'
[1] This appeal arises from the decision of the Chief Magistrate in Homa Bay CMCC No. E002 of 2023: Reuben Onyango v Stephen Oluoch Kamanda, rendered by Hon. J.M. Nang’ea on 8 th November 2023. In the said suit, the respondent herein had sued the appellant, claiming general and special damages as compensation for injuries allegedly sustained in a road traffic accident that took place on 26 th June 2022 involving Motor Vehicle Registration No. KBU 010L and the Motor Vehicle Registration No. KBX 038A.
[2] Upon hearing the parties, the learned magistrate fixed liability at 80:20% against the appellant and assessed damages at Kshs. 1,500,000/= subject thereto. The appellant was aggrieved, not by the apportionment of liability, but quantum. According to the appellant, the sum awarded was excessive granted the injuries sustained by the appellant. In the premises, the appellant filed this appeal on quantum, contending in the main that:
[a] That the learned magistrate erred in law and fact in by basing his decision on irrelevant matters and failing to base his decision on the facts and evidence on record thereby arriving at an excessive award on the issue of general damages.
[b] That the learned magistrate erred in law and fact in failing to follow and uphold legal parameters and binding precedents on assessment of general damages in similar circumstances.
[3] The appeal was urged by way of written submissions. Therefore, the appellant relied on his written submissions dated 3 rd March 2025. He opted to argue all his Grounds of Appeal under the broad head of whether the lower court granted an excessive award in the circumstances. The appellant relied on Mark Oiruri Mose v Republic [2013] eKLR as to the duty of an appellate court, namely, to re-evaluate the evidence tendered before the lower court with a view of coming to its own independent conclusion on the matter, while bearing in mind that the lower court had the advantage of observing the demeanour of the witnesses and hearing them give evidence, and give allowance for that.
[4] Regarding the applicable principles for assessment of damages, the appellant relied on Denshire Muteti Wambua v Kenya Power & Lighting Company Ltd [2013] eKLR and Stanley Maore v Geoffrey Mwenda [2004] Eklr, among other authorities, for the principle that comparable injuries should attract comparable awards. The appellant further submitted that awards ought to be made in moderation bearing in mind the economic realities of the day.
[5] The appellant made reference to Rahima Tayab & others v Anna Mary Kananu [1983] KLR 114 and the Medical Reports prepared by Dr. Morebu dated 4 th August 2022 by Dr. Obondi dated 15 th June 2023 in support of his submission that the learned magistrate failed to consider the state of the respondent at the material time. He accordingly urged the Court to reduce the award made by the lower court from Kshs. 1,500,000/= to Kshs. 600,000/=.
[6] The respondent filed written submissions dated 20 th March 2025. He proposed a single issue for consideration, namely, whether the trial court erred in awarding general damages. He relied on Kitavi v Coastal Bottlers Ltd [1985] KLR 470, Mwanasokoni v Kenya Bus Services Ltd [1985] KLR and Kemfro Africa Ltd t/a Meru Express Service & another v A.M.M Lubia & another [1982-88] 1 KAR 777 to underscore the principle that an appellate court can only disturb an award of damages when the trial court has taken into account a factor that it ought not to have taken into account or failed to take into account something it ought to have taken into account; or where the award is so high or so low that it amounts to an erroneous estimate.
[7] The respondent was of the view that the appellant has not demonstrated in what way the lower court disregarded the applicable principles. He relied on Subati Flowers Ltd v Walter Mwanyonyi Wekesa [2019] eKLR in which Kshs. 1,600,000/= was awarded for more or less comparable injuries and prayed for the dismissal of the appeal.
[8] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...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..."
