(Being an appeal from the judgment and decree arising from the judgment of Hon. S.M Nyaga, Principal Magistrate delivered on 10/8/2023 in Baricho Magistrates Court Civil Case No. 116 of 2017)
JUDGMENT
Background
1. The appellants filed this appeal through a memorandum dated 24/8/2023. The record of appeal was filed on 21/11/2023. The appeal seeks to challenge the trial court’s decision on two aspects, first that the award of general damages was manifestly excessive and second that the suit was compromised and settled between the parties.
2. The appeal is from a decree issued on 9/11/2023 arising from a judgment of the trial court dated 10/8/2023. The respondent filed a suit by the through a plaint dated 7/9/2017 against the appellants claiming compensation in general and special damages for injuries sustained in a road traffic accident involving the respondent who was a passenger in the appellants’ motor vehicle registration number KBW 459G Isuzu bus/coach. The accident occurred on 30/6/2016 along the Makutano-Sagana road. It was described as a self-involving accident.
3. After trial the court awarded the respondent KShs 300,000/= general damages for pain, suffering and loss of amenities.
Grounds of appeal
4. The appellants were dissatisfied with that decision and now appeal to this court on the following grounds:
a. the learned magistrate erred in law in awarding general damages for pain and suffering at KShs 300,000/= which amount is manifestly excessive and high considering the injuries sustained by the respondent.
b. the learned magistrate erred in fact and law in delivering a judgment in a matter that was negotiated out of court and settled between the parties.
c. the learned magistrate erred in law and fact in failing to consider the written submissions and authorities of the appellant in support of the appellant’s case.
d. the judgment of the learned trial magistrate is against the law and weight of the evidence on record and against the doctrine of stare decisis.
5. The appellants therefore pray to this court to allow the appeal and set aside the judgment of the trial court and grant costs of the appeal to the appellants.
Submissions
6. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
7. In their submissions the appellants set out two issues for determination being:
a. whether the trial court erred in delivering judgment in a suit that was negotiated and settled out of court.
b. whether the court erred in awarding KShs 300,000/= general damages in light of the respondent’s injuries.
8. Learned counsel for the appellants submits that the trial court erred in passing a decree for compensation when the suit had been settled out of court and therefore the judgment made by the court amounted to double compensation for the respondent.
9. On the award of damages for pain, suffering and loss of amenities, learned counsel submits that the respondent did not sustain any permanent disability and proposes that an award of KShs 200,000/= would be adequate compensation for the injuries sustained.
10. Learned counsel for the respondent supports the trial court’s decision on both issues for determination raised by the appellant herein and adds that this court should not upset it as the award of damages is at the discretion of the trial court. He has cited various cases to support the submissions.
11. Learned counsel for the respondent submits on the issue of damages that this court can only interfere with the award of the trial court if it is satisfied that the trial court was clearly wrong in its findings and for him there is no reason to do so.
12. Learned counsel submits that there was no judgment by consent filed and adopted by the court to show that the case had been compromised as provided for under Order 25 Rule 5 of the Civil Procedure Rules (CPR) and therefore any arrangements that the insurers of the appellants might have had with the respondent’s former advocates to settle the matter were at their peril.
Duty of appellate court on a first appeal
13. This being a first appeal, the duty of this court is to 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. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
14. I am well guided by these principles in the consideration and determination of this appeal.
Case before the trial court.
15. The respondent gave evidence as PW 2 and called PW 1, Cpl Eve Muthengi of Sagana police station as her witness. The evidence at the trial was that the respondent was a passenger in the appellants’ motor vehicle registration number KBW 459G Isuzu bus when it was involved in the accident. The 1st appellant was the driver of the bus and the accident was self-involving. The driver was avoiding a pot hole when the vehicle veered off the road and rolled towards the right side of the road facing Sagana direction. There were 32 passengers in the vehicle, the respondent among them. The respondent sustained injuries as a result. PW 1 said that the accident was reported at Sagana police station, investigations carried out and the driver blamed for the accident.
