https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12026

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **CIVIL APPEAL NO. E043 OF 2022** **DOUGLAS MUCHOKI...................................................................APPELLANT** **VERSUS** **SHARON REBECCA WANYAMA..................................................RESPONDENT** ***(Being an appeal against the judgment of Hon. S.K. Nyaga, Senior Resident Magistrate, delivered on 14th July 2022 in Murang'a Chief Magistrate's Court Civil Case No. 86 of 2017)*** **JUDGMENT** **Background** 1. This appeal arises from the judgment of the Chief Magistrate's Court at Murang'a (Hon. S.K. Nyaga, SRM) delivered on 14th July 2022, in Murang'a CMCC No. 86 of 2017. 2. The substratum of the suit before the trial court was a claim in negligence arising out of a road traffic accident. The Respondent (plaintiff therein) pleaded that on or about 12th August 2016, while lawfully walking along the Kenol-Murang'a Road, she was knocked down by motor vehicle registration number KBH 331M, which was negligently driven, managed, and controlled by the Appellant's driver. As a result of the said accident, the Respondent sustained severe bodily injuries and sought general and special damages, costs, and interest. 3. The Appellant (defendant therein) entered appearance and filed a statement of defence, denying the Respondent's claim and attributing the accident to the Respondent's negligence. The matter proceeded to a full hearing where the Respondent called three witnesses, including herself, a police officer, and Dr. Wokabi. The Appellant closed his case without calling any witnesses. 4. Upon considering the evidence and submissions, the learned trial magistrate delivered judgment on 14th July 2022, finding the Appellant 100% liable for the accident. The court awarded the Respondent Kshs. 2,000,000/- for general damages (pain, suffering, and loss of amenities), and Kshs. 2,373,295/- for special damages, making a total award of Kshs. 4,373,295/-, plus costs and interest. 5. Being aggrieved by this decision, the Appellant lodged a Memorandum of Appeal dated 25th March 2022, citing the following grounds: a. THAT the Learned Magistrate erred in law in awarding General Damages at Kshs. 2,000,000/= which amount is manifestly excessive and high in light of the injuries sustained by the plaintiff which were soft tissue in nature. b. THAT the Learned Magistrate erred in law and in fact in failing to consider the written submissions of the Appellants on record and the authorities annexed therein in support of the Appellants' case while arriving at the award in damages. c. THAT the judgment of the learned trial Magistrate is against the law and weight of the evidence on record and against the doctrine of stare decisis. 6. The appeal was canvassed by way of written submissions. On record are submissions by the Appellant dated 22nd January 2026, and submissions by the Respondent dated 16th February 2026; both of which this court has carefully considered. The Respondent also raised a preliminary objection challenging the competence of the appeal based on its alleged withdrawal. **Appellant's Submissions** 7. Counsel for the Appellant submitted that the award of Kshs. 2,000,000/- for general damages was manifestly excessive and not commensurate with the injuries sustained, which were essentially soft tissue in nature. The Appellant argued that the trial court failed to properly consider comparable awards, citing the cases of **Easy Coach vs. Emily Nyangasi (2017) eKLR and Wycliffe Lumula M'masi v Ernest Waithaka & another [2020] eKLR,** where the courts awarded Kshs. 700,000/- for similar or more severe soft tissue injuries. 8. It was further submitted that the trial court erred by not adequately considering the defence submissions and authorities, thereby arriving at an award that was against the weight of evidence and the principle of stare decisis. The Appellant urged this court to set aside the trial court's judgment on quantum and substitute it with a more reasonable award. **Respondent's Submissions and Preliminary Objection** 9. Counsel for the Respondent raised a fundamental preliminary objection, arguing that the appeal was not competent for hearing as it was voluntarily withdrawn by the Appellant. It was submitted that on 15th September 2022, the Appellant's former advocates, J.K. Kibicho & Co., filed a Notice of Withdrawal of Appeal, thereby terminating the appeal in its entirety. 10. Counsel contended that following the withdrawal, the Appellant did not take any steps to revive the appeal. The Appellant neither filed an application seeking reinstatement nor invoked the court's inherent jurisdiction under Section 3A of the Civil Procedure Act, nor obtained an order reinstating the appeal. Reliance was placed on the case **of Dahir v Juma (Civil Appeal E960 of 2022) [2025] KEHC 112 (KLR),** which established that reinstatement of a withdrawn appeal is a discretionary relief that can only be granted upon a formal application. In the absence of such a step, the appeal ceased to exist in law, and this court lacks jurisdiction to hear it. 11. On the merits, the Respondent submitted that the appeal was wholly unmeritorious. It was argued that the trial court's award was not excessive considering the severe nature of the injuries, which were not merely "soft tissue injuries" but extensive degloving injuries requiring multiple surgeries, stem cell treatment, and skin grafts. The injuries resulted in permanent disfiguring scars and significant pain and suffering. The Respondent argued that the trial court, having seen the injuries and photographic evidence, was best placed to assess damages. It was also noted that the Appellant was in breach of the court's orders on security for costs, having not fully deposited the decretal sum as ordered. **Issues for Determination** 12. Having carefully considered the lower court record, the grounds of appeal, the preliminary objection, and the rival submissions by both parties, I find that the following issues fall for determination: ***I. Whether the appeal is competent in light of the Respondent's preliminary objection regarding the Appellant's Notice of Withdrawal of Appeal.