JUDGMENT
1. The Appellant, Simon Ngeta alias Simon Ngeti, suing as a minor through the next friend Penninah Muia Mbuvi, instituted Kithimani PMCC No. 400 of 2018 against the Respondents following a road traffic accident involving motor vehicle registration number KCK 947H.
2. By a Plaint dated 2 nd October 2018, the Plaintiff sought, inter alia , special damages, general damages for pain, suffering and loss of amenities, the estimated cost of surgery, costs of the suit and interest.
3. The Plaintiff pleaded that on 11 th December 2017, at approximately 3:30 p.m., the minor was travelling as a fare-paying passenger in motor vehicle registration number KCK 947H along the Matuu–Thika Road at “Kwa Makaa” area when the vehicle, driven by the 4 th Defendant, allegedly lost control, overturned and rolled several times, thereby causing the minor to sustain injuries.
4. The Plaintiff pleaded, inter alia , that the 1 st and 2 nd Defendants were the beneficial owners/possessors/controllers of the motor vehicle, the 3 rd Defendant was its registered owner and the 4 th Defendant was its driver and/or authorised driver
5. The Plaintiff pleaded that the minor sustained a large avulsion wound on the dome of the head with skull bone exposed and on-and-off subsequent headaches.
6. The Plaintiff further pleaded special damages of a total sum of Kshs 9,650/= and general damages for pain, suffering and loss of amenities plus costs of surgery estimated at Kshs 300,000/=, together with costs and interest.
7. The Defendants filed a joint Statement of Defence dated 14 th December 2018, denying the allegations in the Plaint and putting the Plaintiff to strict proof.
8. In the alternative, the Defendants pleaded that if the accident occurred, it was caused solely and/or substantially by negligence of the Plaintiff.
9. The particulars of the alleged negligence included failure to take adequate precaution for the minor’s safety, failure to belt up while travelling, failure to heed the instructions on safety precautions when travelling and failure to heed the traffic rules and regulations when travelling.
10. The Defendant further denied any alleged particulars of injuries, present complaints and particulars of special damage and put the Plaintiff to strict proof.
11. PW1, Aaron Kitheka Mbuvi, testified and adopted his witness statement dated 2 nd October 2018 as his evidence-in-chief. He testified that the minor, Simon Ngeta, is his nephew and that they were travelling together from Nairobi to Kitui on 11 th December 2017. He stated that the weather was clear, the road was tarmacked and straight, and that the accident occurred at approximately 3:00 p.m.
12. PW1 testified that he also sustained injuries and that the minor sustained injuries to his head and was taken to Matuu Sub-County Hospital for treatment. He blamed the driver of the motor vehicle for the accident.
13. On cross-examination, PW1 confirmed that the accident occurred on 11 th December 2017 and involved motor vehicle registration number KCK 947H. He further confirmed that he sustained injuries and reported the incident at Matuu Police Station.
14. PW2 adopted her witness statement dated 2 nd October 2018 as her evidence-in-chief. She also produced her exhibits, which were marked P. Exh. 1–14.
15. PW2 adopted the particulars of the minor's injuries pleaded in the Plaint, including the particulars set out in paragraph 6 thereof. She testified that the minor had since healed but remained with a scar on his head. She further referred to P. Exh. 10, stating that a sum of Kshs. 300,000/= would be required to remove or clear the scars.
16. On cross-examination, PW2 confirmed that the minor was 11 years old and that he had been travelling with her brother at the time of the accident. She testified that she was informed of the accident by telephone and that the minor was admitted for treatment. She confirmed that he had since healed. She further stated that she had never testified against the vehicle’s driver.
17. The respondent did not file any submissions at the hearing. The trial court, after considering the pleadings and submissions by the plaintiff, the nature of injuries sustained and case law on comparative awards plus inflation it proceeded to award the plaintiff kshs 100, 000 for general damages and kshs 9,650 on account of special damages
18. By a Memorandum of Appeal dated 10 th July 2024, the Appellant challenges the judgment of the trial court principally on the ground that the award of Kshs. 100,000/= in general damages was manifestly and inordinately low in light of the injuries sustained.
