https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9574

# REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS CIVIL APPEAL NO. E067 OF 2023 EUNICE TINA NYAMAI .................................................APPELLANT ## VERSUS CHRISTINE WAWA KITUKU .......................................RESPONDENT **JUDGEMENT** 1. The Appellant (Plaintiff in lower court case) in this matter instituted this suit against the Respondent by way of a Plaint dated 24/01/2019. He claimed general damages for pain, suffering and loss of amenities of life, and special damages of Kshs.6,650/= plus costs of the suit and interest following an accident in which he was involved in on the 16/01/2019 while he was lawful passenger in motor vehicle registration No. KCM 960D Toyota Vanet along Kanyonyoo-Embu Road and by reason of negligence and carelessness on the part of the Respondent’s (Defendant in lower court case) driver, authorized agent or servant in driving, managing and/or controlling the said motor vehicle registration No. KCM 960D, and while driving at a high speed that it lost control, veered off the road, overturned and landed in a ditch occasioning the Appellant serious bodily injuries. 2. As per the medical report of Dr. Muli Simeon Kioko, the Appellant sustained the following injuries:- *a. Severe tenderness and haematoma formation over the fore head scalp skin.* *b. Severe tenderness over the chest wall.* *c. Severe tenderness of both shoulders.* *d. Tenderness and bruise wounds over the left leg.* 1. Upon considering the factual basis, evidence tendered relating to occurrence of the accident and the fact that the Appellant was a lawful fare paying passenger, the trial court apportioned liability at 100% in favour of the Appellant against the Respondent. 2. On quantum, the trial court made the following awards: - 3. General Damages Kshs.80,000/= 4. Special Damages Kshs. 6,650/= Total award **Kshs.86,650/=** 1. Costs of the suit and interest. Special interest at court rates from the date of filing suit till payment in full while general damages to attract interest from the date of judgement till payment in full. 2. Being aggrieved with the above trial court’s judgement, the Appellant lodged a Memorandum of Appeal dated 23rd March 2023 which basically challenges the award of general damages which the Appellant considers to be manifestly low. The Memorandum of Appeal raises five grounds of appeal as follows:- 3. *THAT the learned Magistrate erred in Law and in fact by finding that the plaintiff was entitled to general damages of Kshs.80,000.00/- which was inordinately low in view of the injuries suffered by the Plaintiff that it presented a miscarriage of justice.* 4. *THAT the Learned magistrate erred in Law and in fact by failing to consider the Appellant's submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum.* 5. *THAT the Learned magistrate erred in Law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which are very low.* 6. *THAT the learned Magistrate erred in Law and in fact when making his award by failing to consider the passage of time and incidence of inflation.* 7. *THAT the Learned Magistrate erred in fact and in Law in failing to consider the Plaintiffs' Submissions on quantum and the authorities therein.* 6. It is proposed to ask the Court for Orders that: a) This Appeal be allowed with costs. b) The Judgment of the Honourable Senior Principal Magistrate Honourable Khapoya S. Benson as far as the award on quantum delivered on 1st March, 2023 be set aside. c) The Honourable Court be pleased to award the Plaintiff/Respondent general damages of commensurate with the injuries sustained. 7. Directions were given for the Appeal to be canvassed through written submissions. The Appellant’s submissions are dated 10th February 2026. There are no submissions filed by the Respondent. **Appellants’ submissions** 8. The Appellant submitted that the Appeal should be allowed as prayed on the grounds espoused in her submissions and additionally on the strength of the arguable and meritorious grounds of appeal set out in the Memorandum of Appeal. 9. It is submitted that the trial court indeed erred in pronouncing its judgment in the manner that it did without having any regard or consideration for the submissions presented by the Appellant; the conventional awards for general damages in cases of similar injuries; the passage of time; rate of inflation; nor to the evidence placed before the court. That the learned trial magistrate erred in law and in fact at its findings on quantum for failing to appreciate the evidence put forward by the Appellant in reaching its conclusion. The Appellant wished to rely on her submissions filed in the lower court dated 23rd November, 2022 and prayed that the same be adopted herein, 10. That as a general principle of law, he who alleges must prove as provided under Section 107 of the Evidence Act Cap 80 Laws of Kenya which states: *"Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist."* 11. In the instant case, the Appellant submits that the trial court ignored the witness's evidence put forward by the Appellant as regards the nature of the injuries sustained by the Appellant. 12. The Appellant urged this Honourable Court to re-consider the Appellant's evidence and address itself to her pleadings and submissions on quantum in the trial court within the scope of Section 78 of the Civil Procedure Act which gives the appellate Court powers to make the final determination in a matter. Reliance was placed in **Kemfro Africa Ltd Vs. Meru Express Service Vs. A.M Lubia Another 1957 KLR 27 as quoted in M'Mutungi v Ogoti alias Oscar Mogire Ogoti Civil Appeal E224 of 2023 [2024]** where it was held: - *“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages.”* 13. The Appellant in her submissions before the trial court prayed for general damages of Kshs.600,000/=, considering the nature of the injuries sustained, precedent and vicissitudes of life and inflation. 14. The Respondent proposed an award of Kshs.60,000/= for general damages, but the trial court observed that the said award was very low considering the nature of injuries sustained by the Appellant and the authorities used by the Respondent were related to less severe injuries compared to those suffered by the Appellant. 