Adisa v Kieni & another (Civil Appeal E323 of 2025) [2026] KEHC 12357 (KLR) (30 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL APPEAL NO. E323 OF 2025** **CLARIS ADISA …….…………………………………..…………….. APPELLANT** **VERSUS** **TITUS KINYUA KIENI ………………………………………………1ST RESPONDENT** **CHRISTOPHER KIBE KOSKE……………………………..………2ND RESPONDENT** ***(Being an appeal from the judgment of Hon. Kristine Gathoni Mugo (CM) in Molo Chief Magistrate’s Court Civil Case No. E452 of 2024 delivered on 24th November 2025)*** **JUDGEMENT** 1. The Appellant herein, Claris Adisa, filed Molo Chief Magistrate's Court Civil Case No. E452 of 2024 seeking general damages, special damages, costs and interest arising from a road traffic accident which occurred on 8th August 2023 along the Nairobi-Eldoret Road at or near Ngata area. 2. When the matter was set down for hearing, the parties recorded consent on liability in the ratio of 15% : 85% in favour of the Appellant against the 1st and 2nd Respondents leaving quantum as the only issue for determination before the trial court. 3. In its judgment dated 24 November 2025, the trial court assessed general damages at Kshs.850,000/=, special damages of Kshs.34,630/= and awarded costs and interest to the Appellant. 4. Dissatisfied by the award on general damages, the Appellant filed the instant appeal where she sought enhancement of the general damages to Ksh. 2,000,000.00. She relied on the following grounds of appeal; 5. That the learned trial Magistrate erred in fact and law in the assessment of quantum by awarding Ksh.850,000.00 for general damages an award which was too low and an erroneous estimate of the damages awardable. 6. That the learned trial Magistrate erred in fact and law in failing to consider the Plaintiff’s submissions and authorities supplied on the issue of quantum. 7. That the learned trial Magistrate erred in fact and law in failing to consider the evidence that was tendered on quantum during the hearing of the suit. 8. That the learned trial Magistrate erred in fact and law in failing to pay regards to authorities in the Plaintiff’s submissions that were guiding in the amount of quantum that is appropriate and applicable in comparable cases. 9. That the learned trial Magistrate did not exercise her discretion judiciously in the assessment of quantum 10. The appeal was canvassed by way of written submissions. Both Parties filed written submissions dated 18 May 2026 which they each relied on. ***Apellants Submissions*** 1. The appellant’s case was that the award of Ksh. 850,000.00 was too low. It was submitted that following the accident, the appellant became unconscious and was admitted at Nakuru hospital for one week before being transferred to Kenyatta National Hospital where she was treated and discharged. That she still continues with physiotherapy clinics at Kenyatta National Hospital. 1. It was further submitted that the appellant’s injuries were confirmed to be grievous and left her with a permanent disability of 16% on account of her suffering form a stiff neck and that she has a high probability of developing early degenerative changes of spondylosis. It was thus submitted that the appellant sustained cervical spine injury involving the neck region, prolonged hospitalization, continuing physiotherapy treatment and a permanent disability assessed at 16%. 2. Reliance was placed on the cases of ***Kenblest Kenya Limited vs Musyoka Kitema (2020) eKLR*** where the claimant sustained fractures of cervical spine at the level of C5 C6 and was awarded Ksh.2,000,000.00 and ***Board of Trustees Anglican Church of Kenya Diocese of Marsabit vs Chukulisa Roba Halakhe (2019) KEHC 4256 (KLR)*** where the court awarded Ksh.2,000,000.00 for C5 spine fracture and other injuries to the right forearm, right knee, foot and left shoulder in support of their contention the the award by the trial court was too low and should be enhanced. 3. The appellant contended that the trial court did not sufficiently appreciate the gravity, multiplicity and long term consequences of the injuries upon the appellant, that her life was fundamentally altered by the accident, and that the injuries have a psychological effect beyond the physical limitations. 4. IT was further submitted that the trial court failed to give sufficient weight to the P3 classification of grievous harm and the medical report assessing permanent disability at 16%. The appellant relied on the principles in ***Butt vs Khan*** and ***Kemfro Africa Ltd t/a Meru Express Services Vs Lubia*** on appellate interference with awards of damages and urged this court to enhance the award on general damages to Kshs.2,000,000/=. ***Respondents Submissions*** 1. The Respondents opposed the appeal arguing that damages should not be too large to the extent of crippling the economy as held in the case of ***Martha Karuu Kobia vs China Zhongxing construction Co. Ltd & 2 others (2018) KEHC 8181 (KLR).