https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9931

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MALINDI** **CIVIL APPEAL NO. E138 OF 2024** **BWANAREHEMA ABDALLA FARUK…………….….…….... APPELLANT** **VERSUS** **PETER KABUTI GOKO………………………….….......1ST RESPONDENT** **MICHAEL THUO MUHORO………………………….2ND RESPONDENT** **VB CONSTRUCTIONS………………………………...3RD RESPONDENT** **OSCAR MWANGO NGUMBAO………………………4TH RESPONDENT** *(Being an Appeal from the Judgment of* ***Hon D. Wasike*** *delivered on 26/11/2024 at the* ***Magistrate’s Court at Kilifi CMCC E097 of 2023****)* **JUDGMENT** 1. This is a Judgment on Appeal. It arises out of the Judgment delivered by **Honourable D. Wasike (PM)** on 26/11/2024. This is at the **Chief Magistrate’s Court at Kilifi in CMCC E097 of 2023**. **Background Facts** 1. This is an Appeal on the issue of quantum only. 2. The Appellant was the successful Plaintiff in the Lower Court, but aggrieved by the quantum awarded by Trial Court. The Respondents were the unsuccessful Defendants in terms of the Judgement of the Trial Court. 3. The Appellant pleaded that as a result of a road traffic accident on 23/8/2018, he sustained the following injuries; 4. *Fracture of both right femur bone.* 5. *Fracture of the left femur thigh bone.* 6. *Blunt injury to both thighs.* 7. *Multiple cuts on the right leg.* 8. *Multiple cuts on the left leg.* 9. Upon the matter proceeding to Trial, liability had been compromised. It had been agreed upon to be shared between the 1st and 2nd Respondents at 40% and between the 4th and 5th Respondents at 60%. Thereafter, the Appellant testified and produced evidence to support his claim for general and special damages. 10. In its Judgement dated 26th November, 2024, the Court assessed the damages as follows; 11. *General damages of Kshs 1,300,000/-* 12. *Special damages of Kshs 3,100.00/-* 13. *Costs of Future Operations at Kshs 240,000.00/-* 14. *Costs of the suit* 15. *Interest on (a) (b) and (c) at Court rate from the date of Judgment till payment in full.* 16. Aggrieved by what he perceived to be a manifestly low award; the Appellant has preferred this Appeal. The **Memorandum of Appeal** raises six (6) grounds of Appeal as follows: 17. *THAT the Learned Trial Magistrate erred in law and in fact in awarding general damages of Kshs 1,300,000/= which was on the lower side in view of the injuries suffered by the Appellant and the same presents a miscarriage of justice.* 18. *THAT the Learned Trial Magistrate erred in law and in fact by failing to consider the Appellant’s submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum.* 19. *THAT the Learned Trial Magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which is very low.* 20. *THAT the Learned Trial Magistrate erred in Law and in fact when making her award by failing to consider the passage of time and incidence of inflation.* 21. *THAT the Learned Trial Magistrate erred in law and in fact in failing to consider or have any or any sufficient regard to the submissions filed on behalf of the Appellants.* 22. *In all the circumstances of the case, the Learned Trial Magistrate failed to do justice.* 23. It is proposed to seek the following reliefs in this Appeal 24. *This Appeal is allowed and the award for general damages be set aside and substituted by a proper award.* 25. *The costs of this Appeal and in the Magistrate’s Court be borne by the Respondent.* 26. *Any other relief this Honourable Court may deem fit to grant.* **Issues for Determination** 1. The Court has considered the Record of Appeal, the Memorandum of Appeal and the submissions filed by the Appellant as well as the 3rd and 4th Respondents. The 1st and 2nd Respondents did not file any submissions despite being given an opportunity to do so. The Court frames two (2) issues for determination. 2. *Whether the Trial Court’s award of general damages of Kshs 1,300,000/= was manifestly law as to occasion a miscarriage of justice.* 3. *What reliefs lie in this Appeal?* **Analysis** 1. This is a first appeal. The duty of this Court in such an appeal is well settled. As a first appellate court, this Court is obligated to re-visit the evidence that was tendered before the Trial Court, analyse it, evaluate it afresh and draw its own independent conclusions. In doing so, however, the Court must bear in mind that it did not have the benefit enjoyed by the Trial Court of seeing and hearing the witnesses as they testified, and must therefore give due allowance for that disadvantage. 2. In **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, the former Court of Appeal for East Africa stated that a first Appellate Court is not bound necessarily to follow the findings of fact by the Trial Court. This is if it appears either that the Court below failed to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence generally. The Appellate Court must therefore reconsider the evidence, evaluate it itself and draw its own conclusions, while always remembering that it has neither seen nor heard the witnesses. 3. That duty is to be exercised with circumspection. In **Peters v Sunday Post Ltd [1958] EA 424**, it was stated that whilst an Appellate Court has jurisdiction to review the evidence in order to determine whether the conclusion of the Trial Judge should stand, that jurisdiction is one which must be exercised with caution. It is a strong thing for an Appellate Court to differ from the findings of fact of a Trial Court which had the advantage of seeing and hearing the witnesses. Accordingly, this Court will not interfere with findings of fact merely because it would itself have come to a different conclusion. Interference is only warranted where the findings are based on no evidence at all, on a misapprehension of the evidence, on a failure to consider relevant matters, or where, on the whole of the evidence, the decision is plainly wrong. 