(Being an appeal from the Judgment and Decree of Honourable Khapoya S. Benson in Kithimani Law Court Civil Case No. 55 of 2020 delivered on 15th May 2024)
1. This is an appeal on quantum only. In the trial court, the Appellant instituted a suit against the Respondents seeking damages for negligence arising from a road traffic accident.
2. In her Plaint dated 6th May 2020, the Appellant averred that on or about 30th January 2020 at approximately 5:30 p.m., she was lawfully travelling as a pillion passenger on Motorcycle Registration Number KMEV 657F along the Thika–Matuu Road at the “Kwa Makaa” area when the 2nd Respondent negligently drove Motor Vehicle Registration Number KCQ 932N in such a manner that he caused and/or permitted the said motor vehicle to veer off its lane and ram into the motorcycle. As a result of the accident, the Appellant sustained severe personal injuries, suffered loss and damage. She consequently prayed for judgment against the Respondents jointly and severally for special damages of Kshs 7,750/=, general damages for pain, suffering and loss of amenities, costs of the suit, and interest thereon.
3. In their Defence, the Respondents denied the claim.
4. By consent, which was adopted as an order of the court on 29th November 2023, the parties agreed on liability in favour of the Appellant as against the Respondents in the ratio of 85%:15%. It was further agreed that the Appellant’s documents be admitted in evidence without calling the makers thereof.
5. Upon considering the evidence on record, the trial Magistrate came to the conclusion that: -
(a) Liability be apportioned at 85%:15% in favour of the Plaintiff as against the Defendants.
(b) General Damages of Kshs 60, 000/= less 15%
(c) Special damages of Kshs 7, 750/=
6. The appellant being dissatisfied with the said decision, filed this appeal on the following grounds; that the learned Magistrate erred in law and in fact in awarding general damages for pain and suffering of Kshs 60, 000/= which is manifestly and inordinately low bearing in mind the injuries sustained by the Appellant and the effect of the injuries. The trial court failed to properly consider the Appellant’s submissions and instead placed reliance to the Respondent’s witness in assessing quantum. Further the trial court disregarded the appellant’s submissions and authorities which demonstrated that victims with similar injuries have been awarded higher compensation. In doing so the trial court failed to apply the guiding principle that similar injuries should attract similar award while also neglecting to account for the peculiar circumstances of the appellants injuries, the effect of inflation on the value of money and the sequel of the injuries.
7. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 9th June 2025 and as at the time of writing this judgment, the Respondents had not filed their submissions.
Appellant’s submissions
8. In her submissions, the Appellant began by outlining the background of the appeal and identified the central issue for determination: whether the damages awarded by the trial court were proportionate to the injuries she sustained. She argued that the award was manifestly low and amounted to an error in both law and fact. Relying on the authorities of Selle v Associated Motor Boat Company Limited, Kemfro Africa Limited & Another v Lubia & Another (1982–88) KLR, and Catholic Diocese of Kisumu v Sophia Achieng Tete, Kisumu Civil Appeal No. 284 of 2001, the Appellant emphasized the duty of this Court, as a first appellate court, to re-evaluate, re-assess, and re-analyse the evidence on record in order to determine whether the trial court’s conclusions should be upheld.
9. With regard to the injuries sustained, the Appellant submitted that she suffered generalized scalp skin tenderness and very tender multiple scalp skin bruises. She contended that these injuries were evidenced by the prescription note from Matuu Level IV Hospital, the P3 Form, and the medical report by Dr. Muli dated 8th February 2020. She further submitted that the medical report confirmed that at the time of examination, the doctor observed healed scars on her head and classified the injuries as harm.
10. The Appellant further submitted that it was not clear which authorities the trial Magistrate relied upon in accounting for inflationary trends when making the award. She referred to the trial court’s statement that “I have carefully studied the authorities cited, taking into consideration the inflationary trends prevailing at this time, it is my finding that an award of Kshs 60,000/= would be sufficient in this case.”
11. She relied on the decision in Swiss Contact Limited & Peter Munguti Kieti v Esther & Another [2019] eKLR, to submit that it was incumbent upon the trial court to conduct a comparative analysis of the authorities cited in order to ensure certainty and uniformity in the award of damages. She argued that the trial court erred in two material respects: first, by failing to properly appreciate the nature and extent of the Appellant’s injuries; and second, by failing to undertake a comparative analysis of the injuries sustained vis-à-vis the authorities cited by the parties.
