Emilly Uside v West Kenya Sugar

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CIVIL APPEAL NO. E048 OF 2024** **EMILLY USIDE** ………………………........................................ **APPELLANT** **-VERSUS-** **WEST KENYA SUGAR** ...................................................... **RESPONDENT** *(Being an appeal from the Judgment and Decree of Hon. J. A. Agonda, Principal Magistrate, delivered on 22nd August 2024 in Vihiga PMCC No. 32 of 2020* **CORAM JUSTICE R. NYAKUNDI** **M/S M. A. OKUMU & COMPANY ADVOCATES** **M/S NYAIRO & COMPANY ADVOCATES** **JUDGMENT** ## A. INTRODUCTION AND BACKGROUND 1. By a plaint dated 17th January 2020, and subsequently by an amended plaint dated 1st September 2023, the Appellant sued the Respondent for general and special damages, costs and interest arising out of a road traffic accident which occurred on 24th December 2019 along the Kisumu–Kakamega road at Lunyerere area. 2. The Appellant's case was that she was lawfully travelling as a fare-paying passenger aboard tuk tuk registration number KTWA 6600 when motor vehicle registration number KBU 713P, a FAW lorry owned by the Respondent, was so negligently, carelessly and recklessly driven at high speed that its driver lost control and rammed into the rear of the tuk tuk, occasioning her severe bodily injuries. 3. The Respondent filed a statement of defence dated 29th January 2020, and later an amended statement of defence dated 11th March 2024, denying ownership of the subject motor vehicle, denying knowledge of the accident, denying the particulars of negligence imputed to it, and pleading in the alternative that any such accident was wholly caused or contributed to by the negligence of the tuk tuk rider and of the Appellant herself. 4. The matter proceeded to full hearing. The Appellant testified as PW1 and called three medical witnesses: Dr. John Ngololo (PW2), a consultant radiologist formerly stationed at Vihiga County Referral Hospital; Dr. Neema Mbaruku (PW3), a consultant orthopaedic Surgeon who produced the medical report of the late Dr. Olima; and Dr. Vitalis Juma (PW4), the Medical Superintendent of Vihiga County Referral Hospital, who produced the discharge summary. The Respondent called a single witness, its driver Musa Hassan (DW1). 5. After the close of both cases, and upon an application dated 1st September 2023, the trial Court by a ruling delivered on 22nd February 2024 granted the Appellant leave to amend her plaint so as to plead further particulars of the injuries she had sustained. The amended plaint and the amended defence followed. The parties then filed written submissions and the trial Court reserved judgment. ## B. THE JUDGMENT OF THE TRIAL COURT 1. In her judgment delivered on 22nd August 2024, the learned trial Magistrate framed five issues and resolved each of them in favour of the Appellant. She found that the Respondent was the registered owner of motor vehicle registration number KBU 713P as at 24th December 2019; that the accident occurred as pleaded; and that, the Appellant's evidence being overwhelming and DW1's evidence standing alone and uncorroborated, the Respondent was 100% liable for the occurrence of the accident. 2. On the fourth issue, the injuries and the appropriate quantum the learned Magistrate set out the thirteen heads of injury pleaded in the amended plaint. She then held, in terms: *“In the Plaintiff's evidence, she confirmed having sustained above injuries and sought treatment at Vihiga County Referral hospital, I have carefully perused the treatment notes and do note that the Plaintiff was treated in the hospital after having been diagnosed with injuries herein. Further, the above injuries were confirmed by Dr. Olima ... Based on the reasons advanced herein it is my finding that the Plaintiff has on a balance of probabilities proved her case against the Defendants.”* 1. Having so found, the learned Magistrate cited two authorities *Dennis Matagaro v NKO (Minor suing through next friend and father WOO) [2021] eKLR*, where an award of Kshs. 700,000/= was upheld for a mild head injury, tenderness of the neck, dislocation of the left shoulder, tenderness of the back, deep lacerated cut wounds on the forearms and a fracture of the left tibia and fibula; and *Blue Horizon Travel Co. Ltd v Kenneth Njoroge [2020] eKLR*, where Kshs. 400,000/= was awarded for cut wounds to the head and right forearm, bruising, fractured ribs, right haemothorax and fracture dislocations of the right hip and right shoulder. 2. She then concluded that, “taking into account the inflationary trends, nature of the injuries and general trend of awards based on such similar injuries”, an award of Kshs. 800,000/= would adequately compensate the Appellant. Special damages of Kshs. 18,725/= had been pleaded but only Kshs. 13,275/= was supported by receipts, and that lesser sum was awarded. 3. Judgment was accordingly entered for the Appellant as follows: liability at 100%; general damages Kshs. 800,000/=; special damages Kshs. 13,275/=; total Kshs. 813,275/=, together with costs and interest at Court rates from the date of judgment until payment in full. ## C. THE APPEAL 1. The Appellant, being dissatisfied with that award, preferred the present appeal by a memorandum of appeal filed on 21st September 2024, raising three grounds which may be compressed into one: that the learned trial Magistrate erred in law and in fact by disregarding the Appellant's submissions and evidence on quantum, by deviating substantially from the pleadings, evidence and submissions on record, and by failing to appreciate the principles governing the award of general damages relative to the nature of the injuries reflected in the doctors' reports, thereby arriving at an award of Kshs. 800,000/= that was grossly low, not commensurate with the injuries, and occasioning a miscarriage of justice. 