https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8284

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT AT MURANG’A** **CIVIL APPEAL NO. E066 OF 2024** **CHARLES KAMANDE MWANGI ………………...……………. APPELLANT** **VERSUS** **DANSON MURIGI MUIRURI ………………………….... 1ST RESPONDENT** **BERNARD KIHARA NDEGWA …………………...……. 2ND RESPONDENT** **LIVINGSTONE MAGANJO KARUMA …………………. 3RD RESPONDENT** **E.M. MBUGUA ……………………………………………. 4TH RESPONDENT** **ROTICH WALTER ……………………………………….. 5TH RESPONDENT** **JUDGMENT** 1. This is an appeal from the Judgment and decree of Hon. S.K. Nyaga (Resident Magistrate) given in Murang’a CMCC No. 418 of 2014 on 29.7.2019. The appellant was the third defendant in the court below. The suits against the second-5th respondents were withdrawn. Therefore, the appeal against them is hereby struck out. 2. The appeal is on quantum of damages. The matter does not turn on evidence but pleadings. The court below, delivered its judgment and awarded the following: 1. General damages Ksh. 700,000/= 2. Loss of amenities Ksh. 200,000/= 3. Loss of earnings Ksh. 100,000/= 4. Special damages Ksh. 53,200/= 3. The appellant was aggrieved and filed the following grounds of appeal: 1. The learned trial magistrate erred in law and fact in assessing general damages for pain and suffering at Kshs. 700,000/=, Kshs. 200,000/= for loss of amenities, Kshs. 100,000/= for loss of earnings and Kshs. 53,200/= in special damages, which award is inordinately high considering the injuries sustained by the 1st Respondent. 2. The learned trial magistrate erred in law and fact in awarding damages of Kshs. 200,000/= for loss of amenities and Kshs. 100,000/= for loss of earnings which was not pleaded. 3. That the quantum of general damages for pain and suffering was inordinately high, erroneous, oppressive and punitive and amounted to a miscarriage of justice. 4. The learned trial magistrate erred in law and fact when she misapprehended the principles applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice. 5. The learned trial magistrate erred in law and fact in failing to evaluate the entire evidence on record thereby arriving at wrong findings on the issues before her. 6. The learned trial magistrate erred in law and fact in failing to consider the appellant’s submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum. 4. The respondent filed submissions dated 19.1.2026 stating that the award is proper. The same was said to have been filed out of time. Of course, the second limb is otiose since leave was granted on 23.07.2024 vide Misc. Application Number E110 of 2024. 5. The appellant on the other hand submitted that the general damages were excessive in the circumstances. He submitted that the court rightly made the decision as per the case of [*Butt v Khan* [1978] KECA 24 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/1978/24/eng%401978-02-01), where the court of appeal [Madan, Wambuzi & Law JJA] stated as follows: 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 1. The appellant submitted that the award of general damages have to be comparable to injures sustained. They submitted that loss of earning and loss of amenities were never pleaded and proved. Reliance was placed on the case of **Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No 147 of 2002 (2004) eKLR**. 2. The figures for loss of amenities and loss of earnings were not quantified and how it was reached. Reliance was placed on the case of **Cecilia W Mwangi & Another V Ruth W Mwangi** (1997) KECA 62 KLR. 3. Loss of earnings is a special claim that must be specifically pleaded and strictly proved. Even loss of earning capacity have to be pleaded and proved on the required standards. These two limbs were not even reflected in prayers. Analysis 1. 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 demeanor of the witnesses and hearing their evidence first hand. 2. The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of **Selle and another Vs Associated Motor Board Company and Others** [1968]EA 123, where the Judges in their usual gusto, held as follows;- “.. 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 re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanor of a witness is inconsistent with the evidence generally.” 1. In the case of [**Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2013/208/eng%402013-10-11)**,** the court of appeal [EM Githinji, RN Nambuye & MK Koome, JJA] held as follows as regards the duty of the first appellate court: This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyse the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that: On a first appeal from the High Court, the Court of Appeal should 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence” 1. The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In the case 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…”** 1. **The nature of general damages were discussed in the case of Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019)**eKLR, where Justice D.S Majanja held as doth: “General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.” 1. **The duty of the court regarding damages is settled that the state of the Kenya economy and the people generally, and the welfare of the insured public must be at the back of the mind of the trial Court. The principles for appellate interference with an award of damages by a trial court in Crown Bus Services Ltd & 2 others v BM (Minor suing through his mother & Next Friend) SMA) [2020] eKLR as follows:** **“The well-known principles for interference of an award of damages by a trial court are laid down by the Privy Council in Nance v. British Columbia Electric Railway Co. Ltd. (1951) A.C. 601, 613 and applied in East Africa by Sir K. O’Connor (with whom Sir Alastair Forbes, V.