The Appellant was sued by the Respondent in Plaint dated 10th July, 2019 seeking special damages of Kshs. 7,170/=, 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 in motor vehicle Registration No. KBB 086 F when the same was carelessly driven at high speed and it lost control and hit the oncoming vehicle Reg. KCP 733 M and landed into a ditch and as a result the plaintiff suffered injuries.
The injuries suffered by the Respondent were particularized as;
-chest contusion
-blunt trauma to the left elbow
-blunt trauma to the right knee
-blunt trauma to the left elbow
-bruises on the elbow.
The particulars of special damages were;
-Medical Report _ Kshs. 6,500/=
-Search from NTSA _ Kshs. 550/=
-Medical expenses _ Kshs. 120/=
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. 6,740/= 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 and misdirected herself to the extent and value of the Respondent’s injuries and thereby erred in law in his assessment of damages as no initial treatment notes at the date of the accident were produced as exhibits.
2. THAT the Learned Trial Magistrate erred in fact and in law in awarding quantum despite the Appellant’s doctor second medical report indicating that the Respondent did not sustain any injuries.
3. THAT the Learned Trial Magistrate erred in fact and in law in failing to consider the Appellant’s submissions on quantum by completely disregarding the submission and authorities of the Appellant and as a result arrived in unjustified decision on quantum.
4. THAT the Learned Trial Magistrate erred in fact and law in failing to dismiss the suit for non-injury.
REASONS WHEREFORE the Appellant prays for the following ORDERS:
(a) That the appeal be allowed and the decree of the Trial Court be set aside
(b) That this court do re-evaluate the evidence of the parties on quantum and determine the issue of quantum as it was not proved.
(c) That the Appellant be awarded the costs of this appeal.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 3rd January 2025 and are that the principles to be considered by the appellate court when deciding to interfere with quantum of damages awarded by trial court are settled in the case of Joseph Njogu Kamunge Vs Charles Muriuki Gachari Civil Appeal 42 of 2014 and in the holding in Kemfor Africa Limited t/a Meru Express Service, Gathogo Kanini V A. M Lubia and Olive Lubia [1982-88] 1 KAR 727 where it was stated that;
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
The Appellant also relied on the decision in Mohamed Mahmoud Jabane Vs Highstone Butty Tongoi Olenja[1982-88] 1KAR 982 where it was stated that unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be entirely erroneous estimate for an appropriate award it should be left alone.
The Appellant submitted that the Trial Magistrate gave manifestly excessive and inordinately high award and the same ought to be re-assessed as the injuries sustained by the Respondent were not comparable to the ones cited by the Respondent in the submissions in the Trial Court. It was also submitted that the Trial court proceeded on the wrong principles and misapprehended the evidence thereby arriving at an amount that was inordinately high and urged the court to set aside the said award.
The Appellant argued that the award of general damages was not founded on any legal principle and was inordinately high and should be set aside. The Appellant urged the court to award damages at Kshs. 50,000/= for general damages.
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 not 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] eKLR where 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 decision in 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 was not consistent with the injuries suffered by the Respondent.
(ii) Whether the Medical Report by the Appellant’s doctor was taken into consideration in assessment of damages.
(iii) Whether the Appellant’s submissions and authorities on quantum were considered by the Trial Magistrate.
The injuries suffered by the Respondent were particularized as chest contusion, blunt trauma to the left elbow, blunt trauma to the right knee, blunt trauma to the left elbow and bruises on the elbow. P3 form filled in respect to the injuries suffered by the Respondent indicated that he suffered harm. The Respondent also produced Kisii TRH Health Records for Out Patient No. 032227 in the name of the Respondent to prove he was attended to at the said hospital. Dr, Morebu did examine the Respondent following the injuries he suffered in the RTA and concluded that the Respondent’s injuries were in the process of healing and he was using analgesics for pain.
When Dr. Kahuthu for the Appellant examined the Respondent she established the Respondent experienced left shoulder pain on and off. She concluded that the soft tissue injuries suffered by the Respondent in the accident had fully healed and that in the absence of initial treatment notes it was hard to relate the said injuries in the treatment notes dated 29th May 2019 to the accident that occurred on 30th April 2019.
