Olendo v Ingasia (Civil Appeal E065 of 2024) [2026] KEHC 12768 (KLR) (6 August 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT VIHIGA** **CIVIL APPEAL NO. E065 OF 2024** **ERASTUS AMBATSA OLENDO…………………………………………APPELLANT** **VERSUS** **PHANICE KHAHUNZU INGASIA…………………………………….RESPONDENT** *[Being an Appeal against the Judgment and Decree of Hon. PK Kinyua (SPM) delivered on 13th November 2024 in Vihiga SPMCC No. E289 of 2023]* **Coram: Before Justice R. Nyakundi** **M/s V.A Masayi & Co Advocates** **M/s Staussi, Asunah & Aluoch Co Advocates** **JUDGMENT** 1. The brief background of this Appeal is that the Appellant who was the Plaintiff at the trial court filed a Plaint dated 20th November 2023 against the Respondent who was the Defendant at the trial court seeking for judgment against the Defendant for: - 2. *General damages for pain and suffering* 3. *Special damages of kshs. 11,200.00/=* 4. *Costs of the suit* 5. *Interest on (a), (b) and (c) above.* 6. *Any other relief as this Honourable Court may deem fit to grant.* 7. The facts in the Plaint were that at all material times to this suit, the Defendant was the lawful owner and/registered owner of Motor Vehicle Registration Number KCQ 742V Mitsubishi Lancer. The Plaintiff averred that on 30th October 2023, the Plaintiff was a lawful pedestrian at Cheptulu Stage along Kapsabet-Chavakali Road when the Defendant, her driver, agent and or servant so negligently, carelessly and recklessly drove, managed and or controlled the said Motor Vehicle registration number KCQ 742V Mitsubishi Lancer causing it to lose control and hit the Plaintiff thereby causing him severe injuries, loss and damage. The Plaintiff also averred that the said accident was solely caused by negligence, carelessness and or recklessness on the part of Defendant, her driver, servant or agent and as a result he suffered the following injuries: blunt injury to the chest, blunt injury to the back, bruises on both hands and cut wound on the right knee joint. 8. The Respondent entered appearance vide a Memorandum of Appearance dated 24th January 2024. The Respondent filed her Statement of Defence dated 8th February 2024 and denied that an accident occurred on 30/10/2023, involving the Plaintiff who was a lawful pedestrian at Cheptulu stage along Kapsabet-Chavakali road when the Defendant, her driver, agent and/or servant allegedly so negligently, carelessly and/or recklessly drove, managed and/or controlled motor vehicle registration No. KCQ 742V Mitsubushi Lancer causing him alleged severe injuries, loss and damage. The Defendant also denied in *toto* the alleged negligence, carelessness and/or recklessness on her part. The Respondent at the trial court prayed that this suit be dismissed with costs. 9. The matter proceeded for a full trial and judgment was entered on 13th November 2024 in favour of the Plaintiff as against the Defendant as follows: - 10. *Liability………………..100%* 11. *General damages…….Kshs. 120,000/=* 12. *Special damages……..Kshs. 7,100* 13. *Costs of the suit and interest at court rates from the date of judgment for general damages and from the date of filing for special damages until payment in full.* 14. Being dissatisfied and/or aggrieved by the decision of Honourable P.K.Kinyua (SPM), the Appellant appealed on quantum vide a Memorandum of Appeal dated 19th November 2024 based on the following grounds: - 15. *That the Learned Trial Magistrate erred in law and fact in failing to consider the appellant’s submissions and authorities on quantum by completely disregarding the submissions and authorities of the Appellant and as a result arrived in unjustified decision in quantum.* 16. *That the Learned Trial Magistrate’s exercise of discretion in the assessment of quantum was injudicious.* 17. *That the Learned Trial Magistrate erred in law and in fact in failing to pay regard to the authorities in the appellant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case she was deciding.* 18. *That the Learned Trial Magistrate erred in law and misdirected herself to the extent and value of the Appellant’s injuries and thereby erred in law in her assessment of damages.* 19. *That the Learned Trial Magistrate erred in law and in fact in the assessment of quantum by awarding Kshs. 120,000/= for general damages an award which was inordinately and/or in excessively low and an erroneous estimate of the damages awardable compared to the injuries sustained by the Appellant.