https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8531

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAKURU** **CIVIL APPEAL NO. E054 OF 2022** **DOMINIC OKOTH OGUTU……………………………………APPELLANT** **-VERSUS-** **LINK UP SERVICES LIMITED.………...………..………….RESPONDENT** ***(Being an appeal from Decree of the Chief Magistrate’s Court at Nakuru (Hon. Margaret Kyalo – RM) arising from Judgment delivered on 10/3/2022 in CMCC No. 1081 of 2019)*** **JUDGMENT** **Grounds of Appeal and reliefs sought.** 1. By a Memorandum of Appeal dated 8/4/2022, the Appellant faults the trial court’s Judgment dated 10/3/2022 on two grounds as hereunder: 2. **THAT the learned trial magistrate erred and misdirected herself in law and fact by assessing damages awardable to the Appellant that were inordinately low in the circumstances;** **and** 1. **THAT the learned trial magistrate failed to appreciate and/or misapplied the principles applicable in assessment of damages**. 2. The Appellant therefore seeks the following orders; a) **THAT the Judgement of the trial court on quantum of damages be set aside and enhanced.** **d) THAT the Appellant be awarded the costs of this appeal.** **Background to the Appeal.** 1. This appeal is on quantum of damages only. In the impunged judgment, the trial Magistrate found the Respondent wholly liable for the claim and granted the Appellant Kshs. 200,000/= general damages for pain and suffering; special damages in the sum of Ksh. 20,130/=; the costs of the suit and interest. The Appellant complained of suffering head injury that caused loss of consciousness; injury to both eyes; soft tissue injuries to the chest and legs; friction burns on the right forearm; deep laceration on the right wrist and index finger with avulsion of the nail and further deep laceration on the left wrist and the 5th left finger. The injuries were occasioned in a road traffic accident that occurred on 14/8/2019 along Nakuru-Eldoret road at Kolen area when the Respondent’s motor vehicle registration number KCA 460 C knocked down a motorcycle registration number KMEK the Appellant was riding, as a consequence of negligent or careless driving. 2. The Respondent filed defence traversing all the material allegations in the suit including occurrence of the accident. Only the Appellant testified at the hearing of the suit, reiterating the averments in the claim. 3. As per Dr W.K Kiamba’s medical-legal report dated 22/8/2019, X-Ray of the Appellant’s chest showed no abnormalities related to the accident. He had not fully recovered at the time examination but his general state of health was fair. The degree of injury was classified as “Grievous Harm’’. 4. Dr. Kiamba further examined the Appellant on 16/3/2021 and noted *inter alia* that he had itchyness of resultant scars; chest pain making him unable to lift heavy objects; consciousness had fully restored; the chest was not tender or deformed; no visible scars on the scalp and haemorrhage had subsided. The doctor assessed temporary disability of 14 months and a permanent disability of 8%. **Guiding Principles** 1. It is trite that the appellate court has the duty of re-assessing the evidence and reaching its own conclusions on matters of fact and law. The court will only interfere with the trial court’s findings if relevant factors were not taken into account or irrelevant factors were considered or the trial court otherwise misdirected itself. (see case law in **Selle vs. Associated Boat Company [1968] EA 123** and **Ocean Freight Shipping Co. Ltd vs. Oakdale Commodities Ltd (1997) eKLR** cited in the appellant’s submissions). The Court of Appeal for East Africa in **Peters vs Sunday Post Limited [1958] EA 424** underscored the same principles delivering itself thus: ***“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;*** 1. ***In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and*** ***iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”*** **ANALYSIS AND DETERMINATION** **Appellant’s Submissions** 1. The Appellant’s Advocates while citing case law in **Kenya Power and Lighting Company Limited & Another vs Zakayo Saitoti Naingol & Another (2008) eKLR**, submit that principles on assessment of damages guide that damages should neither be too low to compensate for loss nor too as high as to amount to enriching the beneficiary, each case depending on its particular circumstances . Counsel further submit that the incidence of inflation is also a factor influencing the quantum of general damages awardable in a case. Similar jurisprudence is espoused in the often quoted case of **Kemfro Africa Limited T/A Meru Express Services Gathongo Kanini vs A. M. Lubia & Olive Lubia** among other cases cited and relied upon by the Appellant. 