12. The Appellant reiterated that she had relied on the decisions in Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi [2005] eKLR, where the court awarded Kshs 350,000/= and Lucy Ntibuka v Bernard Mutwiri & Others [1983] eKLR, where the court awarded Kshs 500,000/=. She submitted that the injuries in those cases were comparable to hers and urged that a reasonable and appropriate award in the circumstances would have been Kshs 300,000/=.
13. In conclusion, the Appellant urged this Court to allow the appeal and substitute the award of general damages of Kshs 60,000/= with an award of Kshs 300,000/=.
Analysis and Determination
14. The duty of the first appellate Court was settled long ago as rightly submitted by the Appellant in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the court, held as follows; -
“… this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
15. Having carefully reviewed the Appeal in its entirety, I find that the sole issue for determination is whether the trial magistrate erred in arriving at his decision on quantum of damages.
16. On quantum, the approach of the Courts is exemplified by the case of Mohammed Mahmoud Jabane v Highstone Butty Tongoi Olenja CA No. 2 of 1986 KLR 730 wherein Nyarangi J.A stated that:
“an appellate Court does not interfere with quantum of damages simply because in its opinion the damages awarded is excessive, it only interferes if there is evidence. That the damages have been assessed on wrong grounds or are unreasonable.”
17. The Appellant confined her appeal to the issue of general damages and did not challenge the award on special damages. Consequently, this Court shall restrict itself to the issue of general damages only.
18. According to the medical report by Dr. Muli Simeon Kioko dated 8th February 2020, the Appellant sustained head injuries, which upon examination were described as generalized scalp skin tenderness and very tender multiple scalp skin bruises. It is noteworthy that the said medical report was not contested. The Appellant contends that the award of general damages in the sum of Kshs 60,000/= was inordinately low in light of the injuries sustained and proposes that an award of Kshs 300,000/= would be more appropriate.
19. At the outset, I note that the award of general damages lies within the discretion of the trial court. However, such discretion must be exercised judiciously and in accordance with established legal principles. The jurisdiction of an appellate court to interfere with an award of damages is limited to specific circumstances: where the award is inordinately high or low, thereby amounting to an erroneous estimate of the damage suffered; or where the trial court considered irrelevant factors, failed to consider relevant ones, or misapplied the applicable legal principles in arriving at its decision.
20. My duty, therefore, is to examine comparable cases involving similar injuries in order to determine whether the learned magistrate properly applied the principles governing the assessment of general damages. I understand no single case is typically identical to the other. I have therefore considered the below cases;
1) In the case of Elizabeth Wamboi Gichoni v Benard Ouma Owuor [2019] eKLR, where the Claimant who alleged to have sustained cuts on the forehead and scalp occipital region and bruises was awarded Kshs.175,000/-.
2) In the case of Dismas Kipyego v Philip Kiprono [2019] eKLR, the Court made an award of Kshs. 150,000/- to a Plaintiff who had sustained injuries that included a depressed fracture of the skull and subluxation of the right shoulder plus blunt injury.
3) In Jyoti Structures Limited & another v Truphena Chepkoech Too & another [2020] eKLR, a respondent that had sustained blunt injury to the head, neck, chest, back, both thighs, the trial court assessed general damages at Kshs. 250,000/=. For the 2nd respondent that had sustained bruises on the parietal scalp, blunt injury to chest, deep cut wound on right forearm and right hand, general damages were assessed at Kshs. 200,000/=. On appeal, the court set aside both awards and substituted them with Kshs. 125,000/= each.
21. Having considered the awards made in the above-cited authorities and bearing in mind the lapse of time since those decisions were rendered, I find that the trial magistrate erred in the exercise of discretion by awarding the Appellant general damages in the sum of Kshs 60,000/= without reference to, or consideration of, comparable awards. It is evident from the judgment that the trial court did not rely on any authority in arriving at the award of Kshs 60,000/=. In my assessment, an award of Kshs 130,000/= represents fair and reasonable compensation for the soft tissue injuries sustained by the Appellant.
22. Consequently, the award of Kshs 60,000/= made by the trial court is hereby set aside and substituted with an award of Kshs 130,000/= less 15% liability; Total awarded 110,500/=
23. Accordingly, for the reasons set above, this appeal succeeds with costs to the Appellant.
Orders accordingly.