2. It is common ground that this appeal is on quantum of general damages only. Liability is not in issue. The award of special damages is not in issue. 3. The appeal was, by directions given on 29th October 2025, canvassed by way of written submissions. The Appellant filed submissions dated 29th November 2025; the Respondent filed submissions dated 3rd December 2025. 4. Before turning to those submissions, I record a preliminary housekeeping matter. The Respondent's written submissions describe the impugned decision as having been delivered in “*Vihiga PMCC No. 32 of 2020 between Nancy Sakwa v West Kenya Sugar*”. No such party features anywhere in the record. The certified copy of the judgment at pages 100–105 of the Record of Appeal is plainly entitled *Emily Uside v West Kenya Sugar*, MCCC/32/2020. I am satisfied that this is a typographical slip in the Respondent's submissions, that no prejudice arises, and that Article 159(2)(d) of the Constitution requires me to disregard it. Similar slips as to dates appearing in the parties' respective submissions are likewise treated as clerical. The operative date of the impugned judgment is 22nd August 2024. ## D. THE APPELLANT'S SUBMISSIONS 1. Learned Counsel for the Appellant, M/s M. A. Okumu & Company Advocates, set out the particulars of injury pleaded at paragraph 5 of the amended plaint and the particulars of continuing injury, and drew the Court's attention to the four documents relied upon at trial: the discharge summary from Vihiga County Referral Hospital dated 30th December 2019; the CT scan head report dated 24th December 2019; the P3 form; and the medical report of the late Dr. Olima. 2. It was submitted that although the percentage of incapacity was not stated in Dr. Olima's report, it is beyond argument that the Appellant suffered severe head and facial injuries resulting in blurred vision and poor focus, numbness of the left side of the face, and permanent disfiguring scars on her face. It was further pointed out that the Respondent, having obtained leave to subject the Appellant to a second medical examination, never availed any medical report in rebuttal. Relying on *Butt v Khan (Civil Appeal No. 40 of 1997),* learned Counsel submitted that the learned Magistrate had proceeded on wrong principles and misapprehended the evidence, arriving at a figure that was inordinately low. Learned Counsel urged that an award must be in tandem with previous awards for similar injuries, must be neither too high nor too low, and must take account of inflation. 3. A number of authorities were relied upon: *Imbezi v Fairmile School Limited & Another* [2024] KECA 486 (KLR) (Kshs. 1,300,000/= restored); *Kimani v Njuki alias David Kinyua [2024] KEHC 16994 (KLR)* (Kshs. 2,500,000/= upheld); *Mugoye v Siso t/a Jogoce's Group [2024] KEHC 13031 (KLR)* (Kshs. 4,000,000/= substituted for Kshs. 1,500,000/=); *Benson Wanyoike Nyambura & Another v Esther Muthoni Gichimu, Murang'a HCCA No. E005B of 2021* (Kshs. 1,200,000/= upheld); *Moi Teaching and Referral Hospital Board & Another v Leonard Kibiwott Kosgei* [2020] eKLR (Kshs. 2,000,000/= upheld); *Baj v Roadstar Limited & 2 Others* [2018] eKLR (Kshs. 1,500,000/= upheld); *Thuge Caroline & 2 Others v Kimani Nganga Kago* [2022] eKLR (Kshs. 1,600,000/= upheld); and *Sosines Orindo v Emkay Builders Limited* [2019] eKLR on the necessity of factoring inflation. 4. The Appellant prayed that the award be enhanced to Kshs. 2,500,000/=. ## E. THE RESPONDENT'S SUBMISSIONS 1. Learned Counsel for the Respondent, M/s Nyairo & Company Advocates, opposed the appeal on two limbs: First, it was submitted that the injuries introduced by the amended plaint dated 1st September 2023 were time-barred, the accident having occurred on 24th December 2019 and the amendment having been sought after more than four years, contrary to Section 4(2) of the Limitation of Actions Act. The Court was urged to disregard the injuries introduced through the amended plaint. Secondly, it was submitted that the Appellant did not prove the pleaded fractures to the required standard. Reliance was placed on the evidence of PW4, Dr. Vitalis Juma, who produced the discharge summary (PExh. 8) and who, it was said, testified that the Appellant had sustained soft tissue injuries to the head, shoulder, elbow and hand, and that there was no indication of any fracture in the discharge summary. It was argued that Dr. Olima's report was mere opinion evidence, unsupported by primary medical documentation, and that the P3 form was never produced in evidence. Reliance was placed on *Michael Okello v Priscilla Atieno* [2021] eKLR and *Shah & Another v Shah & Others* (2003) 1 EA 290. 