https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7805

Akula v Muthama & another (Civil Appeal E158 of 2024) [2026] KEHC 7805 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 7805 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E158 of 2024 KL Kandet, J June 5, 2026 Between Douglas Ndete Akula Appellant and David Muthama 1st Respondent Ann Wairimu Kabutu 2nd Respondent (Being an appeal from the Judgment of Hon. M. A Opondo (Ms) SPM, delivered on 31st July, 2024 in Kiambu CMCC NO. E168 of 2023) Judgment 1.This appeal emanates from the judgment delivered on 31st July, 2024 in Kiambu CMCC No. E168 of 2024. The suit originated from the Plaint dated 31st May, 2023 and filed by Douglas Ndete Akula being the Plaintiff in the lower court (hereinafter the Appellant) and against Joyce David Muthama and Ann Wairimu Kabutu (the 1st & 2nd Defendants respectively) in the lower court and hereinafter the Respondents). 2.Before the trial court, the Appellant instituted a suit against the Defendants seeking general damages, special damages in the sum of Kshs.163,550/=, costs of the suit, and interest arising from a road traffic accident that occurred on or about 8th January 2023 along the Ruaka–Ndenderu Road at Ruaka. The Appellant pleaded that, at all material times, the Defendants were the registered owner, driver and/or agents of motor vehicle registration number KDJ 278W, a Land Rover (hereinafter “the subject motor vehicle”). It was further alleged that on the material date, the subject motor vehicle was negligently, recklessly and carelessly driven and/or controlled by the Defendants, their servant, agent and/or driver, causing it to knock down the Appellant, Mr. Douglas Ndete Akula, who was then manning a gate at his place of work, Ruaka Cytonn Limited. As a result of the collision, the Appellant sustained serious bodily injuries and suffered loss and damage. 3.The Respondents filed a Defence dated 18th October, 2023 denying the averments made in the plaint in respect to negligence and liability on their part. 4.The suit proceeded to full hearing with the testimonies of both the Appellant and the Respondent. Upon close of submissions, the trial court delivered judgment on 31st July, 2024 in favour of the Plaintiff and as against the Defendants as follows:i.Liability 80% : 20%ii.General damages Kshs.500,000/=iii.special damages; Kshs.163,500/= andiv.Costs of suit and interest at court rates 5.Aggrieved with the outcome, the Appellant preferred this appeal which is premised on the following grounds:i.That the Learned trial Magistrate erred both in law and fact by failing to consider submissions and legal authorities tendered before the court by the Plaintiff and arrived at an award that was manifestly low;ii.That the Learned trial Magistrate erred in law and in fact in failing to analyse all the evidence availed at the trial and award the Plaintiff the relief sought in the Plaint;iii.That the Learned trial Magistrate erred in law and in fact by failing to take into consideration the nature of injuries the plaintiff sustained while awarding the general damages; andiv.That the learned trial Magistrate erred by awarding the plaintiff General Damages of Kshs.500,000/= and Special damages of Kshs.163,500/= less 20% liability which is inordinately low. 6.The Appellant therefore moved to this Court seeking that the appeal be allowed and that the Judgment/Decision of Hon. M.A. Opondo (SPM), delivered on 31st July 2024 be set side and/or varied, or in the alternative, that this Honourable court do deliver a fresh judgment based on the evidence and submissions on record and assess special and general damages and award him costs of the suit. 7.The Appeal was canvassed by way of written submissions. The Appellant’s counsel condensed his grounds of appeal into one issue of quantum. 8.On this issue, counsel for the Appellant submitted that the trial court failed to properly evaluate the evidence, the pleadings, the authorities cited, and the parties’ submissions before awarding damages. The Appellant contended that the award of Kshs.500,000/= as general damages was inordinately low considering the nature and extent of the injuries sustained by the Appellant. 9.It was submitted that the Appellant sustained serious injuries, namely: a blunt head injury, facial lacerations, a fracture of the left clavicle, bruises on both limbs, a pelvic blunt injury, lacerations on the gluteal region, an open chest wound, and a degloving injury. The Appellant contended that the medical evidence, including the medical report of Dr. Namu Kimunguyi, established that the Appellant endured considerable pain, prolonged morbidity and suffering, temporary incapacity, and had not fully recovered at the time of re-examination. 10.The Appellant submitted that the trial magistrate failed to take into account the severity of the injuries and the comparable authorities cited by the Appellant, thereby arriving at an award that was manifestly low. In support of this position, reliance was placed on the case of Lawrence Wairimu Wanyoike & Another v Joseph Letting [2021] eKLR (Civil Appeal E002 of 2020), where an award of Kshs.800,000/= for injuries including a fractured clavicle was upheld on appeal. Further reliance was placed on UAP Assurance Company Limited & 2 Others v Rachael Warigia Ndungu [2022] eKLR (Civil Appeal No. 715 of 2019), where an award of Kshs.650,000/= for a clavicle fracture with permanent incapacity was upheld. 