*** 2. It was submitted that the award of Ksh.850,000.00 was adequate as guided by various authorities suchas ***David Mutembei vs Maurice Ochieng Odoyo (2019) KEHC 1435 (KLR), Titus Mburu Chege & anor vs DWN & Anor (2018) KEHC 2605 (KLR), Continental Hauliers ltd & 2 otehsr vs Isaack Kipkemei Bitok (2019) eKLR*** and ***Mwamvita Jonathan vs Silvia Onunga (2017) eKLR,*** and urged the court to dismiss the appeal. ***Analysis and determination*** 1. The court has considered the grounds of appeal, examined the record of appeal and reviewed the submissions of the parties. It is apparent that this appeal challenges only the quantum of damages awarded by the trial court. Accordingly, the issue for determination by this court is whether the award for general damages of Ksh.850,000.00 granted by the trial court was too low, erroneous and/or unjustified in the circumstances of this case. 2. This being a first appeal the principles in ***Selle vs Associated Motor Boat Co. Ltd [1968] EA* *123*** apply. The appellate court has a duty to re-valuate both law and facts subjecting the evidence to fresh and exhaustive scrutiny, while bearing in mind the fact that it did not have the advantage of seeing and hearing the witnesses first hand. 3. As regards the award of general damages of Ksh.850,000.00, the appellant argue that this amount is too low contending that trial court did not sufficiently appreciate the gravity, multiplicity and long term consequences of the injuries suffered by the appellant, the fact that her life was fundamentally altered by the accident, and that the injuries have a psychological effect beyond the physical limitations while the respondent maintain that the award was proper as guided by various authorities cited therein. 4. An appellate court will not interfere with an award of damages by the trial court unless it is established that the award is manifestly inadequate or excessive, or that the trial court proceeded on wrong principles or misapprehended the evidence in some material respect, or that irrelevant considerations were applied. 5. The Court of Appeal in ***Kemfro Africa Limited t/a “Meru Express Services (1976)” & another vs Lubia & another (No 2) [1985] eKLR*** was categoricalthat: ***“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 Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, 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 the damage.”*** 1. Similarly in ***Butt vs Khan, [1981] KLR 349,*** it was held: ***“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 arrive at a figure which was either inordinately high or low.”*** 1. In ***Denshire Muteti Wambua vs Kenya Power & Lighting Co, Ltd.******Civil Appeal No. 60 of 2004***, the court of appeal emphasized that: ***“...awards have to make sense and have to have regard to the context in which they are made. They cannot be too high or too low but they have to strike a chord of fairness***”. 2. Further, in ***Kim Pho Choo vs Camden & Islingtom Area Health Authority, (1979) 1 All ER 332****,* Lord Dening, emphasized that in assessing damages, the injured person is only entitled to what is in the circumstances, a fair compensation for both the plaintiff and the defendant. 3. Additionally, in ***[Simon Taveta vs Mercy Mutitu Njeru [2014] KECA 755 (KLR)](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/755/eng%402014-02-05)***, the court of appeal observed that “***the context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”*** 4. The purpose of general damages is to compensate the claimant, so far as money can, for pain, suffering and loss of amenities. It is not to enrich the claimant and it is not to punish the defendant. Comparable injuries should attract comparable awards while allowing for the passage of time, inflation and the particular facts of each case. See ***H. West & Son Ltd vs Shepherd [1964] AC 326.*** 5. Having laid down the principles, the court will now consider whether the award of Ksh. 850,000.00 as general damages was manifestly low in the circumstances of this case so as to warrant interference. 