19. The Appellant’s grounds of appeal essentially challenge the learned trial magistrate’s assessment of general damages and contend that the court failed to properly appreciate the nature and extent of the minor’s injuries and failed to make an award commensurate with those injuries.
20. Directions were issued on 10 th March 2026, and the appeal was directed to be canvassed by way of written submissions.
21. The Appellant submits that, being a first appeal, this Court is required to re-evaluate, re-assess and re-analyse the evidence on record and draw its own conclusions, while bearing in mind that it did not hear or see the witnesses testify.
22. The Appellant further submits that an appellate court may interfere with an award of damages where the trial court took into account an irrelevant factor, failed to take into account a relevant factor, misapprehended the evidence or arrived at an award that is inordinately high or low as to constitute an erroneous estimate of the damages.
23. On the injuries sustained, the Appellant submits that the minor suffered a large avulsion wound on the dome of the head, with the skull bone exposed, which resulted in scars on the head.
24. The Appellant relies on the treatment notes, P3 Form and the medical reports of Dr. Muli and Dr. Wokabi, which confirmed the injuries and the resulting scars.
25. The Appellant submits that the evidence relating to the injuries was not controverted and that the trial court failed to appreciate the nature and extent of the injuries in assessing general damages.
26. The Appellant further submits that the trial court failed to undertake a comparative analysis of the injuries and the authorities cited by the Appellant in support of the proposed award, contrary to the principle that comparable injuries should, as far as possible, attract comparable awards.
27. The Appellant relies on Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi [2005] eKLR and Lucy Ntibuka v Bernard Mutwiri & Others [1983] eKLR as comparable authorities on awards for soft tissue injuries.
28. The Appellant submits that, having regard to the severity of the minor’s injuries, the resulting scars and inflationary trends, the award of Kshs. 100,000/= was manifestly and inordinately low.
29. The Appellant therefore proposes an award of Kshs. 300,000/= as general damages for pain, suffering and loss of amenities, as had been submitted before the trial court.
30. In conclusion, the Appellant prays that the judgment of the trial court on general damages be set aside and substituted with an award of Kshs. 300,000/=, together with costs and interest in the lower court and in the appeal.
31. The Respondents submit that the assessment of damages is an exercise of judicial discretion and that an appellate court should not interfere with the exercise of that discretion unless it is demonstrated that the trial court acted on wrong principles.
32. The Respondents contend that the Appellant has not demonstrated that the learned trial magistrate acted on any wrong principle, misapprehended the evidence or otherwise improperly exercised her discretion in arriving at the award of Kshs. 100,000/=.
33. The Respondents further submit that the learned trial magistrate properly considered the nature and extent of the injuries sustained by the Appellant, together with the authorities cited by the parties, before arriving at the award of Kshs. 100,000/=.
34. The Respondents argue that the award was reasonable, fair and commensurate with the injuries sustained.
35. The Respondents contend that the Appellant has merely expressed dissatisfaction with the award without demonstrating that the award was so inordinately low as to warrant interference by this Honourable Court.
36. I have considered the Record of Appeal, the Memorandum of Appeal, the rival submissions by the parties from which I have identified the sole issue for determination as whether the learned trial magistrate erred in principle, or arrived at an inordinately low award, by awarding the Appellant Kshs. 100,000 as general damages for pain, suffering and loss of amenities, thereby warranting interference by this Court on first appeal.
37. Considering that this is a first appeal on quantum. I believe that the duty of a first appellate court is to reconsider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This principle was settled way back in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court held that an appellate court must reconsider, evaluate and draw its own conclusions from the evidence, making due allowance for the fact that it did not have the advantage of seeing and hearing the witnesses.