[9] With the foregoing principles in mind, I have given careful consideration to the evidence placed before the lower court in the light of the injuries sustained. The respondent pleaded the following injuries:
[a] Right radius fracture
[b] Right ulna fracture
[c] Deep cut wounds on the frontal region of the head
[d] Chest contusion
[e] Cut wounds on the right upper limb
[10] In particular, I have looked at the medical reports presented. They back up the injuries as set out in the Plaint and the witness statement of the respondent which was adopted as his evidence in chief before the lower court. In Dr. Morebu’s report it was pointed out that the injuries occasioned permanent disability on the respondent such that he is now unable to carry out activities of daily life. It is also noteworthy that Dr. Obondi assessed permanent disability at 8%.
[11] The magistrate gave due consideration to the evidence presented in proof of the loss and damage suffered as a direct consequence of the injuries. He also took into account the submissions made by counsel for the parties including the authorities cited by them.
[12] Needless to mention that while assessment of damages is in the discretion of the trial court, it is trite that awards, must of necessity, be proportionate to the injuries sustained and the peculiar facts of each case. It is also often useful to bear in mind the words of caution expressed in H. West & Son Ltd vs. Shephard [1964] AC 326, that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[13] Thus, an appellate court will not disturb an award unless sufficient cause be shown to warrant such interference. The Court of Appeal restated as much in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja vs. Kiarie Shoe Stores Limited [2015] eKLR, when it held that:
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low. The Court 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 high that it must be a wholly erroneous estimate of the damages." (Also see Butt vs. Khan [1981] KLR 349)
[14] Likewise, in George Kirianki Laichena v Michael Mutwiri , Civil Appeal No. 162 of 2011, the Court of Appeal held that:
“It is generally accepted by courts that the assessment of damages in personal injury cases is a daunting task as it involves many imponderables and competing interests for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case…”
[15] As a rule of thumb, the Court of Appeal held, in Stanley Maore v Geoffrey Mwenda [2004] eKLR, that comparable injuries ought to be compensated by comparable awards. It expressed itself thus:
“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, 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.”
[16] I therefore find no basis for interfering with the learned magistrate’s assessment of damages. In the result, the appeal fails and is hereby dismissed with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 12 TH DAY OF JUNE, 2025
'
[1] This appeal arises from the decision of the Chief Magistrate in Homa Bay CMCC No. E002 of 2023: Reuben Onyango v Stephen Oluoch Kamanda, rendered by Hon. J.M. Nang’ea on 8 th November 2023. In the said suit, the respondent herein had sued the appellant, claiming general and special damages as compensation for injuries allegedly sustained in a road traffic accident that took place on 26 th June 2022 involving Motor Vehicle Registration No. KBU 010L and the Motor Vehicle Registration No. KBX 038A.
[2] Upon hearing the parties, the learned magistrate fixed liability at 80:20% against the appellant and assessed damages at Kshs. 1,500,000/= subject thereto. The appellant was aggrieved, not by the apportionment of liability, but quantum. According to the appellant, the sum awarded was excessive granted the injuries sustained by the appellant. In the premises, the appellant filed this appeal on quantum, contending in the main that:
[a] That the learned magistrate erred in law and fact in by basing his decision on irrelevant matters and failing to base his decision on the facts and evidence on record thereby arriving at an excessive award on the issue of general damages.
[b] That the learned magistrate erred in law and fact in failing to follow and uphold legal parameters and binding precedents on assessment of general damages in similar circumstances.
[3] The appeal was urged by way of written submissions. Therefore, the appellant relied on his written submissions dated 3 rd March 2025. He opted to argue all his Grounds of Appeal under the broad head of whether the lower court granted an excessive award in the circumstances. The appellant relied on Mark Oiruri Mose v Republic [2013] eKLR as to the duty of an appellate court, namely, to re-evaluate the evidence tendered before the lower court with a view of coming to its own independent conclusion on the matter, while bearing in mind that the lower court had the advantage of observing the demeanour of the witnesses and hearing them give evidence, and give allowance for that.
