The court reserved the 17 th day of September 2026 for delivery of its judgment.
Submissions
11. The Appellant confined his submissions to one sole issue: quantum, where he submits that the trial magistrate's award of Kshs 100,000/= less 15% conceded liability as general damages for pain and suffering is extremely and manifestly low. The Appellant recounts that he called one witness and tendered documentary evidence to wit ; discharge card, treatment notes, P3 form, medical report, receipts, police abstract, demand notice, and motor vehicle registration search records. Whilst the Respondent upon a partial consent closed his case without calling any witness or producing any documents.
12. The Appellant relies on and cites the well settled principle from Butt v Khan [1978] KECA 24 (KLR) and Peters V Sunday post Limited (1958) EA at page 424 as reiterated in Karanja Mwangi Jackson & another v Nancy Wanjira Nyaga [2021] KEHC 8391 (KLR ), that an appellate court will not disturb an award of damages unless it is shown the trial court proceeded on wrong principles, misapprehended the evidence, or arrived at a figure so inordinately high or low as to be an entirely erroneous estimate, and that the first appellate court has a duty to re-evaluate the evidence afresh and reach its own conclusions.
13. After identifying the guiding principles, the Appellant submits that his injuries as particularized were sufficiently proved, uncontroverted and recognized by the trial court as so, however the trial court in its judgment, failed to appreciate their multiplicity and severity, made no comparative analysis against similar cases, and gave no reasons for the low award. The Appellant contrasts his case with three authorities the Respondent cited and assumedly that the trial court considered; Rege v Cweya [2022] KEHC 16606 (KLR) where the High Court awarded a substituted amount of Kshs 80,000 for bruises to the right hand and chest contusion, Edward Mutevu Maithya & another v Edwin Nyamweya [2022] KEHC 2855 (KLR) where the High Court awarded a substituted amount Kshs 100,000 for cut wounds and bruises, and LNK (A Minor Suing Through CNK As Next Friend) & 2 others v Simon Gatuni Njukia [2022] KEHC 2497 (KLR ) where the High Court awarded an enhanced amount Kshs 80,000/= for cut wounds and soft tissue injuries arguing that his injuries are markedly more severe than in each cited case, so the parity of award with these lesser injury cases was unjustified.
14. In further support of the appeal the Appellant cites Easy Coach Limited v Emily Nyangasi [2017] KEHC 5131 (KLR) where Kshs 700,000 was awarded for comparable and more severe injuries; facial injuries, chest and back injury, cut wounds to the hand and leg, and on Penina Waithira Kaburu v LP [2019] KEHC 10833 (KLR) and Naom Momanyi v G4s Security Services Kenya Limited & another [2018] KEHC 6218 (KLR ), for the propositions that comparability of awards is necessary for consistency, and that current economic conditions must be factored in to ensure fair not merely nominal compensation. On that basis, the Appellant proposes Kshs 1,000,000/= as just compensation.
15. The Respondent, in his submissions, confirms that liability was agreed at 85:15 in favour of the Appellant, leaving quantum as an outstanding issue. On the injuries pleaded the Respondent characterises it as soft tissue injuries, and relies on the same three authorities the Appellant sought to distinguish.
16. The Respondent submits that comparable injuries must be assessed by reference to the degree of disability occasioned, and submits that the Appellant's injuries are nearly similar in degree to those in the cited authorities, warranting a similarly modest award. On that footing, the Respondent contends that Kshs 100,000 less the agreed contributory negligence is reasonable, particularly since the injuries have fully healed, the Appellant is in a stable condition, is undergoing no treatment, has suffered no disability, and contrary to the Appellant's inflation argument the time elapsed since the comparator decisions is of no material significance to the shilling's value. The Respondents prays that the trial court decision be upheld and the appeal be dismissed.
Analysis and determination
17. This Court has considered the memorandum and record of appeal, respective submissions and the trial court record. I am guided by the Court of Appeal for East Africa Selle v Associated Motor Boat Co. [1968] EA 123, that set out the cautious duty of the first appellate court not to ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or on wrong principles. See also Ephantus Mwangi & Another v Duncan Mwangi Wambugu [1982 – 1988] IKAR 278.
