https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9754

Simon alias Wanjiru Ann v Ngugi & another (Civil Appeal E061 of 2025) [2026] KEHC 9754 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9754 (KLR) Republic of Kenya In the High Court at Malindi Civil Appeal E061 of 2025 BK Njoroge, J July 2, 2026 Between Ann Wanjiru Simon alias Wanjiru Ann Appellant and Peter Waithunguri Ngugi 1st Respondent Chania Executive Limited 2nd Respondent (Appeal from the Judgment of the Learned Magistrate Honourable S. Kimani (PM) delivered at Mariakani on 16th May, 2025 in Mariakani PMCC No. E070 of 2024) Judgment 1.This is a Judgment arising out of an appeal against the decision of Honourable S Kimani (P.M) delivered on 16/5/2025. It is in respect of PMCC No. E070 of 2024. Background Facts 2.This is an Appeal from a running down claim. The Appellant was the Plaintiff before the Lower Court while the Respondents were the Defendants. 3.The Appellant was on 13/11/2023 travelling in a motor vehicle KCW 627E. It was said to belong to the 2nd Defendant and was being driven by the 1st Defendant. 4.As a result of a traffic accident on the same date, the Appellant sustained injuries as follows;a.Fracture spinous process 7th cervical vertebra.b.Bruises and abrasions on the forehead.c.Cut/laceration on the chin.d.Loss of consciousness.e.Blunt injury right thigh.f.Blunt injury left shoulder and scapular region.g.Permanent incapacity of about 7% 5.The Appellant claimed damages arising out of the acts of negligence pleaded against the Respondents in the Plaint. It was pleaded that the Appellant was a fare paying passenger in the respective motor vehicle in issue. That the motor vehicle was driven so negligently that it overturned. 6.The Trial Court in its determination proceeded to enter Judgement against the Defendants as follows;“a)The Defendants are found 100% to blame for the collision in question;b)An award of Kshs 600,000.00 is made as general damages for pain, suffering and loss of amenities;c.A further award of Kshs 2,550.00/- is made on account of special damages.Having been successful herein, and following the adage that costs shall follow the event, the Plaintiff will also have costs of this suit.Finally, and in line with provisions of Section 26(1) of the Civil Procedure Act Cap 21, there shall be interest on the general damages (KES.602,550.00/-) at the rate of 14% per annum from the date of this Judgement.Orders accordingly.” 7.The Appellant dissatisfied by the decision of the Trial Court has preferred this Appeal on the issue of quantum only. The Memorandum of Appeal dated 16/6/2025 raises the following grounds;1.That the Learned Magistrate erred in law and in fact in awarding general damages for pain and suffering at Kshs 600,000/- which is manifestly and inordinately low bearing in mind the injuries sustained by the Appellant and the effect of the injuries;2.That the Learned Magistrate misdirected himself in law and fact by NOT awarding general damages for diminished earning capacity bearing in mind the extent of incapacitation sustained by the Appellant;3.That the Learned Magistrate misdirected herself in law and in fact by failing to appreciate the evidence adduced by the Appellant that gave rise to an inference that the nature of injuries sustained are serious and grave to attract a higher award;4.That the Learned Magistrate misdirected himself in law and in fact by failing to appreciate the uncontroverted evidence by both the Appellant and the doctor adduced during trial on 18/03/2025;5.That the Learned Magistrate erred in law and in fact in disregarding evidence and failing to give reasons thereof;6.That the Learned Magistrate erred in law and in facts by considering irrelevant facts that led to an erroneous decisions;7.That the Learned Magistrate erred in law and fact by failing to appreciate the appellant’s submissions and authorities attached thereto in respect to awards granted by other judicial officers in cases where victims with similar injuries with the appellant have been granted and8.That the Learned Magistrate erred in law and in fact by failing to be guided by the general principle in assessing damages which is that similar injuries should attract similar award and also taking into consideration the peculiar nature of the injuries in each case, effect of inflation in the value of money and the sequel of the injuries. 8.The Appellant seeks the following orders in the Appeal;a.The appeal be allowed;b.The amount of general damages awarded for pain, suffering and loss of amenities by the Learned Magistrate in Mariakani in PMCC No. E070 of 2024 be set aside and be substituted with such a higher sum as this Honourable Court will deem fair and just in the circumstances;c.The amount of general damages for diminished earning capacity by the Learned Magistrate in Mariakani in PMCC No. E070 of 2024 be set aside and be substituted with such a higher sum as this Honourable Court will deem fair and just in the circumstances and;d.The costs of this appeal and of in Mariakani in PMCC No. E070 of 2024 be borne by the Respondents. Issues for Determination 9.The Court has considered the Record of Appeal, the Memorandum of Appeal and the submissions filed by the parties. The Court frames the following issues for determination.a.Whether the award of general damages awarded was manifestly and inordinately low in comparison to the injuries sustained by the Appellant.b.Whether the Trial Court erred in not awarding general damages for diminished earning capacity bearing in mind the extent of incapacitation sustained by the Appellant.c.Whether the Trial Court erred in failing to make an award for future medical expenses. Analysis 10.This is a first appeal. The duty of a first Appellate Court is now well settled. It must reconsider the evidence, evaluate it afresh and draw its own conclusions. This is all the while bearing in mind that it neither saw nor heard the witnesses testify. See Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 and Peters v Sunday Post Ltd [1958] EA 424. 