6. The trial court found that on the basis of evidence in the P3 form dated 8 August 2023 and medical report by Dr. Wokabi dated 1 July 2024, the Appellant suffered scalp contusion, fracture of lower jaw, fracture of *odontoid* peg of the 2nd neck vertebrae (C2) and deep cup wound on the right calf of the left leg. This was not contested. The court found that the authorities cited by the Appellant were too high compared to awards made in comparable injuries, and that the Respondent’s proposal for Ksh. 850,000.00 accorded with awards made for comparable injuries. 7. The appellant cited ***Kenblest Kenya Limited vs Musyoka Kitema (2020) eKLR*** and ***Board of Trustees Anglican Church of Kenya Diocese of Marsabit vs Chukulisa Roba Halakhe (2019) KEHC 4256 (KLR)*** in support of her contention. In the ***Kenblest*** case the respondent sustained injury of a *cervical spine fracture c5-c6* and that as a result, he was likely to suffer permanent incapacity of about 60%. He was found to be in fair general condition, was walking with a dragging gait of the right lower limb, had a healed scar on the posterior part of the neck, had rigidity of the right upper limb, had cold extremities of both hands and had a stiff right hip, had suffered a lot of pains from the injuries sustained and that the injuries were severe skeletal injuries of the spine which were of grievous harm in nature and that he was still in the process of recovery. 8. In the ***Board of Trustees Anglican Church of Kenya Diocese of Marsabit*** case*,* the respondent suffered a C5 spine fracture and permanent incapacity was estimated at 30%. Her earning capacity had not been affected and she had made improved recovery and was fully working. There were other injuries to the right fore arm, right knee and foot and left shoulder. In both cases, the courts awarded Ksh.2,000,000. 9. On the other hand, the Respondent relied on ***David Mutembei vs Maurice Ochieng Odoyo (2019) KEHC 1435 (KLR),*** where the respondent sufferedtwo fractures and a cut wound with the fractures said to have resulted in serious body deformity, which would require future surgery, was hospitalized for two months and one leg has shortened, with the resultant difficulty in walking long distances as a result of RTA was awarded Ksh. 800,000. 10. In ***Titus Mburu Chege & anor vs DWN & Anor (2018) KEHC 2605 (KLR),*** the Respondent was awarded Ksh.500,000.00 for fractures of the tibia /fibula (both legs), blunt head injury(forehead), broken upper right 2nd incisor tooth, nose bleed and transient (brief) loss of consciousness as a result of RTA. 11. The court finds that the injuries in ***Kenblest Kenya Limited vs Musyoka Kitema (2020) eKLR*** and ***Board of Trustees Anglican Church of Kenya Diocese of Marsabit vs Chukulisa Roba Halakhe (2019) KEHC 4256 (KLR)*** were more serious and resulted in higher degrees of permanent incapacity compared to the injuries suffered by the Appellant in the instance case. On the other hand, in the authorities relied upon by the Respondent, whereas the injuries were generally more comparable to the injuries suffered by the Appellant in the instant case, the parties therein did not suffer from any permanent disability while the decisions therein were made seven (7) years ago. 12. More recently, in ***Mweu vs Mbithi (Civil Appeal E188 of 2024) (2026) KEHC 136 (KLR)***, the court awarded general damages of Ksh. 700,000.00 where the respondent suffered neck injury with fracture of *odontoid* which was treated with neck support and had healed well with normal neck movement and no pain or deformity. The injuries were classified as severe harm with no permanent disability. 13. This court is alive to the fact that no injuries can be similar or identical, and that its not possible to measure pain and suffering. However, any assessment must generally accord to the trend and awards in “comparable injuries” so as to ensure predictability and consistency in court decisions. Having taken into account of the two set of authorities and arguments proffered by both parties, the nature of injuries suffered by the appellant which have been classified as grievous harm and resulted in 16% permanent incapacity, the recent court awards for comparable injuries, the court assesses Ksh. 1,000,000.00 as sufficient compensation. # ***Final Disposition*** 1. Accordingly, having appraised the evidence afresh, I find that the appeal partly succeeds. The appeal is therefore allowed and the subordinate court judgment in respect of general damages is substituted as follows; 1. General damages Ksh.1,000,000.00 2. Special damages Ksh.34,630.00 Total Ksh. 1,034,630.00 Less 15% contribution Ksh. 155,195.50 Net award **Ksh. 879,434.50** * 1. Each party to bear its own costs of the appeal. 1. It is so ordered. Dated, Signed and Delivered Virtually at Nairobi on this 30th day of July 2026 **JOSEPH KIPKOECH BIOMDO** **JUDGE**