38. The more specific question in this appeal concerns interference with an award of general damages. The governing principle, I believe, was settled in the case of Kemfro Africa Ltd t/a Meru Express Services (1976) v A.M. Lubia & Another (No. 2) [1985] eKLR where the Court of Appeal held that an appellate court is justified in disturbing an award if it is satisfied that the trial court took into account an irrelevant factor, left out of account a relevant factor, or, short of either of those circumstances, the amount awarded is so inordinately low or high as to constitute a wholly erroneous estimate of the damage.
39. Similarly, in the case of Butt v Khan [1981] KLR 349, the Court of Appeal emphasized that an appellate court should not disturb an award merely because it would itself have awarded a different figure. It must be demonstrated that the trial court proceeded on wrong principles, misapprehended the evidence in a material respect, or arrived at an award so inordinately high or low as to amount to an entirely erroneous estimate.
40. With that in mind, it becomes apparent that the task of this Court is not simply to determine whether Kshs. 100,000 is lower than what this Court might have awarded.
41. The question is whether, upon a proper re-evaluation of the evidence and the applicable principles, the award falls outside the permissible range of discretion and consequently amounts to an erroneous estimate of the damage suffered.
42. The evidence on record establishes that the minor sustained a large avulsion wound on the dome of the head, with the skull bone exposed. The treatment records, P3 Form and medical reports of Dr. Muli and Dr. Wokabi were produced in evidence and supported the nature of the injuries.
43. The evidence further established that, although the minor subsequently healed, he was left with a scar on his head.
44. In assessing general damages, the Court is required to have regard to the actual injuries proved and their consequences. The fact that a claimant has substantially healed does not, of itself, render the injuries insignificant for purposes of compensation. The Court must consider the pain and suffering occasioned by the injury as well as any residual consequence, including disfigurement or scarring
45. The assessment of general damages ought to be guided by consistency. Our courts have repeatedly held that, although no two cases are exactly alike, comparable injuries should, as far as possible, attract comparable awards.
46. That principle was expressly stated by the Court of Appeal in the case of Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR, and has been applied in numerous decisions.
47. With those considerations in mind, it is my view that the award of Kshs. 100,000 was inordinately low when the injuries are considered cumulatively; In particular, insufficient weight appears to have been given to the severity of the avulsion wound, the exposure of the skull bone and the residual scarring. Those, to me, were material features of the injury which ought to have informed the assessment.
48. That conclusion is not based merely on the fact that this Court would have awarded a higher amount. It is based on a fresh consideration of the evidence, the nature and consequences of the injuries and the established principle that requires comparable injuries to attract comparable awards.
49. The award by the trial court falls within the circumstances contemplated in Kemfro Africa Ltd v Lubia and Gitobu Imanyara v Attorney General, viz., an award so low as to constitute an erroneous estimate of the damage.
50. Having regard to the large avulsion wound to the head, exposure of the skull bone, the treatment undergone, the residual scar and the comparable awards placed before the Court, I consider Kshs. 250,000 to be a fair and reasonable award for pain, suffering and loss of amenities.
51. In the case of Peter Njuguna v Francis Njuguna Njoroge [2015] eKLR, Kshs. 230,000 was awarded for injuries including bruising of the occipital scalp and a deep cut to the forehead, together with other soft-tissue injuries. The present Appellant suffered a significantly larger avulsion wound with exposure of the skull bone and was left with a residual scar. An award of Kshs. 250,000 is to my mind within a reasonable and proportionate range.
52. I find that the learned trial magistrate's award of Kshs. 100,000 was inordinately low and amounted to an erroneous estimate of the damages suffered. The award should therefore be disturbed.
53. I find that the appeal succeeds on the issue of quantum.
54. I therefore order as follows;
A. The award of Kshs. 100,000 made by the trial court in Kithimani PMCC No. 400 of 2018 as general damages for pain, suffering and loss of amenities is hereby set aside and substituted with an award of Kshs. 250,000.