*** ***II. Whether the learned trial magistrate erred in law by making an award for general damages that was manifestly excessive.*** **Issue One: Whether the Appeal is Competent** 13. The Respondent raised a preliminary issue, arguing that the appeal is fatally defective and non-existent as the Appellant voluntarily filed a Notice of Withdrawal of Appeal on 15th September 2022. 14. It is not in dispute that J.K. Kibicho & Co., Advocates, then on record for the Appellant, filed a Notice of Withdrawal of the Appeal on 15th September 2022. The Civil Procedure Rules do not expressly provide for the procedure for reinstatement of a withdrawn appeal. However, it is trite that once a party voluntarily withdraws a suit or appeal, the proceedings are terminated. The law is well settled that a party who wishes to set aside such a withdrawal and revive the matter must properly invoke the court's inherent jurisdiction under Section 3A of the Civil Procedure Act and make a formal application for reinstatement. 15. The Respondent cited the persuasive authority of **Dahir v Juma (supra),** where the court held that: ***"Reinstatement of a withdrawn appeal is a discretionary relief, which can only be granted upon a formal application, supported by affidavit evidence, and upon the Court exercising its discretion in favour of the applicant. In the absence of such an application and a positive order reinstating the appeal, there exists no appeal in law."*** 16. Applying this principle, I note that the Appellant, through his new advocates Charles Mbugua & Co., wrote a letter to the Deputy Registrar on 6th October 2022, attempting to "withdraw the withdrawal," but did not file a formal application for reinstatement. The letter was a mere expression of intention. No formal motion was filed, and no order was made by the court reinstating the appeal. 17. The jurisdiction of this court to hear the appeal is rooted in the existence of a competent appeal. A matter that has been voluntarily withdrawn ceases to exist in law. This is not a mere procedural technicality but a substantive jurisdictional defect. As correctly submitted by the Respondent, Article 159(2)(d) of the Constitution cannot be invoked to breathe life into a matter that is non-existent in law. The absence of a subsisting appeal is a jurisdictional defect that cannot be cured by conduct or acquiescence. 18. Consequently, I find that the appeal was lawfully and voluntarily withdrawn on 15th September 2022, and it was not subsequently reinstated through a formal application and court order. The appeal is therefore incompetent. Having reached this conclusion, the appeal is struck out. **Issue Two: Whether the Award of General Damages was Manifestly Excessive** 19. Having found that the appeal is incompetent, the issue of quantum is, strictly speaking, moot. However, for completeness, and had I been minded to entertain the appeal on its merits, I would have made the following observations. 20. The appellate court's jurisdiction to interfere with an award of damages is limited. The principles were settled in the case of Butt v Khan [1981] KLR 349, where the Court of Appeal held that an appellate court should not interfere with an award of damages unless it is based on a wrong principle, or is so inordinately high or low as to represent an entirely erroneous estimate. 21. In this case, the Respondent sustained severe degloving injuries on the left leg, from the mid-thigh to the ankle, with extensive skin and muscle loss. She underwent multiple surgical debridements, stem cell treatment, and skin grafting. The medical evidence, including photographs, demonstrated the severity of the injuries and the permanent disfiguring scars. The trial magistrate, who had the advantage of seeing the injuries and the photographic evidence, considered these factors. 22. While the Appellant's argument that the injuries were "soft tissue in nature" is technically correct, this classification belies the severity of the trauma. The injuries were not minor or transient. The trial court was guided by the principles in Sino Hydro Corporation Ltd v Daniela Atela Kamuda [2016] eKLR and other comparable decisions. An award of Kshs. 2,000,000/- for extensive degloving injuries, multiple surgeries, permanent scars, and significant pain and suffering cannot be said to be inordinately high as to represent an erroneous estimate. **Final Orders** 23. From the foregoing, I do issue the following orders: I. The appeal is hereby struck out for being incompetent, as the same was previously withdrawn and never reinstated. II. Each party shall bear its own costs of this appeal. 24. Orders accordingly. 25. Right of Appeal 30 days. **DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 31ST DAY OF JULY, 2026.** **S.N MBUNGI** **JUDGE** **In the presence of:-** **CA:** Zilda/ Velma. Party absent. Court Assistant to upload the Judgment, in the CTS forthwith.