1. Learned Counsel relied on *Kemfro Africa Limited t/a Meru Express Services & Another v Lubia & Another* [1987] eKLR for the threshold of appellate interference, and on *Otieno & Another v Odhiambo* (Civil Appeal E027 of 2024) [2024] KEHC 7688 (KLR), *Pitalis Opiyo Ager v Daniel Otieno Owino & Another* [2020] eKLR and *Nguku Joseph & Another v Gerald Kihiu Maina* [2020] KEHC 7670 (KLR) as demonstrating the appropriate range of awards. It was submitted that the award of Kshs. 800,000/= was legally sound and generous, that it had already been paid, and that the appeal was an afterthought which ought to be dismissed with costs. ## F. THE DUTY OF THIS COURT AS A FIRST APPELLATE COURT 1. This being a first appeal, my mandate is prescribed by Section 78 of the Civil Procedure Act and settled by a long line of authority. I am under a duty to re-evaluate, re-assess and re-analyze the evidence tendered before the trial Court and to arrive at my own independent conclusions, bearing always in mind that, unlike the trial Court, I neither saw nor heard the witnesses and must make due allowance in that respect: ***Selle*** *& Another v Associated Motor Boat Company Ltd* [1968] EA 123; *Abok James Odera t/a A. J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates* [2013] eKLR. 2. As was said in *Peters v Sunday Post Ltd* (1958) EA 424 at 429, it is a strong thing for an appellate Court to differ from the finding, on a question of fact, of the Judge who tried the case and who had the advantage of seeing and hearing the witnesses. That caution applies with particular force where, as here, the finding sought to be disturbed is one of quantum, which lies in the discretion of the trial Court. 3. The circumstances in which an appellate Court may interfere with an award of general damages are narrow and well known. In *Bashir Ahmed Butt v Uwais Ahmed Khan* (1982–88) 1 KAR 1, Law JA stated: *“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.”* 1. To the same effect are *Kemfro Africa Limited t/a Meru Express Services & Another v A. M. Lubia & Another* (1982–88) 1 KAR 727; *Kitavi v Coastal Bottlers Ltd* [1985] KLR 470; and *Catholic Diocese of Kisumu v Tete* [2014] eKLR, where the Court of Appeal held that an appellate Court is not justified in substituting a figure of its own merely because it would have awarded a different figure had it tried the case at first instance; it may interfere only where the trial Court applied wrong principles, took into account an irrelevant factor, left out of account a relevant one, or misapprehended the evidence, and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate. 2. I remind myself, too, of the caution in *Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko* [2006] eKLR, citing Lord Morris in *H. West & Son Ltd v Shephard* [1964] AC 326 at 353, that the assessment of damages in personal injury cases is essentially a matter of opinion, judgment and experience, and that a member of an appellate tribunal does not proceed to dismiss as wrong the figure of an award merely because it does not correspond with the figure of his own assessment. ## G. ISSUES FOR DETERMINATION 1. Having considered the memorandum of appeal, the record, and the rival submissions, the following issues fall for determination: 2. Whether the Respondent may in absence of a cross-appeal, invite this Court to disregard the injuries pleaded in the amended plaint on the ground of limitation. 3. If so, whether those injuries are statute-barred; 4. Whether the Appellant proved, on a balance of probabilities, the injuries pleaded; 5. Whether the award of Kshs. 800,000/= is so inordinately low as to warrant the interference of this Court and, if so, what award ought properly to be substituted; and 6. Who should bear the costs of this appeal. ## H. ANALYSIS AND DETERMINATION ### (i) The limitation objection and the absence of a cross-appeal 1. The Respondent's first limb is, in substance, an invitation to this Court to set aside the effect of a ruling of the trial Court delivered on 22nd February 2024, and to strike out part of the Appellant's pleadings. That invitation is misconceived for four independent reasons. 2. First, the ruling of 22nd February 2024 granting leave to amend was a decision of the Subordinate Court from which an appeal lay. The Respondent neither appealed against it, nor sought its review, nor cross-appealed against the judgment. Instead, it filed an amended statement of defence dated 11th March 2024 and proceeded to full argument on the amended pleadings. A party may not, having acquiesced in an interlocutory ruling and taken its chances at trial, mount a collateral attack upon it in a wholly separate appeal brought by its opponent on an entirely different question. 3. Secondly, and more fundamentally, it is trite that a Respondent who wishes to have the decision of the trial Court varied or reversed in any respect must file a cross-appeal. A Respondent without a cross-appeal may support the decree on the grounds on which it was given, or on any other ground appearing on the record, but may not seek an outcome more favourable than the decree gives it. The Respondent here seeks a finding that the greater part of the Appellant's proven injuries should be expunged, a finding which, if made, would necessarily depress the award below Kshs. 800,000/=. That is a variation of the decree, and it is not open to the Respondent on this record. 4. Thirdly, the limitation point is misconceived on its own terms. Section 4(2) of the Limitation of Actions Act bars *actions founded on tort* after the expiry of three years from the date on which the cause of action accrued. The cause of action here accrued on 24th December 2019 and suit was instituted on 17th January 2020 — comfortably within time. What the amendment of 1st September 2023 introduced was not a new cause of action but further and better *particulars of injury* flowing from the self-same accident, the self-same breach of duty, and the self-same Defendant. Particulars of injury are not a cause of action; they are the measure of the damage occasioned by a cause of action already pleaded and already before the Court. 