B. The Appellant shall have the costs of the Appeal.
Dated, signed and delivered via Microsoft Teams, at Mombasa this 17 th day of September 2026
In the presence of;
Hamisi C/A
Ndungu for the Appellant
Morara for the Respondent
Page 2 of 2
1. The Appellant, Simon Ngeta alias Simon Ngeti, suing as a minor through the next friend Penninah Muia Mbuvi, instituted Kithimani PMCC No. 400 of 2018 against the Respondents following a road traffic accident involving motor vehicle registration number KCK 947H.
2. By a Plaint dated 2 nd October 2018, the Plaintiff sought, inter alia , special damages, general damages for pain, suffering and loss of amenities, the estimated cost of surgery, costs of the suit and interest.
3. The Plaintiff pleaded that on 11 th December 2017, at approximately 3:30 p.m., the minor was travelling as a fare-paying passenger in motor vehicle registration number KCK 947H along the Matuu–Thika Road at “Kwa Makaa” area when the vehicle, driven by the 4 th Defendant, allegedly lost control, overturned and rolled several times, thereby causing the minor to sustain injuries.
4. The Plaintiff pleaded, inter alia , that the 1 st and 2 nd Defendants were the beneficial owners/possessors/controllers of the motor vehicle, the 3 rd Defendant was its registered owner and the 4 th Defendant was its driver and/or authorised driver
5. The Plaintiff pleaded that the minor sustained a large avulsion wound on the dome of the head with skull bone exposed and on-and-off subsequent headaches.
6. The Plaintiff further pleaded special damages of a total sum of Kshs 9,650/= and general damages for pain, suffering and loss of amenities plus costs of surgery estimated at Kshs 300,000/=, together with costs and interest.
7. The Defendants filed a joint Statement of Defence dated 14 th December 2018, denying the allegations in the Plaint and putting the Plaintiff to strict proof.
8. In the alternative, the Defendants pleaded that if the accident occurred, it was caused solely and/or substantially by negligence of the Plaintiff.
9. The particulars of the alleged negligence included failure to take adequate precaution for the minor’s safety, failure to belt up while travelling, failure to heed the instructions on safety precautions when travelling and failure to heed the traffic rules and regulations when travelling.
10. The Defendant further denied any alleged particulars of injuries, present complaints and particulars of special damage and put the Plaintiff to strict proof.
11. PW1, Aaron Kitheka Mbuvi, testified and adopted his witness statement dated 2 nd October 2018 as his evidence-in-chief. He testified that the minor, Simon Ngeta, is his nephew and that they were travelling together from Nairobi to Kitui on 11 th December 2017. He stated that the weather was clear, the road was tarmacked and straight, and that the accident occurred at approximately 3:00 p.m.
12. PW1 testified that he also sustained injuries and that the minor sustained injuries to his head and was taken to Matuu Sub-County Hospital for treatment. He blamed the driver of the motor vehicle for the accident.
13. On cross-examination, PW1 confirmed that the accident occurred on 11 th December 2017 and involved motor vehicle registration number KCK 947H. He further confirmed that he sustained injuries and reported the incident at Matuu Police Station.
14. PW2 adopted her witness statement dated 2 nd October 2018 as her evidence-in-chief. She also produced her exhibits, which were marked P. Exh. 1–14.
15. PW2 adopted the particulars of the minor's injuries pleaded in the Plaint, including the particulars set out in paragraph 6 thereof. She testified that the minor had since healed but remained with a scar on his head. She further referred to P. Exh. 10, stating that a sum of Kshs. 300,000/= would be required to remove or clear the scars.
16. On cross-examination, PW2 confirmed that the minor was 11 years old and that he had been travelling with her brother at the time of the accident. She testified that she was informed of the accident by telephone and that the minor was admitted for treatment. She confirmed that he had since healed. She further stated that she had never testified against the vehicle’s driver.
17. The respondent did not file any submissions at the hearing. The trial court, after considering the pleadings and submissions by the plaintiff, the nature of injuries sustained and case law on comparative awards plus inflation it proceeded to award the plaintiff kshs 100, 000 for general damages and kshs 9,650 on account of special damages
18. By a Memorandum of Appeal dated 10 th July 2024, the Appellant challenges the judgment of the trial court principally on the ground that the award of Kshs. 100,000/= in general damages was manifestly and inordinately low in light of the injuries sustained.