* 20. *That the Learned Trial Magistrate erred in law and in fact in applying wrong principles in arriving at the general damages.* 21. The Appellant sought the following prayers from the Memorandum of Appeal; 22. *That the appeal be allowed.* 23. *That the lower court’s Judgment on damages of Kshs. 120,000/= be set aside and the amount be reassessed upwards.* 24. *That costs of this appeal be awarded to the Appellant.* **Appellant’s Written Submissions** 1. The Appellant filed his written submissions dated 11th February 2026 through his Learned Counsel Mrs. Masayi. Learned Counsel for the Appellant Mrs. Masayi submitted that the instant appeal arises from a suit where the appellant, a lawful pedestrian, was hit by a negligently driven motor vehicle on 30th October 2023, causing him severe injuries. She noted that while the trial court entered judgment for 100% liability, the appellant is aggrieved by the award of Kshs. 120,000 as General Damages, contending the trial magistrate disregarded submissions on quantum and exercised discretion injudiciously. Mrs. Masayi argued that the magistrate misdirected herself regarding the extent of the appellant’s injuries which included blunt injuries to the chest, back, and both hands, and cut wounds on the right knee joint resulting in an award that was an inordinately low and erroneous estimate. 2. She further submitted that the High Court has the duty to re-evaluate and re-analyse the record to determine if the trial court's conclusions should stand, citing *Selle & Another versus Associated Motor Boat Compnriv ltd & Others (1968 EA 123); Peters Versus Slundau Post ffd 1958 EA 424; Mary Wanjiku Gachigi versus Ruth Muthooni Kamau (Civil Appeal No.172 of 2000 (Tunoi Bosire & Owuor jja)) and Anne Wambui Ndiritu Versus Joseph Kiprono Ropkoi & Another Ciui l Appeal to. 345 of 2000 Okubasu Githinji & Waki JJA).* Mrs. Masayi maintained that an appellate court should interfere with an award that is inordinately low or based on wrong principles, referencing *Butt versus Khan (1982-1988) KAR1 and Kemfro Africa Limited t/a “Meru Express services (1976) “& Another versus Lubia and Another (No.2) Civil Appeal No.21 of 1984 (1985) eKLR*. 3. Relying on the principles that awards should be commensurable and comparable, as established in *Charles Oriwo Odeyo Versus Appollo Justus Andabwa and Another (2017) eKLR and Odinga Jacktone Ouma Versus Maureen Achieng Odera (2016) eKLR*, she proposed that the award be increased. To support this upward reassessment, she cited *Kenya power and Lighting Co.Ltd Versus Mary Akinyi :HCCA NO.72 OF 2007; Poa link Services Co.Ltd and Another Versus Isindani Boar Bonzomo 2021 eKLR; Samuel Martin Njoroge Kamunyu Versus Mildred Okweya Barasa 2020 eKLR; and Marube & Another versus Nyambogo (Civil Appeal E 011 OF 2023) (2024) KEHC 3395 KLR.* Mrs. Masayi concluded by urging the court to substitute the lower court's award with Kshs. 350,000 to properly commensurate with the appellant's injuries. **Respondent’s Written Submissions** 1. The Respondent filed her Written Submissions dated 23rd February 2026 through her Learned Counsel Mrs. Asunah. Learned Counsel for the Respondent Mrs. Asubah submitted that the Appellant's appeal is purely on quantum, specifically contesting the general damages of Kshs. 120,000/= awarded for injuries including blunt injuries to the chest and back, hand bruises and a knee cut. Counsel submitted that it is the duty of the court under Section 78 of the Civil Procedure Act to re-evaluate the evidence and draw its own independent conclusion, as established in *Selle –vs- Associated Motor Boat Company Ltd (1968) E.A.* The injuries were classified as "harm" in the P3 form and described by PW2 as "minor soft tissue injuries" from which the Appellant should have fully recovered. 2. The Respondent’s counsel Mrs. Asunah further submitted that the Appellant's proposed award of Kshs. 400,000/= is far above the legal trend for such injuries. In *EVA KAREMI & 5 OTHERS –VS- KOSKEI KIENY & ANOTHER*, awards for similar soft tissue injuries ranged from Kshs. 40,000/= to Kshs. 70,000/=. In *BUDS & BLOOM LTD –VS- LAWRENCE EMUSUGUT OBWA,* an award of Kshs. 70,000/= was set aside and substituted with Kshs. 50,000/= for soft tissue injuries, and in ELDORET PACKERS –VS- KIERU CHEGE (2017), a Kshs. 70,000/= award was reduced to Kshs. 40,000/= for blunt trauma and lacerations. The Respondent counsel noted that the Appellant's cited authorities, such as *Kenya Power & Company Ltd –vs- Mary Akinyi – HCCA No. 72 of 2007*, are distinguishable as they