https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9607

Ashva Investments Ltd & another v Njoroge (Anti-Corruption and Economic Crimes Civil Suit E164 of 2023) [2026] KEHC 9607 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9607 (KLR) Republic of Kenya In the High Court at Machakos Anti-Corruption and Economic Crimes Civil Suit E164 of 2023 AN Ongeri, J June 25, 2026 Between Ashva Investments Limited 1st Appellant Ruth Kagure Ngaraua 2nd Appellant and James Wainaina Njoroge Respondent (Being an appeal from the judgment of HON. E. KIMAIYO SUTER (PM) in MAVOKO CMCC NO. E478 of 2022 delivered on 29/3/2023) Judgment 1.The trial court rendered its judgment in a road traffic accident claim where the respondent, James Wanaina Njoroge, sought general and special damages for injuries sustained on 9th April 2022 along the Nairobi-Namanga Road at Savanna Cement. 2.The appellants, Ashva Investments Limited and Ruth Kagure Ngarua, had denied the claim, but the parties later entered a consent on liability at 15:85 in favour of the respondent. 3.The sole issue for determination was therefore quantum. 4.The trial court considered the medical reports and evidence, finding that the respondent had sustained blunt head injuries, multiple cut wounds on the upper and lower lips, multiple cut wounds on the right lower limb, a chip fracture of the right big toe, and blunt injuries to the right foot. 5.In assessing general damages for pain and suffering, the respondent proposed Ksh. 700,000, relying on Grace Wamie v Wicks Mwethi Njenga (2020) eKLR, while the appellants contended that Ksh. 250,000 was reasonable, citing James Cartwright v John Namjaa Lekiprir (2012) eKLR, Rivatex Limited v Philip Mochache Nyabayo (1999) eKLR, Francis Ndungu Wambui & 2 Others v Purity Wangui Gichobo (2019) eKLR, and Victoria Mwikali Musyoka v Lucy Mueni Mwandikwa (2021) eKLR. 6.The trial court observed that general damages are at large and that comparable injuries should attract comparable awards, while noting that the older authorities cited by the appellants were too remote to offer clear guidance and that the injuries in the other cited cases were less severe than those suffered by the respondent. Consequently, the trial court awarded Ksh. 500,000 as general damages. 7.On special damages, the trial court meticulously examined each pleaded item; it allowed Ksh. 7,110 for medical expenses, Ksh. 441,000 for repair costs for motor vehicle registration number KCH 904X as supported by a proforma invoice and receipts, and Ksh. 17,000 for towing charges based on two receipts, but it disallowed the claim for Ksh. 18,900 in storage fees for lack of documentary proof. 8.Regarding the claim for loss of user at Ksh. 4,000 per day, the trial court reiterated the principle from David Bagine v Martin Bundi [1997] eKLR that such a claim is special damages which must be strictly proved, and since the respondent did not disclose the source of the daily rate or provide sufficient evidence, that claim also failed. 9.The trial court thus entered judgment for the respondent, awarding Ksh. 500,000 in general damages and Ksh. 474,110 in special damages, making a gross total of Ksh. 974,110, which was then reduced by 15% contribution to a net amount of Ksh. 827,995, with costs and interest awarded to the respondent. 10.The appellants have appealed against the said judgment on the following grounds;i.That the learned magistrate misapprehended the applicable law, principles, and facts in assessing quantum, resulting in an award that is so manifestly and inordinately high that it constitutes an entirely erroneous estimate of damages.ii.That the learned magistrate erred in law, principle, and facts by awarding KSh 500,000 in general damages, an amount that was excessively high in the circumstances of the case.iii.That the learned trial court failed to fairly consider the written submissions of the defendants when writing its judgment.iv.That the learned trial court erred in evaluating the evidence, disregarding key elements, principles, and practices to arrive at an award on quantum that is inordinately high under the circumstances. 11.The parties filed written submissions as follows; The appellants submitted that this appeal arises from the judgment of the Principal Magistrate Court at Mavoko delivered on 29th March 2023 in Mavoko CMCC No. 478 of 2022, where the trial court entered a partial consent on liability in the ratio of 15:85% in favour of the respondent and the court assesed general damages at Kshs. 500,000, special damages of Kshs. 474,110, and after deducting 15% contribution, a total of Kshs. 827,995 plus costs and interest. 12.The respondent had instituted the suit following a road traffic accident on 9th April 2022 in which he sustained blunt head injury, multiple cut wounds on the upper and lower lip, multiple cut wounds on the right lower limb, chip fracture of the right big toe, and blunt injuries to the right foot. 13.The appellants challenge the award on quantum, contending that the learned magistrate misapprehended the applicable principles and the law in assessing damages, arriving at an award that is manifestly and inordinately high, and that the trial court failed to properly consider the appellants’ submissions and disregarded important elements of the evidence. 