The Appellant was sued by the Respondent in Plaint dated 10th July, 2019 seeking special damages of Kshs. 7,500/=, general damages for pain and suffering and costs of the suit and interest. The Respondent’s case was that he was lawfully travelling as a fare paying passenger ALONG Kisii-Oyugis road at Nyakoe in motor vehicle Registration No. KBB 086 F was carelessly driven at high speed and it lost control and hit the tire of the oncoming vehicle Reg. KCP 733 M and landed into a ditch and as a result the plaintiff suffered serious bodily injuries for which the Appellant was held negligent.
The injuries suffered by the Respondent were particularized as;
-bruises on the right hand
-bruises on the left hand
-bruises on the right knee
-bruises on the neck
The particulars of special damages were;
-Medical Report _ Kshs. 6,500/=
-Search from NTSA _ Kshs. 550/=
-Medical expenses _ Kshs. 450/=
Upon consideration of the evidence on record for the Plaintiff and the Defendant the Trial Magistrate found the Appellant liable 100% for the accident and assessed general damages at Kshs. 250,000/= together with Kshs. 7,300/= as special damages. The Respondent was also awarded costs of the suit and interest from the date of judgement till payment in full.
The Appellant was aggrieved by the part of the judgement and appealed against the said judgement vide Memorandum of Appeal dated 18th March 2024 on the following grounds:
1. THAT the Learned Magistrate erred in law in fact in the assessment of quantum by awarding Kshs. 250,000/= for general damages an award that was excessive and an erroneous estimate of the damages awardable compared to the injuries sustained by the Plaintiff.
2. THAT the Learned Trial Magistrate erred in fact and in law in failing to pay regard to authorities in the Appellant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case he was deciding.
3. THAT the Learned Trial Magistrate’s exercise of discretion in assessment of quantum was injudicious.
4. THAT the Learned Trial Magistrate erred in fact and law in failing to consider the Appellant’s submissions on quantum by completely disregarding the submissions and authority of the Appellant and as a result arrived in unjustified decision on quantum.
REASONS WHEREFORE the Appellant prays for the following ORDERS:
(a). That the appeal be allowed and the decree of Hon. P. K. Mutai delivered on 13th March 2019 be set aside
(b). That this court do re-evaluate the evidence of the parties on quantum and dismiss the Plaintiff’s suit with costs to the Appellant.
(c). That in the alternative the court do re-assess the evidence on record of the subordinate court on quantum and award with its own decision.
(d). That the Appellant be awarded the costs of the Appeal and of the lower court suit.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 24th December 2024 and are that the only injuries the Respondent was treated for according to Dr. Morebu were soft tissue injuries to the left knee which were expected to heal and therefore the extra injuries allegedly sustained by the Respondent in the Plaint and included in the Doctor’s report had no basis.
The Appellant therefore urged the court to award Kshs. 50,000/= as general damages as fair and adequate compensation. The Appellant cited the decision in Elizabeth Wamboi Gichon Vs JOO[2019] where an award of Kshs. 350,000/=for loss of consciousness, multiple cut wounds on the right temporal skull, cut wounds on the upper eye lids facial bruises on the left shoulder and bruises on the left leg was substituted with Kshs 180,000/=.
The Appellant also cited the case of Lilian Anyango Otieno Vs Philip Mugoya Ogila [2022] eklr where the court set aside Kshs. 150,000/= for soft tissue injuries and concussion for a few minutes with head injury.
The Appellant reiterated that the injuries sustained by the Respondent were less severe than the ones in the authorities cited and the essence of damages would be defeated if any higher award on general damages were made in the instant case. IT was also submitted that award of damages must be within consistent limit and should represent a fair compensation but should not be excessive.
The Appellant said an award of Kshs 100,000/= would be sufficient to compensate the Respondent.
The Appellant also sought that costs of the appeal be awarded to him.
The Respondent in submissions dated 23rd January 2025 submitted that assessment of damages is the discretion of the trial court and an appellate court will ot interfere with it unless it is shown that the court took into account an irrelevant fact or failed to take into account a relevant factor the award is inordinately high or low in the circumstances of the case.