5. Fourthly, even had the amendment introduced a new cause of action, Order 8 rule 3(5) of the Civil Procedure Rules expressly permits an amendment notwithstanding the expiry of a limitation period where the new cause of action arises out of the same facts or substantially the same facts as a cause of action in respect of which relief has already been claimed. It plainly does so here. That, no doubt, is why the trial Court exercised its discretion as it did. I accordingly decline the invitation to disregard the injuries pleaded in the amended plaint. The first limb of the Respondent's submissions fails. ### (ii) Whether the injuries were proved 1. The Respondent's second limb rests almost entirely on the evidence of PW4, Dr. Vitalis Juma. With respect, that evidence has been materially mischaracterized. I have read the certified proceedings at pages 116 and 117 of the Record of Appeal. Dr. Juma is the Medical Superintendent of Vihiga County Referral Hospital and a consultant family physician. He was called for the limited purpose of producing the discharge summary prepared by an intern under the supervision of Dr. Ali and the late Dr. Mercy. He deposed that the discharge summary recorded “multiple injuries”, injuries to the “head, shoulder, elbow, hand”, and that “X-ray & CT scan was done”. He then stated, in terms: “I do not have the head CT scan report findings or discharge summary. Had poly trauma — many treatments. The treatment shows there was brain injury could have been mild.” He continued: “The other body parts were soft tissue injuries — No fractures. He had cut wound stitched on the face…”. In cross-examination he confirmed: “I did not treat this patient… It's not clear if the patient sustained fracture.” 2. Read fairly and as a whole, that evidence establishes the very opposite of the proposition advanced. Dr. Juma was not the treating clinician; he did not have the CT scan report; and his observation that “the other body parts were soft tissue injuries — no fractures” was, in context, an observation about parts of the body *other than* the face, where he expressly noted a stitched cut wound. His evidence that a CT scan was in fact performed on the Appellant, and his acknowledgment of post-trauma and of a brain injury, corroborates rather than contradicts the Appellant's case. A witness who candidly says that he does not have the radiological report cannot be treated as having disproved what that report contains. 3. The radiological report was, in any event, before the trial Court, and it was produced and spoken to by its own author. PW2, Dr. John Ngololo, a consultant radiologist, testified that he was working as a consultant radiologist at Vihiga County Referral Hospital and that he examined the Appellant and prepared a report on 24th December 2019 — the very day of the accident. He produced that report as PExh. 5(a). As recorded by the trial Court, his findings were: 1. Displaced fractures of the left anterior wall of the maxillary sinus and of the zygomatic arch; 2. Medial bowing of the medial wall of the left orbit; 3. A fracture of the lateral orbital wall; 4. Entrapment of the medial rectus muscle; 5. Haemorrhage into the left ethmoidal sinus; 6. Bruised left facial soft tissues and skeletal injuries, with no intracranial involvement. 4. Critically, that evidence survived cross-examination intact. At page 113 of the Record of Appeal, PW2 stated under cross-examination by Counsel for the Respondent: “He sustained facial bone fracture and muscle… I examined on 24/12/2019. He could not move eye balls if he was not attended to.” Nothing was put to PW2 to suggest that his films had been misread, that the report was not his, or that the fractures he described were referable to some other event. 5. This is therefore not a case, as the Respondent's authorities contemplate, of a Plaintiff seeking to establish fractures on the strength of an assessment report obtained long after the event and unsupported by any contemporaneous documentation. In *Otieno & Another v Odhiambo* [2024] KEHC 7688 (KLR), Aburili J. declined to find a tooth fracture proved precisely because it was absent from the initial treatment notes, was first noticed three weeks later by the assessing doctor, and was supported by no other documentary evidence. In *Pitalis Opiyo Ager v Daniel Otieno Owino & Another [2020] eKLR* the same learned Judge rejected alleged fractures and dislocations where no X-ray films or reports were ever produced, no plaster or immobilization was recorded, and the P3 form was never exhibited. Here, by contrast, there is a contemporaneous radiological report of the day of the accident, produced in evidence by the consultant radiologist who authored it, and tested in cross-examination. Those authorities are distinguishable on their facts and do not assist the Respondent. 6. It is also clear that neither does the submissions that Dr. Olima's report was “merely an opinion” advance matters. The principle in *Stephen Kinini Wangondu v The Ark Ltd* [2016] eKLR and *Kimatu Mbuvi* (supra) - that expert evidence does not trump all other evidence and must be weighed in the context of the whole record - cuts against the Respondent here. Weighed in the context of the whole record, Dr. Olima's report (produced through PW3, Dr. Neema Mbaruku, whose competence to produce it was not seriously impugned) is consistent with, and corroborated by, the contemporaneous radiology of PW2 and the discharge summary of PW4. 