1. The Respondent instituted proceedings before the Chief Magistrate’s Court at Keroka seeking general damages, special damages and costs arising from a road traffic accident which occurred on 31st January 2020 involving motor vehicle registration number KCU 391A Isuzu Bus belonging to the Appellant. The Respondent pleaded that he was a fare paying passenger aboard the said motor vehicle when the accident occurred due to the negligence of the Appellant’s driver.
2. The Appellant entered appearance and filed a statement of defence denying liability and pleading contributory negligence on the part of the Respondent. Upon hearing the matter, the learned trial magistrate entered judgment in favour of the Respondent and awarded general damages in the sum of KES.300,000 and special damages of KES. 8,600 together with costs and interest.
3. Being dissatisfied with the said judgment, the Appellant preferred the present appeal challenging both liability and quantum but the submissions filed before this court substantially addressed the issue of quantum of damages.
4. As this is a first appeal, this court is obligated to reconsider and re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was stated in Selle v Associated Motor Boat Co. Ltd [1968] EA 123.
5. The sole issue falling for determination is whether the award of KES.300,000 as general damages was excessive in the circumstances and therefore warrants interference by this court.
6. At the hearing, PW3, Philip Kibet Sigei, a Clinical Officer at Masaba North Hospital, testified that he produced the treatment notes and prescription form relating to the Respondent under OP No. 24092/2020. He stated that the Respondent, then aged 1 year and 4 months, had sustained soft tissue injuries following the accident. He further confirmed that following the accident on 31st January 2020, the Respondent had initially been attended to at Keroka Sub-County Hospital where the treatment notes indicated that the Respondent had been involved in a road traffic accident, was in stable condition, but complained of generalized pain and difficulty in calming and sleeping. During cross-examination, PW3 clarified that he had not personally treated the Respondent but confirmed that the Respondent had been treated at the facility for soft tissue injuries arising from the accident. Upon re-examination, he stated that the Respondent had been attended to by his colleague at the hospital.
7. The Respondent was subsequently treated at Island of Hope Humanist Health Centre. The treatment notes dated 02nd February 2020 indicate complaints of generalized body pains, headache and cough. Upon examination, the Respondent was managed conservatively following the accident.
8. In the plaint, the injuries were particularized as blunt trauma to the neck, chest contusion, blunt trauma to the back and blunt trauma to the right and left shoulder. However, it is noteworthy that the treatment notes and oral testimony produced before the trial court generally confirmed soft tissue injuries and generalized body pains without specifically particularizing the injuries in the manner pleaded in the plaint.
9. The principles upon which an appellate court may interfere with an award of damages are now settled. In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Olive Lubia & another [1983] eKLR, the Court held that interference is justified where the trial court acted on wrong principles, misapprehended the evidence or where the award is so inordinately high or low as to represent an erroneous estimate of damages. Similar principles were reiterated in Butt v Khan [1981] KLR 349 and Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55.
10. The Appellant submitted that the award made by the trial court was excessive considering the nature of injuries proved and relied on authorities involving soft tissue injuries where substantially lower awards were made. Counsel particularly relied on Adembesa & Another v Gweno [2024] KEHC 5379 (KLR) where the claimant sustained injuries involving the head, chest, neck, shoulders, knees and legs and the appellate court substituted an award of KES.1,200,000 with an award of KES.120,000 as general damages. Reliance was also placed on F.M (Minor suing through mother and next friend M.W.M) v I.N.N & I.D.K [2020] eKLR where the claimant sustained blunt injuries to the head, neck, chest, abdomen and limbs and the appellate court awarded KES.100,000 as general damages.
11. In arriving at the impugned award, the learned trial magistrate referred to authorities where awards ranging between KES.200,000 and KES.250,000 had been made for multiple soft tissue injuries involving trauma to the neck, chest and back.
12. I have carefully reconsidered the evidence on record, the treatment notes produced before the trial court and the comparable authorities referred to by the Appellant as well as those considered by the learned trial magistrate. There is no doubt that the Respondent sustained injuries arising from the accident and was entitled to compensation. The question, however, is whether the evidence tendered justified the award of KES.300,000 made by the trial court.
13. In my view, the critical consideration in this appeal is that whereas the plaint particularized several specific injuries, the treatment notes and oral testimony produced before the trial court only generally confirmed soft tissue injuries and generalized body pains. The medical evidence tendered did not specifically or clinically particularize the pleaded injuries to the neck, chest, back and shoulders in the detailed manner reflected in the plaint. There was equally no evidence of fractures, permanent incapacity, prolonged hospitalization or long-term complications.
14. Further, although the Appellant relied on authorities where lower awards were made for soft tissue injuries, the injuries in those matters were more specifically identified and medically documented than those proved in the present case. By contrast, the evidence tendered before the trial court in the present matter only established generalized soft tissue injuries without detailed clinical findings.
15. This court is therefore persuaded that the learned trial magistrate misapprehended the nature and extent of the injuries actually proved before the court and consequently arrived at an award that was inordinately high in the circumstances. The award of KES.300,000 did not adequately reflect the medical evidence on record.
16. Doing the best I can in the circumstances, and bearing in mind the comparable authorities cited, I am satisfied that an award of KES.120,000 as general damages would constitute fair and reasonable compensation for the injuries proved.
17. Accordingly, the appeal on quantum succeeds to that extent only. The award of KES.300,000 as general damages in Keroka CMCC 127 of 2020 is hereby set aside and substituted with an award of KES.120,000. The award of special damages in the sum of KES.8,600 is upheld.
