REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAROK
CIVIL APPEAL NO. E005 OF 2025
(CORAM: HON. CHARLES M. KARIUKI – J)
( Being an appeal from the decision and decree of the Chief Magistrate's Courı at Narok in CMCC 130 of 2016 delivered by Honourable Daniel Ngayo, Resident Magistrate on 22 nd January 2025)
PETER SAMUEL NTEREBE (A Minor suing through his next friend
and mother NYAKERARIO ONCHIEKU) ....................................................... APPELLANT
-VERSUS
JOSEPH BWIRE OMUKAGA....................................................................1 ST RESPONDENT
JOSHUA MOGERE……………………………………………………2 ND RESPONDENT
JUDGMENT
09/07/2026
A. INTRODUCTION
1) This is a first appeal arising from the judgment of the Chief Magistrate's Court at Narok (Hon. Daniel Ngayo, RM) delivered on 22 nd January 2025 in Narok CMCC No. 130 of 2016. The appeal is confined solely to the quantum of general damages awarded to the appellant following a road traffic accident that occurred on 24 th January 2015. Liability was settled by consent at 100% against the respondents, while special damages in the sum of Kshs. 4,370 were also agreed. The only issue before the trial court was the assessment of general damages, which were awarded at Kshs. 200,000.
2) Being dissatisfied with that award, the appellant contends that the learned trial magistrate misapprehended the medical evidence, failed to appreciate the seriousness of the injuries sustained, disregarded comparable authorities, and consequently arrived at a manifestly low award. The respondents, on the other hand, maintain that the learned magistrate properly exercised his discretion, considered the medical evidence on record, and arrived at an award that was consistent with the nature of the injuries proved.
3) This being a first appeal, the duty of this court is well settled. The court is required to reconsider and re-evaluate the evidence that was before the trial court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This principle was authoritatively stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 , and reiterated by the Court of Appeal in Peters v Sunday Post Ltd [1958] EA 424.
B. PLEADINGS
i. Memorandum
4) The Memorandum of Appeal dated 19 th February 2025 challenges the judgment and decree of the Chief Magistrate's Court at Narok in CMCC No. 130 of 2016, delivered by Honourable Daniel Ngayo (Resident Magistrate) on 22 nd January 2025.
1. THAT the Trial Magistrate misdirected himself on the evidence and the applicable law.
2. THAT the Trial Magistrate erred in law in not considering the Appellant minor's medical report and records and arrived at a low and erroneous award.
3. The Trial Magistrate erred is not considering the submissions made by the Appellant's counsel on both quantum and liability.
4. The Trial Magistrate erred in law and fact in erroneously awarding an inordinately low award in general damages, which was not a fair estimate of the compensation for serious injuries sustained by the minor.
5. The Trial Magistrate erred in law and in fact in finding that the Appellant minor was entitled to general damages of Kshs. 200,000/- which was inordinately low in view of the grievous injuries involving head injuries suffered by the minor, that it presented a miscarriage of justice.
6. The Trial Magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which were inordinately low.
7. The Magistrate failed to consider the severity of the Appellant minor's injuries and the incapacity suffered as set out in the medical reports produced in court.
8. The Trial Magistrate erred in awarding general damages which were manifestly low and which were not commensurate with the severe injuries sustained by the Appellant minor.
5) Consequently, the appellant prays that the judgment of the trial court be set aside to the extent of the award on quantum, that the High Court reassess and enhance the general damages payable to the minor, and that the appeal be allowed with costs both in the appeal and in the proceedings.
C. SUBMISSIONS
i. Appellant’s submissions
6) The appellant, through written submissions dated 30 th March 2026, urges the High Court to interfere with the trial court's award of general damages on the ground that it was manifestly low, inordinately inadequate and represented an erroneous estimate of the injuries sustained by the appellant. Counsel submits that the learned trial magistrate failed to properly appreciate the seriousness of the appellant's injuries, particularly the depressed skull fracture, and consequently awarded damages that did not reflect the gravity of the injuries or prevailing judicial trends.
