https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12935

AWG (Suing as a mother and next friend of AKM, A Minor) v Aspendos Diary Ltd (Civil Appeal 36 of 2020) [2026] KEHC 12935 (KLR) (30 July 2026) (Judgment) Neutral citation: [2026] KEHC 12935 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal 36 of 2020 JM Chigiti, J July 30, 2026 Between AWG (Suing as a mother and next friend of AKM, A Minor) Appellant and Aspendos Diary Limited Respondent Judgment 1.On or about 1st June, 2017 the Plaintiff was travelling as a fare paying passenger in motor vehicle registration no. KBH 798C along Muranga- Kangema road when the driver, servant and/or agent of motor vehicle registration number KCD 625L so negligently and recklessly drove/managed the said motor vehicle causing it to hit motor vehicle registration number KBH 798C thereby causing the Plaintiff to sustain serious injuries. 2.This precipitated the filing of Muranga CMCC No. 37 of 2018.After the hearing, the court entered judgement delivered on 24th November 2020 in favour of the appellant in the following terms:a.Liability 100%b.General Damages kshs.400,000c.Special Damages kshs.3,550d.Costs of the suit and interest. 3.Being dissatisfied with the award she lodged the appeal that is before this court for determination. 4.The grounds of Appeal are as follows:a.That the Learned Magistrate erred in Law in failing to consider the Appellant's submissions on General Damages.b.That the Learned Magistrate erred in Law and in fact in awarding an inordinately low award of General Damages.c.That the Learned Magistrate erred in Law in failing to consider the Appellant’s submissions on General Damages.d.That the Learned Magistrate erred in Law in failing to consider the Appellant's submissions on Special Damages. 5.She places reliance on the case of Selle vs. Associated Motor Boat Co. [1968] EA 123 which is cited in Barnabas Biwoit v Thomas Kipkorir Bundotich [2018] eKLR the Court held that:“this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court... is by way of retrial and the principles upon which this court gets 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..." 6.The Plaintiff sustained the following injuries:a.A Fracture of the right humerus bone,b.A fracture of the right Femur bone,c.Lacerations on the lower lipd.Soft tissue injuries on the right upper arm,e.Soft tissue injuries Appellant's Submissions 7.After the accident, the Appellant was admitted Murang'a District Hospital for 3 days where the fracture was attended to and discharged to continue recovering from home. 8.The child was also attended at PCEA Kikuyu Hospital. 9.The injuries were confirmed in the medical reports by Dr. P.K. Mwangi dated 21st August, 2017, Dr. Maina Ruga dated 29th August, 2018, and Dr. W.M.Wokabi dated 24th September, 2019. 10.The said medical reports are part of the court record as exhibits. The P3 form attached as exhibit 2 confirms the injuries and classifies them as grievous harm. 11.All doctors confirmed that the Plaintiff suffered severe injuries and/or multiple definitely unsightly. He noted that the deformity could be corrected by him undergoing plastic surgical correction at an estimated cost of Kshs. 150,000/- He further noted that to remove the metal implant would cost Kshs. 100,000 in a medium cost hospital. 12.It was the Appellant's submission that in the circumstances the sum of Kshs. 2,000,000/- would be sufficient compensation for injuries sustained by the Plaintiff. 13.The Appellant placed reliance on Anthony Munene Nyaga v Okech Moses [2016] eKLR where the High court awarded Kshs. 1,500,000/= for general damages for the following injuries sustained by the Plaintiff therein:a.Open fracture of Right Humerus and Traumatic Amputation of 3b.right foot toesc.Fracture of the right thigh bone (femur).d.Multiple lacerations on both legse.Soft tissue injuries on both legs, 14.And in Mary Adkinyi v Jared Orieno & another [2019] eKLR where the High Court enhanced the lower court decision for an award of Kshs Kshs. 1,000,000/= for the Plaintiff who sustained;a.Blunt trauma to the chest which was tender;b.Both thighs and both knees were swollen and tender;c.She sustained a fracture of the right femur - distal third; andd.She sustained a fracture of the left femur - distal third. 15.The Respondent submitted that the Appellant should be awarded Ksh. 300,000. 