https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6793

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYANDARUA** **CIVIL APPEAL NO.** **E028 OF 2024** **[Consolidated with** **Civil Appeal Nos.** **E029 and E030 OF 2024]** **BETWEEN** **DUNCAN NDEGWA…………………………………...........................APPELLANT** **AND** **JANE WANJIRA WANGARI………………………………………... RESPONDENT** *(*Being an appeal from the judgment and decree in the Ol Kalou Principal Magistrate’s Court, PMCC No. E091 of 2023 by Hon. L. A. Mwera Sure (Resident Magistrate). **JUDGMENT** 1. Duncan Ndegwa, the appellant, was the defendant in the Olkalou Principal Magistrate’s PMCC No. E091 of 2023. He had been sued by the respondents for general and special damages following a road traffic accident involving motor vehicle registration number KBM 124Z and the motorcycle with registration number KMDL 361L. As a result of the accident, the respondents sustained injuries. The learned trial magistrate held the appellant 100% liable and awarded special and general damages. 2. The appellant was dissatisfied with the judgments and submitted this appeal through Kinyanjui Njuguna & Company Advocates. He raised the following common grounds in all the appeals: 3. The learned trial magistrate erred in law and in fact in finding that the defendant was liable at 100%. 4. The learned magistrate erred in law and fact in holding the defendant liable for negligence. Yet the evidence of PW 2, a police officer, was not conclusive as to whether the defendant was to blame for the accident. 5. The learned magistrate erred in law and in fact in placing a lot of weight on the applicant's evidence as opposed to that of the respondent. 6. The learned trial magistrate erred in law and in fact in failing to appreciate the reasonable and sufficient evidence tendered in court when assessing and awarding damages. 7. The learned trial magistrate erred in law and in fact in failing to consider the appellant's statement of defence against the weight of the evidence tendered by the plaintiff. 8. The learned trial magistrate erred in law and in fact in failing to evaluate the evidence in its totality and in failing to take into consideration submissions and authorities submitted by the appellant. 9. The learned trial magistrate misdirected herself and erred in law and fact by disregarding reliable medical evidence and instead relying on the untruthful, contradictory testimony of the respondent. 10. The learned trial magistrate misdirected herself and erred in law and fact by disregarding the fact that the respondent's doctor was guilty of exaggeration of injuries or the degree of incapacitation. 11. The respondents were represented by Gekong’a & Company Advocates. They argued that the award was not excessive and should not be disturbed. 12. This Court is the first appellate court. I recognize my duty to assess all the evidence on record, considering that I did not have the advantage of observing the witnesses testify and noting their demeanour. I will be guided by the decision in the case of **Selle vs Associated Motor Boat Co. Ltd. [1965] E.A. 123**, in which it was held that the first appellate court must reconsider and evaluate the evidence presented before the trial court, assess it, and draw its conclusions in the matter. 13. The primary concern here is liability, which depends on the specific facts of each case. Liability is allocated according to the degree of fault and blameworthiness of the responsible party. 14. According to the evidence of Charles Kinyua, he was riding a motorcycle towards Ol Kalou. The motor vehicle registration number KBM 124Z was being driven in the opposite direction. The driver lost control and collided with the motorcycle registration number KMDL 361L. 15. The evidence of PC George Ochieng Okeyo was that the motor vehicle registration number KBM 124Z was attempting to overtake when it collided with the motorcyclist. The accident was in the motorcyclist's lane. 16. Duncan Ndegwa Ndungu, the appellant, testified that the respondents left their lane in an attempt to overtake a motor vehicle when the collision occurred in his lane. 17. Two conflicting accounts existed regarding the cause of the accident. The respondents’ version was corroborated by police officer PC George Ochieng Okeyo, who visited the scene. No evidence pointed to the respondent's fault. Liability cannot be assigned without proof of fault. In the case of **Kiema Mutuku vs Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258,** it was established that: ***There is yet no liability without fault in the legal system in Kenya, and the plaintiff must prove some negligence against the defendant where the claim is based on negligence.*** 1. The finding by the learned magistrate on liability cannot be faulted. 2. In Civil Appeal No. E028 of 2024, the appellant further raised the following grounds of appeal: 3. The learned magistrate erred in law and fact in assessing the cost of future medical expenses at Kshs. 200,000/-, which is highly exaggerated and lacks sufficient evidence or a medical quotation from an independent hospital. 