The Police Abstract produced by PW2 P. C. Wesley Lagat confirmed that indeed an accident happened involving motor vehicle Reg. No. KBB 086 F and KCP 733M and there was no evidence controverting the fact that the Respondent was a passenger in the Appellant’s motor vehicle. The Appellant argued that lack of initial treatment notes showing injuries even with a P3 form and Medical Report indicating injuries is not proof that the Plaintiff was injured during the accident. Dr. Kahuthu however said that the only treatment notes she was shown are the ones dated 29th May 2019 one month after the accident. Whether seeking treatment one month after the accident would mean that one was not injured is an issue that the Appellant cross examined the Respondent as to why he did not go to hospital immediately after the accident and he explained that he was taken to Kisii Teaching and Referral Hospital the same day but since he did not have money he was not treated. That when he started experiencing pain one month later he went to hospital and was treated and P3 form filled. Dr. Kahuthu for the Appellant established that the Respondent still experienced left shoulder pain on and off. The Appellant did not attribute this pain to any other cause so that the Trial Court could have found that it was not caused by the accident that occurred on 30th April 2019.
The Appellant argued that general damages assessed for pain was inordinately high and not comparable to the injuries suffered by the Respondent and he proposed Kshs. 50,000/=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 upheld an award of Kshs. 60,000/= for soft tissue injuries.
The Trial Magistrate did not rely on the Respondent’s and the Appellant’s authorities to guide in assessing general damages although he said they were relevant but the injuries therein slightly differed. Instead he 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 Joseph Gathaga & Another Vs Dickson Ndungu Njoroge the injuries suffered were; Head concussion, swollen tender face, bruises on peri –orbital region, bruises – left hand, blunt injuries – left leg, blunt injury – back and chest, swollen, tender left knee, cut wound, and swelling – left elbow.
The injuries suffered by the Respondent herein as particularised at paragraph six of the plaint are; chest contusion, blunt trauma to the left elbow, blunt trauma to the right knee, blunt trauma to the left elbow, and bruises on the elbow. In consideration that the injuries suffered by the Respondent were less severe than those suffered in the authority relied on by the Trial Magistrate and in consideration that the same injuries are more severe than those in the Authority relied upon by the Appellant namely HB Vs Jasper Nchonge Magari & Another (Supra), it would be proper to re-assess appropriate damages taking into consideration the most recent case with comparable injuries to those suffered by the Respondent herein in Oyaro Vs Morris (Civil Appeal No E054 of 2024) [2025] KEHC 5361 (KLR) (25TH April 2025). In Oyaro Vs Morris 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.
Based on the above reasons it is my finding that the award by the Trial Magistrate was to some extent excessive in the circumstances and amenable to adjustment so as not to unjustly enrich the Respondent. The Appellant’s appeal has merit and the same is allowed. The award of general damages is set aside and substituted thereof with Kshs. 150,000/=. 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 Kisii this 19th Day of June, 2025
The injuries suffered by the Respondent were particularized as;
-chest contusion
-blunt trauma to the left elbow
-blunt trauma to the right knee
-blunt trauma to the left elbow
-bruises on the elbow.
The particulars of special damages were;
-Medical Report _ Kshs. 6,500/=
-Search from NTSA _ Kshs. 550/=
-Medical expenses _ Kshs. 120/=
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. 6,740/= 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 and misdirected herself to the extent and value of the Respondent’s injuries and thereby erred in law in his assessment of damages as no initial treatment notes at the date of the accident were produced as exhibits.
2. THAT the Learned Trial Magistrate erred in fact and in law in awarding quantum despite the Appellant’s doctor second medical report indicating that the Respondent did not sustain any injuries.
3. THAT the Learned Trial Magistrate erred in fact and in law in failing to consider the Appellant’s submissions on quantum by completely disregarding the submission and authorities of the Appellant and as a result arrived in unjustified decision on quantum.
4. THAT the Learned Trial Magistrate erred in fact and law in failing to dismiss the suit for non-injury.
REASONS WHEREFORE the Appellant prays for the following ORDERS:
(a) That the appeal be allowed and the decree of the Trial Court be set aside
(b) That this court do re-evaluate the evidence of the parties on quantum and determine the issue of quantum as it was not proved.
(c) That the Appellant be awarded the costs of this appeal.
The appeal herein was canvassed by way of written submissions.
The Appellant’s submissions are dated 3rd January 2025 and are that the principles to be considered by the appellate court when deciding to interfere with quantum of damages awarded by trial court are settled in the case of Joseph Njogu Kamunge Vs Charles Muriuki Gachari Civil Appeal 42 of 2014 and in the holding in Kemfor Africa Limited t/a Meru Express Service, Gathogo Kanini V A. M Lubia and Olive Lubia [1982-88] 1 KAR 727 where it was stated that;
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
The Appellant also relied on the decision in Mohamed Mahmoud Jabane Vs Highstone Butty Tongoi Olenja[1982-88] 1KAR 982 where it was stated that unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be entirely erroneous estimate for an appropriate award it should be left alone.