16.She submits that the court should award him Kshs.2,000,000 for general damages. 17.On special damages it is his case that although he proved her case, the trial court fell into error when it awarded her only Kshs. 3,550 She prays that judgment should be entered for Kshs. 33,850.00/- as follows:a.Homeschooling fees Kshs. 30,300.00 (Exhibit 13)b.Medical Report Kshs. 3,000.00 (Exhibit 6)c.Copy of Records Kshs. 550.00 (Exhibit 15) 18.She argues that her case was supported by duly signed vouchers. The same were not challenged by the Respondent. 19.The minor after the accident could not attend school and needed homeschooling. 20.The Duly Signed Petty cash vouchers of Kshs. 30,300. The Respondents case: 21.It is settled law that in considering the award of damages in accident claims the court is guided by the doctrine of precedents while considering the special circumstances of each case to wit that comparable award ought to be made in similar suit. 22.Having referred to recent authorities where claimants sustained similar injuries, they submit that an award of Kshs. 300,000/= would suffice as adequate compensation to the Plaintiff having considered the effects of inflation. 23.Reliance is placed in High Court Civil Appeal No. 82 of 2008 at Nairobi, TAM (Minor suing through her father and next of fried JOM) v Richard Kirimi Kinoti & Another [2015] eKLR Where an award of Kshs. 250,000.00 as adequate compensation to the Respondent therein who had sustained similar but severe injuries as compared to the Plaintiff herein. 24.It submits that the Appellant minor herein would be justly compensated by an award of Kshs. 300,000.00 for general damages. 25.On the issue of homeschooling fees it submits that it is settled law that special damages must be pleaded and strictly proved by production of original receipts. 26.According to the respondent, the alleged home-schooling fees are fictitious, exaggerated, amount to claim for unjust enrichment. 27.This is so because it was not only contradictory but also impractical for the Plaintiff to be involved in an accident on 1st June, 2017, admit to having been admitted under the care of the hospital management while on the same period and/or time engage on negotiations with homeschooling services and start making payments for the said services on 2nd June 2017. 28.The Plaintiff admitted that the petty cash vouchers as drawn, it could be reasonable to assume that nobody was paid the said amounts of money in light of the fact that their signatures could not be verified, the teacher offering homeschooling services had not been called as a witness in this suit and further that she had not filed any documents to corroborate the pettycash vouchers for homeschooling services. 29.No evidence was adduced to prove that the said minor was actually in school as at the time of the accident. 30.It is its case that it is impracticable to presume that the minor would have been involved in an accident on 1st June 2017 and that by 25th June 2017 she was already being put through the vigour of schooling considering the injuries he had sustained. 31.The Respondent further submits that section 112 of the Evidence Act placed the burden of proof on the appellant which she failed to discharge. 32.Reliance is placed In the case of High Court Civil Appeal No. 236 of 2007 at Nairobi, Daniel KaluuKieti v Mutuvi Ali Nyalo & another [2016] eKLR the court reiterated the demands of sections 112 of the Evidence Act. Analysis and Determination;The following are the issues for determination;1.Whether the appeal has merit.2.Who shall bear the costs.3.Whether the appeal has merit. 33.According to the appellants, on quantum the Court of Appeal in Bashir Ahmed Butt V UwaisAhmed Khan [1982-881 KAR5held that;“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". 34.In Kemffro Africa Ltd t/a Meru Express Services(1976) & Another -Vs- Lubia and Another(No. 20(1985)eKLR;“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 Eastern Africa to be that it must be satisfied that either the Judge, in assessing damages, took into account an irrelevant factor, or that short of this, the amount is so inordinately low or so inordinately high that it must be wholly erroneous estimate of damages"(emphasis ours). 35.In dealing with the same point the Court of Appeal in Kirugo -Vs-Kirugo & Another(1988)KLR 348 observed as follows;“An Appeal Court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the Judge can be said to have been plainly wrong. 