REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E1456 OF 2024
(Coram: Andayi W. F, J.)
WHITESKY INVESTMENTS LIMITED………………………1 ST APPELLANT
JAMES NGUGI MUTUMBA………………………………..2 ND APPELLANT
VERSUS
HOPEKINGS MWANZA ANDA….………………………..….RESPONDENT
(Being an appeal from the judgment and decree of Hon. R. L. MUSIEGA delivered on 29 th November 2024 in the Magistrates’ Court at Nairobi, Milimani CMCC No. E4262 of 2023)
JUDGMENT
1. This appeal through the memorandum dated 10 th November 2024 seeks to set aside the decree of the learned trial magistrate arising from a judgment of the trial court dated 29 th November 2024 on the issue of assessment of damages only.
2. The appellant sued the respondent through a plaint dated 7 th July 2023 claiming general and special damages and future medical expenses for injuries arising out of a road traffic accident that occurred on 18 th July 2022 along the Mombasa road near GM. The respondent was a lawful passenger in motor vehicle registration number KCG 404Z when it was involved in an accident with the appellant’s motor vehicle registration number KBN 676V. As a result, the respondent sustained the following injuries:
a. Loose upper incisors.
b. Soft tissue injury on the lower lip.
c. Soft tissue injury of the chest (bilateral chest pains).
3. The respondent blamed the appellant for the accident and sued him for negligence.
4. The appellants filed their statement of defence dated 16 th October 2023 and denied the claim in toto . In the alternative they pleaded negligence against the respondent and also against the driver of motor vehicle registration number KCG 404Z in which the respondent was a passenger when the accident occurred.
5. Parties entered a consent on liability on 8 th November 2024 in the ratio of 80:20 for the respondent against the appellant.
6. The case proceeded for assessment of damages upon the pleadings, written statements of witnesses and submissions by learned counsels for the parties.
7. Upon considering the pleadings, evidence and the submissions and authorities tendered by the parties the learned trial magistrate awarded a sum of KShs 600,000/= as general damages for pain, suffering and loss of amenities for the respondent, KShs 150,000/= as future medical expenses for replacement of the incisors and KShs 6,550/= as special damages.
8. The appellant was dissatisfied with the judgment and has filed this appeal based on several listed grounds but which can be summed into one, that the learned trial magistrate erred by awarding the respondent an inordinately high amount of general damages for pain and suffering for the injuries sustained and in awarding damages for future medical expenses. It is the appellant’s contention that the learned trial magistrate erred by failing to evaluate the evidence on record and basing his decision on extraneous matters and failing to base his decision on the facts, evidence on record and failing to follow the principle of stare decisis.
9. The appellant thus prays that the judgment and decree of the trial court on the assessment of general damages for pain and suffering and damages for future medical expenses be set aside and this court to reassess the same. The appellant also prays for the costs of the appeal.
10. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
11. The appellant’s submissions reiterate his grounds of appeal that the damages are inordinately high and proposes that an award of KShs 300,000/= would be reasonable while the submissions by the respondent support the trial court’s award as being fair compensation for the injuries sustained.
12. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
13. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset by this court.
14. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case of Butt v Khan (1982 -1988) 1 KAR where the court pronounced itself on the issue as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely 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.”
15. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A . stated:
“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 the 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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
16. I am well guided.
17. In the present case, the appeal is based on the ground that the amount of general damages for pain, suffering and loss of amenities awarded was so inordinately high that it represents an erroneous award and that the respondent failed to plead with particularity special damages for future medical expenses especially since by the time of testimony the same had already been expended.
18. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
19. There is no dispute on the injuries sustained by the respondent as set out above. At the trial court, the appellant proposed an award of KShs 300,000/= while the respondent proposed an award of KShs 700,000/= as general damages for pain, suffering and loss of amenities.
20. The learned trial magistrate considered the authorities submitted by the parties and held that on the authorities submitted by the appellant, none of them was on injuries to the teeth as was the case herein. He therefore found the injuries therein less severe than those sustained by the respondent herein. I have looked at the cited cases and I agree with that position.