18. As submitted and agreed by parties this appeal turns on one issue; quantum. The issue of liability was also settled by consent adopted in court at a ratio of 85:15 in favour of the Appellant hence this court will not disturb that.
19. The question left for this appellate court to decide, is whether the learned trial court properly exercised its discretion in assessing and awarding general damages.
20. Turning to the evidence adduced, the Appellant testified as the sole witness. In his oral testimony, he stated that he was involved in an accident on 8 th November 2024 , an accident that was allegedly and negligently caused by the Respondent’s car KBC 550G. He testified to have sustained several injuries as exhibited through the discharge card from Hema Hospital P Exh 1(a), treatment notes from Hema Hospital P Exh 1(b), P3 Form P Exh 2 and a report by Doctor Morebu P Exh 3 (a). Besides adopting his statement as evidence in chief, he testified that he was injured on the chest and neck, and bruised on his legs and hands. On cross examination, he confirmed the injuries as healed and he was not fractured.
21. The trial court in its judgment captured the injuries as follows;
i. Chest injury
ii. Bruises on the right leg, right elbow, left leg and left elbow.
iii. Blunt trauma on the neck
iv. Physical and Psychological pains
v. Blood loss
22. The aforesaid injuries were equally summarized and produced through a medical report produced as P Exb 3(a). From the perusal of the record, it is not in dispute that the accident happened, parties even consented on liability. The injuries were not disputed neither did production of the medical record and reports objected. In the absence of any contrary evidence therefore, the court is satisfied that the Appellant had proved his case to the required standard, as the trial court correctly found.
23. Having established the foregoing, the main issue in this appeal is in respect of general damages for pain and suffering, which the Appellant deemed to be inordinately low in comparison to the injuries sustained.
24. That being said, this court is therefore guided by the principles enunciated by the Court of Appeal in the case of Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30. It was held in that case that:
“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are 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 damages.”
25. At the submissions stage, the Appellant proposed an award of Kshs. 1,000,000/= on general damages for pain and suffering and loss of amenities, whilst placing reliance on the decision in Easy Coach Limited v Emily Nyangasi [2017] KEHC 5131 (KLR where Kshs 700,000 was awarded to a plaintiff who had suffered facial injuries, chest and back injury, cut wounds to the hand and leg. The Respondent proposed a sum of Kshs 100,000/= and cited Rege v Cweya (Supra) where awarded Kshs 80,000/= for bruises to the right hand and chest contusion, Edward Mutevu Maithya & another v Edwin Nyamweya (Supra) where the awarded Kshs 100,000/= for cut wounds and bruises, and LNK & 2 others v Simon Gatuni Njukia (Supra ) where Court awarded a Kshs 80,000/= for cut wounds and soft tissue injuries
26. Upon considering the above-cited decisions which have been primarily cited by both parties, this court finds that the same entailed injuries which are either compounded, less severe or more serious in nature and cannot therefore offer comparable awards.
27. This Court has, as such, undertaken its own analysis of comparable cases. In the case of National Industrial Credit Ltd & 2 others v MNO (Minor Suing Thro’’Next of Friend and Mother (FNM) (2024) KEHC 3824 (KLR) the courts observed that the range for non-permanent soft tissue injuries is between Kshs. 250,000/= to Kshs. 300,000/=. In the case of Daniel Gatana Ndungu & another v Harrison Angore Katana [2020] KEHC 6806 (KLR ) the court awarded Kshs 140,000/= for a cut on the head, blunt injury to the right knee, and multiple bruises on the upper limbs and right knee.
28. Taking into account all the foregoing factors and circumstances, the comparable authorities cited above, I find that the trial court failed to take into consideration the multiplicity of the soft tissue injuries and as such awarded an inordinately low amount that warrants the interference of this Court.
Disposition
29. Accordingly, the appeal on quantum succeeds and as such, this court orders that;
a) The award of general damages on quantum by the trial court of Kshs. 100,000/= is hereby set aside and substituted with an award of Kshs. 200,000/= subject to the 15% liability of the Appellant.
b) The costs of this appeal to be awarded to the Appellant.
DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 17 th DAY OF SEPTEMBER 2026.
ANNE.M. OKUTOYI
JUDGE
In the Presence of:
Ms. Nyaenya for the Applicant.
Mr. Orucho for the Respondent.
Ms. Mokeira-Court Assistant.