4. The learned magistrate erred in law and in fact in awarding an exorbitant sum of Kshs. 1,300,000/= as general damages, which is clearly excessive compared to the weight of evidence adduced before the court and not in tandem with decided cases over similar injuries. 5. The learned trial magistrate misdirected herself and erred in law and fact by assessing and awarding unreasonable, excessive damages for loss of earnings/diminished earning capacity at Kshs. 1,878,240/- in respect of an unjustified relief, and which is so inordinately high as to represent an entirely erroneous estimate, and against the weight of evidence, while there was no evidence or basis at all in law or fact in support of such an unjustifiable award. 6. The learned magistrate erred in law and in fact in awarding special damages of Kshs. 119,165/ which were never specifically proved as per the law. 7. The learned magistrate failed to exercise her discretion judiciously in awarding general damages and failed to apply the settled principles of the law. Thus, there was no good or proper basis for the said assessment of damages. 8. The learned magistrate erred in law and fact in awarding an amount of damages that is so high as to be an erroneous and an unjust estimate. 9. The learned trial magistrate erred in law and fact by totally disregarding the submissions of the defendant and thereby arriving at a wrong decision. 10. Before an appellate court can intervene in an award of damages, it must be satisfied that a wrong principle of law was applied, irrelevant factors were considered, relevant factors were omitted, or the award is inordinately low or high. These principles were established by the Privy Council in **Nance vs British Columbia Electric Railways Co. Ltd. [1951] AC 601 on page 613,** where it stated: ***The principles applicable under this head are not in doubt. Whether the assessment of damages is made by a judge or jury, the appellate court is not justified in replacing the awarded figure with another simply because it would have provided a different amount if it had initially tried the case. Even if the tribunal of first instance was a judge sitting alone, the appellate court must be satisfied that the judge, in determining the damages, applied an incorrect principle of law (such as considering irrelevant factors or omitting relevant ones); or, failing this, that the amount awarded is so inordinately low or high that it constitutes a wholly erroneous estimate of damages (Flint vs Lovell [1935] 1KB 354), as affirmed by the House of Lords in Davis vs Powell Duffryn Associated Collieries Ltd. [1941] AC 601.*** 1. Jane Wanjira Wangari, the respondent in this appeal (E028 of 2024), was examined by Dr Wellington K. Kiamba on the 13th day of September 2023 and filed a report which showed the injuries sustained as follows: 1. Fracture of the left femur, 2. Fracture of the last lower molar tooth, 3. Soft tissue injuries on the lower back, 4. Soft tissue injuries of the lips, 5. Cut wound on the right side of the tongue, 6. Soft tissue injuries of the sagittal region of the scalp, and 7. Severe soft tissue injuries of the right wrist joint. The doctor was of the following opinion: ***Jane Wanjira Wangari sustained a fracture of the left femur, a fracture of the left lower molar tooth, severe soft tissue injuries of the lower back, soft tissue injuries of the lips, a cut wound on the right side of the tongue, soft tissue injuries of the sagittal region of the scalp and severe soft tissue injuries of the right wrist joint during this accident. The fracture of the left femur has united, but she has a 3 cm shortening of the left lower limb compared to the right. This has resulted in tilting of the pelvis to the left, and she will eventually develop post traumatic osteo arthritis of the left hip joint. She is also required to wear a raised shoe on the left foot. The function of the left lower limb is adduced. She is limping and cannot walk without support (using a walking stick). She suffers from a severe backache and cannot carry anything on her back. The implants will require removal in future. The cost of future treatment will be at least Kshs. 200,000/=. She has recovered from the other injuries.*** ***I classify the degree of injury as grievous harm. She should be awarded a permanent disability of forty per cent (40%). She has not resumed her usual duties since the accident. She cannot stand for many hours or walk long distances.