21. With respect to the cases cited by the respondent the learned trial magistrate held that although not exactly the same they bore injuries comparable to those sustained by the respondent in this case. It means that he followed those decisions in awarding the sum of KShs 600,000/= general damages for pain, suffering and loss of amenities. The said cases were as follows:
a. Joseph K Gatitika & another v Felista Muthoni & 2 others [2020] KEHC 1733 (KLR) . In this case, the trial court award of KShs 700,000/= general damages for pain, suffering and loss of amenities was upheld by the High Court on appeal where the injuries sustained by the 1 st Respondent/plaintiff were:
i. Severe injury on her lips, mouth chest and all her limbs
ii. Loss of both upper incisors and canine teeth
iii. Injury to left eye, and scarring to the eyelid; permanent poor vision.
b. Njeru Jim Kennedy v Stephen Ngururu Karanja [2021] KEHC 5511 (KLR) the respondent sustained degolving of the left side of the mouth and cheek, fracture of upper incisor teeth, soft tissue injury on the scalp and soft tissue injury of the left hand. According to the medical report by Dr. George Karanja dated 14 th February 2015, which was done about two months after the accident, the doctor noted that the respondent had an ugly unhealed wound running from the left side of the mouth to the area below the left ear and he was not able to open the mouth fully; two cracked teeth on the upper jaw; multiple small scars on scalp and a superficial scar on the left hand palm. According to the doctor, the respondent was still recovering and would need up to two more months to recover. The cheek and mouth scars would require cosmetic surgery to repair at a cost of Kshs. 150,000, otherwise the deformity would be lifelong.
The respondent was reexamined by Dr, Wokabi on 15 th December 2015 and in his medical report dated 21 st December, 2015, about ten months after the first examination and one year after the accident, Dr. Wokabi stated that his examination confirmed presence of a scar on left side of the cheek and left angle of jaw. The left side molars were all present, were not broken or loose and the respondent was able to open the mouth fully. There was a small circular scar on the back of the right hand measuring 3cm by 2cm across. He concluded that the respondent sustained lacerations on the left side of the face. The wound had however healed leaving permanent scars. He was of the opinion, however, that the scars would not any plastic surgery because they were not in any way disfiguring, contrary to the first report by Dr. Karanja.
On appeal, the High Court substituted the award of KShs 800,000/= with an award of KShs 500,000/= for general damages for pain, suffering and loss of amenities. The trial Court had also awarded Ksh 150,000/= as future medical expenses for cosmetic surgery. The learned Judge noted that since there was divergence of opinion from the two doctors, only half of the amount should have been awarded.
22. The appellant has discarded the cases relied upon at the hearing and now relies on the following:
a. Ng’ang’a John & another v David Ogot Agola [2021] KEHC 804 (KLR) . The respondent sustained injuries to the mouth and trunk, namely 2 cracked/loose upper molars and blunt injury to the left side of the chest. On appeal the High Court set aside and substituted the award of KShs. 600,000/= made by the learned trial magistrate with an award of Kshs.350,000/=.
b. James Nganga Kimani & another v Giachagi Njoroge & 2 others [2019] KEHC 6459 (KLR) where the High Court sitting on appeal awarded the sum of Kshs.200,000/= in view of injuries categorized as a scar on the nasal bridge and lower limb, broken upper incisor tooth and missing lower incisor of teeth and multiple dental carries;
23. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
24. It is immediately apparent from a consideration of the two cases relied upon by the trial court that although involving injury to the teeth they also involved other more serious injuries than in the present case. The injuries in the present case could therefore not attract an award of general damages near what was awarded in those two cases.
25. I have considered the cases now referred to by the appellant as cited above in the submissions herein and I am satisfied that they bear comparable injuries to those sustained by the respondent herein.
26. I have also looked up and considered the case of Washington Mukunya Karanja & another v Margaret Wambui Maina [2020] eKLR where the High Court sitting on appeal upheld the sum of KShs. 300,000/= awarded for general damages to a plaintiff who had sustained swelling of upper part of mouth, alveolar fracture of both incisor teeth, soft tissue injuries on right leg and a superficial wound.