-P and Newbold, J.A. agreed) in Henry H. Ilanga v. M. Manyoka [1961] EA 705, 713 as follows: “The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or a jury, the appellate court is justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tired the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as taking in some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v Lovell, [1935] 1 K.B.), approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C. 601.”** 1. This is also further enunciated in the case of **Henry Hidayo Ilanga versus Manyama Manyoke** [1961] EA 705, 713 at paragraph c, where Sir Kenneth O’Connor P, in the lead decision to which Sir Alastair Forbes, VP, and Newbold JA agreed with nothing useful to add, the former court of appeal for East Africa held as follows: In considering this question, I apply the rule laid down by the Privy Council, that is Nance vs British Columbia Electric Co Ltd, [1951]A.C. 601, at 613, when discussing the principles to be observed in disturbing the quantum of damages awarded by a judge. “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 even if the tribunal of the first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing damages, applied a wrong principle of law(as by taking into account some irrelevant factor and or leaving out a relevant one); or short of this, that the mount awarded is so inordinately low or so inordinately high that it must be wholly erroneous estimate of damages. 1. Finally, in deciding whether to disturb quantum given by the lower court, the court should be aware of its limits. Being an exercise of discretion, the exercise should be done judiciously, considering the circumstances, to ensure that the award is not too high or too low as to be an erroneous estimate of damages. The court of Appeal, pronounced itself succinctly on these principles 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. 1. The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, 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…” 1. Therefore, for me 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. So my duty as the appellate court is threefold regarding quantum of damages: - 1. *To ascertain whether the Court applied irrelevant factors or left out relevant factors.* 2. *To ascertain whether the award is too high as to amount to an erroneous assessment of damages.* 3. *To ascertain whether the award is simply not justified from evidence.* 2. To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards. The Respondent suffered the following injuries pleaded in the plaint: 1. Fracture of the right humerous 2. Cut wound on the frontal scalp 3. Cut wound on the nasal bridge 4. Blunt injury anterior chest wall 5. Blunt injury to the left thigh 3. The respondent prayed for special damages of Ksh. 53,200/= and general damages. Special damages are not on the table in this appeal. What is on trial is whether, the court erred in award of damages. The respondent did not plead for loss of earnings and loss of amenities. Further, loss of amenities is not a separate limb from general damages. The damages are for pain, suffering and loss of amenities. There is no place for splitting the damages for pain and suffering on one hand and loss of amenities on another. By awarding Ksh. 700,000/= for general damages for pain and suffering and Ksh. 200,000/= for loss of amenities, the general damages ended up to Ksh. 900,000/=. 4. In his evidence, the respondent testified how he was injured on the right hand. There was no evidence whatsoever on loss of earnings. The principles to be considered in making an award for loss of earning capacity were clearly set out by the Court of Appeal in *Butler vs. Butler* [1984] KLR 225, as follows:- a. A person’s loss of earning capacity occurs where as a result of injury, his chances in the future of any work in the labour market or work, as well paid as before the accident are lessened by his injury; b. Loss of earning capacity is a different head of damages from actual loss of future earnings. The difference is that compensation for loss of future earnings is awarded for real assessable loss proved by evidence whereas compensation for diminution of earning capacity is awarded as part of general damages; c. Damages under the heads of loss of earning capacity and loss of future earnings, which in English law were formerly included as an unspecified part of the award for pain, suffering and loss of amenity, are now quantified separately and no interest is recoverable on them; d. Loss of earning capacity can be a claim on its own, as where a claimant has not worked before the accident giving rise to the incapacity, or a claim in addition to another, as where the claimant was in employment then and/or at the date of the trial; e. Loss of earning capacity or earning power may and should be included as an item within general damages but where it is not so included it is not improper to award it under its own heading; and f. The factors to be taken into account in considering damages under the head of loss of earning capacity will vary with the circumstances of the case, and they include such factors as the age and qualifications of the claimant; his remaining length of *working life; his disabilities and previous service, if any.