16. The trial court’s finding on liability was not contested and therefore this court will not revisit it.
Analysis
17. I adopt the issues for determination as those submitted by learned counsel for the appellants.
18. On the first issue of whether the trial court erred in delivering judgment in a suit that was negotiated and settled out of court, I will approach it from the fact that there was a case before court pending hearing and determination. In the present case, the appellants submit strongly that this suit was negotiated and settled out of court and that the respondent was aware of the same and she signed a discharge and indemnity voucher. That she acknowledged that the signature appearing on the discharge and indemnity voucher bearing her name as hers. The respondent said in evidence that she was never paid any money in settlement of the case by her former advocate. She acknowledged in cross-examination that the signature on the discharge voucher was hers but she said she did not sign it herself. In re-examination she denied that she signed the discharge voucher.
19. First, cases are tried on the basis of pleadings filed by the parties. Pleadings are the foundation upon which a case is based. They outline each party’s case and defence against the other party’s case. Pleadings state with sufficient clarity the case that must be met by the other party.
20. The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -
“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...”
21. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, A C Mrima stated as follows: -
“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -
“… it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……
…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
22. In this case, when the respondent brought up the case for hearing, the appellants did not amend their defence to plead compromise and settlement of the matter as their defence. The respondent applied for reinstatement of the suit after it was initially dismissed for lack of prosecution. The appellants opposed the application for reinstatement on grounds that the matter was compromised and settled by the former advocate for the respondent and the appellants’ insurers. The appellants’ opposition to the application was dismissed by the court and the suit reinstated. They thereafter never sought to amend their defence to plead compromise and settlement. Consequently, they remained bound by their pleadings, the defence on record. The respondent knew the defence that was on record was a denial of her claim only, not a compromise and settlement. She tendered her evidence on that basis. That defence was therefore not available to the appellants at the trial. Therefore, the evidence that their witness gave was at variance with the pleadings and could not be considered by the court as a challenge to the respondent’s case.
23. Going back to the issue of the matter having been settled through compromise and satisfaction, there is no doubt that was proper that the parties engage in alternative dispute resolution as provided for under Article 159(2)(c) of the Constitution. But, having filed a suit in court, it did not end with the parties. Order 25 Rule 5 CPR which to me gives effect to that alternative mode of dispute resolution by way of agreement, compromise or satisfaction provides that either party should apply to court for an order that the agreement, compromise or satisfaction be recorded and enter judgment in accordance therewith.
24. Order 25 Rule 5 CPR on compromise of suits provides that: -
1) Where it is proved to the satisfaction of the court, and the court after hearing the parties directs, that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the court shall, on the application of any party, order that such agreement, compromise or satisfaction be recorded and enter judgment in accordance therewith.
2) The Court, on the application of any party, may make any further order necessary for the implementation and execution of the terms of the decree.
25. In this case, the defendant asserts that the suit was compromised and settled. The respondent denied knowledge of such settlement. The trial court was not an expert in handwritings and signatures to determine whether the signature appearing on the discharge voucher was for the respondent or forged as the respondent appeared to allege. It was upon the appellants to bring evidence to show that indeed the signature was made by the respondent. That is what Order 25 Rule 5 CPR requires. That was not done.
26. There was no application made to this court and no order issued that the alleged agreement, compromise or satisfaction of the suit between the parties be entered as a judgment of the court. Consequently, it follows that the appellants cannot rely on any such settlement to assert that the suit was determined by way of agreement and compromise.
27. I therefore find that the learned trial magistrate was correct in rejecting the alleged settlement of the case out of court.