27. I find this case to be a more appropriate comparison to the case at hand.
28. I find that the award made by the trial court herein was inordinately high and I am satisfied that this is a proper case to interfere with the trial court’s award. I am satisfied that a sum of KShs 300,000/= general damages for pain, suffering and loss of amenities would be adequate compensation for the respondent. Consequently, the decision by learned trial magistrate on assessment of general damages for pain, suffering and loss of amenities is hereby set aside and substituted with an award of KShs 300,000/=.
29. On the assessment of damages for future medical expenses, I find the submission by learned counsel for the appellant that because by the time the respondent’s doctor examined him, he had already had replacement of the broken tooth and therefore the plaint not having been amended to reflect the same, it should not have been awarded by the trial court to have no merit. It was not shown the replacement was done at a less amount than that recommended by the respondent’s doctor of KShs 150,000/=. That award therefore remains.
30. The award on special damages is not contested and the same remains as awarded KShs 6,550/=.
31. The total award herein is therefore KShs 456,550/=. The same is subject to contribution of 20% thereby reducing it to KShs 365,240/=.
32. The appeal is successful to that extent.
33. Each party will bear its own costs.
34. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 21 st day of January 2026 in the presence of:
Ochieng for the appellant.
Maina (Ms) for the respondent.
Ummu h/b for Amina: Court assistant.
ANDAYI W. FRANCIS
JUDGE
HC CA No. E1456 of 20241. assessment of damages
IN THE HIGH COURT OF KENYA AT NAIROBI
MILIMANI CIVIL APPELLATE DIVISION
CIVIL APPEAL NO. E1456 OF 2024
(Coram: Andayi W. F, J.)
WHITESKY INVESTMENTS LIMITED………………………1 ST APPELLANT
JAMES NGUGI MUTUMBA………………………………..2 ND APPELLANT
VERSUS
HOPEKINGS MWANZA ANDA….………………………..….RESPONDENT
(Being an appeal from the judgment and decree of Hon. R. L. MUSIEGA delivered on 29 th November 2024 in the Magistrates’ Court at Nairobi, Milimani CMCC No. E4262 of 2023)
JUDGMENT
1. This appeal through the memorandum dated 10 th November 2024 seeks to set aside the decree of the learned trial magistrate arising from a judgment of the trial court dated 29 th November 2024 on the issue of assessment of damages only.
2. The appellant sued the respondent through a plaint dated 7 th July 2023 claiming general and special damages and future medical expenses for injuries arising out of a road traffic accident that occurred on 18 th July 2022 along the Mombasa road near GM. The respondent was a lawful passenger in motor vehicle registration number KCG 404Z when it was involved in an accident with the appellant’s motor vehicle registration number KBN 676V. As a result, the respondent sustained the following injuries:
a. Loose upper incisors.
b. Soft tissue injury on the lower lip.
c. Soft tissue injury of the chest (bilateral chest pains).
3. The respondent blamed the appellant for the accident and sued him for negligence.
4. The appellants filed their statement of defence dated 16 th October 2023 and denied the claim in toto . In the alternative they pleaded negligence against the respondent and also against the driver of motor vehicle registration number KCG 404Z in which the respondent was a passenger when the accident occurred.
5. Parties entered a consent on liability on 8 th November 2024 in the ratio of 80:20 for the respondent against the appellant.
6. The case proceeded for assessment of damages upon the pleadings, written statements of witnesses and submissions by learned counsels for the parties.
7. Upon considering the pleadings, evidence and the submissions and authorities tendered by the parties the learned trial magistrate awarded a sum of KShs 600,000/= as general damages for pain, suffering and loss of amenities for the respondent, KShs 150,000/= as future medical expenses for replacement of the incisors and KShs 6,550/= as special damages.
8. The appellant was dissatisfied with the judgment and has filed this appeal based on several listed grounds but which can be summed into one, that the learned trial magistrate erred by awarding the respondent an inordinately high amount of general damages for pain and suffering for the injuries sustained and in awarding damages for future medical expenses. It is the appellant’s contention that the learned trial magistrate erred by failing to evaluate the evidence on record and basing his decision on extraneous matters and failing to base his decision on the facts, evidence on record and failing to follow the principle of stare decisis.
9. The appellant thus prays that the judgment and decree of the trial court on the assessment of general damages for pain and suffering and damages for future medical expenses be set aside and this court to reassess the same. The appellant also prays for the costs of the appeal.
