Kamau v Mukuhi alias Mbugua (Civil Appeal E140 of 2025) [2026] KEHC 11467 (KLR) (24 June 2026) (Judgment)

**Republic of Kenya** **In the High Court of kenya at Kiambu** **Civil Appeal E140 of 2025** **cephas ngugi kamau APPELLANT** **versus** **margaret mukuhi alias** **margaret mukuhi mbugua respondent** ***(An appeal from the Judgment and decree of Hon. Omollo, Senior Resident Magistrate, delivered on 24.7.2025 in Limuru CMCC No. E077 of 2024.)*** **Judgment** 1. This is an appeal from the Judgment and decree of Hon. Judith Omollo, Senior Resident Magistrate, delivered on 24.7.2025 in Limuru CMCC No. The Appellant was the defendant in the lower court. The court heard the matter and delivered judgment as follows: *a. Liability 100% for the Plaintiff* *b. General damages Ksh. 700,000/=* *c. Future medical expenses Ksh. 60,000/=* *d. Special damages Ksh. 14,650/=* *e. Costs and interest of the suit* 2. The appeal is against the award of damages. The appellant in his memorandum of appeal dated 14th August 2025 prays for ordered that:- ***a) That he appeal be allowed.*** ***b) That the judgement and decree of the honorable Judith Omollo (SRM) made on the 24th July 2025 be set aside and be substituted with an order awarding reasonable damages.*** ***c) That the costs of the appeal be awarded to the appellant.*** 3. The appellant has raised the following grounds of appeal:- ***i) That the Learned Trial Magistrate erred in Law and fact in awarding excessive and exorbitant damages.*** ***ii) That the Learned Trial Magistrate erred in Law and fact by failing to give due consideration to the Appellant’s written submission and cited authorities regarding quantum thereby arriving at exorbitant and excessive damages.*** **Pleadings** 6. The Plaint dated 7th March 2024 claimed damages arising from injuries caused through an accident that occurred on 30th July 2022. The plaintiff was a lawful passenger in Motor vehicle Registration number KBM 447C , driven along Limuru-Kabiuku Road, which was involved in a road traffic accident, as a result of which the Respondent suffered injuries. 7. The Respondent pleaded particulars of negligence on the part of the Appellants and also that he suffered the following injuries: *i. Bruises on the face.* *ii. Deep cut on the lower lip.* *iii. A loss of six lower teeth.* *iv. Deep cuts on the lower leg.* *v. laceration on the left forearm.* *vi. Blunt injury to the right shoulder.* **Evidence** 8. The appeal relates to damages only. The Respondent produced a medical report dated 3rd October 2022, prepared by Dr. C. Okere, whose opinion and prognosis was that the respondent sustained deep cut on the lower leg, and a loss of six lower teeth, bruises on the face and blunt injury to the shoulder. The doctor opined that the Respondent required approximately Ksh 60,000 to replace the lost teeth with prosthesis. 9. The injuries as pleaded were not disputed. Though the lower court proceeding reflect that the Respondent was referred for medical examination by the appellants doctor, the Appellant did not produce a second medical report. **Submissions** 10. The appellant filed submissions and submitted that the award of Ksh. 700,000/= was inordinately high as the injuries in the authority supported by the trial court were more severe than the injuries in the present case. I have considered the authorities relied upon by the appellant and the respondent who maintained that the award was reasonable, and urged the court to uphold the judgment of the lower court. **Analysis** 11. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. 12. The jurisdiction for this court to review the evidence in the lower court should be exercised but with caution. In the cases *of Peters vs Sunday Post Limited [1958] EA 424,* the court therein rendered itself as follows:- “It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 13. The duty of this court in the appeal is thus to reconsider the evidence, evaluate it itself and draw its own conclusions. *In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123*, this principle was enunciated thus: “...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 acts 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..." 14. On quantum, the Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages *in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27* as follows: - “The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages. 15. For the appellate court, to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance vs British Columbia Electric Co Ltd, in the decision of *Henry Hilanga vs Manyoka 1961, 705, 713* at paragraph c, where the learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:- “The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…” 16. Therefore, where damages are proved to be at large, they must be commensurate with similar injuries. The injuries that the Respondent suffered were as follows: i. Bruises on the face. ii. Deep cut on the lower lip. iii. A loss of six lower teeth. iv. Deep cuts on the lower leg. v. laceration on the left forearm. vi. Blunt injury to the right shoulder. 17. It is common reasoning that astronomical awards may lead to increased insurance premiums thus hurting the insurance industry as well as the economy. See the case of *H. West and Son Ltd v. Shepherd [1964] AC.326 (supra)* where it was stated that: “…but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional…..” 18. With the above guide, if the award is inordinately high, then I will have to set it aside. If, however, it is just high but not inordinately high, I will not do so. For the Appellate Court to interfere with the award, it is not enough to show that the award is high or had I handled the case in the subordinate court I would have awarded a different figure. 19. The Appellant submitted that a range of Ksh. 300,000 would be adequate in the range of injuries that the Respondent sustained. The Respondent on the other hand submitted that even the award of Ksh. 700,000/= was reasonable. 