7) On the applicable principles governing appellate interference with awards of damages, the appellant submits that an appellate court is entitled to interfere where the trial court took into account irrelevant considerations, failed to consider relevant factors, or where the award is so inordinately low or high as to amount to an entirely erroneous estimate of the damage suffered. Reliance is placed on Butt v Khan [1978] eKLR, where the Court of Appeal held that an appellate court will only interfere with an award of damages if it is so inordinately high or low as to represent an entirely erroneous estimate of the loss suffered. The appellant also cites Kemfro Africa Ltd t/a Meru Express Service & Another v A. M. Lubia & Another [1982–88] 1 KAR 727; [1985] eKLR, in which the Court of Appeal reaffirmed that comparable injuries should, as far as possible, attract comparable awards and that an appellate court may interfere where the trial court acted on wrong principles or misapprehended the evidence.
8) Counsel submits that the medical evidence established that the appellant sustained grievous harm comprising a depressed fracture of the frontal bone, a closed head injury, and a deep cut wound on the forehead. It is argued that a depressed skull fracture is a serious head injury associated with significant risks, including brain injury, haemorrhage, neurological deficits, persistent headaches, dizziness, cognitive impairment, poor concentration, and permanent cosmetic deformity. According to the appellant, the trial court failed to appreciate the seriousness of these injuries and their long-term consequences, thereby treating the injuries as though they were minor head injuries or soft tissue injuries.
9) The appellant further contends that the trial court failed to be guided by comparable judicial awards for similar injuries. Reliance is placed on Peter M. Kariuki v Attorney General [2014] eKLR , where the court emphasized that substantial compensation should be awarded for serious injuries having regard to the pain, suffering and long-term effects sustained by the claimant. The appellant also relies on Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku & Another [2014] eKLR , in which the Court of Appeal underscored the need for courts to adequately compensate victims who suffer serious head injuries and their attendant consequences.
10) Counsel further submits that comparable decisions demonstrate that awards for depressed skull fractures generally fall within a substantially higher range than that awarded by the trial court. Particular reliance is placed on Pioneer Plumbers Limited v Jacob Nyongesa Mughola, Civil Appeal No. 605 of 2015, where an award of Kshs. 2,600,000 was made for a compound skull fracture. It is argued that the award of Kshs. 200,000 made by the trial court is wholly disproportionate to the nature of the injuries sustained, is inconsistent with current Kenyan jurisprudence, and fails to take into account inflation and prevailing trends in awards for comparable injuries.
11) The appellant therefore submits that the learned trial magistrate failed to properly evaluate the medical evidence, relied on non-comparable authorities relating to soft tissue injuries, misapprehended the severity of the appellant's injuries and consequently arrived at an award that amounted to a miscarriage of justice. The court is accordingly urged to allow the appeal on quantum, set aside the award of general damages made by the trial court, and substitute it with an award of Kshs. 3,000,000, together with the costs of the appeal.
ii. Respondent’s submissions.
12) The respondents, through their written submissions dated 21 st April 2026, oppose the appeal and contend that the award of Kshs. 200,000 in general damages made by the trial court was fair, reasonable, and consistent with the evidence on record. They submit that the sole issue for determination is whether the award of general damages was so inordinately low as to justify interference by the appellate court.
13) The respondents submit that the principles governing appellate interference with awards of damages are well settled. They argue that an appellate court should not disturb an award of damages unless it is demonstrated that the trial court acted on a wrong principle of law, took into account irrelevant considerations, failed to consider relevant matters, misapprehended the evidence, or arrived at an award that is so inordinately low or high as to constitute an entirely erroneous estimate of the damage suffered. In support of this proposition, reliance is placed on Kemfro Africa Limited t/a Meru Express Services (1976) & Another v Lubia & Another (No. 2) [1985] eKLR , where the Court of Appeal held that an appellate court will only interfere with an assessment of damages if it is satisfied that the trial court proceeded on wrong principles or that the award was so inordinately high or low as to represent an entirely erroneous estimate of the loss suffered.
14) The respondents further submit that the learned trial magistrate properly evaluated the evidence before the court and adopted the correct approach in assessing damages. They contend that the trial court relied on the medical report prepared by Dr. Wokabi, which, according to the respondents, showed that the appellant sustained only a mild head injury. They therefore argue that the trial court cannot be faulted for the award it ultimately made.
15) To demonstrate that the award was within the acceptable range for comparable injuries, the respondents rely on Ogola v Ogangira & Another (Civil Appeal E068 of 2023) [2026] KEHC 336 (KLR) (22 January 2026), in which the High Court awarded Kshs. 150,000 as general damages to a claimant who sustained blunt injuries to the head, anterior chest wall, and lower back. Counsel submits that, when compared with that decision, the award of Kshs. 200,000 made by the trial court was neither inordinately low nor based on any error of principle.