10. The appeal was disposed of by way of written submissions filed by the appellant and the respondent.
11. The appellant’s submissions reiterate his grounds of appeal that the damages are inordinately high and proposes that an award of KShs 300,000/= would be reasonable while the submissions by the respondent support the trial court’s award as being fair compensation for the injuries sustained.
12. This is a first appeal. The duty of this court is to examine, re-evaluate, re-analyze and re-consider the evidence and draw its own conclusions, bearing in mind that it did not see witnesses testifying and therefore give due allowance for that as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126.
13. I have considered the grounds of appeal filed herein, the submissions by the parties and the judgment of the learned trial magistrate. The issue for determination in this appeal is whether the damages awarded by the trial court are so inordinately high as to be erroneous and subject to be upset by this court.
14. I am aware that assessment of damages is at the discretion of the trial court and an appellate court should not lightly disturbed as was held in the case of Butt v Khan (1982 -1988) 1 KAR where the court pronounced itself on the issue as follows:
“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely 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.”
15. The principles under which an appellate court may interfere with an award of quantum made by a lower court were stated in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini Vs A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730, Kneller J.A . stated:
“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 the 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. See Ilango V Manyoka [1967] E.A. 705, 709, 713; Lukenya Ranching and Farming Cooperative Society Limited Vs Kalovoto [1970] E.A. 414, 418, 419. This court follows the same principles.”
16. I am well guided.
17. In the present case, the appeal is based on the ground that the amount of general damages for pain, suffering and loss of amenities awarded was so inordinately high that it represents an erroneous award and that the respondent failed to plead with particularity special damages for future medical expenses especially since by the time of testimony the same had already been expended.
18. I have re-examined and re-evaluated the evidence tendered so as to arrive at my own conclusion even as I give due consideration to the findings of fact made by the trial court.
19. There is no dispute on the injuries sustained by the respondent as set out above. At the trial court, the appellant proposed an award of KShs 300,000/= while the respondent proposed an award of KShs 700,000/= as general damages for pain, suffering and loss of amenities.
20. The learned trial magistrate considered the authorities submitted by the parties and held that on the authorities submitted by the appellant, none of them was on injuries to the teeth as was the case herein. He therefore found the injuries therein less severe than those sustained by the respondent herein. I have looked at the cited cases and I agree with that position.
21. With respect to the cases cited by the respondent the learned trial magistrate held that although not exactly the same they bore injuries comparable to those sustained by the respondent in this case. It means that he followed those decisions in awarding the sum of KShs 600,000/= general damages for pain, suffering and loss of amenities. The said cases were as follows:
a. Joseph K Gatitika & another v Felista Muthoni & 2 others [2020] KEHC 1733 (KLR) . In this case, the trial court award of KShs 700,000/= general damages for pain, suffering and loss of amenities was upheld by the High Court on appeal where the injuries sustained by the 1 st Respondent/plaintiff were:
i. Severe injury on her lips, mouth chest and all her limbs
ii. Loss of both upper incisors and canine teeth
iii. Injury to left eye, and scarring to the eyelid; permanent poor vision.
b. Njeru Jim Kennedy v Stephen Ngururu Karanja [2021] KEHC 5511 (KLR) the respondent sustained degolving of the left side of the mouth and cheek, fracture of upper incisor teeth, soft tissue injury on the scalp and soft tissue injury of the left hand. According to the medical report by Dr. George Karanja dated 14 th February 2015, which was done about two months after the accident, the doctor noted that the respondent had an ugly unhealed wound running from the left side of the mouth to the area below the left ear and he was not able to open the mouth fully; two cracked teeth on the upper jaw; multiple small scars on scalp and a superficial scar on the left hand palm. According to the doctor, the respondent was still recovering and would need up to two more months to recover. The cheek and mouth scars would require cosmetic surgery to repair at a cost of Kshs. 150,000, otherwise the deformity would be lifelong.
