(Being an appeal from the Judgment and Decree of Honourable B.A Luova in Machakos SCCC No. E445 of 2022, delivered on 12th December 2022)
1. This is an appeal against the entire judgment of Honourable B.A. Luova delivered in Machakos SCCC No. E445 of 2022. In the trial court, the 1st Respondent sued the Appellant and the 2nd Respondent for negligence.
2. In his Statement of Claim, the 1st Respondent averred that on or about 8th March 2022, he was lawfully travelling as a passenger in Motor Vehicle Registration Number KCP 827Q along the Lukenya–Machakos murram road when, at the Mua area, the said motor vehicle, owned by the Appellant and the 2nd Respondent, was negligently controlled, causing it to overturn. As a result, he sustained serious bodily injuries, which he alleged occasioned him loss and damage. He consequently prayed for general damages for pain and suffering, special damages of Kshs 9,080/=, costs of the suit and interest.
3. The Appellant filed a Defence denying liability and averred that he was not indebted to the 1st Respondent as alleged. He further blamed the 1st Respondent for the occurrence of the accident and prayed that the claim be dismissed with costs.
4. The matter proceeded to full hearing and thereafter the trial court entered judgment in favour of the Respondent herein in the following terms:
a) Liability assessed at 100% jointly and severally against the Appellant and the 2nd Respondent herein.
b) General damages for pain Kshs. 350,000/=
c) Diminished earnings NIL
d) Special Damages Kshs 9, 730/=
e) Costs of the suit and interest of the thereto.
5. Being aggrieved by the Judgment, the Appellant filed this appeal, on the following grounds; that the Learned Trial Magistrate grossly misdirected herself in treating the evidence and the submissions on quantum thereby reaching an erroneous conclusion; the Learned Trial Magistrate erred in law and in fact by awarding general damages of Kshs 350, 000 and special damages in excess of what had been pleaded. The amount awarded was excessive, unjust given the nature of injuries and the current decided cases; the Learned Trial Magistrate disregarded the applicable principles and relevant authorities on quantum that had been cited in the appellant’s written submissions; the Learned Trial Magistrate proceeded on wrong principles when assessing damages, failed to consider precedents and the established tenets of the law; the Learned Trial Magistrate erred in awarding damages that were inordinately high in the circumstance occasioning miscarriage of justice; the Learned Trial Magistrate failed to adequately evaluate the evidence and exhibits and thereby arrived at a decision that cannot be sustained in law.
6. The appeal was canvassed by through written submissions. The 1st Respondent’s submissions are dated 2nd May 2025. As at the time of writing this judgment, the Appellant’s submissions were not on record.
1st Respondent’s submissions
7. The 1st Respondent commenced his submissions with a brief background of the matter as it arose from the trial court. He confined his arguements to the issue of general damages for pain and suffering.
8. He began by citing the decision in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2004] eKLR, submitting that the duty of a first appellate court is to re-evaluate the evidence on record and arrive at its own independent conclusions.
9. On the issue,of general damages for pain and suffering, the 1st Respondent addressed two questions, namely: whether the trial court erred in law and fact in awarding general damages in the sum of Kshs 350,000/=; and whether the award was manifestly excessive in light of the injuries sustained and proved at trial.
10. On the first issue, the 1st Respondent relied on John Kipkemboi & Another v Morris Kedolo [2019] eKLR. He submitted that the learned Magistrate correctly applied the established principles governing the assessment of damages. He argued that the trial court considered the authorities cited by the parties, exercised its discretion judiciously and properly arrived at an award of Kshs 350,000/= for pain and suffering. He therefore urged this Court not to interfere with the trial court’s exercise of discretion.