16) Accordingly, the respondents urge the court to find that the appellant has failed to demonstrate any misdirection on the part of the trial magistrate or any basis upon which the appellate court should interfere with the exercise of the trial court's discretion. They therefore pray that the appeal be dismissed with costs.
D. ISSUES FOR DETERMINATION
17) Having considered the Memorandum of Appeal, the rival submissions and the record of appeal, the following issues arise for determination:
i. Whether the learned trial magistrate applied the correct principles in assessing general damages.
ii. Whether the award of Kshs. 200,000 in general damages was so inordinately low as to warrant interference by this Court.
iii. What orders should issue as to costs.
E. ANALYSIS AND DETERMINATION
i. Whether the learned trial magistrate applied the correct principles in assessing general damages.
18) The law governing appellate interference with awards of damages is settled. The assessment of damages is an exercise of judicial discretion, and an appellate court will not interfere merely because it would have awarded a different figure. Interference is only justified where it is shown that the trial court acted on a wrong principle of law, misapprehended the evidence, took into account irrelevant factors, failed to consider relevant matters, or where the award is so inordinately low or high as to represent an entirely erroneous estimate of the loss suffered.
19) In Butt v Khan [1978] eKLR , Law JA stated:
"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."
20) The same principle was affirmed in Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v A.M. Lubia & Another (No. 2) [1985] eKLR, where the Court of Appeal held that interference is only justified where the trial court proceeded on wrong principles or where the award is manifestly excessive or inadequate.
21) Further, in Catholic Diocese of Kisumu v Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] eKLR , the Court of Appeal reiterated that comparable injuries should, as far as possible, attract comparable awards while allowing for differences occasioned by inflation and the peculiar circumstances of each case.
22) From the judgment appealed against, the learned trial magistrate expressly acknowledged these principles and cited authorities emphasizing that comparable injuries should receive comparable awards. The court also appreciated that damages should amount to fair compensation and not unjust enrichment. It cannot, therefore, be said that the learned magistrate applied the wrong legal principles. The real question is whether those principles were correctly applied to the evidence before him.
ii. Whether the award of Kshs. 200,000 was inordinately low.
23) The appellant argues that the trial court failed to appreciate that he sustained grievous harm comprising a depressed skull fracture of the frontal bone, a closed head injury, and a deep cut wound on the forehead. According to the appellant, those injuries were significantly more serious than ordinary soft tissue injuries and warranted a substantially higher award. Reliance was placed on Peter M. Kariuki v Attorney General [2014] eKLR, Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku & Another [2014] eKLR, and Pioneer Plumbers Limited v Jacob Nyongesa Mughola, Civil Appeal No. 605 of 2015 , where higher awards were made for serious head injuries.
24) The respondents, however, submit that the trial court relied on Dr. Wokabi's medical report, which demonstrated that the appellant sustained only a mild head injury. They further contend that the award is consistent with comparable awards, relying on Ogola v Ogangira & Another (Civil Appeal E068 of 2023) [2026] KEHC 336 (KLR).
25) I have carefully examined the record of appeal and the judgment of the trial court. Whereas the learned magistrate referred to authorities involving soft tissue injuries, the judgment does not demonstrate that the court undertook a proper evaluation of the actual injuries sustained by the appellant as reflected in the medical evidence. Indeed, the judgment states that the appellant suffered "a cut on the right ankle, dorsum of the foot, and right index finger." Those are not the injuries pleaded in the plaint, nor are they the injuries relied upon by the appellant in this appeal. The appellant's case throughout has been that he sustained a depressed frontal skull fracture, a closed head injury, and a deep cut wound on the forehead.
26) A court assessing damages must base its determination on the injuries proved by the evidence. Where the court proceeds on an incorrect appreciation of those injuries, it inevitably applies wrong comparables and arrives at an erroneous estimate of damages. That amounts to a misdirection warranting appellate interference within the meaning of Butt v Khan [1978] eKLR and Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v Lubia & Another (No. 2) [1985] eKLR .
27) Moreover, the authorities cited by the trial court largely concerned claimants who sustained soft tissue injuries with no significant head trauma. Those decisions were therefore of limited assistance in assessing compensation for a claimant who allegedly sustained a depressed skull fracture. The principle that comparable injuries should attract comparable awards requires courts to identify decisions involving substantially similar injuries rather than merely injuries arising from road traffic accidents.