The respondent was reexamined by Dr, Wokabi on 15 th December 2015 and in his medical report dated 21 st December, 2015, about ten months after the first examination and one year after the accident, Dr. Wokabi stated that his examination confirmed presence of a scar on left side of the cheek and left angle of jaw. The left side molars were all present, were not broken or loose and the respondent was able to open the mouth fully. There was a small circular scar on the back of the right hand measuring 3cm by 2cm across. He concluded that the respondent sustained lacerations on the left side of the face. The wound had however healed leaving permanent scars. He was of the opinion, however, that the scars would not any plastic surgery because they were not in any way disfiguring, contrary to the first report by Dr. Karanja.
On appeal, the High Court substituted the award of KShs 800,000/= with an award of KShs 500,000/= for general damages for pain, suffering and loss of amenities. The trial Court had also awarded Ksh 150,000/= as future medical expenses for cosmetic surgery. The learned Judge noted that since there was divergence of opinion from the two doctors, only half of the amount should have been awarded.
22. The appellant has discarded the cases relied upon at the hearing and now relies on the following:
a. Ng’ang’a John & another v David Ogot Agola [2021] KEHC 804 (KLR) . The respondent sustained injuries to the mouth and trunk, namely 2 cracked/loose upper molars and blunt injury to the left side of the chest. On appeal the High Court set aside and substituted the award of KShs. 600,000/= made by the learned trial magistrate with an award of Kshs.350,000/=.
b. James Nganga Kimani & another v Giachagi Njoroge & 2 others [2019] KEHC 6459 (KLR) where the High Court sitting on appeal awarded the sum of Kshs.200,000/= in view of injuries categorized as a scar on the nasal bridge and lower limb, broken upper incisor tooth and missing lower incisor of teeth and multiple dental carries;
23. It is a hallowed principle in assessment of general damages that similar injuries will attract similar awards. The time lapse from the decided case being used as a comparison is also a relevant factor to consider. In the case of David Kiprugut & another v Peter Okebe Pango [2007] KECA 368 (KLR) the Court of Appeal stated thus:
“…in the assessment of damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the correct level of awards on similar cases.”
24. It is immediately apparent from a consideration of the two cases relied upon by the trial court that although involving injury to the teeth they also involved other more serious injuries than in the present case. The injuries in the present case could therefore not attract an award of general damages near what was awarded in those two cases.
25. I have considered the cases now referred to by the appellant as cited above in the submissions herein and I am satisfied that they bear comparable injuries to those sustained by the respondent herein.
26. I have also looked up and considered the case of Washington Mukunya Karanja & another v Margaret Wambui Maina [2020] eKLR where the High Court sitting on appeal upheld the sum of KShs. 300,000/= awarded for general damages to a plaintiff who had sustained swelling of upper part of mouth, alveolar fracture of both incisor teeth, soft tissue injuries on right leg and a superficial wound.
27. I find this case to be a more appropriate comparison to the case at hand.
28. I find that the award made by the trial court herein was inordinately high and I am satisfied that this is a proper case to interfere with the trial court’s award. I am satisfied that a sum of KShs 300,000/= general damages for pain, suffering and loss of amenities would be adequate compensation for the respondent. Consequently, the decision by learned trial magistrate on assessment of general damages for pain, suffering and loss of amenities is hereby set aside and substituted with an award of KShs 300,000/=.
29. On the assessment of damages for future medical expenses, I find the submission by learned counsel for the appellant that because by the time the respondent’s doctor examined him, he had already had replacement of the broken tooth and therefore the plaint not having been amended to reflect the same, it should not have been awarded by the trial court to have no merit. It was not shown the replacement was done at a less amount than that recommended by the respondent’s doctor of KShs 150,000/=. That award therefore remains.
30. The award on special damages is not contested and the same remains as awarded KShs 6,550/=.
31. The total award herein is therefore KShs 456,550/=. The same is subject to contribution of 20% thereby reducing it to KShs 365,240/=.
32. The appeal is successful to that extent.
33. Each party will bear its own costs.
34. Orders accordingly.
ANDAYI W. FRANCIS
JUDGE
Dated, signed and delivered on the Virtual platform Teams this 21 st day of January 2026 in the presence of:
Ochieng for the appellant.
Maina (Ms) for the respondent.
Ummu h/b for Amina: Court assistant.
ANDAYI W. FRANCIS
JUDGE
HC CA No. E1456 of 20241. assessment of damages