7. There is a further matter. It is apparent from the proceedings at page 114 of the Record of Appeal that at the close of the Appellant's case, Counsel for the Respondent applied for and was granted leave for the Appellant to undergo a second medical examination. No report from any doctor instructed by the Respondent was ever produced. The Respondent called only its driver, DW1, who gave no evidence at all on the medical question. Sections 107 to 109 of the Evidence Act place the burden of proof on the party who asserts, but where a party arms itself with the means of contradicting its opponent's medical evidence and then withholds the result. A Court of appeal is entitled to conclude as the trial Magistrate expressly did that the Appellant's medical evidence “remained wholly uncontroverted, unchallenged and unrebutted.” 8. Finally, and decisively on this issue, **the trial Court itself found the pleaded injuries proved, that is** at page 104 of the Record of Appeal the learned Magistrate, having set out all thirteen heads of injury, held that the Appellant “has on a balance of probabilities proved her case against the Defendants.” There is no cross-appeal against that finding. It stands. 9. On my own independent re-evaluation of the evidence, I reach the same conclusion. I find as a fact that the Appellant sustained the following injuries in the accident of 24th December 2019: 10. A displaced fracture of the left anterior wall of the maxillary sinus; 11. A fracture of the lateral orbital wall of the left eye, with infra-orbital haemorrhage; 12. Medial bowing of the medial wall of the left orbit; 13. A fracture of the left zygomatic arch; 14. Entrapment of the left medial rectus muscle; 15. Haemorrhage into the left ethmoidal sinus; 16. A closed head injury with loss of consciousness (characterised by PW4 as a possibly mild brain injury); 17. Lacerations and cut wounds of the left facial region, the right parietal region and both fronto-parietal regions, requiring suturing; 18. Soft tissue injuries to the chest with bruising of the anterior and right chest walls, haemoptysis, soft tissue injuries to the lower back, and bruises to the left upper arm and fingers. 19. As to the consequences of those injuries, the evidence establishes pain in the left eye with blurring of vision and poor focus; sluggish medial movement of the left eye; persistent headaches; numbness of the left side of the face consistent with injury to the facial nerve; left infra-orbital discolouration; tenderness of the infra-orbital, supra-orbital and medial walls of the left orbit; chest pain with inability to lie on the right side; low back pain; and permanent scarring, namely a sutured scar of the right parietal region measuring approximately 5cm x 0.5cm and bilateral scars of the right and left fronto-parietal regions measuring approximately 4cm x 3cm each. 20. I record, for completeness, two limitations on the Appellant's case which I take into account below. First, no percentage of permanent incapacity was assessed by any doctor. Secondly, no claim for the cost of future or reconstructive surgery was pleaded, quantified or proved. ### (iii) Whether the award of Kshs. 800,000/= should be disturbed 1. I turn to the central question. The Appellant must show not merely that this Court might have awarded more, but that the learned Magistrate proceeded on wrong principles or misapprehended the evidence in some material respect, and so arrived at a figure that was inordinately low. 2. In my respectful view, she has discharged that burden, for the following reasons. 3. First, the comparables relied upon were not comparable. The cardinal principle in the assessment of damages for personal injury is that comparable injuries should, so far as possible, attract comparable awards: *Arrow Car Ltd v Bimomo & 2 Others* [2004] 2 KLR 101; *Stanley Maore v Geoffrey Mwenda* [2004] eKLR; *Rahima Tayab & Others v Anna Mary Kinanu* (1983) KLR 114. The learned Magistrate anchored her award on two decisions. *Dennis Matagaro* concerned a mild head injury, a shoulder dislocation, forearm lacerations and a tibia/fibula fracture. *Blue Horizon Travel* concerned cut wounds, rib fractures, a haemothorax and fracture dislocations of the hip and shoulder. Neither involved a single facial fracture. Neither involved the orbit. Neither involved any injury to the eye or to the facial nerve. Neither involved permanent facial or scalp scarring. The one thing the present case is centrally about - multiple displaced mid-facial fractures with orbital and ocular involvement - finds no reflection whatever in either authority. To assess an award of this kind by reference to authorities that do not touch the principal injury is, with respect, to proceed on a wrong principle. 4. Secondly, relevant factors were left out of account. The judgment nowhere weighs the entrapment of the medial rectus muscle, nor the resulting sluggish medial movement of the left eye with blurring of vision and poor focus, nor the numbness of the left side of the face, nor the permanent scarring of the face and scalp of a woman, nor the fact that these are permanent or long-standing sequelae rather than injuries which resolved on discharge. PW2's unchallenged evidence that the Appellant “could not move eye balls if he was not attended to” underscores the gravity of the ocular component. These were plainly relevant factors and they do not appear to have been brought into the reckoning at all. 5. Thirdly, the evidence was in one material respect misapprehended. At page 104 of the record the learned Magistrate summarized the medical evidence as being that Dr. Olima “observed that suffered multiple soft tissue injuries.” That summary omits the skeletal injuries entirely. It cannot be reconciled with the contemporaneous radiological findings of PW2, which the same judgment had faithfully recorded two pages earlier, nor with the list of thirteen injuries the Court itself had just set out and found proved. That internal inconsistency, in my view, explains the disparity between the finding on injuries and the figure ultimately arrived at. 6. I note in passing, and without labouring the point, that the judgment refers to the Appellant throughout in the masculine and speaks of compensating “him”. Standing alone this would be no more than a clerical infelicity. Read with the matters set out above, it fortifies my conclusion that the assessment of general damages was not individually calibrated to the injuries of this particular claimant. 