14.On the issue of general damages, the appellants argue that the award of Kshs. 500,000 is excessive and should be set aside and substituted with an award of Kshs. 250,000, relying on the prognosis in the medical reports which indicated that no permanent incapacity was noted or anticipated. 15.The appellants submit that damages should not be so large as to cripple the economy and that courts must be guided by relevant precedents and the limits set by decided cases and what the Kenyan economy can afford, citing the principles in Kigaraari v. Aya (1982-88) 1 KAR 768 and Jackline Syombua v. B.O.G. Ekalakala Secondary School, Embu HCCC No. 118 of 2006 (UR). 16.The appellants refer to several authorities in support of their proposed award, including Masinga Ndonga Ndonde v. Kualam Limited (2016) eKLR where the appellate court awarded Kshs. 150,000 for crush injury and fracture of the big toe and soft tissue injuries. 17.The appellants also rely on Peter Opiyo Ager v. David Otieno Owino & Another (2020) eKLR where an award of Kshs. 200,000 for general damages was maintained. 18.The appellants further cite Peter Bernard Makau v. Prime Steel Limited (2018) eKLR where the court maintained an award of Kshs. 100,000 for fracture of the toe and soft tissue injuries. 19.The appellants submit that the trial court overestimated and misunderstood the extent of the injuries and therefore the award should be set aside and substituted with Kshs. 250,000 general damages plus proven specials, less the 15% contribution as agreed. 20.On the issue of costs, the appellants rely on Section 27 of the Civil Procedure Act and invite the court to award them the costs of the appeal as against the respondent. 21.In conclusion, the appellants pray that the appeal be allowed, the judgment in the primary suit be set aside, and the general damages be reduced to Kshs. 250,000 plus proven specials less 15% contribution, with costs to the appellants. 22.The respondent opposed the Appellants' challenge to the quantum of general damages awarded by the trial magistrate in Mavoko CMCC E478 of 2022. 23.The Respondent, James Wainaina Njoroge, was involved in a road traffic accident on 9 April 2022, and liability was settled by consent in the ratio of 85:15 in his favour. 24.The trial magistrate awarded Ksh. 500,000 in general damages for bodily injuries, which the Appellants now argue is excessive and should be reduced. 25.The Respondent contends that the award was fair, reasonable, and consistent with established legal principles and comparable case law. 26.The Respondent emphasises that appellate courts will only interfere with an award of damages if the trial court proceeded on wrong principles, misapprehended the evidence, failed to consider relevant factors, or made an award that is so inordinately high or low as to be a wholly erroneous estimate. 27.The Respondent cites the principles in Kemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia & Another [1982-88] 1 KAR 727 and Butt v Khan [1981] KLR 349 to support the position that interference on appeal is only justified in exceptional circumstances. 28.The Respondent argues that the trial magistrate correctly applied the authority of Grace Wamue v Wicks Mwethi Njenga [2020] eKLR, where Ksh. 500,000 was awarded for similar injuries, including fractures of the metatarsals, blunt injuries, and soft tissue lacerations. 29.The Respondent submits that his injuries, which included blunt head trauma, multiple cut wounds on the upper and lower lips, multiple cut wounds on the right lower limb, a chip fracture of the right big toe, and blunt injuries to the right foot, were serious and constituted maim, causing prolonged pain and suffering. 30.The Respondent further contends that the Appellants have failed to demonstrate any error in principle, misapprehension of evidence, or inordinate excess, and that their reliance on lower awards for dissimilar injuries is misguided and unsupported by the evidentiary record. 31.The Respondent also addresses the issue of costs, arguing that the appeal is frivolous, vexatious, and an abuse of the court process, and that the Appellants should bear the costs of the appeal under Section 27 of the Civil Procedure Act (Cap 21). 32.The Respondent notes that the trial court explicitly took note of the Appellants' submissions and authorities but found them too old to provide clear guidance, which undermines the Appellants' contention that the court failed to consider their arguments. 33.The Respondent argues that reducing the award would result in an inordinately low estimate that would unjustly undercompensate him for the maim injury sustained and contradict the weight of the medical evidence on record. 34.In conclusion, the Respondent prays that the appeal be dismissed with costs to the Respondent, including condemnation of the Appellants for prosecuting a frivolous appeal, and that interest be awarded at court rates from the date of the lower court judgment. 