11.That said, this Court will not lightly interfere with the exercise of discretion by the Trial Court. In matters of quantum, interference is only justified where the Trial Court acted on wrong principle, misapprehended the evidence, took into account irrelevant matters, failed to take into account relevant matters, or arrived at an award that is so inordinately high or low as to represent an erroneous estimate of the damage suffered. See Butt v Khan [1981] KLR 349 and Kemfro Africa Ltd t/a Meru Express Services & Another v A. M. Lubia & Another (No. 2) [1985] eKLR. a. Whether the award of general damages awarded was manifestly and inordinately low in comparison to the injuries sustained by the Appellant. 12.The Appellant submitted that the award of Kshs 600,000/= was too low considering the injuries sustained. She submitted in particular the fracture of the 7th cervical vertebra, loss of consciousness and the permanent incapacity assessed at 7% were serious factors. It was argued that the Trial Court did not properly appreciate the seriousness of the spinal injury and its long-term effects on the Appellant. 13.The Respondents opposed the appeal. Their position was that the Trial Court considered the evidence and the authorities placed before it and exercised its discretion properly. They submitted that there was no basis laid to warrant interference by this Court. 14.The Court has looked at the judgment of the Trial Court. The Learned Magistrate set out the injuries pleaded and proved. It also considered the medical evidence that was before the Court. The Court also considered the rival proposals on quantum and the authorities cited by the parties before arriving at the award of Kshs 600,000/=. 15.The starting point is the injuries proved. The Appellant suffered a fracture of the spinous process of the 7th cervical vertebra, blunt trauma to the thigh and shoulder region, facial bruises and lacerations, loss of consciousness and a degree of permanent incapacity assessed at 7%. A cervical spine injury is not a minor injury. Even where the fracture is confined to the spinous process, the Court must still consider the site of the injury, the pain suffered, the period of treatment and the residual disability. The Court is satisfied that the Trail Court correctly considered the injuries sustained, pleaded and proved in Court. This is both looking at the evidence of the Plaintiff as well as the evidence of the Doctor as well as the medical report. 16.The Court has also considered the Appellant’s complaint that the Trial Court failed to appreciate the effect of the injury. On the material before the Court (by way of the testimonies and the medical report), the Appellant had a residual permanent incapacity of 7%. That is not a large percentage. Even so, it was a relevant factor and ought to be reflected in the award. The injury was therefore more than a mere soft tissue injury, but it was equally not shown to have resulted in severe neurological deficit or a major permanent disability. 17.The authorities cited before the Court below and in this appeal show that awards for cervical spine injuries vary depending on the precise fracture, the presence or absence of neurological deficit, associated injuries, and the degree of permanent incapacity. Comparable injuries should, as far as possible, attract comparable awards, though no two cases are exactly alike. See Stanley Maore v Geoffrey Mwenda [2004] eKLR. 18.The Court has considered the authorities cited by the Appellant namely Ahmed Abdalla Maawiy vs Southern Travel Services Ltd HCCC No. 949 of 1997 LLR No. 1341 (HCK) and David Chege Ndungu v Robert Macharia & 2 others [2015] KEHC 4859 (KLR). The decisions reveal injuries that are more severe to those sustained by the Appellant. The Trial Court thought as much that the awards of general damages of Kshs.1,250,000/= and kshs.4,000,000/= were on the higher side. It declined the award of Kshs.2,000,000/= proposed by the Appellant. 19.On the other hand, the award of Kshs. 500,000/=proposed by the Respondents was in the Trial Court’s opinion, on the lower side. 20.This Court has considered Chau v Kahiga [2023] KEHC 2172 (KLR) where an award of Kshs.600,000/=. In Komu v Vee Vee Enterprises Ltd [2022] KEHC 14953 (KLR) an award of Kshs. 400,000/=enhanced to Kshs. 800,000/=on appeal. 21.Having considered and reviewed the record and the rival submissions, this Court is not persuaded that the Learned Trial Magistrate ignored the evidence or applied the wrong principles on the issue of quantum. The award falls within the range of between Kshs. 500,000/= to Kshs.800,000/= for similar injuries. The figure of Kshs. 2,000,000/= falls outside this range. The Court has not noted any injuries of the magnitude or residual effects that would warrant an enhancement of the award of general damages. b) Whether the Trial Court erred in not awarding general damages for diminished earning capacity bearing in mind the extent of incapacitation sustained by the Appellant. 