Afedha v Kariuki

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL DIVISION (APPELLATE SIDE)** **CIVIL APPEAL NO. E069 OF 2025** **BETWEEN** **AGGREY AGUSTA AFEDHA....….…………….....................................APPELLANT** **AND** **CHARLES MBUTHIA KARIUKI.....………………..…………………..RESPONDENT** **(*Being an appeal from the Judgment and Decree of Hon. S. Kandie, RM dated 12th March 2025 at the Magistrates Court at Mavoko in Civil Case No.E234 of 2023*)** **JUDGMENT** **Introduction and Background** 1. The Appellant is dissatisfied with the subordinate court’s judgment dated 12th March 2025 where he was awarded inter alia general damages of Kshs.300,000.00 for injuries sustained in a road accident that occurred along Nairobi-Namanga road at *Vanillas* area. Through his Memorandum of Appeal dated 14th March 2025, he avers that the trial magistrate made an error by finding that the Appellant did not sustain a fracture, despite it being pleaded, that he ignored the medical reports from both parties which confirmed the Appellant sustained a fracture of the femoral condyle and that he erred in awarding general damages of Kshs.300,000.00 which the Appellant considers too low. 2. As such, the Appellant seeks that inter alia the trial court's findings on general damages be set aside and/or reviewed and that the award on general damages be enhanced based on the injuries sustained. The appeal has been canvassed by way of written submissions which I have considered together with the record and I will be making relevant references to them in my analysis and determination below. **Analysis and Determination** 1. I agree with the Respondent’s submission that in determining this appeal, I should be mindful of the role of the first appellate court which is to re-evaluate and re-assess the evidence before the court of first instance and at the same time, keep in mind the fact that the trial court interacted first hand with the parties (see***Selle v. Associated Motor Boat Co.* [1968] EA 123**) 2. As stated, the Appellant is aggrieved with the quantum of damages awarded. The question of whether or not an appellate court ought to interfere or to disturb quantum of damages by a trial court has been extensively dealt with in case law. The Supreme Court, in **Imanyara & 2 others v Attorney General [2022] KESC 78 (KLR)** endorsed the decision of the Court of Appeal in **Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR)** where it was held as follows: *‘‘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 judgewere held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that 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.’’* 1. The apex court also cited with approval the decision of the Supreme Court of the UK in **Robert Perekebena Naidike vs The Attorney General of Trinidad and Tobago, [2004] UKPC 49** where it was stated that: *‘‘A court of appeal must be satisfied that: the trial judge either misdirected himself/herself on the relevant facts of law (took irrelevant facts into consideration or ignored relevant (emphasis added) one or misinterpreted or misapplied some relevant legal principle), or the trial judge’s assessment of damages is a ‘wholly erroneous estimate.’’* 1. A court should also be mindful to make fair and consistent awards in line with the principle that similar injuries must attract similar awards (see **Nyamete & another v Ogutu [2024] KEHC 2639 (KLR)**. The Appellant pleaded that as a result of the accident, he sustained a fracture of the right femoral condyle and dislocation of the right elbow joint with swelling and tenderness. He submitted that he produced evidence including a Medical Report by Dr. Okere, Kitengela Medical Services treatment notes, a P3 Form, and a Police Abstract. Furthermore, that a medical report by the Respondent’s doctor, Dr. Wokabi, dated 6th February 2024, confirmed the presence of a fracture. 2. The Appellant notes that during submissions before the trial court, he proposed an award of Kshs.1,200,000.00.00, whereas the Respondent advanced for soft tissue injuries without submitting a specific counter-proposal. That despite acknowledging that both medical practitioners confirmed the existence of a fracture, the trial court failed to make an award commensurate with such injuries. The Appellant asserts that an award of Kshs.1,200,000.00 for general damages is appropriate and aligns with precedent as set out in **Kimathi Muturi Donald v Kevin Ochieng Aseso [2021] KEHC 2654 (KLR)** and **Marete & another v Wang’ondu [2023] KEHC 23673 (KLR)** for comparable injuries. As such, the Appellant prays that the Court allows the appeal and enhances the trial court's award on general damages for pain and suffering to Kshs. 1,200,000.00. 3. In response, the Respondents submitted that the Appellant’s doctor, Dr. Okere, noted a fracture of the outer plateau of the right tibia, classified the injuries as grievous harm and assessed permanent incapacity at 40%. That the Respondent’s doctor, Dr. Wokabi confirmed the fracture of the outer plateau of the right tibia upon reviewing the Appellant, X-rays and CT scans, but assessed permanent incapacity at 10%. The Respondent submitted that Dr. Okere’s 40% rating was a gross overestimation, pointing out that under WIBA scales, 40% disability is equivalent to an amputation of a leg at knee level. The Respondent urges the court to rely on Dr. Wokabi's findings because he re-examined the Appellant later and provided a clearer, more accurate picture of the injuries and degree of incapacity. 