https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8195

## REPUBLIC OF KENYA **IN THE HIGH COURT OF KENYA AT ELDORET** **CIVIL APPEAL NO E002 OF 2024** **FINLAYS HORTICULTURAL COMPANY LIMITED……1ST APPELLANT HENRY ORINA NYANDORO………………………………2ND APPELLANT** **=VERSUS=** **NASIR AHMED ALI (Suing as the next friend of** **ABDI NASIR HUSSEIN RESPONDENT** **(*An Appeal From the Judgement of the Hon. B Mararo in the Chief Magistrate’s Court at Nanyuki Delivered on 19th December, 2023 in Nanyuki CMCC No. 9 of 2016)*** **JUDGEMNT** 1. By way of a Plaint, the Respondent sued the Appellants for general and special damages arising from an accident that occurred on 13th January 2013 whereby the Respondent suffered bodily injuries. 2. In its judgement of 19th December 2023, the trial court entered judgement against the Appellants at 100% on liability and awarded Kshs. 1,500,000 in general damages and KShs. 63,300 in special damages. 1. Aggrieved by the quantum of damages awarded, the Appellants lodged this appeal against the said judgement on the grounds that: 1. That the learned magistrate erred in law in awarding General Damages for pain and suffering at Kshs 1,500,000/= which amount is manifestly excessive and high considering the injuries sustained by the Respondent. 2. That the learned Magistrate erred in law and in fact in failing to consider the written submissions of the Appellant on record and the authorities annexed therein in support of the Appellants case while arriving at the award in General damages. 3. That the learned Magistrate misdirected himself by using wrong principles and failing to consider other conventional awards in the assessment of damages payable. 4. That the learned Magistrate erred in law and in fact by failing to follow rules of precedence in awarding general damages 5. That the judgement of the learned trial magistrate is against the law and weight of the evidence on record and against the doctrine of state decisis. 2. The appeal was canvassed by way of written submissions. 3. This being a 1st appeal, this court is obligated to re-evaluate the evidence tendered at the trial court and arrive at its own findings thereon. This legal principle was laid down in the case of S**elle v Associated Motor Boat Co. Ltd [1968] EA** where the court stated # “An appeal to this Court from a trial by the High 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. The only contested issue being the question of the amount of general damages awarded, the prove of injuries sustained by the Respondent becomes the singular focal point that would aid this court in its endevour to determine whether the findings of the trial court were properly anchored on the law and the evidence in so far as the assessment of damages was concerned thereby opening or shutting, as the case maybe, the door for interference with the award made. 1. The particulars of injury suffered by the Respondent are listed as; 2. Injuries on the medial aspect of distal third of left leg. 3. Deep cut wound on the right foot. These injuries were classified as grievous harm. 1. The plaintiff sought to rely on contents of a document titled discharge summary which showed that the Respondent suffered compound fractures of the tibia and fibula of the left limb. The only medical evidence properly produced before the trial court was the P3 form. The discharge summary was not reduced into a medical report capable of explaining the nature and extent of the alleged fractures. Further, the discharge summary neither bore the hospital letterhead nor official stamp to authenticate its source. More importantly, the amended Plaint did not plead compound fractures of the tibia and fibula. Parties are bound by their pleadings and evidence led outside the pleadings cannot form the basis of an award. **(See Independent Electoral** **and Boundaries Commission & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR and Adetoun Oladeji (Nig) Ltd v Nigeria Breweries PLC [2007] LPELR-160 (SC).** In the circumstances, this court finds that the discharge summary could not properly be relied upon as a basis for quantification of damages for injuries allegedly suffered by the Respondent. 1. The principles governing interference with awards of damages by an appellate court are well settled. In **Butt v Khan [1981] KLR 349**, the Court of Appeal held that an appellate court may interfere with an award where it is so inordinately high or low as to represent an entirely erroneous estimate of the damage suffered. Similarly, **in Kemfro Africa Ltd t/a Meru Express Services & Another v A. M. Lubia & Another (No. 2) [1987] KLR 30,** the Court stated that interference is justified where the trial court took into account an irrelevant factor, left out a relevant factor, or where the award is so excessive or so low as to amount to an erroneous estimate. 2. In assessing damages, courts are guided by the principle that comparable injuries should, as far as possible, attract comparable awards. In **West (H) & Son Ltd v Shephard [1964] AC 326**, Lord Morris observed that money cannot renew a physical frame that has been battered and shattered, but judges must endeavour to secure uniformity by making awards in comparable cases. The same principle has consistently been applied by Kenyan courts. 1. Notably, the injuries sustained by the Respondent consisted principally of cut wounds to the left leg and right foot without cogent medical evidence proving fractures or permanent incapacity. 2. Taking into account the nature of the injuries proved, the fact that they were classified as grievous harm, the period that has elapsed since comparable authorities were decided, prevailing inflationary trends, and the need to ensure that awards remain realistic while maintaining consistency, I am persuaded that an award of Kshs. 450,000/= would constitute fair and reasonable compensation for pain, suffering and loss of amenities. 3. Consequently, the appeal succeeds on quantum. The award of Kshs. 1,500,000/= in general damages is hereby set aside and substituted with an award of Kshs. 450,000/= for pain, suffering and loss of amenities. The award of special damages in the sum of Kshs. 63,300/= is upheld. Interest shall accrue in the usual manner. In light of the win win situation obtaining herein, each party shall bear its own costs of the appeal. ## Dated signed and delivered virtually this 11th Day of June 2026  **A.K. NDUNG’U JUDGE**