It was also submitted that the Trial Court’s discretion in assessment of damages is guided by certain principles among them being that comparable injuries must be compensated with comparable awards while bearing in mind that no two injuries are exactly alike. The Respondent cited the holding in Stanley Maore Vs Geoffrey Mwenda[2004]eKLRwhere the Court of Appeal stated that award of damages must be considered in light of injuries sustained and the general approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases.
The Respondent also cited the decision in Simon Taveta Vs Mercy Mutitu Njeru[2014] eklr to reinforce the above principle and also relied on the case of Ugenya Bus Service Vs Gachoki[1982]eklr where it was held that the current value of the shilling and the economy has to be considered and although astronomical awards must be avoided the courts must make sure that they make sense and result in fair compensation.
On costs the Respondent submitted that costs follow the event and that the Respondent was rightly awarded.
The Respondent urged the court to dismiss the appeal as the Trial Magistrate considered the injuries suffered by the Respondent , past awards and passage of time.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...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 retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
Having considered the grounds of appeal and Appellant’s submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are:-
(i) Whether the assessment of award inordinately high in the circumstances of the injuries suffered by the Respondent.
(ii) Whether the Appellant’s submissions and authorities on quantum were considered by the trial magistrate.
(iii) Who should bear the cost of the appeal.
The injuries suffered by the Respondent were particularized as bruises on the right hand, bruises on the left hand, bruises on the right knee and bruises on the neck.
P3 form filled in respect to the injuries suffered by the Respondent and treatment notes were produced by Senior Clinical Officer Daniel Nyameino who examined the Respondent indicated that he suffered harm. Dr, Morebu PW4 did examine the Respondent following the injuries he suffered in the RTA and produced Medical Report Ex P 7. He said he expected the soft tissue injuries on the right knee and neck to heal.
The Appellant argued that general damages assessed for pain was inordinately high and not comparable to the injuries suffered by the Respondent and an award of Kshs. 50,000/= was proposed while relying on the case of HB (Minor suing through the mother & next friend DKM) Vs Jasper Nchonge Magari & Another [2021] eKLR where the High Court awarded Kshs. 60,000/= for soft tissue injuries. The Trial Magistrate did not rely on the Respondent and the Appellant’s authorities to guide in assessing general damages although he said they were relevant but the injuries therein slightly differed and therefore on his own efforts searched and relied on the case of Joseph Gathaga & Another Vs Dickson Ndungu Njoroge to arrive at general damages of Kshs 250,000/= as he thought it was more relevant.
In the Case relied on by the Trial Magistrate of Joseph Gathaga & Another Vs Dickson Ndungu Njoroge the injuries suffered were more serious than the injuries sustained by the Respondent herein.
In HB (Minor suing through the mother & next friend DKM) Vs Jasper Nchonge Magari & Another [2021] Eklr which the Appellant relied on in seeking that the award of damages be set aside and substituted with Kshs50,000/= the injuries suffered were to the head; blunt object injuries to the head and neck, thorax, abdomen and limbs and the Trial Courts award was upheld for the reason the appellant had not discharged the burden of proof that the learned trial magistrate misapprehended the settled principles on awards of damages rendering it unfair and unreasonable to the Appellant.
In the recent case of Oyaro Vs Morris (Civil Appeal No E054 of 2024) [2025] KEHC 5361 (KLR) (25TH April 2025) an award of Kshs 300,000/= was assessed and on appeal the award was considered excessive and reduced to Kshs 130,000/= for bruises and abrasions on the forehead, blunt trauma to the chest, blunt trauma to the abdomen,blunt trauma to the right knee/leg, blunt trauma to the lower back, wound care done and complaints of abdominal pain headache and backache.
In consideration of the fact that the injuries sustained by the Respondent herein were much less severe than the ones in the authorities cited by the Trial Magistrate, the Appellant and the Respondent as well as the most recent decision in Oyaro Vs Morris (supra) this court finds that the award by the Trial Magistrate was excessive in the circumstances and not compatible with comparable injuries and precedent.
Based on the above reasons it is my finding that the Appellant’s appeal has merit and the same is allowed. The award of general damages is set aside and substituted thereof with Kshs. 100,000/=. Each party to bear own costs of the appeal. Costs of the subordinate court are awarded to the Respondent with interest on special damages from date of filing of the suit and interest on general damages from the date of judgement of the subordinate court.