11. On the second question, the 1st Respondent submitted that although the assessment of general damages lies within the discretion of the court, such discretion must be exercised judiciously, guided by correct principles, and based on a proper appreciation of the evidence. He contended that the trial court met this threshold. He submitted that the court relied on comparable authorities and was guided by the injuries documented in the P3 form, treatment notes from Kitui County Hospital, and the medical report of Dr. Titus Ndeti Nzina. He further argued that the Appellant did not place any evidence before the court to challenge the injuries sustained or to controvert the Respondent’s medical evidence. He noted that Dr. Titus Ndeti testified that he examined the 1st Respondent and assessed permanent incapacity of the left upper limb at 10%. The Respondent submitted that the trial court properly relied on the decisions in Mary Wanja Gacombah v Jostinta Adhiambo Ogana [2021] eKLR and Duncan Mwenda & 2 Others v Sila Kinyua Kithela [2018] eKLR in arriving at a fair and reasonable award.
12. In conclusion, the 1st Respondent submitted that the appeal is speculative, lacks merit, and ought to be dismissed with costs.
Analysis and Determination
13. At the outset, I note that the 1st Respondent, in his submissions, urges this Court to exercise its appellate mandate by re-examining the evidence, re-evaluating it, and arriving at its own independent assessment. While this is indeed the correct approach in ordinary appeals, the position is different when dealing with appeals arising from the Small Claims Court.
14. Appeals from the Small Claims Court, are limited in scope and strictly governed by Section 38 of the Small Claims Court Act which limits the jurisdiction of this Court to matters of law only. It provides that:
38. (1) A person aggrieved by the decision or an order Appeals of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.”
What constitutes, points of law, has been settled see the cases of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Petition 2B of 2014 [2014] eKLR and Otieno, Ragot & Company Advocates v. National Bank of Kenya Limited [2020] eKLR.
15. Based on the above applicable provision of law and the authority cited, this court has a duty to consider the grounds of appeal as set out in the Memorandum of Appeal dated 14th January 2023, and identify the primary question of law that calls for determination.
16. Upon review, the Court notes that the Memorandum of Appeal contains six grounds of appeal. Of these, one raises an issue of both fact and law while the remainder concerns the quantum of damages, specifically, s whether the award of damages was manifestly excessive. It is trite that in appeals of this nature, good practice demands that the grounds be concise and focused on clear points of law.
17. Accordingly, this court will confine itself to the question of law arising that is whether the trial court correctly exercised its discretion in awarding general damages. I am guided by the general principle that it must be shown that the trial court proceeded on either wrong principles or that the trial court misapprehended the evidence in some material respect and so arrived a figure which was either inordinately high or low as established in the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR. In essence, the Appellant challenges the trial court’s assessment of damages for injuries sustained by the 1st Respondent.
18. The 1st Respondent’s injuries were listed in the medical report by Dr. Titus Ndeti Nzina as follows;
1. Blunt injuries to the left flank (left side of the abdomen)
2. Blunt injuries to the lower back.
3. Deep cut wound on the left upper limb.
4. Blunt injuries to the left elbow joint with restriction of joint movement.
5. Blunt injuries to the left fingers
19. The 1st Respondent was awarded general damages of Kshs 350, 000/=. In granting the award, the trial court was guided by the case of Duncan Mwenda & 2 others versus Silas Kinyua Kithela [2018] eklr and Robinson Njoroge versus Daniel Ombasa [2021] eKLR where the Plaintiff sustained deep cut wound on the head leading to soft tissue injuries, soft tissue injury to both hands, blunt injury to right hip joint leading to severe soft tissue injuries and the court awarded Kshs 300, 000/= as general damages and the award was upheld on appeal.
20. The Appellant has not demonstrated the amount that ought to have been awarded, having failed to make submissions in support of the grounds of appeal. In any event I have considered the authority as relied on by the adjudicator and I am satisfied that the award of Kshs.350,000/= was fair and just in light of the injuries sustained. The adjudicator exercised its discretion judiciously, and this court finds no reason to interfere with the decision.
21. The upshot of the above is that the appeal lacks merit and the trial court judgment as to liability and quantum is upheld.
22. The Appellant shall bear the costs of the appeal.
Orders accordingly.
