Nyakwara v Mutua & another (Civil Appeal E130 of 2024) [2026] KEHC 9109 (KLR) (26 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL DIVISION** **CIVIL APPEAL NO. E0130 OF 2024** **EDNA KWAMBOKA NYAKWARA.………….…………. APPLELLANT** **VERSUS** **ERIC N. MUTUA ………………………………………1ST RESPONDENT** **AUTO CATS INTERNATIONAL LTD………….…2ND RESPONDENT** ***(Being an appeal from the Judgment and Decree of Hon. M. W Kibe, SRM dated 24TH OCTOBER, 2024 at the Magistrates Court at Makindu in Civil Case No. E165 OF 2022)*** **JUDGMENT** 1. This appeal arises out of the decision of Hon. M.W Kibe; Senior Resident Magistrate, in Makindu Chief Magistrate’s Court Civil Suit No. E165 0f 2022; where the 1st Respondent had sued the Appellant and the 2nd Respondent for general damages for pain, suffering and loss of amenities, special damages of Kshs. 6,032/-, costs of the suit and interest thereon and any other relief that the courts may deem fit to grant. 2. In his Plaint, the plaintiffs in the lower court, **Erick Ngao** averred thatthe accident subject to litigation herein occurred on the 8th November, 2019 along the Emali –Wote Road and particularly at the Emali area when the Defendants, their agents, authorised driver or servants so carelessly and negligently drove or controlled MV registration Number KCV 022D in which he was travelling that he caused it to lose control and swerve dangerously that it rolled severally and caused an accident a result of which the Plaintiff/1st Respondent suffered injuries, loss and damage. The 1st Respondent blamed the accident on the Appellant negligence which he particularised at paragraph 4 of the plaint. He particularised the injuries he sustained and special damages at paragraph 5 of the plaint and stated that he relied on the doctrine of ***res ipsa loquitor*** and prayed that judgement be entered in his favour as prayed. 3. The appellant who was the Defendant in the trial court denied all the averments and invited the plaintiff to strict proof thereof. He attributed the accident to the Defendant’s negligence and prayed that the Plaintiff’s suit be dismissed with costs. 4. The trial court considered the evidence placed before it and entered judgement on liability in the ratio of 100% and quantum of Kshs. 450,000/- together with costs and interest from the date of entry of judgement till payment in full. The appellant was aggrieved by the trial court’s decision filed the instant appeal. 5. In the memorandum of appeal, the appellant impugned the trial Magistrate’s quantum award on grounds that 1. the Hon. Magistrate erred in law by awarding the 1st Respondent a sum of Kshs. 450,000/- which were manifestly excessive in the circumstances and thus failed to appreciate the principles applicable in the award of damages. 2. That the trial magistrate erred in law and fact by failing to consider the Appellant’s submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum. 6. The Appellants prayed that the appeal be allowed and the trial court’s judgement on quantum be set aside and the same be revised to be commensurate with the evidence on record. They also prayed for costs of the appeal. 7. This being a first appeal, I am alive to the responsibility of the court. I am therefore called upon to analyse and re-assess the evidence on record and reach my own conclusions bearing in mind that I neither saw nor heard the witnesses testify (see **Selle v Associated Motor Boat Co**. [1968] EA 123). In **Kiruga v Kiruga & Another** [1988] KLR 348, the Court of Appeal observed that; ” An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution” 1. PW1, No. 74858 PC Joseph Karanja, testified that he is a police officer based at Emali Police Station, where he performs traffic duties. He stated that he was the investigating officer in the instant matter and recalled that the accident that is the subject of this litigation occurred on 21st May 2022 along the Emali–Wote Road. He testified that the accident was self-involving and involved the driver and three other passengers. He further stated that their investigations revealed that the Appellant’s driver was to blame for the accident. 2. PW2, Dr. Titus Nzina, testified that he examined the Plaintiff, who had sustained the injuries particularised in paragraph 5 of the Plaint. In his medical report dated 27th July 2022, he confirmed that the 1st Respondent had suffered the injuries particularised in the Plaint and opined that the injuries were soft tissue in nature, with complete healing anticipated. He further testified that he charged Kshs. 5,000/- for the preparation of the medical report and Kshs. 10,000/- for court attendance. 3. PW3, the 1st Respondent, testified that he resides in Machakos, where he undertakes manual jobs. He stated that he had recorded his witness statement dated 18th October 2022 and prayed that the same be adopted as his evidence-in-chief. He produced his bundle of documents as listed in the bundle of documents dated 18th October 2022. His witness statement was a replication of the averments contained in his Plaint. Upon cross-examination, PW3 stated that he had since healed. 4. The appeal was disposed of by way of written submissions. The Appellants submissions are dated 6th February, 2026 while those of the 1st Respondent are dated 26th February, 2026. I have read and considered the rival submission as filed by the parties. I have already stated that the thrust of the appellant’s case is that the award was inordinately high and did not consider the nature of the injuries disclosed and the parties’ submissions. 5. The 1st Respondent stated that he suffered a blunt head injury, a blunt injury to the back of the neck, a blunt injury to the anterior chest, blunt injuries to both shoulders, a blunt injury to the left thigh, and a blunt injury to the toe. These injuries were classified as soft tissue injuries, which had resolved well. This was confirmed by both the Plaintiff and Dr. Nzina. 6. Whereas the appellant submitted that a sum of Kshs. 250,000/- will adequately compensate the 1st Respondent, the 1st Respondent prayed that the court upholds the awarded sum of Kshs. 450,000. Both parties cited authorities in support of their prayers. 7. Mabeya J in **Ima Hauliers Limited v Otieno** [2026] delivered on 25th may, 2026 relied on the decision in and **Ochola v Owuor** [2024] (KLR) [2020] eKLR, the Court awarded Kshs. 125,000/- for blunt injuries to the head, neck, chest, back and both thighs and in **Ochola v Owuor** [2024] (KLR) and awarded a sum of Kshs. 150,000/- for soft tissue injuries of the right shoulder joint and both knee joints and blunt injuries to the anterior chest wall, the neck, and the back leading to soft tissue injuries. 8. Relying on the authorities above, I agree with the appellant that the award for general damage is excessive. I consequently allow the appeal and substitute the award in general damages of Kshs. 450,000/- with a sum of Kshs. 200,000/-. 9. I consequently set aside the Trial Court’s judgement on General damages of 450,000/- and enter judgement as follows: 10. Pain and suffering Kshs. 200,000/- 11. Special damages Kshs. 6,023/- **Total Kshs. 206,023/-** 1. On costs, it is trite law that costs follow the event. The Appellants will get the costs of the appeal. 2. It is so ordered. Right of appeal 30 days. Dated, signed and delivered via TEAMS at Nairobi, this 26th day of June, 2026. **………………….….** **ROSELINE OGANYO** **JUDGE** **In the presence of: -** Court Assistant…E, Sana Counsel for the Appellants…. Mr. Omagwa Counsel for the Respondent…No Appearance by Miss Mutua who usually appeared for the Respondent.