28. On the second issue for determination, in the appellants’ evidence through DW 1, Wilson Ondiek, the legal officer, Britam Insurance, the insurers of the 2nd appellant, the appellants testified that they had compromised the suit with a payment of KShs 280,000/= as general damages for pain, suffering and loss of amenities. But in their submissions here, they assert that the award of KShs 300,000/= made by the trial court was manifestly excessive and the same should be reduced to KShs 200,000/= as proposed in the submissions. That is a contradiction that cannot be accepted. They assessed the injuries sustained by the respondent and found that a sum of KShs 280,000/= was adequate compensation. In that case, the award of KShs 300,000/= by the trial court cannot be said to be inordinately high as to attract this court’s interference.
29. 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.”
30. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself 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 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.”
31. While considering the award of damages, the trial court was guided by relevant case of Kenya Steel Fabricators Limited v Tom Moki [2018] KEHC 9488 (KLR) which was cited by the appellants herein. In that case the claimant was left with 4% permanent disability for a fracture of the right index finger. An award of KShs. 350,000/= was made by the trial court but was reduced to KShs. 260,000/= on appeal. I am satisfied that that case had comparable injuries to those sustained by the respondent herein. I am satisfied the trial court made the award for good reason guided by authority. The award was by all means similar to the one supposedly made by the appellants to the respondent’s then advocates on record and therefore was not inordinately high as submitted by the appellants.
Determination
32. Consequently, I find that this is not a suitable case for this court to interfere with the trial court’s exercise of its discretion and finding on damages for pain, suffering and loss of amenities as awarded as the same was not so manifestly high so as to represent an erroneous award.
33. Consequently, I find the appeal herein to lack merit. The trial court’s judgment is affirmed and the appeal is dismissed with costs to the respondent.
34. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 20th day of June 2025.
JUDGMENT
Background
1. The appellants filed this appeal through a memorandum dated 24/8/2023. The record of appeal was filed on 21/11/2023. The appeal seeks to challenge the trial court’s decision on two aspects, first that the award of general damages was manifestly excessive and second that the suit was compromised and settled between the parties.
2. The appeal is from a decree issued on 9/11/2023 arising from a judgment of the trial court dated 10/8/2023. The respondent filed a suit by the through a plaint dated 7/9/2017 against the appellants claiming compensation in general and special damages for injuries sustained in a road traffic accident involving the respondent who was a passenger in the appellants’ motor vehicle registration number KBW 459G Isuzu bus/coach. The accident occurred on 30/6/2016 along the Makutano-Sagana road. It was described as a self-involving accident.
3. After trial the court awarded the respondent KShs 300,000/= general damages for pain, suffering and loss of amenities.
Grounds of appeal
4. The appellants were dissatisfied with that decision and now appeal to this court on the following grounds:
a. the learned magistrate erred in law in awarding general damages for pain and suffering at KShs 300,000/= which amount is manifestly excessive and high considering the injuries sustained by the respondent.
b. the learned magistrate erred in fact and law in delivering a judgment in a matter that was negotiated out of court and settled between the parties.
c. the learned magistrate erred in law and fact in failing to consider the written submissions and authorities of the appellant in support of the appellant’s case.
d. the judgment of the learned trial magistrate is against the law and weight of the evidence on record and against the doctrine of stare decisis.
5. The appellants therefore pray to this court to allow the appeal and set aside the judgment of the trial court and grant costs of the appeal to the appellants.
Submissions
6. The appeal was disposed of by way of written submissions filed by learned counsels for both parties.
7. In their submissions the appellants set out two issues for determination being:
a. whether the trial court erred in delivering judgment in a suit that was negotiated and settled out of court.
b. whether the court erred in awarding KShs 300,000/= general damages in light of the respondent’s injuries.
8. Learned counsel for the appellants submits that the trial court erred in passing a decree for compensation when the suit had been settled out of court and therefore the judgment made by the court amounted to double compensation for the respondent.
9. On the award of damages for pain, suffering and loss of amenities, learned counsel submits that the respondent did not sustain any permanent disability and proposes that an award of KShs 200,000/= would be adequate compensation for the injuries sustained.