* 1. Loss of earnings are special damages that must be particularized. This was not done. Parties are bound to plead their cases fully. In the case of [**Migore v South Nyanza Sugar Co Ltd [2018] KEHC 5465 (KLR**)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2018/5465/eng%402018-07-12), A C Mrima, J, stated as follows: 11. It is by now well settled by precedent that parties are bound by their pleadings and that evidence which tends to be at variance with the pleadings is for rejection. Pleadings are the bedrock upon which all the proceedings derive from. It hence follows that any evidence adduced in a matter must be in consonance with the pleadings. Any evidence, however strong, that tends to be at variance with the pleadings must be disregarded. That settled position was re-affirmed by the Court of Appeal in the case of **Independent Electoral and Boundaries Commission & Ano. vs. Stephen Mutinda Mule & 3 others (2014) eKLR** which cited with approval the decision of the Supreme Court of Nigeria in **Adetoun Oladeji (NIG) vs. Nigeria Breweries PLC SC 91/2002** where Adereji, JSC expressed himself thus on the importance and place of pleadings: - …..it is now trite principle in law that parties are bound by their pleadings and that any evidence led by any of the parties which does not support the averments in the pleadings, or put in another way, which is at variance with the averments of the pleadings goes to no issue and must be disregarded…… …In fact, that parties are not allowed to depart from their pleadings is on the authorities basic as this enables parties to prepare their evidence on the issues as joined and avoid any surprises by which no opportunity is given to the other party to meet the new situation. In the case of **Malawi Railways Ltd vs Nyasulu [1998] MWSC 3**, **Malawi Supreme Court of Appeal** stated as doth when the learned judges cited with approval an article by Sir Jack Jacob entitled The Present Importance of Pleadings published in [1960] Current Legal Problems at p 174 whereof the learned author posited that: - As the parties are adversaries, it is left to each one of them to formulate his case in his own way subject to the basic rules of pleadings …….for the sake of certainty and finality; each party is bound by his own pleadings and cannot be allowed to raise a different fresh case without due amendment properly made. Each party thus knows the case he has to meet and cannot be taken by surprise at the trial. The court itself is as bound by the pleadings of the parties as they are themselves. It is no part of the duty court to enter upon any inquiry into the case before it other than to adjudicate upon the specific matters in dispute which the parties themselves have raised by the pleadings. Indeed, the court would be acting contrary to its own character and nature if it were to pronounce any claim or defence not made by the parties. To do so would be to enter upon the realm of speculation. Moreover in such event, the parties themselves, or at any rate one of them might well feel aggrieved; for a decision given on a claim or defence not made or raised by or against a party is equivalent to not hearing him at all and thus be a denial of justice…. In the adversarial system of litigation therefore, it is the parties themselves who set the agenda for the trial by their pleadings and neither party can complain if the agenda is strictly adhered to. In such an agenda, there is no room for an item called Any Other Business in the sense that points other than those specific may be raised without notice. 1. In respect to the essence of pleadings, the Supreme Court of Kenya in its ruling on inter alia scrutiny in the case of **Raila Amolo Odinga & Another vs. IEBC & 2 others (2017) eKLR**found and held as follows in an election petition: 58. In the case of [Arikala Narasa Reddy v Venkata Ram Reddy Reddygari &](https://indiankanoon.org/doc/108309079/%22%20%5Ct%20%22_blank)[anr](https://indiankanoon.org/doc/108309079/), Civil Appeal Nos 5710-5711 of 2012; [2014] 2 SCR the Supreme Court of India held that [paragraph 8]: …. 52.Further, the court went on and observed that: “In absence of pleadings, evidence if any, produced by the parties, cannot be considered. It is also a settled legal proposition that no party should be permitted to travel beyond its pleadings and parties are bound to take all necessary and material facts in support of the case set up by them. Pleadings ensure that each side is fully alive to the questions that are likely to be raised and they may have an opportunity of placing the relevant evidence before the court for its consideration. The issues arise only when a material proposition of fact or law is affirmed by one party and denied by the other party. Therefore, it is neither desirable nor permissible for a court to frame an issue not arising on the pleadings. The court cannot exercise discretion of ordering recounting of ballots just to enable the election petitioner to indulge in a roving inquiry with a view to fish material for dealing the election to be void. The order of recounting can be passed only if the petitioner sets out his case with precision supported by averments of material facts. 1. The court did not have jurisdiction to gratuitously grant prayers that were not asked for. I therefore set aside the award for loss of earnings. 2. The next question is the aspect of general damages for pain, suffering and loss of amenities. The court is entitled to look at all the evidence on record. Medical evidence was expert evidence. It must be viewed with the rest of the documents. The extent of application of an expert opinion in judicial proceedings, and the general trend is that such evidence is not necessarily conclusive and binding. As was held in **Shah and Another vs. Shah and Others [2003] 1 EA 290**: ***“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.”