11.Counsel further cited Mohamed Mahmoud Jabane v Highstone Butty Tongoi Ole Nania [1986] eKLR, arguing that an appellate court is entitled to interfere with an award where it is based on wrong principles or is so inordinately low as to represent an erroneous estimate of damages. Reliance was placed on Butt v Khan [1977] 1 KAR 1. 12.On special damages, counsel submitted that the Appellant specifically pleaded and strictly proved special damages in the sum of Kshs.163,550/=. Reliance was placed on Hahn v Singh, Civil Appeal No. 42 of 1983 [1985] KLR 716, where the Court of Appeal held that special damages must be specifically pleaded and strictly proved. 13.Counsel therefore urged the Court to find that the award of general damages was inordinately low, set it aside, reassess the same in line with comparable authorities and prevailing economic conditions, uphold the award of special damages, and allow the appeal with costs and interest. 14.The Respondent filed its Written Submissions dated 28th November, 2025. The Respondent’s Counsel equally condensed its submissions into one salient issue of quantum. 15.The Respondent submitted that the award of damages is a matter within the discretion of the trial court. It was argued that no basis had been established to warrant interference with the exercise of that discretion. 16.The Respondent submitted that although the Appellant pleaded injuries to the head, face, clavicle, chest, pelvis, gluteal region, and upper and lower limbs, the medical report prepared by Dr. Namu Kimunguyi dated 8th May 2023 classified the injuries as soft tissue injuries and expressed the opinion that the Appellant was expected to make a complete recovery. 17.It was further submitted that the guiding principle in assessing damages is that comparable injuries should attract comparable awards. Reliance was placed on Stanley Maore v Geoffrey Mwenda, Civil Appeal No. 147 of 2002 [2004] eKLR, where the Court of Appeal emphasized the need for consistency in awards for similar injuries. 18.It was argued that the award of Kshs.500,000/= made by the trial court was fair, reasonable, and commensurate with the injuries sustained by the Appellant. Counsel maintained that, given the injuries were essentially soft tissue in nature with no lasting incapacity, there was no justification for disturbing the award. In support of that position, counsel relied on Civicon Limited v Richard Njomo Omwancha & 2 Others [2019] KEHC 8373 (KLR), where the High Court reduced an award of Kshs.1,300,000/= to Kshs.500,000/= after finding the original award excessive in light of the injuries sustained. Counsel submitted that the authority demonstrated that an award of Kshs.500,000/= falls within the reasonable range for comparable injuries. 19.On special damages, counsel submitted that the Appellant pleaded special damages in the sum of Kshs.163,550/= and that the trial court properly awarded the amount proved after taking into account the agreed 20% contributory negligence. 20.In conclusion, counsel contended that the Appellant had failed to demonstrate that the trial court applied the wrong principles or arrived at an erroneous assessment of damages. The Respondent therefore urged the Court to find that the appeal lacks merit and to dismiss it with costs. 21.The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. 22.This being a first Appeal, the first Appellate court’s duty was set out in the the Court of Appeal case in Selle v Associated Motor Boat Co. [1968] EA 123, as follows: -“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. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 23.Similarly, the above role was discussed in Mwanasokoni vs Kenya Bus Service Ltd (1982-88)1KAR and Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR where the Court of Appeal held that: -“This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High 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 allowances in this respect.” 24.Based on the above guidance and having perused the record, parties’ submissions and the decisions referred thereto, the only issue that arises for this Court’s determination is whether the trial court erred in the manner in which it assessed the quantum of damages. 25.The trial court in its assessment of damages, awarded Kshs.500,000/= as general damages subject to liability agreed in the ratio of 80%: 20% in favour of the plaintiff against the Defendant. The trial court was guided by the cases of Civicon Limited vs Richard Njomo Omwancha & 2 others (2019) eKLR and Catherine Gatwiri vs Peter Mwenda Karaai (2018) eKLR which contained comparable injuries. 26.The court also based its finding on the medical report of Dr. Namu Kimunguyi which stated that the Plaintiff was in a fair general condition on examination. That the Appellant had tenderness on the left shoulder with healed bruises, a fracture of the left clavicle and a bruise on both limbs, a blunt injury on the head and pelvic area which were soft tissue injuries of moderate severity. 27.The Appellant on his part, challenged the said award contending that the amount was inordinately low and erroneous. Further, that the trial magistrate failed to take into account the Appellant’s evidence and submission and the severity of the injuries sustained by the Appellant. 28.On the other hand, the Respondents affirmed the trial court’s holding on general damages in particular, the amount was sufficient considering the injuries sustained by the Appellant were majorly soft tissue. 29.The Court of Appeal in Gitobu Imanyara & 2 Others vs. Attorney General [2016] eKLR held that –“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 All ER 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that:‘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.” 