10. Learned counsel for the respondent supports the trial court’s decision on both issues for determination raised by the appellant herein and adds that this court should not upset it as the award of damages is at the discretion of the trial court. He has cited various cases to support the submissions.
11. Learned counsel for the respondent submits on the issue of damages that this court can only interfere with the award of the trial court if it is satisfied that the trial court was clearly wrong in its findings and for him there is no reason to do so.
12. Learned counsel submits that there was no judgment by consent filed and adopted by the court to show that the case had been compromised as provided for under Order 25 Rule 5 of the Civil Procedure Rules (CPR) and therefore any arrangements that the insurers of the appellants might have had with the respondent’s former advocates to settle the matter were at their peril.
Duty of appellate court on a first appeal
13. This being a first appeal, the duty of this court is to 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. This is the position as held in Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 on a first appeal from the High Court to the Court of Appeal that:
“An appeal to this Court from a trial by the High 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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)”.
14. I am well guided by these principles in the consideration and determination of this appeal.
Case before the trial court.
15. The respondent gave evidence as PW 2 and called PW 1, Cpl Eve Muthengi of Sagana police station as her witness. The evidence at the trial was that the respondent was a passenger in the appellants’ motor vehicle registration number KBW 459G Isuzu bus when it was involved in the accident. The 1st appellant was the driver of the bus and the accident was self-involving. The driver was avoiding a pot hole when the vehicle veered off the road and rolled towards the right side of the road facing Sagana direction. There were 32 passengers in the vehicle, the respondent among them. The respondent sustained injuries as a result. PW 1 said that the accident was reported at Sagana police station, investigations carried out and the driver blamed for the accident.
16. The trial court’s finding on liability was not contested and therefore this court will not revisit it.
Analysis
17. I adopt the issues for determination as those submitted by learned counsel for the appellants.
18. On the first issue of whether the trial court erred in delivering judgment in a suit that was negotiated and settled out of court, I will approach it from the fact that there was a case before court pending hearing and determination. In the present case, the appellants submit strongly that this suit was negotiated and settled out of court and that the respondent was aware of the same and she signed a discharge and indemnity voucher. That she acknowledged that the signature appearing on the discharge and indemnity voucher bearing her name as hers. The respondent said in evidence that she was never paid any money in settlement of the case by her former advocate. She acknowledged in cross-examination that the signature on the discharge voucher was hers but she said she did not sign it herself. In re-examination she denied that she signed the discharge voucher.
19. First, cases are tried on the basis of pleadings filed by the parties. Pleadings are the foundation upon which a case is based. They outline each party’s case and defence against the other party’s case. Pleadings state with sufficient clarity the case that must be met by the other party.
20. The Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR found and held as follows in respect to the essence of pleadings in an election petition: -
“In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings…...”
21. In the case of Daniel Otieno Migore v South Nyanza Sugar Co. Ltd [2018] eKLR, A C Mrima stated as follows: -
“It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR which cited with approval the decision of the Supreme Court of Nigeria in Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002 where Adereji, JSC expressed himself thus on the importance and place of pleadings: -
“… it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded……
…In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation.”
22. In this case, when the respondent brought up the case for hearing, the appellants did not amend their defence to plead compromise and settlement of the matter as their defence. The respondent applied for reinstatement of the suit after it was initially dismissed for lack of prosecution. The appellants opposed the application for reinstatement on grounds that the matter was compromised and settled by the former advocate for the respondent and the appellants’ insurers. The appellants’ opposition to the application was dismissed by the court and the suit reinstated. They thereafter never sought to amend their defence to plead compromise and settlement. Consequently, they remained bound by their pleadings, the defence on record. The respondent knew the defence that was on record was a denial of her claim only, not a compromise and settlement. She tendered her evidence on that basis. That defence was therefore not available to the appellants at the trial. Therefore, the evidence that their witness gave was at variance with the pleadings and could not be considered by the court as a challenge to the respondent’s case.