22.The Appellant also faults the Trial Court for not awarding damages for diminished earning capacity. In the Memorandum of Appeal, it is argued that in light of the permanent incapacity assessed at 7%, the Trial Court ought to have made an award under that head. 23.This Court is unable to agree. A claim for diminished earning capacity, though a species of general damages, must still have a proper factual and evidential foundation. The Court must be given material from which it can reasonably infer that the injuries have reduced the claimant’s capacity to earn in the future. That may come from evidence of the claimant’s age, nature of work, the effect of the injuries on that work, or other facts showing that the capacity to earn has been diminished. 24.In the present case, no such basis was laid. From the record placed before this Court, there was no pleading setting out a case for diminished earning capacity and no evidence showing the Appellant’s occupation, earnings or the manner in which the injuries affected his earning capacity. The mere fact of a permanent incapacity assessment does not, without more, automatically translate into an award for diminished earning capacity. The Appellant was said to be an employee of the Kenya Defences Forces. There was no evidence led by the employer that she was incapable of carrying out her duties. There was also no evidence led as to how the injuries had affected her performance of her duties or impacted on her capability to work. 25.In those circumstances, the Court finds no error on the part of the Trial Court in declining to make an award under that head. This ground of appeal therefore fails. c) Whether the Trial Court erred in failing to make an award for future medical expenses. 26.The Appellant further complained that the Learned Trial Magistrate failed to award future medical expenses notwithstanding that the same had been specifically pleaded and supported by medical evidence. It was submitted that the medical report recommended future treatment, namely costs of pain medication as well as physiotherapy sessions, and estimated the cost thereof. The Respondents did not seriously challenge that evidence. 27.The law is settled that future medical expenses, though awarded as part of general damages, must be specifically pleaded and proved by cogent medical evidence. Unlike special damages, the claim need not be proved with mathematical precision. It is sufficient if there is credible medical evidence demonstrating that future treatment will probably be required and the likely cost thereof. See Tracom Limited & another v Hasssan Mohamed Adan [2009] KECA 48 (KLR). 28.The Court has further considered the pleadings and the evidence on record. The Appellant specifically pleaded the cost of future medical treatment. The medical evidence produced before the Trial Court confirmed that the Appellant would require further treatment and gave an estimated cost. That evidence was neither displaced nor controverted by any contrary medical opinion. Having accepted the medical reports as evidence, the Trial Court was under a duty to determine that claim. It was an issue that was clearly pleaded and evidence was led in support thereof. 29.With respect, the Learned Trial Magistrate fell into error by failing to pronounce himself on a claim that had been both pleaded and supported by evidence. A Court is required to determine all the issues that properly arise from the pleadings and the evidence before it. The omission resulted in the Appellant being denied a relief to which he had laid a proper evidential foundation. This invites this Cour to interfere with the decision of the Trial Court and the exercise of its discretion. This is because that discretion was not exercised. 30.This Court is therefore satisfied that the appeal succeeds on this ground. The omission by the Trial Court is corrected by awarding the Appellant Kshs. 18,000/= for purchase of pain killers. The cost of physiotherapy is awarded as estimated at Kshs. 12,000/=. The total award of Kshs.40,000/= as future medical expenses is allowed. 31.On costs of the Appeal, the same lie at the discretion of this Court. There is no reason to deny the Appellant the costs of this Appeal. This follows the principles that costs follow the event. Determination 32.The Appellant’s Appeal succeeds in part and is allowed as follows;a.The Appeal is allowed in part.b.The Judgement and Decree of the Lower Court in PMCC No. E070 of 2024 declining to award the Appellant future medical expenses is HEREBY quashed and set aside. It is instead replaced and substituted with a Judgement and Decree awarding the Appellant future medical expenses of Kshs.40,000/= together with interest thereon at Court rates from the date of this Judgement until payment in full.c.The costs of this Appeal are awarded to the Appellant together with interest at Court rates from the date of this Judgement, until payment in full. 33.It is so ordered. DATED, SIGNED AND DELIVERED AT MALINDI THIS 2ND DAY OF JULY, 2026NJOROGE BENJAMIN K.JUDGEIn the presence of:Mr. Musiomi for the Appellant.N/A for KRK for the Respondents.Mr. John Paul - Court Assistant