28) Having re-evaluated the record as required of a first appellate court, I am satisfied that the learned trial magistrate misapprehended the nature of the appellant's injuries and consequently relied on non-comparable authorities. The award of Kshs. 200,000, therefore, cannot be said to represent a proper estimate of damages for the injuries proved.
29) Nevertheless, the appellant's proposed award of Kshs. 3,000,000 is equally unsupported by sufficient comparable authorities demonstrating that the injuries resulted in permanent neurological disability, epilepsy, cognitive impairment, or other serious long-term sequelae. While a depressed skull fracture undoubtedly constitutes a serious injury, damages must remain compensatory rather than punitive and must reflect the actual evidence on record.
30) Taking into account the injuries proved, the medical reports, comparable awards for similar head injuries, and the applicable principles governing appellate interference, I am persuaded that the award of Kshs. 200,000 was inordinately low and ought to be interfered with. A more reasonable and fair award for pain, suffering, and loss of amenities is Kshs. 1,500,000, which adequately reflects the seriousness of the injuries while remaining consistent with comparable awards made by the superior courts.
F. DISPOSITION
31) Consequently, the appeal succeeds on quantum.
32) The judgment of the Chief Magistrate's Court delivered on 22 nd January 2025 is hereby set aside only to the extent of the award of general damages.
33) The award of Kshs. 200,000 in general damages is substituted with an award of Kshs. 1,500,000 as general damages for pain, suffering, and loss of amenities.
34) The award of special damages of Kshs. 4,370 is upheld.
35) The appellant shall therefore recover:
a. General damages: Kshs. 1,500,000
b. Special damages: Kshs. 4,370
Total: Kshs. 1,504,370.
36) The above sums shall attract interest at court rates, with interest on general damages running from the date of the judgment of the trial court and interest on special damages running from the date of filing suit until payment in full.
37) The appellant shall have the costs of this appeal.
38) It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAROK, THIS 9TH DAY OF JULY,2026
CHARLES KARIUKI
JUDGE
NAROK HCCA NO. E005 OF 2025 Page 2 of 2
IN THE HIGH COURT OF KENYA AT NAROK
CIVIL APPEAL NO. E005 OF 2025
(CORAM: HON. CHARLES M. KARIUKI – J)
( Being an appeal from the decision and decree of the Chief Magistrate's Courı at Narok in CMCC 130 of 2016 delivered by Honourable Daniel Ngayo, Resident Magistrate on 22 nd January 2025)
PETER SAMUEL NTEREBE (A Minor suing through his next friend
and mother NYAKERARIO ONCHIEKU) ....................................................... APPELLANT
-VERSUS
JOSEPH BWIRE OMUKAGA....................................................................1 ST RESPONDENT
JOSHUA MOGERE……………………………………………………2 ND RESPONDENT
JUDGMENT
09/07/2026
A. INTRODUCTION
1) This is a first appeal arising from the judgment of the Chief Magistrate's Court at Narok (Hon. Daniel Ngayo, RM) delivered on 22 nd January 2025 in Narok CMCC No. 130 of 2016. The appeal is confined solely to the quantum of general damages awarded to the appellant following a road traffic accident that occurred on 24 th January 2015. Liability was settled by consent at 100% against the respondents, while special damages in the sum of Kshs. 4,370 were also agreed. The only issue before the trial court was the assessment of general damages, which were awarded at Kshs. 200,000.
2) Being dissatisfied with that award, the appellant contends that the learned trial magistrate misapprehended the medical evidence, failed to appreciate the seriousness of the injuries sustained, disregarded comparable authorities, and consequently arrived at a manifestly low award. The respondents, on the other hand, maintain that the learned magistrate properly exercised his discretion, considered the medical evidence on record, and arrived at an award that was consistent with the nature of the injuries proved.
3) This being a first appeal, the duty of this court is well settled. The court is required to reconsider and re-evaluate the evidence that was before the trial court and draw its own conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This principle was authoritatively stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 , and reiterated by the Court of Appeal in Peters v Sunday Post Ltd [1958] EA 424.
B. PLEADINGS
i. Memorandum
4) The Memorandum of Appeal dated 19 th February 2025 challenges the judgment and decree of the Chief Magistrate's Court at Narok in CMCC No. 130 of 2016, delivered by Honourable Daniel Ngayo (Resident Magistrate) on 22 nd January 2025.