23. Going back to the issue of the matter having been settled through compromise and satisfaction, there is no doubt that was proper that the parties engage in alternative dispute resolution as provided for under Article 159(2)(c) of the Constitution. But, having filed a suit in court, it did not end with the parties. Order 25 Rule 5 CPR which to me gives effect to that alternative mode of dispute resolution by way of agreement, compromise or satisfaction provides that either party should apply to court for an order that the agreement, compromise or satisfaction be recorded and enter judgment in accordance therewith.
24. Order 25 Rule 5 CPR on compromise of suits provides that: -
1) Where it is proved to the satisfaction of the court, and the court after hearing the parties directs, that a suit has been adjusted wholly or in part by any lawful agreement or compromise, or where the defendant satisfies the plaintiff in respect of the whole or any part of the subject-matter of the suit, the court shall, on the application of any party, order that such agreement, compromise or satisfaction be recorded and enter judgment in accordance therewith.
2) The Court, on the application of any party, may make any further order necessary for the implementation and execution of the terms of the decree.
25. In this case, the defendant asserts that the suit was compromised and settled. The respondent denied knowledge of such settlement. The trial court was not an expert in handwritings and signatures to determine whether the signature appearing on the discharge voucher was for the respondent or forged as the respondent appeared to allege. It was upon the appellants to bring evidence to show that indeed the signature was made by the respondent. That is what Order 25 Rule 5 CPR requires. That was not done.
26. There was no application made to this court and no order issued that the alleged agreement, compromise or satisfaction of the suit between the parties be entered as a judgment of the court. Consequently, it follows that the appellants cannot rely on any such settlement to assert that the suit was determined by way of agreement and compromise.
27. I therefore find that the learned trial magistrate was correct in rejecting the alleged settlement of the case out of court.
28. On the second issue for determination, in the appellants’ evidence through DW 1, Wilson Ondiek, the legal officer, Britam Insurance, the insurers of the 2nd appellant, the appellants testified that they had compromised the suit with a payment of KShs 280,000/= as general damages for pain, suffering and loss of amenities. But in their submissions here, they assert that the award of KShs 300,000/= made by the trial court was manifestly excessive and the same should be reduced to KShs 200,000/= as proposed in the submissions. That is a contradiction that cannot be accepted. They assessed the injuries sustained by the respondent and found that a sum of KShs 280,000/= was adequate compensation. In that case, the award of KShs 300,000/= by the trial court cannot be said to be inordinately high as to attract this court’s interference.
29. 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.”
30. Similarly, in the case of Butt v Khan (1982 -1988) 1 KAR the court pronounced itself 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 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.”
31. While considering the award of damages, the trial court was guided by relevant case of Kenya Steel Fabricators Limited v Tom Moki [2018] KEHC 9488 (KLR) which was cited by the appellants herein. In that case the claimant was left with 4% permanent disability for a fracture of the right index finger. An award of KShs. 350,000/= was made by the trial court but was reduced to KShs. 260,000/= on appeal. I am satisfied that that case had comparable injuries to those sustained by the respondent herein. I am satisfied the trial court made the award for good reason guided by authority. The award was by all means similar to the one supposedly made by the appellants to the respondent’s then advocates on record and therefore was not inordinately high as submitted by the appellants.
Determination
32. Consequently, I find that this is not a suitable case for this court to interfere with the trial court’s exercise of its discretion and finding on damages for pain, suffering and loss of amenities as awarded as the same was not so manifestly high so as to represent an erroneous award.
33. Consequently, I find the appeal herein to lack merit. The trial court’s judgment is affirmed and the appeal is dismissed with costs to the respondent.
34. Orders accordingly.
Dated, signed and delivered on the Virtual Platform, Teams this 20th day of June 2025.