30.It is trite that assessment of damages is a matter of judicial discretion and the Court in assessing damages, should take into account, so far as possible, comparable injuries and the passage of time from when the award was made. (see Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR) and Simon Taveta vs. Mercy Mutitu Njeru (2014) KECA 755 (KLR). Similarly, the Court of Appeal in Kaikai v Chacha & 2 others (Civil Appeal E028 of 2020) [2025] KECA 1278 (KLR) had this to say:‘’It is trite that each case must be determined on its circumstances as injuries suffered cannot be 100% identical. The award of general damages is not a mathematical exercise in which a court takes a calculator to add or subtract from previous awards. Each case depends on its own facts, and the award of damages is just an estimate that should be as close as possible for similar injuries. This means that unless an award is inordinately low or high, an appellate court should be slow to interfere with an award of damages by the trial court. This is because, unlike an appellate court that only relies on what is written on paper, the trial Judge has the advantage of seeing the victim of the accident assess the impact of the injuries, even as they consider the medical reports.” 31.The Medical Report dated 8th May, 2023 (Pages 15-16 of the Record of Appeal) by Dr. Namu Kimunguyi shows the Appellant suffered the following injuries namely: a blunt head injury, facial lacerations, a fractured left clavicle, bruises on both limbs, pelvic blunt injury, lacerations on the gluteal region, open chest wounds and begloving injury. Under Clause F on examination, it is indicated that the Appellant was of fair general condition, had tenderness on his left shoulder and healed bruises. Further, on Clause G on opinion and diagnosis, it is presented that the Appellant suffered grievous harm, sustaining soft tissue injuries of moderate severity. 32.Although the Appellant relied on authorities in which awards ranging between Kshs.650,000/= and Kshs.800,000/= were upheld, those decisions involved circumstances that were not entirely comparable, including varying degrees of residual disability and different combinations of injuries. Comparable awards serve only as a guide and each case must be determined on its own facts. In the present case, the absence of permanent incapacity and the favourable prognosis justified a more moderate award. Moreover, the Appellant has not at all shown or demonstrated that the trial magistrate proceeded on wrong principles, or misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately low so as to warrant this Court’s intervention. 33.In my view, having considered the material placed before me and the cited authorities and going by the injuries sustained by the Appellant, I am not persuaded that the award of Kshs.500,000/= is inordinately low so as to attract intervention by this Court. In reaching that conclusion, I have considered comparable decisions involving clavicle fractures and associated soft tissue injuries:i.In H. Young & Company E. A Limited vs Edward Yumatsi (2013) eKLR the High Court on appeal upheld an award of Kshs. 500,000/- as general damages where the claimant sustained inter alia deep cut wound on the head and fracture of the right clavicle bone.ii.In the case of Lynn Kambua Enterprises v Edith Vaati Simon Kasika [2021] eKLR the appellate court upheld an award of Ksh.350,000/= for injuries namely: blunt trauma to the neck, blunt trauma to the chest, blunt soft tissue injuries to the left shoulder, fracture of the left clavicle and blunt soft tissue injuries to the right lower rib.iii.In Transline Classic Safaris Limited v Cleophas (Civil Appeal E030 of 2021) [2024] KEHC 1517 (KLR) the victim of the accident suffered a fractured right clavicle, dislocation of left ankle joint, blunt injury to the anterior chest wall leading to soft tissue injuries and deep cut wounds on the forehead. The High Court on Appeal substituted the trial court’s award of Kshs.70000/= for general damages with the award of Kshs550,000/=. 34.The injuries sustained in the foregoing authorities are comparable to those sustained by the Appellant, particularly the fracture of the clavicle accompanied by soft tissue injuries. The awards ranged between Kshs.350,000/= and Kshs.550,000/=, thereby placing the trial court's award of Kshs.500,000/= within a reasonable range. 35.Having considered the injuries sustained, the medical evidence on record, the comparable authorities cited by the parties, and the applicable principles governing appellate interference with awards of damages, I am not persuaded that the award of Kshs.500,000/= was so inordinately low as to represent an erroneous estimate of damages. In the circumstances, there is no justification for disturbing the award. Final Orders 36.Consequently, I find no basis for interfering with the trial court's exercise of discretion in the assessment of damages. The sum of Kshs.500,000/= awarded to the Appellant as general damages is upheld. Liability was agreed in the ratio of 80%:20% in favour of the plaintiff against the Defendant. The award of special was not in contention in this appeal. 37.In the result:i.The appeal is dismissed in its entirety;ii.The judgment and decree of the trial court delivered on 31st July 2024 is hereby affirmed;iii.The Appellant shall bear the costs of this appeal. DATED, SIGNED AND DELIVERED ON THIS 5TH DAY OF JUNE 2026 VIRTUALLY THROUGH THE TEAMS MICROSOFT FORUM.KENNEDY KANDETJUDGEIn The Presence Of:No Appearance For The AppellantNo Appearance For The RespondeNTCourt Assistant: Jael Nosim