*** 1. The respondent stated she would need Kshs. 200,000 for upcoming medical costs, supported by Dr Wellington K. Kiamba. The appellant contended that this amount was excessive. Dr Malik opined that the surgery, if performed at a mission or government hospital, would cost around Kshs. 50,000. These opinions conflicted. His opinion was as follows: ***Jane Wanjira sustained a closed, comminuted fracture of the middle third of he left femur and soft tissue injuries to her head, face, right wrist and back as a result of a motorcycle accident. She was admitted to the hospital and underwent open reduction and internal fixation of the fracture of her femur with an intramedullary, interlocking metal nail and screws. She made a good recovery, was mobilized on cutches, and was discharged from the hospital. She was followed up in the outpatient clinic, and she stopped using the crutches after about three months. She still complains of pain in the left leg with walking, the right wrist, and the lower back.*** ***On clinical examination, her right wrist is fully mobile and pain-free. There is no clinically demonstrable sign of any permanent disability affecting the lower spine. The fracture of her right femur has united fully and is in good position. There is a 1cm shortening of her left leg as noted above.*** ***The mental implant can remain in her left indefinitely, but she can choose to have it removed if she so wishes. Such an operation will cost her about shs. 50,000, if it is done in a government or mission hospital.*** ***She suffered total incapacity of a temporary nature for a period of three months, followed by a partial incapacity of a permanent nature to date. She has suffered a permanent physical disability of five per cent.*** 1. When medical opinions conflict, there are generally two ways to resolve the issue. The first is to seek a third opinion from an impartial doctor. The second is to make the best decision based on the available information. Sometimes, the evidence presented to the court lacks clarity, leading courts to use an average to determine the permanent disability percentage or future medical costs. In this case, the trial court accepted one of the opinions. 2. In this case, I will examine the opinions to determine whether the court's decision was supported by convincing evidence and reasoning. The learned trial magistrate based her decision on Dr Kiamba's opinion. She reasoned that the appellant should have called Dr Malik to explain his different assessment of permanent disability. This was a sound reasoning approach. I see no reason to diverge from her conclusion in this appeal, as well as in Civil Appeals numbers E029 and E030 of 2024, where similar circumstances arose. 3. In the trial court, the appellant proposed an award of Kshs. 400,000 in general damages. He relied on several decisions to support the proposal. The closest case for comparison was **Civicon Limited v Richard Njomo Omwancha & 2 others [2019] eKLR**. The second respondent, who sustained a deep cut on the left earlobe, tenderness on the left lateral chest wall, a swollen and painful left arm, bruises on the left hand, a swollen and tender left elbow with bruises, a cut on the left foreleg, a fracture of the left tibia and fibula, and a dislocated left hip joint, was awarded Kshs.450,000 in general damages in 2019. Dr Morebu assessed her permanent disability at 30%, 4. The Court of Appeal in ***Mbaka Nguru and Another v James George Rakwar* NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR** stated that: ***The award must, however, reflect the trend of previous, recent, and comparable awards. Considering the authorities cited, all other relevant factors this court has to take into account, and keeping in mind that the award should fairly compensate the injured under Kenyan conditions*.** 1. After perusing the earlier decided cases and after factoring in the injuries Jane Wanjira Wangari sustained, I am persuaded that the award in general damages was on the higher side. The award by the trial magistrate is set aside and substituted with an award of Kshs. 1,000,000. 2. The award for future medical expenses was contested due to conflicting opinions from two examining doctors. The appellant, contesting the first doctor's assessment, should have summoned the second doctor, who provided a different estimate, to clarify matters for the court. Their failure to do so meant the trial court had to rely solely on the first doctor's opinion. I see no basis to overturn this award. 3. Loss of earnings is special damage and must be strictly proved. The Court of Appeal in **Douglas Kalafa Ombeva v David Ngama [2013] KECA 538 (KLR**) held that as follows: ***Loss of earnings is a special damage claim, and it is trite law that special damages must be pleaded and proved. Where there is no evidence regarding special damages, the court will not act in a vacuum or whimsically. In the present case, the appellant provided no evidence that he was indeed employed at Bons Company and that hedeed employed at Bons Company and that he was earning the 3,670.00. In this case, the sum pleaded was Kshs. 3,913.60, but like in the Karanu case, there was no evidence to support this claim. Even though the appellant claims that the sum was reasonable, and the court ought to allow it, we find no basis to do so. We are satisfied that the trial judge applied the correct principles on this head, and this ground of appeal therefore* fails.