36.The appellant pleaded the injuries sustained in the plaint being;a.A Fracture of the right humerus bone,b.A fracture of the right Femur bone,c.Lacerations on the lower lipd.Soft tissue injuries on the right upper arm,e.Soft tissue injuries. 37.The court awarded kshs.400,000. 38.The court has keenly looked at the medical reports by Dr. P.K. Mwangi dated 21st August, 2017, Dr. Maina Ruga dated 29th August, 2018, and Dr. W.M.Wokabi dated 24th September, 2019 from where it confirms that the child sustained the injuries as pleaded in the Plaint. 39.In Johnson Evan Gichere Vs- Andrew Morton & Another(2005) eKLR, the Court of Appeal stated;“It is trite law that this court will be disinclined to disturb the finding of a trial Judge as to the amountof damages merely because they think that if they would have given a larger sum. In order to justify reversing the trial Judge on the question or the amount of damages it will generally be necessary that this court should be convinced either that the Judge acted upon some wrong principle of law or that the amount awarded was extremely high or so small as to make it in the Judgment of this court an entirely erroneous estimate of the damages to which the plaintiff is entitled". 40.The amount awarded by the trial court is inordinately low justifying the judgment erroneous. The medical reports confirm that the child sustained the injuries as pleaded. The compensation for the injuries must be commensurate damages as guided by precedents where similar injuries were sustained. 41.In the case of Mary Adkinyi v Jared Orieno & another [2019] eKLR where the High Court enhanced the lower court decision for an award of Kshs Kshs. 1,000,000/= for the Plaintiff who sustained;a.Blunt trauma to the chest which was tender;b.Both thighs and both knees were swollen and tender;c.She sustained a fracture of the right femur - distal third; andd.She sustained a fracture of the left femur - distal third. 42.After considering the above precedent was for the year 2019 and considering inflation as a result of effluxion of time, the court is of the view that the sum of Kshs.2,000,000 will be adequate compensation as general damages which is hereby awarded. On Special Damages; 43.It is trite that special damages must ordinarily be specifically pleaded and strictly proved. This is the principle that was reaffirmed in Capital Fish Kenya Ltd vs KPLC (supra) [2016] eKLR where it was held that:“…special damages should not only be specifically pleaded but must also be strictly proved…” 44.The court has looked at all the petty cash vouchers that the appellant sought to rely on. It bears the name of the minor, the dates and the amounts. However, the signature at the bottom cannot help the court to ascertain who the money was paid to or if at all it was paid. The easiest way to prove that the payment was made would have been a receipt issued by the tutor or a contract. 45.Petty cash vouchers are an internal financial control tool that cannot as a stand alone document amount to a contract. 46.The fact that the respondent did not challenge them cannot come to the aid of the appellant. Pleading the special damages is not enough, the same must be strictly proven. The court finds that the appellant did not prove the sum of kshs.30,030. 47.The appellant should have called the tutor to testify that she exists and that she offered the services on the specified days. The petty cash vouchers alone do not tell whether there was an offer, an acceptance, consideration and the meeting of the minds so as to amount to a binding agreement that can be used as evidence in the court. The appellant did not make any efforts to call the tutor as a witness. Determination; 48.The appeal is partly successful. Costs: 49.The Supreme Court in the case of Jashir Singh Rai & Others vs. Tarlochan Rai & Others observed that,"In the classic common law style, the courts have to proceed on a case by case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…” 50.The respondent shall shoulder costs. Order;The appeal is partly allowed in favour of the appellant as follows;a)Liability 100% against the Respondent.b)General damages kshs.2,000,000.c)Special damages kshs.3,550.d)Costs of the lower court and of the appeal. DATED, SIGNED AND DELIVERED IN COURT AT ELDORET THIS 30TH DAY OF JULY 2026.…………………………JOHN CHIGITI (SC)JUDGE