1. THAT the Trial Magistrate misdirected himself on the evidence and the applicable law.
2. THAT the Trial Magistrate erred in law in not considering the Appellant minor's medical report and records and arrived at a low and erroneous award.
3. The Trial Magistrate erred is not considering the submissions made by the Appellant's counsel on both quantum and liability.
4. The Trial Magistrate erred in law and fact in erroneously awarding an inordinately low award in general damages, which was not a fair estimate of the compensation for serious injuries sustained by the minor.
5. The Trial Magistrate erred in law and in fact in finding that the Appellant minor was entitled to general damages of Kshs. 200,000/- which was inordinately low in view of the grievous injuries involving head injuries suffered by the minor, that it presented a miscarriage of justice.
6. The Trial Magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which were inordinately low.
7. The Magistrate failed to consider the severity of the Appellant minor's injuries and the incapacity suffered as set out in the medical reports produced in court.
8. The Trial Magistrate erred in awarding general damages which were manifestly low and which were not commensurate with the severe injuries sustained by the Appellant minor.
5) Consequently, the appellant prays that the judgment of the trial court be set aside to the extent of the award on quantum, that the High Court reassess and enhance the general damages payable to the minor, and that the appeal be allowed with costs both in the appeal and in the proceedings.
C. SUBMISSIONS
i. Appellant’s submissions
6) The appellant, through written submissions dated 30 th March 2026, urges the High Court to interfere with the trial court's award of general damages on the ground that it was manifestly low, inordinately inadequate and represented an erroneous estimate of the injuries sustained by the appellant. Counsel submits that the learned trial magistrate failed to properly appreciate the seriousness of the appellant's injuries, particularly the depressed skull fracture, and consequently awarded damages that did not reflect the gravity of the injuries or prevailing judicial trends.
7) On the applicable principles governing appellate interference with awards of damages, the appellant submits that an appellate court is entitled to interfere where the trial court took into account irrelevant considerations, failed to consider relevant factors, or where the award is so inordinately low or high as to amount to an entirely erroneous estimate of the damage suffered. Reliance is placed on Butt v Khan [1978] eKLR, where the Court of Appeal held that an appellate court will only interfere with an award of damages if it is so inordinately high or low as to represent an entirely erroneous estimate of the loss suffered. The appellant also cites Kemfro Africa Ltd t/a Meru Express Service & Another v A. M. Lubia & Another [1982–88] 1 KAR 727; [1985] eKLR, in which the Court of Appeal reaffirmed that comparable injuries should, as far as possible, attract comparable awards and that an appellate court may interfere where the trial court acted on wrong principles or misapprehended the evidence.
8) Counsel submits that the medical evidence established that the appellant sustained grievous harm comprising a depressed fracture of the frontal bone, a closed head injury, and a deep cut wound on the forehead. It is argued that a depressed skull fracture is a serious head injury associated with significant risks, including brain injury, haemorrhage, neurological deficits, persistent headaches, dizziness, cognitive impairment, poor concentration, and permanent cosmetic deformity. According to the appellant, the trial court failed to appreciate the seriousness of these injuries and their long-term consequences, thereby treating the injuries as though they were minor head injuries or soft tissue injuries.
9) The appellant further contends that the trial court failed to be guided by comparable judicial awards for similar injuries. Reliance is placed on Peter M. Kariuki v Attorney General [2014] eKLR , where the court emphasized that substantial compensation should be awarded for serious injuries having regard to the pain, suffering and long-term effects sustained by the claimant. The appellant also relies on Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku & Another [2014] eKLR , in which the Court of Appeal underscored the need for courts to adequately compensate victims who suffer serious head injuries and their attendant consequences.
10) Counsel further submits that comparable decisions demonstrate that awards for depressed skull fractures generally fall within a substantially higher range than that awarded by the trial court. Particular reliance is placed on Pioneer Plumbers Limited v Jacob Nyongesa Mughola, Civil Appeal No. 605 of 2015, where an award of Kshs. 2,600,000 was made for a compound skull fracture. It is argued that the award of Kshs. 200,000 made by the trial court is wholly disproportionate to the nature of the injuries sustained, is inconsistent with current Kenyan jurisprudence, and fails to take into account inflation and prevailing trends in awards for comparable injuries.