7. The consequence is that the threshold in *Butt v Khan* and *Catholic Diocese of Kisumu v Tete* is met, and this Court is at liberty, indeed obliged to make its own assessment. ### (iv) The appropriate award 1. In undertaking that assessment I bear in mind that money cannot renew a physical frame that has been battered and shattered, and that all a Court can do is award sums which must be regarded as giving reasonable compensation, assessed with moderation and with an eye to uniformity: *H. West & Son Ltd v Shephard* (supra); *Tayab v Kinanu* (supra). I bear in mind equally that no two cases are on all fours, that pain is not susceptible of measurement on a scale, and that the exercise is one of judgment rather than arithmetic: *Imbezi v Fairmile School Limited & Another* [2024] KECA 486 (KLR), paragraph 10. 2. I have considered the following awards for injuries in the same family as those before me: * *Joseph Karanja Wanjiru v Grace Wangare Nyoro & Another* [2015] eKLR - facial oedema, sub-conjunctival haemorrhage, infra-orbital paraesthesia, fractured mandible, Le Fort I fracture, left zygomatic complex fracture, left orbital rim fracture and mid-palatal split. Kshs. 1,000,000/= in November 2015 (plus future medical expenses). * *Baj v Roadstar Limited & 2 Others* [2018] eKLR — left orbital floor and margin fractures with pneumo-orbit, comminuted left maxillary fractures of the anterior and posterior lateral walls, left zygomatic arch fracture, left mandibular angular fracture and right parasymphyseal fracture. Kshs. 1,500,000/= upheld. * *Thuge Caroline & 2 Others v Kimani Nganga Kago* [2022] eKLR — dento-alveolar fracture involving the maxilla, displaced fractures of both zygomas, rib fractures, loss of five teeth and soft tissue injuries. Kshs. 1,600,000/= upheld. * *Benson Wanyoike Nyambura & Another v Esther Muthoni Gichimu*, Murang'a HCCA No. E005B of 2021 (Githua J., 16th October 2025) — cranial fractures of the left skull with left maxillary intra-sinus haematoma, right temporal lobe haemorrhagic contusion, left cerebral hemiatrophy with mild subdural hygroma, clavicle fracture, maxillary fracture with eight loose teeth. Kshs. 1,200,000/= (awarded in 2020) upheld. * *Imbezi v Fairmile School Limited & Another* [2024] KECA 486 (KLR) — fractures of the orbit, left temporal bone, left zygomatic bone and left maxilla, lacerations of the left arm and a fracture of the left tibia. Kshs. 1,300,000/= restored by the Court of Appeal in May 2024 (award originally made for a 2013 accident). * *Moi Teaching and Referral Hospital Board & Another v Leonard Kibiwott Kosgei* [2020] eKLR — head injury with semi-consciousness, fractures of the nasal bones, mandible and maxilla, loss of a tooth, and fractures of both tibiae. Kshs. 2,000,000/= upheld in January 2020. * *Mugoye v Siso t/a Jogoce's Group* [2024] KEHC 13031 (KLR) (Aburili J., 22nd October 2024) — comminuted fractures of the anterior and lateral walls of the maxillary sinus, displaced comminuted fracture of the right lateral orbital wall, inferiorly displaced fracture of the right orbital floor, comminuted fracture of the right zygomatic arch, herniation of orbital fat, reduced visual acuity of the right eye, facial scarring, and an assessed disability of 20%. Kshs. 4,000,000/= substituted for Kshs. 1,500,000/=, together with Kshs. 450,000/= for reconstructive surgery. * *Kimani v Njuki alias David Kinyua* [2024] KEHC 16994 (KLR) — compound fractures of the left tibia and fibula, fracture of the mandible, fracture of the right zygomatic bone, head injury, facial lacerations, hepatic lobe contusion, a permanent limp and 30% permanent incapacity of the left leg. Kshs. 2,500,000/= upheld in October 2024. 3. *Mugoye* is, on the medical facts, the closest analogue to the present case: it concerned the same constellation of mid-facial injuries- maxillary sinus, lateral orbital wall, orbital floor and zygomatic arch - with consequent impairment of the eye and facial scarring, and it was decided by this Court within the same judicial region only two months after the judgment now under appeal. It nevertheless represents the upper end of the range, and two features distinguish it: there was an assessed permanent disability of 20%, and there was proved and costed provision for reconstructive surgery. Neither feature is present here. *Kimani* is likewise distinguishable. The award of Kshs. 2,500,000/= there was driven substantially by compound long-bone fractures, a permanent limp and an assessed 30% permanent incapacity of the leg. The Appellant before me, gravely injured though she was, has no assessed incapacity on the record. The figure of Kshs. 2,500,000/= that she seeks is, in my judgment, pitched too high. 4. *The phrase “pain and suffering” conjures up a deeply subjective response to physical or/and emotional trauma. In the context of law, compensable “pain” refers