19. The Appellant’s grounds of appeal essentially challenge the learned trial magistrate’s assessment of general damages and contend that the court failed to properly appreciate the nature and extent of the minor’s injuries and failed to make an award commensurate with those injuries.
20. Directions were issued on 10 th March 2026, and the appeal was directed to be canvassed by way of written submissions.
21. The Appellant submits that, being a first appeal, this Court is required to re-evaluate, re-assess and re-analyse the evidence on record and draw its own conclusions, while bearing in mind that it did not hear or see the witnesses testify.
22. The Appellant further submits that an appellate court may interfere with an award of damages where the trial court took into account an irrelevant factor, failed to take into account a relevant factor, misapprehended the evidence or arrived at an award that is inordinately high or low as to constitute an erroneous estimate of the damages.
23. On the injuries sustained, the Appellant submits that the minor suffered a large avulsion wound on the dome of the head, with the skull bone exposed, which resulted in scars on the head.
24. The Appellant relies on the treatment notes, P3 Form and the medical reports of Dr. Muli and Dr. Wokabi, which confirmed the injuries and the resulting scars.
25. The Appellant submits that the evidence relating to the injuries was not controverted and that the trial court failed to appreciate the nature and extent of the injuries in assessing general damages.
26. The Appellant further submits that the trial court failed to undertake a comparative analysis of the injuries and the authorities cited by the Appellant in support of the proposed award, contrary to the principle that comparable injuries should, as far as possible, attract comparable awards.
27. The Appellant relies on Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi [2005] eKLR and Lucy Ntibuka v Bernard Mutwiri & Others [1983] eKLR as comparable authorities on awards for soft tissue injuries.
28. The Appellant submits that, having regard to the severity of the minor’s injuries, the resulting scars and inflationary trends, the award of Kshs. 100,000/= was manifestly and inordinately low.
29. The Appellant therefore proposes an award of Kshs. 300,000/= as general damages for pain, suffering and loss of amenities, as had been submitted before the trial court.
30. In conclusion, the Appellant prays that the judgment of the trial court on general damages be set aside and substituted with an award of Kshs. 300,000/=, together with costs and interest in the lower court and in the appeal.
31. The Respondents submit that the assessment of damages is an exercise of judicial discretion and that an appellate court should not interfere with the exercise of that discretion unless it is demonstrated that the trial court acted on wrong principles.
32. The Respondents contend that the Appellant has not demonstrated that the learned trial magistrate acted on any wrong principle, misapprehended the evidence or otherwise improperly exercised her discretion in arriving at the award of Kshs. 100,000/=.
33. The Respondents further submit that the learned trial magistrate properly considered the nature and extent of the injuries sustained by the Appellant, together with the authorities cited by the parties, before arriving at the award of Kshs. 100,000/=.
34. The Respondents argue that the award was reasonable, fair and commensurate with the injuries sustained.
35. The Respondents contend that the Appellant has merely expressed dissatisfaction with the award without demonstrating that the award was so inordinately low as to warrant interference by this Honourable Court.
36. I have considered the Record of Appeal, the Memorandum of Appeal, the rival submissions by the parties from which I have identified the sole issue for determination as whether the learned trial magistrate erred in principle, or arrived at an inordinately low award, by awarding the Appellant Kshs. 100,000 as general damages for pain, suffering and loss of amenities, thereby warranting interference by this Court on first appeal.
37. Considering that this is a first appeal on quantum. I believe that the duty of a first appellate court is to reconsider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. This principle was settled way back in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 , where the Court held that an appellate court must reconsider, evaluate and draw its own conclusions from the evidence, making due allowance for the fact that it did not have the advantage of seeing and hearing the witnesses.