Delivered, Dated and Signed this 22nd day of January 2026
1. This is an appeal on quantum only. In the trial court, the Appellant instituted a suit against the Respondents seeking damages for negligence arising from a road traffic accident.
2. In her Plaint dated 6th May 2020, the Appellant averred that on or about 30th January 2020 at approximately 5:30 p.m., she was lawfully travelling as a pillion passenger on Motorcycle Registration Number KMEV 657F along the Thika–Matuu Road at the “Kwa Makaa” area when the 2nd Respondent negligently drove Motor Vehicle Registration Number KCQ 932N in such a manner that he caused and/or permitted the said motor vehicle to veer off its lane and ram into the motorcycle. As a result of the accident, the Appellant sustained severe personal injuries, suffered loss and damage. She consequently prayed for judgment against the Respondents jointly and severally for special damages of Kshs 7,750/=, general damages for pain, suffering and loss of amenities, costs of the suit, and interest thereon.
3. In their Defence, the Respondents denied the claim.
4. By consent, which was adopted as an order of the court on 29th November 2023, the parties agreed on liability in favour of the Appellant as against the Respondents in the ratio of 85%:15%. It was further agreed that the Appellant’s documents be admitted in evidence without calling the makers thereof.
5. Upon considering the evidence on record, the trial Magistrate came to the conclusion that: -
(a) Liability be apportioned at 85%:15% in favour of the Plaintiff as against the Defendants.
(b) General Damages of Kshs 60, 000/= less 15%
(c) Special damages of Kshs 7, 750/=
6. The appellant being dissatisfied with the said decision, filed this appeal on the following grounds; that the learned Magistrate erred in law and in fact in awarding general damages for pain and suffering of Kshs 60, 000/= which is manifestly and inordinately low bearing in mind the injuries sustained by the Appellant and the effect of the injuries. The trial court failed to properly consider the Appellant’s submissions and instead placed reliance to the Respondent’s witness in assessing quantum. Further the trial court disregarded the appellant’s submissions and authorities which demonstrated that victims with similar injuries have been awarded higher compensation. In doing so the trial court failed to apply the guiding principle that similar injuries should attract similar award while also neglecting to account for the peculiar circumstances of the appellants injuries, the effect of inflation on the value of money and the sequel of the injuries.
7. The appeal was canvassed by way of written submissions. The Appellant’s submissions are dated 9th June 2025 and as at the time of writing this judgment, the Respondents had not filed their submissions.
Appellant’s submissions
8. In her submissions, the Appellant began by outlining the background of the appeal and identified the central issue for determination: whether the damages awarded by the trial court were proportionate to the injuries she sustained. She argued that the award was manifestly low and amounted to an error in both law and fact. Relying on the authorities of Selle v Associated Motor Boat Company Limited, Kemfro Africa Limited & Another v Lubia & Another (1982–88) KLR, and Catholic Diocese of Kisumu v Sophia Achieng Tete, Kisumu Civil Appeal No. 284 of 2001, the Appellant emphasized the duty of this Court, as a first appellate court, to re-evaluate, re-assess, and re-analyse the evidence on record in order to determine whether the trial court’s conclusions should be upheld.
9. With regard to the injuries sustained, the Appellant submitted that she suffered generalized scalp skin tenderness and very tender multiple scalp skin bruises. She contended that these injuries were evidenced by the prescription note from Matuu Level IV Hospital, the P3 Form, and the medical report by Dr. Muli dated 8th February 2020. She further submitted that the medical report confirmed that at the time of examination, the doctor observed healed scars on her head and classified the injuries as harm.
10. The Appellant further submitted that it was not clear which authorities the trial Magistrate relied upon in accounting for inflationary trends when making the award. She referred to the trial court’s statement that “I have carefully studied the authorities cited, taking into consideration the inflationary trends prevailing at this time, it is my finding that an award of Kshs 60,000/= would be sufficient in this case.”
11. She relied on the decision in Swiss Contact Limited & Peter Munguti Kieti v Esther & Another [2019] eKLR, to submit that it was incumbent upon the trial court to conduct a comparative analysis of the authorities cited in order to ensure certainty and uniformity in the award of damages. She argued that the trial court erred in two material respects: first, by failing to properly appreciate the nature and extent of the Appellant’s injuries; and second, by failing to undertake a comparative analysis of the injuries sustained vis-à-vis the authorities cited by the parties.