DELIVERED, DATED and SIGNED at MIGORI this 19th day of June, 2025
The injuries suffered by the Respondent were particularized as;
-bruises on the right hand
-bruises on the left hand
-bruises on the right knee
-bruises on the neck
The particulars of special damages were;
-Medical Report _ Kshs. 6,500/=
-Search from NTSA _ Kshs. 550/=
-Medical expenses _ Kshs. 450/=
Upon consideration of the evidence on record for the Plaintiff and the Defendant the Trial Magistrate found the Appellant liable 100% for the accident and assessed general damages at Kshs. 250,000/= together with Kshs. 7,300/= as special damages. The Respondent was also awarded costs of the suit and interest from the date of judgement till payment in full.
The Appellant was aggrieved by the part of the judgement and appealed against the said judgement vide Memorandum of Appeal dated 18th March 2024 on the following grounds:
1. THAT the Learned Magistrate erred in law in fact in the assessment of quantum by awarding Kshs. 250,000/= for general damages an award that was excessive and an erroneous estimate of the damages awardable compared to the injuries sustained by the Plaintiff.
2. THAT the Learned Trial Magistrate erred in fact and in law in failing to pay regard to authorities in the Appellant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case he was deciding.
3. THAT the Learned Trial Magistrate’s exercise of discretion in assessment of quantum was injudicious.
4. THAT the Learned Trial Magistrate erred in fact and law in failing to consider the Appellant’s submissions on quantum by completely disregarding the submissions and authority of the Appellant and as a result arrived in unjustified decision on quantum.
REASONS WHEREFORE the Appellant prays for the following ORDERS:
(a). That the appeal be allowed and the decree of Hon. P. K. Mutai delivered on 13th March 2019 be set aside
(b). That this court do re-evaluate the evidence of the parties on quantum and dismiss the Plaintiff’s suit with costs to the Appellant.
(c). That in the alternative the court do re-assess the evidence on record of the subordinate court on quantum and award with its own decision.
(d). That the Appellant be awarded the costs of the Appeal and of the lower court suit.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 24th December 2024 and are that the only injuries the Respondent was treated for according to Dr. Morebu were soft tissue injuries to the left knee which were expected to heal and therefore the extra injuries allegedly sustained by the Respondent in the Plaint and included in the Doctor’s report had no basis.
The Appellant therefore urged the court to award Kshs. 50,000/= as general damages as fair and adequate compensation. The Appellant cited the decision in Elizabeth Wamboi Gichon Vs JOO[2019] where an award of Kshs. 350,000/=for loss of consciousness, multiple cut wounds on the right temporal skull, cut wounds on the upper eye lids facial bruises on the left shoulder and bruises on the left leg was substituted with Kshs 180,000/=.
The Appellant also cited the case of Lilian Anyango Otieno Vs Philip Mugoya Ogila [2022] eklr where the court set aside Kshs. 150,000/= for soft tissue injuries and concussion for a few minutes with head injury.
The Appellant reiterated that the injuries sustained by the Respondent were less severe than the ones in the authorities cited and the essence of damages would be defeated if any higher award on general damages were made in the instant case. IT was also submitted that award of damages must be within consistent limit and should represent a fair compensation but should not be excessive.
The Appellant said an award of Kshs 100,000/= would be sufficient to compensate the Respondent.
The Appellant also sought that costs of the appeal be awarded to him.
The Respondent in submissions dated 23rd January 2025 submitted that assessment of damages is the discretion of the trial court and an appellate court will ot interfere with it unless it is shown that the court took into account an irrelevant fact or failed to take into account a relevant factor the award is inordinately high or low in the circumstances of the case.
It was also submitted that the Trial Court’s discretion in assessment of damages is guided by certain principles among them being that comparable injuries must be compensated with comparable awards while bearing in mind that no two injuries are exactly alike. The Respondent cited the holding in Stanley Maore Vs Geoffrey Mwenda[2004]eKLRwhere the Court of Appeal stated that award of damages must be considered in light of injuries sustained and the general approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards in similar cases.
The Respondent also cited the decision in Simon Taveta Vs Mercy Mutitu Njeru[2014] eklr to reinforce the above principle and also relied on the case of Ugenya Bus Service Vs Gachoki[1982]eklr where it was held that the current value of the shilling and the economy has to be considered and although astronomical awards must be avoided the courts must make sure that they make sense and result in fair compensation.