4. The Respondent submitted that an award of Kshs.80,000.00 to Kshs.250,000.00 would be sufficient and adequate compensation for the proven injuries and he relied on **Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR)** where the appellate court set aside an award of Kshs.600,000.00 and substituted it with Kshs.400,000.00 for compound tibia/fibula fractures, deep cuts, head/chest injuries and soft tissue damage and **Naom Momanyi v G4s Security Services Kenya Limited & another [2018] KEHC 6218 (KLR)** where the court awarded Kshs.300,000.00 for a fracture of the right condylar tibia, blunt back injuries and multiple arm bruises. 5. Accounting for inflation and precedent, the Respondent submitted that an award of Kshs.250,000.00 is adequate, making the trial court's award of Kshs.300,000.00 already fully protective of the Appellant's entitlement. The Respondent prays that the court finds the sum of general damages to be adequately covered by Kshs.250,000.00 and refrains from enhancing the trial court’s award. 6. Going through the record and the submissions, the trial magistrate in his judgment considered the conflicting medical evidence and gave clear reasons for preferring Dr. Wokabi's report. He stated: *"A fracture, according to medical experts can be confirmed through x-ray film. Doctor Okere relied on the P3, Scan Report - abdomen, physical examination and consultation request form. The scan report filed in court is for abdomen... Doctor Wokabi did not do a repeat x-ray but relied on the films supplied to him."* This demonstrates that the trial court took into account relevant factors such as the absence of an x-ray confirming the fracture, the fact Dr. Okere's scan was for the abdomen and not the knee and he did not ignore relevant evidence as he considered both medical reports but gave reasoned preference to Dr. Wokabi's. 7. Dr. Okere examined the Appellant on 31st January 2023 whereas Dr. Wokabi examined him at a later date on 27th June 2023 that provided a clearer picture of the healed condition and which confirmed no abnormality in the femoral condyles and that the fracture was of the outer plateau of the right tibia and not the femoral condyle as pleaded. Dr. Wokabi also relied on primary evidence such as the X-rays and CT scans supplied to him is clear that the trial court evaluated the evidence and made a factual finding that the fracture was not proven, which is the type of evaluation an appellate court should respect. 8. On the quantum of damages awarded, I find that the trial court was properly guided by relevant decisions in arriving at its decision. The Respondent relied on inter alia the case of ***Naom Momanyi (supra)***where the appellant therein sustained a fracture of left-right condylar tibia, blunt back injuries, multiple bruises on left arm and 30% disability and was awarded Kshs.300,000.00. As per Dr. Wokabi, the Appellant had bone and soft tissue injuries with a 10% disability and I find that the trial court’s award of Kshs.300,000.00 was consistent with the aforementioned decision awarded for a confirmed fracture with a higher disability assessment. In this case, the trial court awarded the same amount for injuries it found were not confirmed fractures and had a lower disability assessment which in my view was generous to the Appellant. 9. The Appellant relied on authorities that involved more serious injuries. For example, in ***Kimathi Muturi Donald(supra)*** the respondent therein sustained fractures of the tibia, fibular and acetabulum. The doctor’s report pointed to pain, affected mobility, 20% disability on both legs at optimal rehabilitation and prospects of developing arthritis due to the injuries sustained. In ***Marete(supra)*** the respondent therein sustained *“Major injuries on the left knee (fracture of knee joint and fibula), Various components torn and Blunt soft injuries to the head”*. These injuries are not comparable to the bone and soft tissue injuries suffered by the Appellant herein and could not attract an award higher than Kshs. 300,000.00 in the circumstances. **Conclusion and Disposition** 1. In the upshot, I find that the trial court acted on relevant factors and did not disregard evidence, it made a proper factual finding preferring Dr. Wokabi's evidence that was reasonably open to it and awarded damages that were consistent with comparable authorities for the injuries as found. I find that the trial court did not make an award that is inordinately low or a wholly erroneous estimate. 2. The Appellant's grounds of appeal essentially ask the appellate court to re-evaluate the evidence and reach a different factual conclusion on the nature of the injuries. However, as the Supreme Court in ***Imanyara(supra)*** and the Court of Appeal in ***Kemfro(supra)*** made clear, an appellate court should not substitute its own view for that of the trial court unless there is a clear error of principle or the award is wholly erroneous and I find that neither condition is met here. The appeal by the Appellant now stands dismissed with costs. **DATED, SIGNED AND DELIVERED virtually this 2nd DAY OF SEPTEMBER** **2026.** ............................................................................ **J W W MONGARE** **JUDGE** **In the presence of;** 1. N/A for the Appellant 2. N/A for the Respondent 3. Abdisalan- Court Assistant