involved more serious injuries, like a 20% disability. It was her concluding submissions that the awarded Kshs. 120,000/= was inordinately high and the appeal should be dismissed with costs. **Analysis and Determination** 1. This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. This court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of *Peters Vs Sunday Post Limited [1958] EA 424*, the court therein rendered itself as follows: - *“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”* 1. It must be borne in mind that the court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. In *Selle & Another Vs Associated Motor Boat Co. Ltd & Others [1968] EA 123*, this principle was enunciated thus: - *“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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 allowance in this respect..."* 1. I have carefully considered the Memorandum of Appeal, the Record of Appeal, the judgment of the learned trial magistrate, the rival submissions by counsel and the authorities cited by the parties. It is common ground that the present appeal is confined solely to the issue of quantum of general damages. Liability having been determined at 100% against the Respondent by the trial court and no cross-appeal having been lodged, the same is not an issue for determination before this Court. Consequently, the sole issue falling for determination is: - 2. *Whether the learned trial magistrate erred in principle in awarding the Appellant Kshs. 120,000/= as general damages for pain, suffering and loss of amenities, thereby warranting interference by this Court.* 3. This Appeal being on quantum only, the principles guiding this Court as the first Appellate Court have crystalized. The applicable principles were authoritatively stated by the Court of Appeal in *Butt v Khan [1978] KECA 24 (KLR),* where the Court held 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 misapprehended the evidence in some material respect."* 1. This is in recognition that the award of Damages in discretionary. The Court of Appeal in *Catholic Diocese of Kisumu Vs Sophia Achieng Tele Civil Appeal No. 284 of 2001 [2004] 2 KLR 55* set out the circumstances under which an Appellate court can interfere with an award of damages in the following term: - *“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its won for that awarded by the court below simply because it would have awarded different figure if it had tried the case at first instance. The appellant court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”* 1. The Court of Appeal also pronounced itself succinctly on the principles of disturbing awards of damages in *Kemfro Africa Limited t/a “Meru Express Services (1976)” & another Vs Lubia & another (No 2) [1985] eKLR* as follows: - *The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.* 1. The medical evidence on record, which was not disputed, demonstrates that the Appellant sustained the following injuries: blunt injury to the chest; blunt injury to the back; bruises on both hands and a cut wound on the right knee joint. The P3 Form classified the degree of injury as harm, while the medical evidence further confirmed that the injuries were soft tissue injuries from which the Appellant was expected to recover fully without any permanent incapacity. It is therefore evident that the Appellant did not sustain fractures, internal organ injuries, permanent disability or residual incapacity. Nevertheless, the injuries involved multiple parts of the body including the chest, back, upper limbs and knee and cannot be described as trivial. 2. In assessing damages, courts are guided by the well-established principle that comparable injuries should, as far as possible, attract comparable awards, while bearing in mind inflation and the changing value of money. Counsel for the Appellant urged this Court to enhance the award to Kshs. 350,000/= relying on authorities where Plaintiffs sustained substantially more extensive injuries. Conversely, the Respondent urged this Court to uphold the award on the basis that the injuries were minor soft tissue injuries. 3. I have considered the authorities cited by both parties together with more recent decisions of the High Court involving comparable injuries. 1. In *Marube & another v Nyamboga (Civil Appeal E011 of 2023) [2024] KEHC 3395 (KLR),* the respondent sustained blunt trauma to the neck, chest contusion, bruises on both upper limbs, bruises on both lower limbs and cut wounds on the lower limb. The High Court upheld an award of **Kshs.350,000/=,** holding that the award was consistent with comparable authorities. 