The Appellant submitted that the Trial Magistrate gave manifestly excessive and inordinately high award and the same ought to be re-assessed as the injuries sustained by the Respondent were not comparable to the ones cited by the Respondent in the submissions in the Trial Court. It was also submitted that the Trial court proceeded on the wrong principles and misapprehended the evidence thereby arriving at an amount that was inordinately high and urged the court to set aside the said award.
The Appellant argued that the award of general damages was not founded on any legal principle and was inordinately high and should be set aside. The Appellant urged the court to award damages at Kshs. 50,000/= for general damages.
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 not 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] eKLR where 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 decision in 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 was not consistent with the injuries suffered by the Respondent.
(ii) Whether the Medical Report by the Appellant’s doctor was taken into consideration in assessment of damages.
(iii) Whether the Appellant’s submissions and authorities on quantum were considered by the Trial Magistrate.
The injuries suffered by the Respondent were particularized as chest contusion, blunt trauma to the left elbow, blunt trauma to the right knee, blunt trauma to the left elbow and bruises on the elbow. P3 form filled in respect to the injuries suffered by the Respondent indicated that he suffered harm. The Respondent also produced Kisii TRH Health Records for Out Patient No. 032227 in the name of the Respondent to prove he was attended to at the said hospital. Dr, Morebu did examine the Respondent following the injuries he suffered in the RTA and concluded that the Respondent’s injuries were in the process of healing and he was using analgesics for pain.
When Dr. Kahuthu for the Appellant examined the Respondent she established the Respondent experienced left shoulder pain on and off. She concluded that the soft tissue injuries suffered by the Respondent in the accident had fully healed and that in the absence of initial treatment notes it was hard to relate the said injuries in the treatment notes dated 29th May 2019 to the accident that occurred on 30th April 2019.
The Police Abstract produced by PW2 P. C. Wesley Lagat confirmed that indeed an accident happened involving motor vehicle Reg. No. KBB 086 F and KCP 733M and there was no evidence controverting the fact that the Respondent was a passenger in the Appellant’s motor vehicle. The Appellant argued that lack of initial treatment notes showing injuries even with a P3 form and Medical Report indicating injuries is not proof that the Plaintiff was injured during the accident. Dr. Kahuthu however said that the only treatment notes she was shown are the ones dated 29th May 2019 one month after the accident. Whether seeking treatment one month after the accident would mean that one was not injured is an issue that the Appellant cross examined the Respondent as to why he did not go to hospital immediately after the accident and he explained that he was taken to Kisii Teaching and Referral Hospital the same day but since he did not have money he was not treated. That when he started experiencing pain one month later he went to hospital and was treated and P3 form filled. Dr. Kahuthu for the Appellant established that the Respondent still experienced left shoulder pain on and off. The Appellant did not attribute this pain to any other cause so that the Trial Court could have found that it was not caused by the accident that occurred on 30th April 2019.
The Appellant argued that general damages assessed for pain was inordinately high and not comparable to the injuries suffered by the Respondent and he proposed Kshs. 50,000/=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 upheld an award of Kshs. 60,000/= for soft tissue injuries.
The Trial Magistrate did not rely on the Respondent’s and the Appellant’s authorities to guide in assessing general damages although he said they were relevant but the injuries therein slightly differed. Instead he 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 Joseph Gathaga & Another Vs Dickson Ndungu Njoroge the injuries suffered were; Head concussion, swollen tender face, bruises on peri –orbital region, bruises – left hand, blunt injuries – left leg, blunt injury – back and chest, swollen, tender left knee, cut wound, and swelling – left elbow.
The injuries suffered by the Respondent herein as particularised at paragraph six of the plaint are; chest contusion, blunt trauma to the left elbow, blunt trauma to the right knee, blunt trauma to the left elbow, and bruises on the elbow. In consideration that the injuries suffered by the Respondent were less severe than those suffered in the authority relied on by the Trial Magistrate and in consideration that the same injuries are more severe than those in the Authority relied upon by the Appellant namely HB Vs Jasper Nchonge Magari & Another (Supra), it would be proper to re-assess appropriate damages taking into consideration the most recent case with comparable injuries to those suffered by the Respondent herein in Oyaro Vs Morris (Civil Appeal No E054 of 2024) [2025] KEHC 5361 (KLR) (25TH April 2025). In Oyaro Vs Morris 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.
Based on the above reasons it is my finding that the award by the Trial Magistrate was to some extent excessive in the circumstances and amenable to adjustment so as not to unjustly enrich the Respondent. The Appellant’s appeal has merit and the same is allowed. The award of general damages is set aside and substituted thereof with Kshs. 150,000/=. 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 Kisii this 19th Day of June, 2025