Delivered, Dated and Signed this 22nd day of January 2026
1. This is an appeal against the entire judgment of Honourable B.A. Luova delivered in Machakos SCCC No. E445 of 2022. In the trial court, the 1st Respondent sued the Appellant and the 2nd Respondent for negligence.
2. In his Statement of Claim, the 1st Respondent averred that on or about 8th March 2022, he was lawfully travelling as a passenger in Motor Vehicle Registration Number KCP 827Q along the Lukenya–Machakos murram road when, at the Mua area, the said motor vehicle, owned by the Appellant and the 2nd Respondent, was negligently controlled, causing it to overturn. As a result, he sustained serious bodily injuries, which he alleged occasioned him loss and damage. He consequently prayed for general damages for pain and suffering, special damages of Kshs 9,080/=, costs of the suit and interest.
3. The Appellant filed a Defence denying liability and averred that he was not indebted to the 1st Respondent as alleged. He further blamed the 1st Respondent for the occurrence of the accident and prayed that the claim be dismissed with costs.
4. The matter proceeded to full hearing and thereafter the trial court entered judgment in favour of the Respondent herein in the following terms:
a) Liability assessed at 100% jointly and severally against the Appellant and the 2nd Respondent herein.
b) General damages for pain Kshs. 350,000/=
c) Diminished earnings NIL
d) Special Damages Kshs 9, 730/=
e) Costs of the suit and interest of the thereto.
5. Being aggrieved by the Judgment, the Appellant filed this appeal, on the following grounds; that the Learned Trial Magistrate grossly misdirected herself in treating the evidence and the submissions on quantum thereby reaching an erroneous conclusion; the Learned Trial Magistrate erred in law and in fact by awarding general damages of Kshs 350, 000 and special damages in excess of what had been pleaded. The amount awarded was excessive, unjust given the nature of injuries and the current decided cases; the Learned Trial Magistrate disregarded the applicable principles and relevant authorities on quantum that had been cited in the appellant’s written submissions; the Learned Trial Magistrate proceeded on wrong principles when assessing damages, failed to consider precedents and the established tenets of the law; the Learned Trial Magistrate erred in awarding damages that were inordinately high in the circumstance occasioning miscarriage of justice; the Learned Trial Magistrate failed to adequately evaluate the evidence and exhibits and thereby arrived at a decision that cannot be sustained in law.
6. The appeal was canvassed by through written submissions. The 1st Respondent’s submissions are dated 2nd May 2025. As at the time of writing this judgment, the Appellant’s submissions were not on record.
1st Respondent’s submissions
7. The 1st Respondent commenced his submissions with a brief background of the matter as it arose from the trial court. He confined his arguements to the issue of general damages for pain and suffering.
8. He began by citing the decision in Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2004] eKLR, submitting that the duty of a first appellate court is to re-evaluate the evidence on record and arrive at its own independent conclusions.
9. On the issue,of general damages for pain and suffering, the 1st Respondent addressed two questions, namely: whether the trial court erred in law and fact in awarding general damages in the sum of Kshs 350,000/=; and whether the award was manifestly excessive in light of the injuries sustained and proved at trial.
10. On the first issue, the 1st Respondent relied on John Kipkemboi & Another v Morris Kedolo [2019] eKLR. He submitted that the learned Magistrate correctly applied the established principles governing the assessment of damages. He argued that the trial court considered the authorities cited by the parties, exercised its discretion judiciously and properly arrived at an award of Kshs 350,000/= for pain and suffering. He therefore urged this Court not to interfere with the trial court’s exercise of discretion.
11. On the second question, the 1st Respondent submitted that although the assessment of general damages lies within the discretion of the court, such discretion must be exercised judiciously, guided by correct principles, and based on a proper appreciation of the evidence. He contended that the trial court met this threshold. He submitted that the court relied on comparable authorities and was guided by the injuries documented in the P3 form, treatment notes from Kitui County Hospital, and the medical report of Dr. Titus Ndeti Nzina. He further argued that the Appellant did not place any evidence before the court to challenge the injuries sustained or to controvert the Respondent’s medical evidence. He noted that Dr. Titus Ndeti testified that he examined the 1st Respondent and assessed permanent incapacity of the left upper limb at 10%. The Respondent submitted that the trial court properly relied on the decisions in Mary Wanja Gacombah v Jostinta Adhiambo Ogana [2021] eKLR and Duncan Mwenda & 2 Others v Sila Kinyua Kithela [2018] eKLR in arriving at a fair and reasonable award.