On costs the Respondent submitted that costs follow the event and that the Respondent was rightly awarded.
The Respondent urged the court to dismiss the appeal as the Trial Magistrate considered the injuries suffered by the Respondent , past awards and passage of time.
ANALYSIS AND DETERMINATION
This being the 1st appeal this court is mandated to re-evaluate and scrutinize the evidence and judgment of the lower court afresh, and make conclusions and independent decision on whether to allow the appeal. The court does this even though it did not have the opportunity to see and hear the witnesses 1st hand. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:
"...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 retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
Having considered the grounds of appeal and Appellant’s submissions and having re-evaluated and scrutinized the evidence and judgment of the trial court afresh the issues that arise for determination are:-
(i) Whether the assessment of award inordinately high in the circumstances of the injuries suffered by the Respondent.
(ii) Whether the Appellant’s submissions and authorities on quantum were considered by the trial magistrate.
(iii) Who should bear the cost of the appeal.
The injuries suffered by the Respondent were particularized as bruises on the right hand, bruises on the left hand, bruises on the right knee and bruises on the neck.
P3 form filled in respect to the injuries suffered by the Respondent and treatment notes were produced by Senior Clinical Officer Daniel Nyameino who examined the Respondent indicated that he suffered harm. Dr, Morebu PW4 did examine the Respondent following the injuries he suffered in the RTA and produced Medical Report Ex P 7. He said he expected the soft tissue injuries on the right knee and neck to heal.
The Appellant argued that general damages assessed for pain was inordinately high and not comparable to the injuries suffered by the Respondent and an award of Kshs. 50,000/= was proposed while relying on the case of HB (Minor suing through the mother & next friend DKM) Vs Jasper Nchonge Magari & Another [2021] eKLR where the High Court awarded Kshs. 60,000/= for soft tissue injuries. The Trial Magistrate did not rely on the Respondent and the Appellant’s authorities to guide in assessing general damages although he said they were relevant but the injuries therein slightly differed and therefore on his own efforts searched and relied on the case of Joseph Gathaga & Another Vs Dickson Ndungu Njoroge to arrive at general damages of Kshs 250,000/= as he thought it was more relevant.
In the Case relied on by the Trial Magistrate of Joseph Gathaga & Another Vs Dickson Ndungu Njoroge the injuries suffered were more serious than the injuries sustained by the Respondent herein.
In HB (Minor suing through the mother & next friend DKM) Vs Jasper Nchonge Magari & Another [2021] Eklr which the Appellant relied on in seeking that the award of damages be set aside and substituted with Kshs50,000/= the injuries suffered were to the head; blunt object injuries to the head and neck, thorax, abdomen and limbs and the Trial Courts award was upheld for the reason the appellant had not discharged the burden of proof that the learned trial magistrate misapprehended the settled principles on awards of damages rendering it unfair and unreasonable to the Appellant.
In the recent case of Oyaro Vs Morris (Civil Appeal No E054 of 2024) [2025] KEHC 5361 (KLR) (25TH April 2025) an award of Kshs 300,000/= was assessed and on appeal the award was considered excessive and reduced to Kshs 130,000/= for bruises and abrasions on the forehead, blunt trauma to the chest, blunt trauma to the abdomen,blunt trauma to the right knee/leg, blunt trauma to the lower back, wound care done and complaints of abdominal pain headache and backache.
In consideration of the fact that the injuries sustained by the Respondent herein were much less severe than the ones in the authorities cited by the Trial Magistrate, the Appellant and the Respondent as well as the most recent decision in Oyaro Vs Morris (supra) this court finds that the award by the Trial Magistrate was excessive in the circumstances and not compatible with comparable injuries and precedent.
Based on the above reasons it is my finding that the Appellant’s appeal has merit and the same is allowed. The award of general damages is set aside and substituted thereof with Kshs. 100,000/=. Each party to bear own costs of the appeal. Costs of the subordinate court are awarded to the Respondent with interest on special damages from date of filing of the suit and interest on general damages from the date of judgement of the subordinate court.
DELIVERED, DATED and SIGNED at MIGORI this 19th day of June, 2025