15. The Learned Trial Magistrate awarded the Appellant Kshs.80,000 for general damages which the Appellant considers to be inordinately low in view of the injuries suffered by the Appellant that it presented a miscarriage of justice. It is submitted that the Learned Magistrate did not also give any reasons for awarding the Appellant the said amount. 16. It is the Appellant’s submission that the decision of the trial court failed to consider conventional awards in cases of similar nature, the rates of inflation, other vicissitudes and the Appellant's submissions on quantum. That in assessing general damages, Courts are guided by the following principles outlined in the case of **Mohamed Mahmoud Jabane v Highstone Butty Tonqoi Olenia [1986] eKLR** as follows: *“That the reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by this court to an award of damages by a trial judge:* * 1. *each case depends on its own facts;* 2. *awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics);* 3. *comparable injuries should attract comparable awards;* 4. *inflation should be taken into account; and* 5. *unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone."* 17. Finally, the Appellant submits that the case at hand is eligible to fetch a higher amount than the amount awarded by the trial court given the nature of injuries sustained by the Appellant as submitted hereinabove. Reliance is placed on the following cases; **BM v Machakos County (Civil Appeal E059 of 2022) [2023] eKLR** where the Appellate Court upheld the Trial Court's award of Kshs.850,000/= for tender haematoma formation over the right front temporal scalp skin, tender oedematous soft tissues on the left leg among other injuries; The Court in **Luke v Timsales Limited (Employment and Labour Relations Cause 131 of 2017) [2023] eKLR** the Court found that an award of Kshs.500,000/= to be reasonable where the Claimant suffered soft tissue injuries. 18. The Appellant submits that it is through the above court decisions that she considers that the award of Kshs.80,000/= that was delivered by the trial court without any reasons was inordinately low and erroneous. She prays that the award be set aside and for this Court to find that the trial court's award on general damages was so inordinately low as to represent an entirely erroneous estimate of general damages. 19. In view of the above, it is submitted that an award of **Kshs.600,000/=** as per the Appellant's submissions would be more reasonable in the circumstances given the nature of injuries sustained by the Appellant and urge this court to award the same. **Analysis and Determination** 20. I have carefully considered the trial court’s record, the memorandum of appeal and the Appellant’s advocates written submissions on the appeal. The Appellant seems to be challenging only the award for general damages for pain, suffering and loss of amenities which they assert to be manifestly low. This court will therefore consider whether the said general damages of Kshs.80,000/= should be disturbed and increased as sought by the Appellant. 21. For an Appellant Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied. 22. In the case of **MaragaV Musila (1984) 1 KLR 251,** where the Court of Appeal when addressing its mind to this issue expressed itself thus; ***“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”.*** 23. The approach taken by courts in assessment of damages is that comparable injuries should as far as possible be compensated by comparable awards although the court should bear in mind that no two cases are exactly the same. The court will also consider factors such as the state of the economy and the rate of inflation in its assessment of damages. (See **Stanley Maore v Geoffrey Mwenda [2004] eKLR**and**Ugenya Bus Service v Gachoki [1982] eKLR**). 24. In the circumstances, it is my considered finding that the trial magistrate failed to state which case authority of comparable injuries she relied upon to make the award of Kshs.80,000/=. 25. Having given due consideration to the injuries sustained by the Appellant, I find that the case cited by the Appellant being **BM v Machakos County (Civil Appeal E059 of 2022) [2023] eKLR** (*supra*)to have injuries that are more comparable to those sustained by the Appellant herein. In addition, in the said case, judgement was delivered in the year 2023 whereas in the instant case judgement was delivered on 1st March 2023 which is the same year. 26. The said case was a perfect comparison and proper guide to the case at hand. 27. Also, in **Soi & 2 others v Katile (Civil Appeal E185 of 2024) [2026] KEHC 8699 (KLR) (19 June 2026) (Judgment),** the appellate court set aside Kshs.800,000/= awarded by the trial court and substituted it with **Kshs.500,000/=** where the Plaintiff sustained head injuries, upper limps injuries and lower limps injuries 28. Hence, from the foregoing comparison, this court finds that the trial court’s award of **Kshs.80,000/=** as general damages for pain suffering and loss of amenities to be manifestly low. The same can be said to be manifestly low as to amount to a wrong assessment. In the premises, I am persuaded that there is justification in interfering with the said award of damages. 29. The trial court’s award is hereby set aside and in place thereof the respondent is awarded Kshs.500,000.00 for pain and suffering and loss of amenities but the special damages shall remain as awarded by the trial court. 30. Accordingly, the court makes the following orders: 1. Liability at 100% in favour of the Appellant against the Respondent is upheld. 2. General damages ................Kshs.500,000/= 3. Special damages .................Kshs. 6,650/= TOTAL AWARD ...................**Kshs.506,650/=** 31. In the end, the appeal is successful and is allowed with costs plus interest at court rates to the Appellant both for the lower court and this appeal. It is so ordered. This file is closed. JUDGEMENT DATED & SIGNED AT MACHAKOS THIS 30TH JUNE 2026 **NOEL ADAGI** **JUDGE**