2. In the case of *Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [2021] eKLR* the Plaintiff sustained blunt injury to the chest; bruises to the lower abdomen; bruises of the right hip joint; bruises of the thigh and bruises on the knee and the High Court affirmed an award of Kshs. 350,000/= as general damages. 3. In Blue Horizon Travel Co Ltd v Kenneth Njoroge [2020] eKLR the Plaintiff sustained: bruises on the scalp; bruises on the neck; bruises on the abdomen; bruises on the lower back; cut wound on the left thumb; cut wound on the left palm and subluxation of the left shoulder joint. The court awarded Kshs. 400,000/= as general damages. 4. In *Samwel Martin Njoroge Kamunyu v Mildred Okweya Barasa [2020] eKLR* the Plaintiff sustained: two deep cut wounds on the forehead horizontally; bruises and lacerations on the right cheek; blunt injury to the shoulder and chest; blunt injury to the pelvis; deep cut wounds on right and left legs. The High Court awarded of Kshs 300,000/= as general damages. 5. In *Kenya Power & Lighting Co. Ltd v Mary Akinyi, HCCA No. 72 of 2007* Korir J upheld an award of Kshs. 350,000/- as general damages for the following injuries: deep cut wound on the calf muscles of the left leg; laceration on the right knee and right shoulder; contusion on the chest. 4. While the injuries in the foregoing authorities are somewhat more severe than those sustained by the Appellant herein, they nevertheless provide useful guidance on the current trend of awards for multiple soft tissue injuries involving the chest and limbs. On the other hand, the authorities relied upon by the Respondent, awarding between Kshs.40,000/= and Kshs.70,000/=, were decided several years ago and largely involved less extensive injuries affecting fewer parts of the body. They do not adequately reflect the current trend of awards or the effects of inflation. 5. It is also instructive that the injuries sustained by the Appellant involved four separate anatomical regions, namely the chest, back, both hands and the right knee. Although classified as "harm", the multiplicity of injuries inevitably resulted in pain, discomfort and temporary loss of amenities. Upon my independent evaluation of the evidence and the comparable authorities, I am persuaded that the award of **Kshs.120,000/=** made by the learned trial magistrate falls below the range of awards currently being made by the High Court for comparable multiple soft tissue injuries. In my considered view, the learned trial magistrate failed to sufficiently take into account the multiplicity of the injuries sustained and the prevailing trend in comparable awards. 6. At the same time, I am unable to agree with the Appellant's contention that an award of **Kshs.350,000/=** would be appropriate. The authorities supporting such awards involved injuries that were appreciably more severe, including extensive cut wounds, dislocations, head injuries or multiple lower limb injuries, which are distinguishable from the injuries sustained in the present case. 7. Doing the best I can in the circumstances and bearing in mind the principles of comparable awards, the nature of the injuries sustained, the absence of permanent incapacity and the need to maintain consistency in awards while taking into account inflation, I am satisfied that an award of **Kshs.250,000/=** would constitute fair, reasonable and adequate compensation for the Appellant's pain, suffering and loss of amenities. 8. Accordingly, I find that the learned trial magistrate's award of Kshs.120,000/= represented an erroneous estimate of the damages payable in the circumstances of this case and therefore calls for interference by this Court. Consequently, the appeal succeeds and I make the following orders: - 9. *The appeal is hereby allowed.* 10. *The award of* ***Kshs.120,000/=*** *made by the trial court as general damages is hereby set aside and substituted with an award of* ***Kshs.250,000/=*** *as general damages for pain, suffering and loss of amenities.* 11. *The award of* ***special damages of Kshs.7,100/=*** *is upheld.* 12. *The award on liability at* ***100% against the Respondent*** *is upheld.* 13. *The Appellant shall have the costs of this appeal.* 14. Orders accordingly. **DATED, SIGNED AND DELIVERED AT VIHIGA THIS 6TH DAY OF AUGUST 2026.** **\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_\_** **R. NYAKUNDI** **JUDGE**