https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10928

Ngure v Sila (Civil Appeal 530 of 2024) [2026] KEHC 10928 (KLR) (Civ) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10928 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal 530 of 2024 RA Oganyo, J July 17, 2026 Between Evans Mwangi Ngure Appellant and Charles Muindi Sila Respondent (Being an appeal from the ruling of Hon. I Ruguru (SPM) th September, 2023 the Magistrates Court at Milimani in Civil Case No. E610 of 2022) Judgment 1.This appeal arises out of the decision of Hon I Ruguru (SPM)0th September, 2023 the Magistrates Court at Milimani in Civil Case No. E610 of 2022; where the Appellant sued the Respondent for general damages, special damages of Kshs 6,550 together with costs of the suit and interest 2.In his Plaint, the on the 18th Respondent in the lower court, averred that on or about the 18th January, 2021, he was lawfully pedestrian along Mombasa road when the Appellants driver, agent, and or driver so carelessly and negligently drove MV KBL 912B that it lost control, veered off the road and violently hit the Respondent Occasioning him serious injuries. He attributed the accident to the Respondent’s negligence which he particularised at paragraph 4 of the plaint. He said that he relied on the doctrine of Res ipsa loquitor and particularised injuries at paragraph 6 of the plaint and special damages at paragraph 7 of the plaint. He stated that and stated that despite issuing a demand notice and notice of intention to sue, the Respondent failed to admit liability necessitating the filing of this suit. He prayed that judgement be entered in his favour. 3.By statement of defence dated 5th may, 2022, the Appellants denied the Respondents averments in the Plaint and put them to strict proof thereof. He said that if at all the accident occurred, the same was occasioned by the Respondents’ negligence which he particularised at paragraph 5 of the statement of defence. He denied the particulars of injury and special damages and service of demand notice and notice of intention to sue. He prayed that the Respondent’s suit be dismissed with costs. 4.The trial court considered the evidence placed before and found that the Respondent had proved his case against the Appellant and consequently entered judgement at 100% liability in favour of the Respondent, general damages of Kshs. 650,000/ special damages of Kshs 6,550. The trial court also awarded costs of the suit and interest from the date of judgement till payment in full. 5.The Appellant was aggrieved by the trial court’s decision filed the instant appeal. In the memorandum of appeal, the Appellant impugned the trial Magistrate’s quantum award on grounds thata.The Trial Magistrate erred in law and fact by making inordinate award of Kshs. 650,000 as general damagesb.The trial magistrate misdirected himself by failing to consider the appellant’s submissionsc.That the trial magistrate’s decision was unjust against the weight of evidence and based on misguided points of fact and wrong principals of law hence occasioning miscarriage of justiced.The trial court erred in law and fact by failing to judiciously analyse the evidence on record and the appellant’s submissions thereby arriving at a manifestly high and erroneous quantum which is unfair to the appellantse.The trial magistrate failed to consider conventional awards made in cases of similar injuries thereby arriving at an excessive awardf.That the trial magistrate erred in law and fact in failing to appreciate the nature of injuries sustained by the Respondent hence arrived at an erroneous assessment of damages dismissing the Appellant’s suit. 6.The Appellants prayed that the appeal be allowed, the judgement delivered on 29th September, 2023 be set aside and the award made therein be re-assessed together with 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” 8.In the instant appeal, the Appellant challenges only the quantum of damages awarded by the trial court. Liability is not in issue and is therefore not the subject of this appeal. The appeal was disposed of by written submissions which I have read and considered. 