11) The appellant therefore submits that the learned trial magistrate failed to properly evaluate the medical evidence, relied on non-comparable authorities relating to soft tissue injuries, misapprehended the severity of the appellant's injuries and consequently arrived at an award that amounted to a miscarriage of justice. The court is accordingly urged to allow the appeal on quantum, set aside the award of general damages made by the trial court, and substitute it with an award of Kshs. 3,000,000, together with the costs of the appeal.
ii. Respondent’s submissions.
12) The respondents, through their written submissions dated 21 st April 2026, oppose the appeal and contend that the award of Kshs. 200,000 in general damages made by the trial court was fair, reasonable, and consistent with the evidence on record. They submit that the sole issue for determination is whether the award of general damages was so inordinately low as to justify interference by the appellate court.
13) The respondents submit that the principles governing appellate interference with awards of damages are well settled. They argue that an appellate court should not disturb an award of damages unless it is demonstrated that the trial court acted on a wrong principle of law, took into account irrelevant considerations, failed to consider relevant matters, misapprehended the evidence, or arrived at an award that is so inordinately low or high as to constitute an entirely erroneous estimate of the damage suffered. In support of this proposition, reliance is placed on Kemfro Africa Limited t/a Meru Express Services (1976) & Another v Lubia & Another (No. 2) [1985] eKLR , where the Court of Appeal held that an appellate court will only interfere with an assessment of damages if it is satisfied that the trial court proceeded on wrong principles or that the award was so inordinately high or low as to represent an entirely erroneous estimate of the loss suffered.
14) The respondents further submit that the learned trial magistrate properly evaluated the evidence before the court and adopted the correct approach in assessing damages. They contend that the trial court relied on the medical report prepared by Dr. Wokabi, which, according to the respondents, showed that the appellant sustained only a mild head injury. They therefore argue that the trial court cannot be faulted for the award it ultimately made.
15) To demonstrate that the award was within the acceptable range for comparable injuries, the respondents rely on Ogola v Ogangira & Another (Civil Appeal E068 of 2023) [2026] KEHC 336 (KLR) (22 January 2026), in which the High Court awarded Kshs. 150,000 as general damages to a claimant who sustained blunt injuries to the head, anterior chest wall, and lower back. Counsel submits that, when compared with that decision, the award of Kshs. 200,000 made by the trial court was neither inordinately low nor based on any error of principle.
16) Accordingly, the respondents urge the court to find that the appellant has failed to demonstrate any misdirection on the part of the trial magistrate or any basis upon which the appellate court should interfere with the exercise of the trial court's discretion. They therefore pray that the appeal be dismissed with costs.
D. ISSUES FOR DETERMINATION
17) Having considered the Memorandum of Appeal, the rival submissions and the record of appeal, the following issues arise for determination:
i. Whether the learned trial magistrate applied the correct principles in assessing general damages.
ii. Whether the award of Kshs. 200,000 in general damages was so inordinately low as to warrant interference by this Court.
iii. What orders should issue as to costs.
E. ANALYSIS AND DETERMINATION
i. Whether the learned trial magistrate applied the correct principles in assessing general damages.
18) The law governing appellate interference with awards of damages is settled. The assessment of damages is an exercise of judicial discretion, and an appellate court will not interfere merely because it would have awarded a different figure. Interference is only justified where it is shown that the trial court acted on a wrong principle of law, misapprehended the evidence, took into account irrelevant factors, failed to consider relevant matters, or where the award is so inordinately low or high as to represent an entirely erroneous estimate of the loss suffered.
19) In Butt v Khan [1978] eKLR , Law JA stated:
"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."
20) The same principle was affirmed in Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v A.M. Lubia & Another (No. 2) [1985] eKLR, where the Court of Appeal held that interference is only justified where the trial court proceeded on wrong principles or where the award is manifestly excessive or inadequate.
21) Further, in Catholic Diocese of Kisumu v Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] eKLR , the Court of Appeal reiterated that comparable injuries should, as far as possible, attract comparable awards while allowing for differences occasioned by inflation and the peculiar circumstances of each case.
22) From the judgment appealed against, the learned trial magistrate expressly acknowledged these principles and cited authorities emphasizing that comparable injuries should receive comparable awards. The court also appreciated that damages should amount to fair compensation and not unjust enrichment. It cannot, therefore, be said that the learned magistrate applied the wrong legal principles. The real question is whether those principles were correctly applied to the evidence before him.
ii. Whether the award of Kshs. 200,000 was inordinately low.