** 1. The loss of earnings was claimed, but no evidence was provided to verify that the amount claimed was earned on a monthly basis. Consequently, the trial court used the minimum wage of Kshs. 15,652. It applied a 10-year multiplier to the respondent, who was 38 years old. This approach was reasonable, and I see no reason to alter the award. 2. After analyzing the evidence on record, the appeal in Civil Appeal number E028 of 2024 has been partially allowed in terms of paragraph 19 hereinabove, with half the costs. 3. In Civil Appeal No. E029 of 2024, the appellant contended that an award of Kshs. 800,000 was inordinately high. He also argued that the future medical expenses of Kshs. 171,811 were not proved. 4. Tabitha Njeri Wambui, the respondent, sustained the following injuries: 1. Fracture of the left femur, 2. Fracture of the left tibia, and 3. Bruises on the left knee. 5. In the trial court, the appellant proposed an award of Kshs. 400,000 in general damages. He relied on several decisions to support the proposal. The closest case for comparison was **DKM v Mwangangi [2023] KEHC 18105 (KLR).** The respondent, who was unconscious upon first admission, sustained a wound on the lower right lateral part of both legs, a fracture of the right femur, a fracture of the left femur, and a fracture of the medial fibula of the left leg. He was awarded Kshs. 500,000 in general damages. 6. I am persuaded that the award on general damages was on the higher side. I set the same aside, and it is substituted with an award of Kshs. 500,000. 7. The award on future earnings will not be disturbed as observed in paragraph 16 hereinabove. 8. This appeal has partially succeeded with half the costs. 9. Charles Gakuru Kinyua is the respondent in the Civil Appeal number E030 of 2024. He was awarded Kshs. 1,878,240 general damages and Kshs.200, 000 for future medical expenses. The appellant has argued that the awards were inordinately high. 10. According to the report by Dr Kiamba, Charles Gakuru Kinyua sustained injuries, and it reads as follows: ***displaced fracture of the left femur midshaft, degloving injury of the right foot, soft tissue injures of the right leg, laceration on the scalp and laceration on the left hip joint during this accident. He has recovered from the soft tissue injuries of the right leg, degloving injury of the right foot and lacerations on the scalp and left hip. He has developed severe chronic osteomyelitis of the left femur. He is bedridden. He is still on treatment. He requires sequestrectomy and irrigation with powerful antibiotics in future. He is still on powerful antibiotics and analgesics. The cost of future treatment will be at least Kshs. 300,000/=.*** ***I classify the degree of injury as grievous harm. He should be awarded a permanent disability of seventy per cent (70%).*** 1. Dr Malik’s report stated: ***Charles Kaguru sustained a fracture of the middle third of his left femur and soft tissue injuries to his scalp, left hip joint and right foot as a result of motor cycle accident. He was admitted, and the details of the treatment of his fracture are as noted above. Unfortunately, he developed infection of the left femur (osteomyelitis) from the time his left was fitted with external fixator clamps. The infection in his left leg has now been completely cleared and the nail in his left has been removed. He has no shortening of the left, and the joints in this left are fully mobile and free of pain. He walks normally.*** ***He still complains of occasional pain in the left thigh on walking.*** ***On clinical examination, his femur is straight and solidly united. He has fully mobile joints in the left leg and both legs, and they are equal in length.*** ***He suffered total incapacity of a temporary nature for a period of one year, followed by a partial incapacity of a temporary nature for a further period of three months. He has suffered no permanent physical disability.*** 1. Like in the other two cases, the two doctors disagreed on the issue of permanent disability and the cost of future medical expenses. Paragraph 16 hereinabove covered this issue. 2. The appellant had proposed Kshs. 400,000 general damages. He relied on several decided cases, and the closest I find in their list is **Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR**). The Respondent in this appeal testified on oath as PW1 and stated that she was involved in an accident and sustained the following injuries: A fracture on the right leg, chest injuries, injuries on the eyebrow, an injury on the left leg and an injury on the left eye. She was awarded Kshs 400,000 in general damages. 3. Recognizing that no two cases are alike, I still believe the award for general damages was excessively high. Therefore, the trial court's award is overturned and replaced with Kshs. 1,00,000. This appeal has been partly successful, and half of the costs are awarded. **Delivered and signed at Nyandarua, this 20th day of May 2026** **KIARIE WAWERU KIARIE** **JUDGE**