18. Since the appeal has partially succeeded, each party shall bear its own costs of the appeal while the costs in the lower court shall remain undisturbed.
2. The Appellant entered appearance and filed a statement of defence denying liability and pleading contributory negligence on the part of the Respondent. Upon hearing the matter, the learned trial magistrate entered judgment in favour of the Respondent and awarded general damages in the sum of KES.300,000 and special damages of KES. 8,600 together with costs and interest.
3. Being dissatisfied with the said judgment, the Appellant preferred the present appeal challenging both liability and quantum but the submissions filed before this court substantially addressed the issue of quantum of damages.
4. As this is a first appeal, this court is obligated to reconsider and re-evaluate the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. This duty was stated in Selle v Associated Motor Boat Co. Ltd [1968] EA 123.
5. The sole issue falling for determination is whether the award of KES.300,000 as general damages was excessive in the circumstances and therefore warrants interference by this court.
6. At the hearing, PW3, Philip Kibet Sigei, a Clinical Officer at Masaba North Hospital, testified that he produced the treatment notes and prescription form relating to the Respondent under OP No. 24092/2020. He stated that the Respondent, then aged 1 year and 4 months, had sustained soft tissue injuries following the accident. He further confirmed that following the accident on 31st January 2020, the Respondent had initially been attended to at Keroka Sub-County Hospital where the treatment notes indicated that the Respondent had been involved in a road traffic accident, was in stable condition, but complained of generalized pain and difficulty in calming and sleeping. During cross-examination, PW3 clarified that he had not personally treated the Respondent but confirmed that the Respondent had been treated at the facility for soft tissue injuries arising from the accident. Upon re-examination, he stated that the Respondent had been attended to by his colleague at the hospital.
7. The Respondent was subsequently treated at Island of Hope Humanist Health Centre. The treatment notes dated 02nd February 2020 indicate complaints of generalized body pains, headache and cough. Upon examination, the Respondent was managed conservatively following the accident.
8. In the plaint, the injuries were particularized as blunt trauma to the neck, chest contusion, blunt trauma to the back and blunt trauma to the right and left shoulder. However, it is noteworthy that the treatment notes and oral testimony produced before the trial court generally confirmed soft tissue injuries and generalized body pains without specifically particularizing the injuries in the manner pleaded in the plaint.
9. The principles upon which an appellate court may interfere with an award of damages are now settled. In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Olive Lubia & another [1983] eKLR, the Court held that interference is justified where the trial court acted on wrong principles, misapprehended the evidence or where the award is so inordinately high or low as to represent an erroneous estimate of damages. Similar principles were reiterated in Butt v Khan [1981] KLR 349 and Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55.
10. The Appellant submitted that the award made by the trial court was excessive considering the nature of injuries proved and relied on authorities involving soft tissue injuries where substantially lower awards were made. Counsel particularly relied on Adembesa & Another v Gweno [2024] KEHC 5379 (KLR) where the claimant sustained injuries involving the head, chest, neck, shoulders, knees and legs and the appellate court substituted an award of KES.1,200,000 with an award of KES.120,000 as general damages. Reliance was also placed on F.M (Minor suing through mother and next friend M.W.M) v I.N.N & I.D.K [2020] eKLR where the claimant sustained blunt injuries to the head, neck, chest, abdomen and limbs and the appellate court awarded KES.100,000 as general damages.
11. In arriving at the impugned award, the learned trial magistrate referred to authorities where awards ranging between KES.200,000 and KES.250,000 had been made for multiple soft tissue injuries involving trauma to the neck, chest and back.
12. I have carefully reconsidered the evidence on record, the treatment notes produced before the trial court and the comparable authorities referred to by the Appellant as well as those considered by the learned trial magistrate. There is no doubt that the Respondent sustained injuries arising from the accident and was entitled to compensation. The question, however, is whether the evidence tendered justified the award of KES.300,000 made by the trial court.
13. In my view, the critical consideration in this appeal is that whereas the plaint particularized several specific injuries, the treatment notes and oral testimony produced before the trial court only generally confirmed soft tissue injuries and generalized body pains. The medical evidence tendered did not specifically or clinically particularize the pleaded injuries to the neck, chest, back and shoulders in the detailed manner reflected in the plaint. There was equally no evidence of fractures, permanent incapacity, prolonged hospitalization or long-term complications.
14. Further, although the Appellant relied on authorities where lower awards were made for soft tissue injuries, the injuries in those matters were more specifically identified and medically documented than those proved in the present case. By contrast, the evidence tendered before the trial court in the present matter only established generalized soft tissue injuries without detailed clinical findings.
15. This court is therefore persuaded that the learned trial magistrate misapprehended the nature and extent of the injuries actually proved before the court and consequently arrived at an award that was inordinately high in the circumstances. The award of KES.300,000 did not adequately reflect the medical evidence on record.
16. Doing the best I can in the circumstances, and bearing in mind the comparable authorities cited, I am satisfied that an award of KES.120,000 as general damages would constitute fair and reasonable compensation for the injuries proved.
17. Accordingly, the appeal on quantum succeeds to that extent only. The award of KES.300,000 as general damages in Keroka CMCC 127 of 2020 is hereby set aside and substituted with an award of KES.120,000. The award of special damages in the sum of KES.8,600 is upheld.
18. Since the appeal has partially succeeded, each party shall bear its own costs of the appeal while the costs in the lower court shall remain undisturbed.