4. This appeal invites this Court to interfere with the exercise of discretion by the Trial Court. The governing principle is equally settled. In **Shah v Mbogo & Another [1967] EA 116**, the Court held that an Appellate Court will not interfere with the exercise of discretion by a lower Court. This is unless it is satisfied that the Court misdirected itself in some matter and as a result arrived at a wrong decision. It will also interfere if the lower Court acted on matters on which it ought not to have acted, failed to take into consideration matters which it ought to have taken into account, or that the decision is plainly wrong. It follows that even where this Court might itself have reached a different conclusion, that alone is not a proper basis for appellate interference unless the exercise of discretion is shown to have been founded on error of principle. **a)** ***Whether the Trial Court’s award of general damages of Kshs 1,300,000/= was manifestly law as to occasion a miscarriage of justice.*** 1. In the present appeal, one of the matters falling for consideration is the Trial Court’s assessment of general damages. The law is that the assessment of general damages is pre-eminently an exercise of judicial discretion. For that reason, an Appellate Court does not interfere with an award of damages as a matter of course. In **Butt v Khan [1981] KLR 349**, the Court of Appeal held that an Appellate Court will only interfere with an award of damages where it is shown that the Trial Court acted on a wrong principle of law, misapprehended the evidence in some material respect, took into account an irrelevant factor, failed to take into account a relevant one, or that the award is so inordinately high or so inordinately low that it must be a wholly erroneous estimate of the damage suffered. 2. The task of this Court on a first appeal is therefore not to substitute its own view for that of the Trial Court simply because it might have arrived at a different result. Rather, it is to ascertain, upon a fresh and independent evaluation of the record, whether the findings made by the Trial Court are supported by the evidence and the law. Further, whether in the exercise of discretion—particularly in the assessment of damages—the Court acted on sound principle. It is only where an error of fact, an error of law, a misapprehension of the evidence, or an injudicious exercise of discretion is demonstrated that appellate interference becomes justified. 3. Guided by those principles, this Court now turns to consider the evidence on record, the findings made by the learned Trial Magistrate, and the grounds of appeal advanced before this Court. In doing so the Court will consider the issues as framed herein. 4. The Appellant argues that the award was too low having regard to the injuries sustained and the lasting effects of those injuries. He points to the fractures of both femurs, the shortening of the right lower limb by **6 cm**, the use of a compensatory shoe and walking aid, and the medical assessment of **25% permanent partial disability**. The Respondents take the opposite view. The 3rd and 4th Respondents submit that the Trial Court considered the medical evidence and the authorities cited by the parties, and exercised her discretion properly. 5. The Court reiterates that the law on when an Appellate Court may interfere with an award of damages is also settled. In **Butt v Khan [1981] KLR 349**, Law JA stated 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…”* 1. That principle has been applied consistently by our Courts. See also **Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v A.M. Lubia & Another (No. 2) [1985] eKLR** and **Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55**. 2. It is also settled that comparable injuries should, so far as possible, attract comparable awards, though no two cases are exactly alike. In **Stanley Maore v Geoffrey Mwenda [2004] eKLR**, the Court of Appeal stated that: *“we must emphasize that in awarding damages, courts must be guided by the current trend of previous, recent, and comparable awards.”* 1. This Court has considered the judgment of the Trial Court. The Learned Trial Magistrate noted the rival proposals on quantum. She also stated that she had considered the nature of the injuries and the degree of permanent disability. Further, she considered the authorities cited by the parties. However, she declined to follow those cited by the Appellant on the ground that they involved more severe injuries. She then relied on **George William Awuor v Beryl Awuor Ochieng, Siaya HCCA No. 1 of 2020** and awarded **Kshs 1,300,000/=** as general damages. 2. The Court therefore does not agree that the Learned Trial Magistrate ignored the evidence or failed to consider the authorities. On the face of the judgment, she considered both. She was also entitled to reject authorities which, in her view, were not truly comparable. The issue is whether, despite taking that correct broad approach, the figure she arrived at was nevertheless too low in the circumstances of this case. 3. The medical evidence before the Trial Court showed that the appellant sustained injuries as follows; *“Fracture of the left femur, fracture of the right femur, blunt injuries to both thighs and multiple cuts on both legs.”* 1. The two medical reports further showed ***25% permanent partial disability****,* ***shortening of the right lower limb by 6 cm****, restriction of movement at the knees, use of a compensatory shoe, continued use of a walking stick and the possibility of post-traumatic arthritis*. Those were not minor residual effects. They were relevant to the award for pain, suffering and loss of amenities. 