20. The principle on the award of damages is settled. In *Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR* the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to:- 1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. 2) The award should be commensurable with the injuries sustained. 3) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts. 4) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account. 5) The awards should not be inordinately low or high. 21. In the case of *Noreen v Beatha (Civil Appeal E924 of 2022) [2025] KEHC 1373 (KLR) (Civ) (27 February 2025) (Judgment*), the appellant lost 3 teeth and was awarded Kshs 550,000/-. Hon Ougo J held that an award cannot be said to be excessive for the loss of 3 teeth. 22. In [*Coast Motorcycles Watu Credit v SJM (Minor Suing Through Father & Next Friend DMC) (Civil Appeal 053 of 2022*](https://kenyalaw.org/akn/ke/judgment/kehc/2023/24917)) [2023] KEHC 24917 (KLR) (24 October 2023) (Judgment), the Respondent in this case lost her 2 lower teeth and the court awarded General Damages of Kshs 500,000/-. 23. Based on the above principles and similar fact cases, the award of Ksh. 700,000/= for general damages was not inordinately high or low to warrant interference. I say so considering the lapse of time when the said cases were decided which brings in inflation and the fluctuating strength of the Kenya Shilling. 24. On future medical expenses, the Respondent was under duty to plead even an approximate amount that would constitute future medical expenses. In the case of, *Tracom Limited & Another vs. Hassan Mohamed Adan Civil Appeal Number 106 of 2006,* the Court of Appeal stated:- “We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require.” 25. Future medical expenses as special damages should be pleaded and proved. As was held in the cases of *Gulhamid Mohamedali Jivanji vs. Sanyo Electrical Company Limited Civil Appeal No. 225 of 2001 [2003] KLR 425; [2003] 1 EA 98 and Coast Bus Service Ltd vs. Sisco E. Murunga Ndanyi & 2 Others Civil Appeal No. 192 of 1992*, while the cost of future medical expenses are special damages and whereas a claim for special damages should not only be pleaded but also strictly proved. What amounts to strict proof must depend on the circumstances, that is to say, the character of the acts producing damage, and the circumstances under which those acts were done. 26. The Respondent pleaded Ksh. 60,000/= as future medical expenses. The award of the lower court of Ksh. 60,000/= was based on the Respondent’s produced medical report that suggested Ksh. 60,000/= as the amount required to replace the lost teeth with prosthesis. The fact that the Respondent lost six teeth is not disputed, and so is the cost of replacement suggested by the Respondents doctor. I am unable to interfere with the discretion of the lower court as I find no basis to do so. The award was in my view commensurate and supported. I find no reason to disturb the award under this head. 27. On special damages, the amount of Ksh. 18,650/= was pleaded and the lower court awarded the 14,650. With special damages, the rule is strict and somewhat mathematical. The court has to discern pleaded damages and proceed to find their proof. It is not based on estimates. The Court of Appeal in *Jogoo Kimakia Bus Services Ltd vs. Electrocom International Ltd [1992] KLR 177* stated that: “The law on damages stipulates various types of damages. The distinction between general and special damages is mainly a matter of pleading and evidence. General damages are awarded in respect of such damages as the law presumes to result from the infringement of a legal right or duty. Damages must be proved but the claimant may not be able to quantify exactly any particular items in it. Special damages are the precise amount of pecuniary loss which the claimant can prove to have followed from the particular facts set out in the pleadings. They must be specifically pleaded.” 28 .Special damages are thus very specific and constitute liquidated claim which must be pleaded and proved. This court’s task thus entails whether the trial court failed to award special damages that were pleaded and proved. In *Joseph Kipkorir Rono vs. Kenya Breweries Limited & Another Kericho HCCA No. 45 of 2003*, Kimaru, J held that: “In current usage, special damage or special damages relate to part pecuniary loss calculable at the date of the trial, whilst general damages relate to all other items of damage whether pecuniary or non- pecuniary. If damages are special damages they must be specifically pleaded and proved as required by law. For a loss to be calculable at the date of trial it must be a sum that has actually been spent or loss that has already been incurred…” 29 .I find that the amount pleaded was the amount proved. 30. The issue of costs is governed by Section 27 of the [*Civil Procedure Act*](https://new.kenyalaw.org/akn/ke/act/1924/3), which provides as follows: (1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order. (2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 31. Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of *Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR)* had this to say: “It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 32 .In the circumstances, having the appeal is dismissed in its entirety. The appellant shall bear the cost of the appeal and the costs in the lower court. **Determination** The upshot of the foregoing is that I make the following orders: - ***a. The appeal is dismissed.*** ***b. The appellant shall bear the costs of the appeal and the suit in the lower court.*** ***c. 30 days stay of execution granted.*** **DELIVERED, DATED AND SIGNED ON 24TH JULY 2026.** **JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.** **MARTHA MUTUKU.** **JUDGE** In the presence of: - Miss Mburu for the Appellant Miss Karnja for the Respondent Court Assistant – Mr.Zadock