9.The Court of Appeal of Nigeria discussing the issue of circumstances when an appellate court can interfere with an award of quantum in Dumez (Nig) Ltd V. Ogboli {1972} 3 S.C. Page 196.'' Per BADA, J.C.A held that;“The law on circumstances under which an appellate court would interfere with an award of damages is settled. An appellate court will not interfere with an award of general damages by a trial court unless the trial court acted under a mistake of law, or, where the trial court acted in disregard of principles, or, where the trial court took into account irrelevant matters or failed to take into account relevant matters, or, where the trial court acted under a misapprehension of facts, or, where injustice would result if the appellate court does not interfere; and, where the amount awarded is either ridiculously low or ridiculously high that it must have been erroneous estimate of the damage. 10.Within the Kenyan jurisdiction, in Kivati v Coastal Bottlers Ltd 4Civil Appeal No. 69 of 1984 stated that: -“The Court of Appeal should only disturb an award of damages when the trial Judge has taken into account a factor he ought not to have or failed to take into account something he ought to have or if the award is so high or so low that it amounts to an erroneous estimate." 11.In Ken Odondi & two others v James Okoth Omburah t/a Okoth Omburah & Company Advocates, Court of Appeal, Kisumu, CA No 84 of 2009, Onyango Otieno, Azangalala & Kantai JJA“We agree that this court will not ordinary interfere with the findings of a trial judge on an award of damages merely because this court may take the view that had it tried the case it would have awarded higher or lower damages different from the award of the trial judge. To so interfere this court must be persuaded that the trial judge acted on wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled.". 12.In the instant appeal, the Respondent was awarded a sum of Kshs. 650,000/- as general damages for the following injuries;a.Fracture of the left glenoid region,b.Blunt injury on the left side of the pelvic and lower limbc.Soft tissue injury and physical and psychological pain. 13.The Respondent's injuries were proved by the treatment notes from Nairobi West Hospital and the medical report prepared by Dr. Hannington Kayo, who opined that the Respondent had sustained grievous harm resulting in a permanent disability assessed at 10%. He further stated that the Respondent would require ongoing orthopaedic treatment and that the condition was likely to deteriorate with age. At the Appellant's instance, the Respondent underwent a second medical examination, and the medical report prepared by Dr. Kahuthu similarly concluded that the Respondent had sustained a permanent disability of 10% due to stiffness of the shoulder. 14.In their submissions, the Appellant contended that the trial court's award on quantum was excessive and punitive, and that the court failed to consider the conventional awards made in comparable cases involving similar injuries. They relied on the case of David Gakinya v Mary Nyambura [2017] eKLR where the court awarded a sum of Kshs. 300,000/- in general damages for injuries similar to those suffered by the Respondent. 15.I have considered the same and note that the Authority relied on by the Appellant was issued ten years ago. A relatively recent authority would have guided the court on assessment of damages. I also note that in the instant suit, the Respondent suffered permanent disability assessed at 10% which would require would require ongoing orthopaedic treatment and that the condition was likely to deteriorate with age. Clearly, the injuries suffered by the Respondent herein are more severe than those suffered by the Respondent in the Authority sought to be relied on. 16.In Kimwele v Board of Governors, Shanzu Teachers Training College & another [2025] KEHC 1772 (KLR), the court awarded a sum of Kshs. 600,000/- in damages for injuries similar to those suffered by the Respondent herein. Based on the same authority and considering the severity of the Respondent’s injury, I find that the Trial Court was properly guided in awarding damages of Kshs. 650,000/- and will therefore not disturb the same. 17.In the upshot, I find merit in the appeal as follows: -a.The Appellant’s appeal lacks merit and is consequently dismissed with costsb.The trial court’s award of general damages of Kshs. 650,000/- to Respondent is hereby upheld.c.The Respondent’s award of special damages of Kshs. 6550/- is upheld. 18.On costs, it is trite law that costs follow the event. The Respondents gets costs of the appeal and those of the trial court.It is so ordered.Right of appeal 30 days. DATED, SIGNED AND DELIVERED THIS 17TH DAY OF JULY, 2026.………………….….ROSELINE OGANYOJUDGEIn the presence of: -Court Asst…. E, SanaN/A by both sides despite notice on 26th May, 2026.