to an unpleasant or distressing sensation of physical or mental discomfort (of varied intensity) that is a consequence of wrongfully occasioned physical or mental harm. The term “suffering” tends to be interpreted as indicating a distressing emotional experience of the subjective perception of physical pain and/or mental anguish. There exist quantitative scientific instruments that measure pain intensity and thus, to some extent, enable objective evaluation of pain. Likewise, loss of amenities of life due to disability and disfigurement can be objectively assessed. In contrast, emotional suffering and/or the loss of enjoyment of life are inherently subjective, and unless expressed and communicated in some way are incapable of quantification and assessment. Persons who – as a result of tortious conduct – have no awareness of their injuries are not entitled to damages for pain and suffering, though they may be awarded damages for loss of amenities of life. (See Barrie P, Personal Injury Law (2nd ed, Oxford University Press, Oxford, 2006) p 389, citing Lim Poh Choo v Camden and Islington AHA [1980]AC 174)* 5. This is one area of law in which Trial Courts need to sit in the arm chair of the victim when determining the amount of compensation for pain and suffering. It is sometime difficult to fathom the psychological traumatic experience occasioned by such pain and suffering which at al material times happens accidentally due to the breach of the duty of care owed by the wrong doer to other motorists in the same highway or road. When looks at past awards it is not easy to get a feel of the Claimant’s diminution in his/her quality of life arising out of the accident. The inherent problem in applying this principle of past awards to access damages for pain and suffering, it is apparent that is unpredictability on the nature of awards for very similar injuries that attract damages at great variance with another offending the fundamental principle of fairness and proportionality. I consider the following to be appropriate standards on assemnet of awards but to be under pinned on the comparative analysis of the past and present circumstances of the case at hand to be the starting point of laying down the departure points on both category of cases with is commonly referred as similar characteristics of injuries but not identical: * Serious injury: “cases where the injury leaves a disability which mars general activities and enjoyment of life, but allows reasonable mobility to the victim, for example, the loss of a limb replaced by a satisfactory artificial device, or bad fractures leaving recurrent pain”. * Substantial injury: “extends to injuries which require treatment in hospital for many months and leave the victim with a much reduced degree of mobility, for example, a leg amputated from the thigh, so that an artificial leg cannot be used satisfactorily; or multiple injuries which leave a condition requiring regular treatment for the rest of the victim's life”. * Gross disability: “injuries which leave the victim with very restricted mobility or cause serious mental disability or behavioural changes. This bracket includes paraplegics who, particularly if young, can expect to be placed at the upper end of the bracket”. * Disaster: “where the victim requires constant care and attention and is incapable of ever leading or appreciating an independent adult life. This bracket includes tetraplegics and those reduced to "living cabbages" or left with the mental age of very young children”. 1. As a general point of observation in this area of law and upon reviewing many decisions which point towards settling the principles on assessment of damages, there are certain aggravating factors which arise of the post-injury recovery of the serious injuries suffered by the victim sometimes which are never taken into account in the Courts exercise of judicial discretion to fashion a fair and proportionate awards as compensation to the victim. I have in mind additional damages which may be awarded to the victim/plaintiff to compensate him/her for the injuries feelings of dignity, pride, self-esteem, diminished enjoyment of life which was measured by the quality one lead prior to the accident but now for the conduct of the tortfeasor’s all those amenities of life are no longer available to that victim. Imagine when one has been physically injured and grievously so with permanent disability or disfigurement because of the negligence of another and perhaps he/she was rundown by a careless driver, motorcycle rider or a drunken driver driving a public service vehicle. With respect to non-pecuniary harms, for instance the victim of the accident might have suffered physical pain, she/he can longer engage in pleasurable activities in which he/she would otherwise have done but for the injuries suffered that is no longer possible. Sometimes accident injuries leave their victims with a loss of dignity, psychological trauma or embarrassment stemming from a change of one image and staring at the fear of a shortened life expectancy. I see this to be some of the challenges facing the legal system to provide full restoration of the right to life in favour of victims of road traffic accident through money damages. I find the facts of this case to be one best understood within this context. 