38. The more specific question in this appeal concerns interference with an award of general damages. The governing principle, I believe, was settled in the case of Kemfro Africa Ltd t/a Meru Express Services (1976) v A.M. Lubia & Another (No. 2) [1985] eKLR where the Court of Appeal held that an appellate court is justified in disturbing an award if it is satisfied that the trial court took into account an irrelevant factor, left out of account a relevant factor, or, short of either of those circumstances, the amount awarded is so inordinately low or high as to constitute a wholly erroneous estimate of the damage.
39. Similarly, in the case of Butt v Khan [1981] KLR 349, the Court of Appeal emphasized that an appellate court should not disturb an award merely because it would itself have awarded a different figure. It must be demonstrated that the trial court proceeded on wrong principles, misapprehended the evidence in a material respect, or arrived at an award so inordinately high or low as to amount to an entirely erroneous estimate.
40. With that in mind, it becomes apparent that the task of this Court is not simply to determine whether Kshs. 100,000 is lower than what this Court might have awarded.
41. The question is whether, upon a proper re-evaluation of the evidence and the applicable principles, the award falls outside the permissible range of discretion and consequently amounts to an erroneous estimate of the damage suffered.
42. The evidence on record establishes that the minor sustained a large avulsion wound on the dome of the head, with the skull bone exposed. The treatment records, P3 Form and medical reports of Dr. Muli and Dr. Wokabi were produced in evidence and supported the nature of the injuries.
43. The evidence further established that, although the minor subsequently healed, he was left with a scar on his head.
44. In assessing general damages, the Court is required to have regard to the actual injuries proved and their consequences. The fact that a claimant has substantially healed does not, of itself, render the injuries insignificant for purposes of compensation. The Court must consider the pain and suffering occasioned by the injury as well as any residual consequence, including disfigurement or scarring
45. The assessment of general damages ought to be guided by consistency. Our courts have repeatedly held that, although no two cases are exactly alike, comparable injuries should, as far as possible, attract comparable awards.
46. That principle was expressly stated by the Court of Appeal in the case of Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR, and has been applied in numerous decisions.
47. With those considerations in mind, it is my view that the award of Kshs. 100,000 was inordinately low when the injuries are considered cumulatively; In particular, insufficient weight appears to have been given to the severity of the avulsion wound, the exposure of the skull bone and the residual scarring. Those, to me, were material features of the injury which ought to have informed the assessment.
48. That conclusion is not based merely on the fact that this Court would have awarded a higher amount. It is based on a fresh consideration of the evidence, the nature and consequences of the injuries and the established principle that requires comparable injuries to attract comparable awards.
49. The award by the trial court falls within the circumstances contemplated in Kemfro Africa Ltd v Lubia and Gitobu Imanyara v Attorney General, viz., an award so low as to constitute an erroneous estimate of the damage.
50. Having regard to the large avulsion wound to the head, exposure of the skull bone, the treatment undergone, the residual scar and the comparable awards placed before the Court, I consider Kshs. 250,000 to be a fair and reasonable award for pain, suffering and loss of amenities.
51. In the case of Peter Njuguna v Francis Njuguna Njoroge [2015] eKLR, Kshs. 230,000 was awarded for injuries including bruising of the occipital scalp and a deep cut to the forehead, together with other soft-tissue injuries. The present Appellant suffered a significantly larger avulsion wound with exposure of the skull bone and was left with a residual scar. An award of Kshs. 250,000 is to my mind within a reasonable and proportionate range.
52. I find that the learned trial magistrate's award of Kshs. 100,000 was inordinately low and amounted to an erroneous estimate of the damages suffered. The award should therefore be disturbed.
53. I find that the appeal succeeds on the issue of quantum.
54. I therefore order as follows;
A. The award of Kshs. 100,000 made by the trial court in Kithimani PMCC No. 400 of 2018 as general damages for pain, suffering and loss of amenities is hereby set aside and substituted with an award of Kshs. 250,000.
B. The Appellant shall have the costs of the Appeal.
Dated, signed and delivered via Microsoft Teams, at Mombasa this 17 th day of September 2026
In the presence of;
Hamisi C/A
Ndungu for the Appellant
Morara for the Respondent
Page 2 of 2