12. The Appellant reiterated that she had relied on the decisions in Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi [2005] eKLR, where the court awarded Kshs 350,000/= and Lucy Ntibuka v Bernard Mutwiri & Others [1983] eKLR, where the court awarded Kshs 500,000/=. She submitted that the injuries in those cases were comparable to hers and urged that a reasonable and appropriate award in the circumstances would have been Kshs 300,000/=.
13. In conclusion, the Appellant urged this Court to allow the appeal and substitute the award of general damages of Kshs 60,000/= with an award of Kshs 300,000/=.
Analysis and Determination
14. The duty of the first appellate Court was settled long ago as rightly submitted by the Appellant in the locus Classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the court, held as follows; -
“… this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
15. Having carefully reviewed the Appeal in its entirety, I find that the sole issue for determination is whether the trial magistrate erred in arriving at his decision on quantum of damages.
16. On quantum, the approach of the Courts is exemplified by the case of Mohammed Mahmoud Jabane v Highstone Butty Tongoi Olenja CA No. 2 of 1986 KLR 730 wherein Nyarangi J.A stated that:
“an appellate Court does not interfere with quantum of damages simply because in its opinion the damages awarded is excessive, it only interferes if there is evidence. That the damages have been assessed on wrong grounds or are unreasonable.”
17. The Appellant confined her appeal to the issue of general damages and did not challenge the award on special damages. Consequently, this Court shall restrict itself to the issue of general damages only.
18. According to the medical report by Dr. Muli Simeon Kioko dated 8th February 2020, the Appellant sustained head injuries, which upon examination were described as generalized scalp skin tenderness and very tender multiple scalp skin bruises. It is noteworthy that the said medical report was not contested. The Appellant contends that the award of general damages in the sum of Kshs 60,000/= was inordinately low in light of the injuries sustained and proposes that an award of Kshs 300,000/= would be more appropriate.
19. At the outset, I note that the award of general damages lies within the discretion of the trial court. However, such discretion must be exercised judiciously and in accordance with established legal principles. The jurisdiction of an appellate court to interfere with an award of damages is limited to specific circumstances: where the award is inordinately high or low, thereby amounting to an erroneous estimate of the damage suffered; or where the trial court considered irrelevant factors, failed to consider relevant ones, or misapplied the applicable legal principles in arriving at its decision.
20. My duty, therefore, is to examine comparable cases involving similar injuries in order to determine whether the learned magistrate properly applied the principles governing the assessment of general damages. I understand no single case is typically identical to the other. I have therefore considered the below cases;
1) In the case of Elizabeth Wamboi Gichoni v Benard Ouma Owuor [2019] eKLR, where the Claimant who alleged to have sustained cuts on the forehead and scalp occipital region and bruises was awarded Kshs.175,000/-.
2) In the case of Dismas Kipyego v Philip Kiprono [2019] eKLR, the Court made an award of Kshs. 150,000/- to a Plaintiff who had sustained injuries that included a depressed fracture of the skull and subluxation of the right shoulder plus blunt injury.
3) In Jyoti Structures Limited & another v Truphena Chepkoech Too & another [2020] eKLR, a respondent that had sustained blunt injury to the head, neck, chest, back, both thighs, the trial court assessed general damages at Kshs. 250,000/=. For the 2nd respondent that had sustained bruises on the parietal scalp, blunt injury to chest, deep cut wound on right forearm and right hand, general damages were assessed at Kshs. 200,000/=. On appeal, the court set aside both awards and substituted them with Kshs. 125,000/= each.
21. Having considered the awards made in the above-cited authorities and bearing in mind the lapse of time since those decisions were rendered, I find that the trial magistrate erred in the exercise of discretion by awarding the Appellant general damages in the sum of Kshs 60,000/= without reference to, or consideration of, comparable awards. It is evident from the judgment that the trial court did not rely on any authority in arriving at the award of Kshs 60,000/=. In my assessment, an award of Kshs 130,000/= represents fair and reasonable compensation for the soft tissue injuries sustained by the Appellant.
22. Consequently, the award of Kshs 60,000/= made by the trial court is hereby set aside and substituted with an award of Kshs 130,000/= less 15% liability; Total awarded 110,500/=
23. Accordingly, for the reasons set above, this appeal succeeds with costs to the Appellant.
Orders accordingly.
Delivered, Dated and Signed this 22nd day of January 2026