2. The Appellant submitted in the lower court for Kshs. 1,500,000/- general damages but only Kshs. 200,000/= was granted. In support of the Appellant’s position as to the appropriate damages, Counsel make reference to the judicial determination in **Easy Coach Limited vs Emily Nyangasi (2017) eKLR** and **Francis Ochieng & Another vs Alice Kajimba (2015) eKLR**, where for more or less similar injuries Kshs. 350,000/= General Damages were awarded to the claimant. **Respondent’s Submissions** 1. According to the Respondent’s Advocates, a second medical report on the Appellant by Dr. Malik shows that he suffered soft tissue injuries and temporary incapacity of two weeks, followed by further temporary incapacity of another two weeks, with no permanent incapacity. The court is told that there is no evidence indicating that the Appellant had not healed from the injuries. 2. Placing reliance on the decision in **Stephen Kinini Wang’ondu vs The Ark Limited (2016) eKLR**, the Respondent submits that conflicting medical opinion ought to be tested against all other evidence in a case before making any findings, provisional or final. 3. Counsel also pitch tent on **Justice (Rtd) Kuloba’s work** in his book **“Measure of Damages for Bodily Injuries** which postulates in part**;-** **“……On appeal, every member of the Appellate court is anxious to do all he can to ensure that damages are adequate for the injury suffered so far as there can be compensation for an injury and to help the parties and others to arrive at a fair and just figure in all circumstances. An endorsement of extravagant damages in one case becomes a yardstick for the next so that no margin is left for certain losses, for example total disability.”** 1. The same opinion is reiterated in **Hassan vs Nathan Mwangi Kamau Transporters & 5 Others NBI CACA 123 of 1985** the Respondent also alludes to**.** It is cautioned that inordinately large awards of damages could lead to high insurance premiums. **DETERMINATION** 1. Principles guiding assessment of damages are well set out in the parties’s submissions set out hereinabove. It must be noted that general damages are damages at large and no case is exactly the same as the other. The general method of approach in assessing general damages ought to be “that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases’’ , ( see **Kemro Africa Ltd** *supra*). 2. The purported 2nd medical report by Dr. Malik alluded to in the Respondent’s Counsel’s submissions is not on record and was not tendered in evidence based on the proceedings of the lower court although the Appellant seemed to say the doctor examined him. Dr. Kiamba’s report exhibited by the Appellant is not therefore challenged. The injuries he sustained are severe and include temporary and permanent disability. 3. In **Duncan Mwenda & 2 Others vs Silas Kinyua Kithela (2018) eKLR**, the claimant sustained severe head injury with intracerebral haematoma; damage to the exterior tendon of the left middle figure and soft tissue injuries on the chest wall. He was admitted in hospital for 5 months in an unconscious state. He complained of recurrent headache, chest pain, inability to extend the left middle finger and inability to hold tightly with the left hand. The injuries healed well without permanent disability. This court assessed and awarded general damages of Ksh. 350,000/=. 4. In yet another case, **Catherine Wanjiru King’ori & 3 Others vs Gibson Theuri Gichubi ( 2005)** the Claimant was granted Kshs. 300,000/= for soft tissue injuries to the left ankle, legs and chest. 5. In the case of **Poa Link Services Co. Ltd & another vs Sidhani Boaz Bonzemo [2021] eKLR** the court assessed general damages in the sum of Kshs. 350,000/= for blunt injury to the chest as well bruises to the lower abdomen; the right hip joint, thigh and knee. These injuries are all soft tissue in nature unlike the instant matter. 6. For more or less similar injuries, the Claimant in **Embu HCCA No. 71 of 2016 (Bonface Mugendi & Another vs Emilio Murimi Njue)** was awarded a similar sum of Ksh. 350,000/= general damages. 7. The Appellant does not complain on the lower court’s award in special damages. 8. Regard being had to the cited decisions and all other relevant factors including the ever present element of inflation, I would disturb the trial court’s award of general damages and enhance it to Kshs. 500,000/=, and the award of Kshs. 200,000 is accordingly substituted . The parties shall bear their own costs of the Appeal. 9. Judgement accordingly. **J. M. NANG’EA, JUDGE.** **Judgement dated, signed and delivered virtually at Nakuru this 15th day of June, 2026.** **In the presence of:** **Ms Sitati Advocate for the Appellant** **Ms Mulwa Advocate for the Respondent.** **Court Assistant (Jeniffer).** **J. M. NANG’EA, JUDGE**.