12. In conclusion, the 1st Respondent submitted that the appeal is speculative, lacks merit, and ought to be dismissed with costs.
Analysis and Determination
13. At the outset, I note that the 1st Respondent, in his submissions, urges this Court to exercise its appellate mandate by re-examining the evidence, re-evaluating it, and arriving at its own independent assessment. While this is indeed the correct approach in ordinary appeals, the position is different when dealing with appeals arising from the Small Claims Court.
14. Appeals from the Small Claims Court, are limited in scope and strictly governed by Section 38 of the Small Claims Court Act which limits the jurisdiction of this Court to matters of law only. It provides that:
38. (1) A person aggrieved by the decision or an order Appeals of the Court may appeal against that decision or order to the High Court on matters of law.
(2) An appeal from any decision or order referred to in subsection (1) shall be final.”
What constitutes, points of law, has been settled see the cases of Gatirau Peter Munya v Dickson Mwenda Kithinji & 2 others, Petition 2B of 2014 [2014] eKLR and Otieno, Ragot & Company Advocates v. National Bank of Kenya Limited [2020] eKLR.
15. Based on the above applicable provision of law and the authority cited, this court has a duty to consider the grounds of appeal as set out in the Memorandum of Appeal dated 14th January 2023, and identify the primary question of law that calls for determination.
16. Upon review, the Court notes that the Memorandum of Appeal contains six grounds of appeal. Of these, one raises an issue of both fact and law while the remainder concerns the quantum of damages, specifically, s whether the award of damages was manifestly excessive. It is trite that in appeals of this nature, good practice demands that the grounds be concise and focused on clear points of law.
17. Accordingly, this court will confine itself to the question of law arising that is whether the trial court correctly exercised its discretion in awarding general damages. I am guided by the general principle that it must be shown that the trial court proceeded on either wrong principles or that the trial court misapprehended the evidence in some material respect and so arrived a figure which was either inordinately high or low as established in the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR. In essence, the Appellant challenges the trial court’s assessment of damages for injuries sustained by the 1st Respondent.
18. The 1st Respondent’s injuries were listed in the medical report by Dr. Titus Ndeti Nzina as follows;
1. Blunt injuries to the left flank (left side of the abdomen)
2. Blunt injuries to the lower back.
3. Deep cut wound on the left upper limb.
4. Blunt injuries to the left elbow joint with restriction of joint movement.
5. Blunt injuries to the left fingers
19. The 1st Respondent was awarded general damages of Kshs 350, 000/=. In granting the award, the trial court was guided by the case of Duncan Mwenda & 2 others versus Silas Kinyua Kithela [2018] eklr and Robinson Njoroge versus Daniel Ombasa [2021] eKLR where the Plaintiff sustained deep cut wound on the head leading to soft tissue injuries, soft tissue injury to both hands, blunt injury to right hip joint leading to severe soft tissue injuries and the court awarded Kshs 300, 000/= as general damages and the award was upheld on appeal.
20. The Appellant has not demonstrated the amount that ought to have been awarded, having failed to make submissions in support of the grounds of appeal. In any event I have considered the authority as relied on by the adjudicator and I am satisfied that the award of Kshs.350,000/= was fair and just in light of the injuries sustained. The adjudicator exercised its discretion judiciously, and this court finds no reason to interfere with the decision.
21. The upshot of the above is that the appeal lacks merit and the trial court judgment as to liability and quantum is upheld.
22. The Appellant shall bear the costs of the appeal.
Orders accordingly.
Delivered, Dated and Signed this 22nd day of January 2026