2. Conversely, the Respondent's authorities are of no assistance. *Otieno v Odhiambo* (Kshs. 100,000/=) and *Pitalis Opiyo Ager* (Kshs. 200,000/=) were both cases in which the alleged fractures were found *not* to have been proved and the injuries were held to be soft tissue in nature - the precise opposite of my finding here. *Nguku Joseph & Another v Gerald Kihiu Maina* (Kshs. 500,000/=) concerned a single fracture of the humerus which had healed fully with no detectable permanent physical disability, and no facial or ocular injury whatsoever. 3. I must also give effect to the principle, emphatically restated by the Court of Appeal in ***Sosines Orindo v Emkay Builders Limited*** [2019] eKLR, that a Court assessing damages must take into account the element of inflation and the diminishing value of the Kenya shilling, and that a failure to do so is itself an error of principle. The awards in ***Joseph Karanja Wanjiru* (2015), *Baj* (2018), *Benson Wanyoike*** (award made 2020) and ***Thuge Caroline*** (2022) must be viewed through that lens when transposed to the present day. 4. Placing the Appellant's injuries where they belong in that spectrum, significantly above the *Baj*, *Thuge* and *Benson Wanyoike* band by reason of the ocular entrapment, the persisting visual disturbance, the facial nerve numbness and the permanent facial and scalp disfigurement, and by reason of the passage of time since those awards; but below *Mugoye* and *Kimani* by reason of the absence of any assessed permanent incapacity and of any proved claim for reconstructive surgery, I am satisfied that a fair, reasonable and moderate award of general damages for pain, suffering and loss of amenities is Kshs. 2,000,000/=. It is widely agreed that the actual amount of money to awarded by the various Courts for non-economic clauses in cases of physical injuries may sometimes be considered arbitrary. I pose the question beyond lost income, medical and related expenses, pain and suffering and loss of amenities just how much may one victim and another be hurt in terms of monetary value when your limbs are permanently fractured, one is diagnosed as paraplegic or quadriplegic or has lost an eye and become blind forever? Which court can say that using the current approach is not quite problematic in meeting the threshold for a fair compensation to restore the victim to his/her original desirable state. 5. Having reviewed the entire trial record and the judgment of the learned trial magistrate I am ordained to make this statement that there is a link between judicial discretion and the duty to give reasons after undertaking a comparative analysis of the new and old jurisprudential decisions governing assessment of damages in accident claims. This judicial discretion which is the cornerstone of our administration of justice grants judges and magistrates the flexibility to choose between legally acceptable alternatives based on equity and justice. It is with this background in mind I am of the consider view that the impugned judgment does provide some explicit or rational explanation on how that choice of award of Kshs 800,000 was reached but on scrutinizing the decision there were other past decision on awards which were not structurally before the trial Court which could have made her arrive at a different verdict on assessment of damages. Therefore, the legal framework applied and the final remedy ordered by the court did occasioned prejudice and injustice to the claimant. Hence the reason this appeal’s Court must intervene to review the decision as per the law establish. 6. It follows that the award of Kshs. 800,000/= was inordinately low and represented an entirely erroneous estimate of the damage. It is set aside and substituted with an award of Kshs. 2,000,000/=. 7. The award of special damages of Kshs. 13,275/= was not challenged on appeal and remains undisturbed. Liability having been assessed at 100% against the Respondent, and there being no cross-appeal, no deduction falls to be made. 8. I note the Respondent's submission that the decretal sum has already been settled. That does not defeat the appeal; it merely goes to the mode of satisfaction of this decree. Any sums already paid to the Appellant under the decree of the trial Court shall be credited against the sums now decreed. ### (v) Costs 1. Costs follow the event under Section 27 of the Civil Procedure Act. The Appellant has substantially succeeded and I see no reason to depart from the ordinary rule. ## I. DISPOSITION 1. For the foregoing reasons, the appeal is allowed in the following terms: 1. *The award of general damages of Kshs. 800,000/= made by the trial Court on 22nd August 2024 in Vihiga PMCC No. 32 of 2020 is set aside and is substituted with an award of general damages for pain, suffering and loss of amenities in the sum of Kshs. 2,000,000/=.* 2. *The award of special damages in the sum of Kshs. 13,275/= is affirmed.* 3. *The finding on liability at 100% against the Respondent is affirmed.* 4. *The judgment of the trial Court is accordingly varied to read: General damages Kshs. 2,000,000/=; Special damages Kshs. 13,275/=; Total Kshs. 2,013,275/=.* 5. *The general damages shall attract interest at Court rates from 22nd August 2024, being the date of the judgment of the trial Court, until payment in full.* 6. *The special damages shall attract interest at Court rates from the date of filing suit until payment in full.* 7. *Any sums already paid by the Respondent under the decree of the trial Court shall be credited against the decretal sum herein.* 8. *The Appellant shall have the costs of this appeal, together with the costs of the suit in the Court below as decreed by the trial Court.* Orders accordingly. This file is closed. **DATED, SIGNED AND DELIVERED AT VIHIGA THIS 9TH DAY OF SEPTEMBER 2026.** **……………………………..………** **R. NYAKUNDI** **JUDGE**