35.The sole issue for determination in this first appeal is whether the learned trial magistrate erred in principle or fact by assessing and awarding the quantum of general and special damages to the respondent, resulting in an inordinately high and erroneous estimate that warrants interference by this appellate court. 36.In resolving this issue under the law, it is necessary to first state the strict standard of review governing an appellate court's intervention on quantum. 37.As established in the locus classicus cases of Kemfro Africa Limited t/a Meru Express Services (1976) & Another v A.M. Lubia & Another (supra) and Butt v Khan (supra), an appellate court will not disturb an award of damages unless it is satisfied that the trial court took into account an irrelevant factor, left out a relevant factor, misapprehended the evidence, or made an award that is so manifestly and inordinately high or low that it represents an entirely erroneous estimate of damages. 38.This Court must therefore re-evaluate the entire evidentiary record, as required of a first appellate court under the principles in Selle & Another v Associated Motor Boat Company Ltd (1968) EA 123, to determine whether the trial magistrate's exercise of judicial discretion fell outside these legal boundaries. 39.Turning to the sub-component of general damages for pain, suffering, and loss of amenities, the medical evidence reveals that the respondent sustained a blunt head injury, multiple lip lacerations, multiple cut wounds on the right lower limb, a blunt injury to the right foot, and a chip fracture of the right big toe. 40.The appellants contest the trial court’s award of Ksh. 500,000, suggesting Ksh. 250,000 instead, based on the medical prognosis that no permanent incapacity was anticipated, and citing Masinga Ndonga Ndonde v Kualam Limited (supra) and Peter Opiyo Ager v David Otieno Owino & Another (supra). 41.Conversely, the respondent defends the award using Grace Wamue v Wicks Mwethi Njenga (supra), where a similar sum was granted for comparable soft tissue injuries and fractures. Under Kenyan jurisprudence, the assessment of general damages must look to comparable injuries while adjusting for inflation and the declining value of money. 42.Although the injuries did not leave a permanent disability, they involved a chip fracture of the toe and multiple lacerations that caused prolonged pain. 43.The trial court correctly rejected the older authorities cited by the appellants as being too remote in time and involving less severe injuries. 44.A sum of Ksh. 500,000, while generous, is not so shocking to the conscience of the court or so wildly disproportionate to recent trends as to constitute a wholly erroneous estimate. 45.The trial magistrate explicitly factored in the parties' contentions, which refutes the ground that the appellants' written submissions were ignored. 46.Consequently, there is no sound legal basis to disturb the assessment of general damages. 47.Regarding special damages, the law is firmly settled in David Bagine v Martin Bundi (1997) eKLR, which dictate that special damages must not only be specifically pleaded but also strictly proved with clear documentary evidence. 48.The trial court meticulously discharged this duty by allowing Ksh. 7,110 for medical expenses, Ksh. 441,000 for motor vehicle repairs backed by a proforma invoice and receipts, and Ksh. 17,000 for towing charges. 49.The trial magistrate properly applied the law by rejecting the unproved storage fees of Ksh. 18,900 and the speculative loss of user claim of Ksh. 4,000 per day due to a lack of documentary verification. 50.The special damages award of Ksh. 474,110 was therefore grounded strictly on receipts and verified parameters, and it cannot be faulted. 51.Finally, the computation of the net award must conform to the partial consent on liability entered by the parties. 52.The total gross award consists of Ksh. 500,000 in general damages and Ksh. 474,110 in special damages, amounting to a gross total of Ksh. 974,110. 53.The consent established liability at 15:85 in favour of the respondent, meaning the respondent was 15% contributorily negligent. 54.Deducting the 15% contribution (amounting to Ksh. 146,116.50) yields a precise net decretal sum of Ksh. 827,993.50. The trial court’s net award of Ksh. 827,995 contains a negligible mathematical rounding discrepancy of less than two shillings, which does not alter the substantive correctness of the decree. 55.Under Section 27 of the Civil Procedure Act (Cap 21), costs follow the event unless the court orders otherwise. Since the appellants have failed to establish any misdirection, error of law, or misapprehension of facts by the trial magistrate, this appeal lacks merit and cannot succeed. 56.Accordingly, the final decision of this court is that the appeal is hereby dismissed in its entirety, the judgment and decree of the trial court are affirmed, and the costs of this appeal are awarded to the respondent. 57.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF JUNE, 2026.A. N. ONGERIJUDGEIn the presence of:No appearance for the AppellantNo appearance for the RespondentChrispin – Court Assistant