23) The appellant argues that the trial court failed to appreciate that he sustained grievous harm comprising a depressed skull fracture of the frontal bone, a closed head injury, and a deep cut wound on the forehead. According to the appellant, those injuries were significantly more serious than ordinary soft tissue injuries and warranted a substantially higher award. Reliance was placed on Peter M. Kariuki v Attorney General [2014] eKLR, Board of Governors of Kangubiri Girls High School & Another v Jane Wanjiku & Another [2014] eKLR, and Pioneer Plumbers Limited v Jacob Nyongesa Mughola, Civil Appeal No. 605 of 2015 , where higher awards were made for serious head injuries.
24) The respondents, however, submit that the trial court relied on Dr. Wokabi's medical report, which demonstrated that the appellant sustained only a mild head injury. They further contend that the award is consistent with comparable awards, relying on Ogola v Ogangira & Another (Civil Appeal E068 of 2023) [2026] KEHC 336 (KLR).
25) I have carefully examined the record of appeal and the judgment of the trial court. Whereas the learned magistrate referred to authorities involving soft tissue injuries, the judgment does not demonstrate that the court undertook a proper evaluation of the actual injuries sustained by the appellant as reflected in the medical evidence. Indeed, the judgment states that the appellant suffered "a cut on the right ankle, dorsum of the foot, and right index finger." Those are not the injuries pleaded in the plaint, nor are they the injuries relied upon by the appellant in this appeal. The appellant's case throughout has been that he sustained a depressed frontal skull fracture, a closed head injury, and a deep cut wound on the forehead.
26) A court assessing damages must base its determination on the injuries proved by the evidence. Where the court proceeds on an incorrect appreciation of those injuries, it inevitably applies wrong comparables and arrives at an erroneous estimate of damages. That amounts to a misdirection warranting appellate interference within the meaning of Butt v Khan [1978] eKLR and Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v Lubia & Another (No. 2) [1985] eKLR .
27) Moreover, the authorities cited by the trial court largely concerned claimants who sustained soft tissue injuries with no significant head trauma. Those decisions were therefore of limited assistance in assessing compensation for a claimant who allegedly sustained a depressed skull fracture. The principle that comparable injuries should attract comparable awards requires courts to identify decisions involving substantially similar injuries rather than merely injuries arising from road traffic accidents.
28) Having re-evaluated the record as required of a first appellate court, I am satisfied that the learned trial magistrate misapprehended the nature of the appellant's injuries and consequently relied on non-comparable authorities. The award of Kshs. 200,000, therefore, cannot be said to represent a proper estimate of damages for the injuries proved.
29) Nevertheless, the appellant's proposed award of Kshs. 3,000,000 is equally unsupported by sufficient comparable authorities demonstrating that the injuries resulted in permanent neurological disability, epilepsy, cognitive impairment, or other serious long-term sequelae. While a depressed skull fracture undoubtedly constitutes a serious injury, damages must remain compensatory rather than punitive and must reflect the actual evidence on record.
30) Taking into account the injuries proved, the medical reports, comparable awards for similar head injuries, and the applicable principles governing appellate interference, I am persuaded that the award of Kshs. 200,000 was inordinately low and ought to be interfered with. A more reasonable and fair award for pain, suffering, and loss of amenities is Kshs. 1,500,000, which adequately reflects the seriousness of the injuries while remaining consistent with comparable awards made by the superior courts.
F. DISPOSITION
31) Consequently, the appeal succeeds on quantum.
32) The judgment of the Chief Magistrate's Court delivered on 22 nd January 2025 is hereby set aside only to the extent of the award of general damages.
33) The award of Kshs. 200,000 in general damages is substituted with an award of Kshs. 1,500,000 as general damages for pain, suffering, and loss of amenities.
34) The award of special damages of Kshs. 4,370 is upheld.
35) The appellant shall therefore recover:
a. General damages: Kshs. 1,500,000
b. Special damages: Kshs. 4,370
Total: Kshs. 1,504,370.
36) The above sums shall attract interest at court rates, with interest on general damages running from the date of the judgment of the trial court and interest on special damages running from the date of filing suit until payment in full.
37) The appellant shall have the costs of this appeal.
38) It is so ordered.
DATED, SIGNED, AND DELIVERED AT NAROK, THIS 9TH DAY OF JULY,2026
CHARLES KARIUKI
JUDGE
NAROK HCCA NO. E005 OF 2025 Page 2 of 2