[4] Regarding the applicable principles for assessment of damages, the appellant relied on Denshire Muteti Wambua v Kenya Power & Lighting Company Ltd [2013] eKLR and Stanley Maore v Geoffrey Mwenda [2004] Eklr, among other authorities, for the principle that comparable injuries should attract comparable awards. The appellant further submitted that awards ought to be made in moderation bearing in mind the economic realities of the day.
[5] The appellant made reference to Rahima Tayab & others v Anna Mary Kananu [1983] KLR 114 and the Medical Reports prepared by Dr. Morebu dated 4 th August 2022 by Dr. Obondi dated 15 th June 2023 in support of his submission that the learned magistrate failed to consider the state of the respondent at the material time. He accordingly urged the Court to reduce the award made by the lower court from Kshs. 1,500,000/= to Kshs. 600,000/=.
[6] The respondent filed written submissions dated 20 th March 2025. He proposed a single issue for consideration, namely, whether the trial court erred in awarding general damages. He relied on Kitavi v Coastal Bottlers Ltd [1985] KLR 470, Mwanasokoni v Kenya Bus Services Ltd [1985] KLR and Kemfro Africa Ltd t/a Meru Express Service & another v A.M.M Lubia & another [1982-88] 1 KAR 777 to underscore the principle that an appellate court can only disturb an award of damages when the trial court has taken into account a factor that it ought not to have taken into account or failed to take into account something it ought to have taken into account; or where the award is so high or so low that it amounts to an erroneous estimate.
[7] The respondent was of the view that the appellant has not demonstrated in what way the lower court disregarded the applicable principles. He relied on Subati Flowers Ltd v Walter Mwanyonyi Wekesa [2019] eKLR in which Kshs. 1,600,000/= was awarded for more or less comparable injuries and prayed for the dismissal of the appeal.
[8] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...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..."
[9] With the foregoing principles in mind, I have given careful consideration to the evidence placed before the lower court in the light of the injuries sustained. The respondent pleaded the following injuries:
[a] Right radius fracture
[b] Right ulna fracture
[c] Deep cut wounds on the frontal region of the head
[d] Chest contusion
[e] Cut wounds on the right upper limb
[10] In particular, I have looked at the medical reports presented. They back up the injuries as set out in the Plaint and the witness statement of the respondent which was adopted as his evidence in chief before the lower court. In Dr. Morebu’s report it was pointed out that the injuries occasioned permanent disability on the respondent such that he is now unable to carry out activities of daily life. It is also noteworthy that Dr. Obondi assessed permanent disability at 8%.
[11] The magistrate gave due consideration to the evidence presented in proof of the loss and damage suffered as a direct consequence of the injuries. He also took into account the submissions made by counsel for the parties including the authorities cited by them.
[12] Needless to mention that while assessment of damages is in the discretion of the trial court, it is trite that awards, must of necessity, be proportionate to the injuries sustained and the peculiar facts of each case. It is also often useful to bear in mind the words of caution expressed in H. West & Son Ltd vs. Shephard [1964] AC 326, that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[13] Thus, an appellate court will not disturb an award unless sufficient cause be shown to warrant such interference. The Court of Appeal restated as much in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja vs. Kiarie Shoe Stores Limited [2015] eKLR, when it held that:
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low. The Court 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 high that it must be a wholly erroneous estimate of the damages." (Also see Butt vs. Khan [1981] KLR 349)
[14] Likewise, in George Kirianki Laichena v Michael Mutwiri , Civil Appeal No. 162 of 2011, the Court of Appeal held that:
“It is generally accepted by courts that the assessment of damages in personal injury cases is a daunting task as it involves many imponderables and competing interests for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case…”
[15] As a rule of thumb, the Court of Appeal held, in Stanley Maore v Geoffrey Mwenda [2004] eKLR, that comparable injuries ought to be compensated by comparable awards. It expressed itself thus:
“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, 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.”
[16] I therefore find no basis for interfering with the learned magistrate’s assessment of damages. In the result, the appeal fails and is hereby dismissed with costs.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT HOMA BAY THIS 12 TH DAY OF JUNE, 2025
'