2. This Court rejects the Respondents’ submissions that those residual effects were of little moment because the Appellant did not testify orally. The treatment notes and the medical reports were produced by consent. Once admitted by consent, they formed part of the record and the Trial Court was entitled to rely on them. The Trial Court was therefore bound to look not only at the fractures themselves, but also at the lasting disability disclosed in the medical evidence. 3. The Court accepts that the Appellant’s proposed figure of **Kshs 5,000,000/=** was not supported by the comparables placed before the Lower Court. The exercise of simply taking an older award for one femur fracture, doubling it because there were two fractures, and then adjusting it upwards for inflation is not a safe way of assessing damages. The Court must look at the total picture presented by the injuries and the residual disability. 4. The question remains whether **Kshs 1,300,000/=** fairly reflected that total picture. Recent comparable decisions are useful. In **Njagi v Mugendi (Civil Appeal E008 of 2022) [2023] KEHC 18340 (KLR)**, the claimant had sustained **bilateral femur fractures** and the High Court reduced the award from **Kshs 1,600,000/=** to **Kshs 1,200,000/=**. That case is a useful guide because it also involved fractures of both femurs. It is, however, not identical to the present case because here the medical evidence also showed **6 cm shortening of the right lower limb**, altered gait, restricted knee movement and continued use of a walking aid. 5. In **Pestony Limited & Another v Samuel Itonye Kagoko [2022] eKLR**, an award for a **single femur fracture** was reduced to **Kshs 800,000/=**. Likewise, in **Board of Management St Paul Thomas Academy & Another v Mwangi (Civil Appeal 33 of 2022) [2024] KEHC 3118 (KLR)**, an award involving a **single femur fracture** was reduced to **Kshs 700,000/=**. Those cases are helpful as lower-end comparables. They do not, however, fully address a case of **fractures of both femurs** with the degree of residual disability shown here. 6. At the other end, **Kioko v Onkware (Civil Appeal E058 of 2022) [2023] KEHC 24647 (KLR)** involved a much wider pattern of fractures, including the pelvis, both femurs, tibia and fibula, with **25% disability**, and the High Court substituted the award with **Kshs 2,500,000/=**. That case is not directly comparable because the injuries there were more extensive. It is nevertheless useful in showing that where multiple long-bone fractures are accompanied by serious permanent disability, an award around the **Kshs 1 million** mark may be too low. 7. Taking the record as a whole, The Court is persuaded that the Learned Trial Magistrate’s award fell on the lower side of the permissible range. This was not a case of one femur fracture followed by full recovery. It was a case of **fractures of both femurs** together with **25% permanent partial disability**, **6 cm shortening of the right lower limb**, altered gait, restricted movement and continued use of a walking aid. In this Court’s considered opinion, the award of **Kshs 1,300,000/=** did not sufficiently reflect that combined effect. 8. The Court therefore finds that, although the Learned Trial Magistrate applied the correct broad principles, the award of **Kshs 1,300,000/=** was manifestly low and amounted to an erroneous estimate of the Appellant’s pain, suffering and loss of amenities. This Court is therefore entitled to interfere. 9. As to the proper award, the Court must remain guided by comparable awards and by moderation. Doing the best this Court can on the material before it, and taking into account the bilateral femoral fractures, the residual disability, the shortening of the right lower limb, the need for a compensatory shoe, the restricted movement and the continued use of a walking aid, the Court is satisfied that a fair award for pain, suffering and loss of amenities is **Kshs 2,200,000/=**. **(b) What reliefs lie in this Appeal?** 1. The upshot is that the appeal succeeds to that extent only. The award of **Kshs 1,300,000/=** as general damages is hereby set aside and substituted with an award of **Kshs 2,200,000/=** as general damages for pain, suffering and loss of amenities. 2. The awards for **special damages** and **future medical expenses** were not challenged and shall remain undisturbed. The substituted award shall remain subject to the apportionment of liability as recorded by the Trial Court. 3. As to costs the same lie at the discretion of this Court and are awarded on the general principle that costs follow the event. The same are awarded to the successful Appellant. **Determination** 1. The Appellant’s Appeal succeeds in the following manner; 2. *The Appeal is HEREBY allowed.* 3. *The Judgement and Decree of the Lower Court on the award of General damages assessed at Kshs.1,300,000/= is HEREBY quashed and set aside. It is instead HEREBY substituted with an award of General damages of Kshs.2,200,000/=).* 4. *The rest of the Judgement of the Lower Court on liability, future medical expenses and special damages shall remain undisturbed.* 5. *The costs of this Appeal are awarded to the Appellant.* 6. It is so ordered. **DATED, SIGNED AND DELIVERED AT MALINDI THIS 2ND DAY OF JULY, 2026** **NJOROGE BENJAMIN K.** **JUDGE** **In the presence of:** Miss Nyabuto for the Appellant. N/A for Kimondo Gachoka for the 2nd Respondent. Mr. Shikely for 3rd to 4th Respondents Mr. John Paul - Court Assistant