*** 1. Further, the Court of Appeal, on its part in **Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139**held that: **“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”** 1. Courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them as stated in **Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29,**where it was held that: **“While the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of**Elizabeth Kamene Ndolo vs. George Matata Ndolo**, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:** "The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of *an expert, I believe it."* 1. The said principles for disturbing awards have been distilled over the years. In the case of [*Butt v Khan* [1978] KECA 24 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/1978/24/eng%401978-02-01), the court of appeal [Madan, Wambuzi & Law JJA] posited as hereunder: 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.** 1. This was also addressed in the case of [**Southern Engineering Company Ltd v Mutia** [1985] KECA 49 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/1985/49/eng%401985-09-10), where the court of appeal [Hancox, Nyarangi JJA & Gachuhi Ag JA] stated as follows: … measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and to prior decisions which are relevant to the case in question. This is shown by a passage from an English case in the House of Lords to which reference has often been made in this Court, but which I think illustrates Mr. Gautama’s point that it is the quality and calibre of the judgment in question which is its most important factor, and that the reference to other and possibly to outside decisions is, in a sense, incidental to that. The passage is from Lord Morris’ speech in H West & Son v Shephard, [1964] AC 326 at page 353, and reads as follows:- “The difficult task of awarding money compensation in a case of this kind is essential a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not, however, proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment. 1. These principles were addressed by the court of appeal, sitting in Mombasa [Kneller, Hancox and Nyarangi, JJ.A] in the locus classicus case of [**Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 others [1986] KECA 42 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/1986/42/eng%401986-02-14)**,** as follows: This court, I remind myself, is only entitled to increase an award of damages by the High Court if it is so inordinately low it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the judge: (a) proceeded on a wrong principle; or (b) misapprehended the evidence in some material respect. (…) And a member of an appellate court when he naturally and reasonably says to himself ‘what award would I have made?’ and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other judges are entitled to their views of opinions so that their figures are not necessarily wrong if they are not the same as his own. West (H) & Son v Shephard Ltd [1964] AC 326, Lord Morris of Borth -Y-Gest. 1. The main injury was fracture of the right humerous. There was no indication on the decree of permanent disability. In the case of **Munene v Mbarire** (Civil Appeal 488 of 2015) [2023] KEHC 18417 (KLR) (Civ) (19 May 2023) (Judgment), the court awarded a sum of Kshs 450,000/= for bruises on the right side of the face, both elbows, right groin, right knee and fracture of the right. 2. In the case of [**Civicon Limited v Richard Njomo Omwancha & 2 others** [2019] KEHC 8373 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/8373/eng%402019-04-25), the court awarded Kshs. 450,000/= for multiple severe soft tissue injuries, fractures and dislocations which were in the process of healing. 3. Therefore, I set aside the award of Ksh. 700,000/= as general damages and Ksh 200,000/= for loss of amenities. In lieu thereof, I award a sum of Ksh. 500,000/= as general damages for pain, suffering and loss of amenities. 4. This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, 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.** 1. 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)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2018/158/eng%402018-10-18) 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.** 1. The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of [**Rai & 3 others v Rai & 4 others** [2014] KESC 31 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kesc/2014/31/eng%402014-03-04), as follows: 18. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation 22. Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 1. The appellant is entitled to costs. A sum of Ksh. 55,000/= shall suffice. Determination 1. In the upshot, I make the following orders: - 2. The appeal is allowed. The award of Ksh. 700,000/= and Ksh. 200,000/= as general damages for pain, suffering and loss of amenities is set aside and substituted thereof with Ksh. 500,000/=. 3. An award of Ksh. 100,000/= as loss of earnings is set aside. The claim is dismissed for not being pleaded. 4. Costs of Ksh. 55,000/= for the appeal are awarded to the Appellant. 5. 30 days stay of execution. 6. 14 days right of appeal. 7. The file is closed. **DELIVERED, DATED** and **SIGNED** at **NYERI** on this **28th** day of **May, 2026**. Judgment delivered through Microsoft Teams Online Platform. **KIZITO MAGARE** **JUDGE** **In the presence of: -** Mr. Maingi for the Appellant No appearance for the Respondent Court Assistant – Martin