https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11070

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **HCCA NO. E114 OF 2024** **GEORGE IRUNGU WAIRAGU……………………………………..……..…...APPELLANT** **-VERSUS-** **KENNETH MURAGE KANYINGI……………………………………………RESPONDENT** **JUDGMENT** 1. On the 3rd March 2022 the respondent was traveling aboard motor vehicle registration KDG 569 A registered in the name of the appellant and being driven by his agent and/or driver when an accident occurred at Kandara-old Murang'a road at Makindi river. 2. The respondent suffered severe body injuries precipitating the filing of Kandara civil case no 279 of 2022 seeking damages out of a road accident that occurred. 3. This culminated in a judgment as follows. 1. A finding of 100% liability 2. An awarded of general damages in the sum of ksh.800,000. 3. Special damages of Kshs.3,000. 4. Interest on the awarded sums at court rates. 4. The appellant is dissatisfied, as a result of which he lodged an appeal seeking the following orders that: 5. The Appeal herein be allowed, and the judgment of the Trial Court be set aside. 6. The Court sets aside the award of general damages and substitutes the same with a fresh assessment. 7. The costs of the Appeal be granted to the Appellant. 8. The appeal is predicated on the following grounds of appeal: Principal Magistrate at Kandara in MCCC No. E279 of 2022 delivered on 19th September 2024, appeal against the said Judgment on the following grounds: 1. THAT the Learned Magistrate erred in law in awarding General Damages at Kshs.800,000 which amount is manifestly excessive considering the injuries sustained by the Respondent. 2. THAT the Learned Magistrate erred in assessing general damages and failed to apply the applicable principles in the award of general damages and comparable awards made in similar cases leading to a manifestly high and excessive award. 3. THAT the Learned Magistrate erred in law and in fact in failing to consider the Appellants' written submissions on record and the authorities annexed therein. 4. THAT the judgment of the Learned trial Magistrate is against the law and weight of the evidence on record and against the doctrine of stare decisis. 5. Reliance is placed in the case of **Bashir Ahmed Butt v Uwais Ahmed Khan [1 982—881 KAR 5** cited in **Easy Coach Bus Limited v Mary Adhiambo OhUrU 120171 KEHC 7997 (KLR),** where it was firmly established that an appellate court should interfere with an award of damages only where the award is so inordinately high or low as to amount to an entirely erroneous estimate, Therefore, interference is warranted when it is shown that the trial court proceeded on wrong principles or misapprehended the evidence in a material respect, thereby arriving at a figure which is manifestly unjust and cannot be allowed to standi which the Appellant submits to have been the case in the trial court. 6. According to the appellant, the Learned Magistrate erred in the assessment of general damages by failing to apply the established legal principles governing such awards, including the need for consistency with comparable awards in similar cases. 7. It submits that the assessment of general damages was based on a misapprehension of evidence which resulted in an inordinately high figure thus warranting this court's reassessment. 8. Whereas the Respondent claimed to have suffered fractured ribs, a right haemothorax and a diaphragmatic hernia, a subsequent medical evaluation by Dr. Waithaka Mwaura confirmed that the injuries had healed, albeit with permanent residual scarring. The degree of permanent disability was assessed at only 6%. 9. In light of the relatively moderate nature of the injuries and the extent of recovery, the award of Kshs.800,000/= by the trial court was unjustifiably high and not commensurate with awards made in comparable cases. 10. Reliance is placed in the Court of Appeal in **Stanley Maore v Geoffrey Mwenda, NYR CA Civil Appeal No. 147 of 2002 (20041 eKLR,** and as acknowledged by the trial court itself, the assessment of general damages must be guided by comparable awards in similar cases. This principle promotes consistency, fairness, and predictability in the award of damages and ensures that awards do not become arbitrary or excessive. 11. The Appellant relied on the case of **Easy Coach Bus Services Limited v Mary Adhiambo Ohi.Jr1J (201 71 eKLR** where the trial court's award of Kshs.1,200,000 was revised downwards to Kshs.300,000 for similar injuries. In particular, the Plaintiff therein had suffered: bruises on the left temporal region, fracture on the right posterior 6th 7th and 9th ribs, mid line incisor scar, hameothorax, raptured liver, right lower scapula blade fracture and bruises on the right upper limb. 12. The trial court's assessment of general damages was founded on a misapprehension of the evidence, resulting in an inordinately high award. 13. The trial court erroneously relied on the case of **Sammy Mwania v New Joqoo Road Hardware Ltd 120181 Eklr** in concluding that the injury of a ruptured diaphragm in that case was comparable to the present matter. 14. While it is true that a ruptured diaphragm was among the injuries sustained, it was only one of numerous and far more severe injuries that collectively justified the higher award in that case. 15. The injuries sustained in the present case were significantly fewer and less severe. 16. The reliance on the Sammy Mwania case (supra) as a comparative authority was therefore misplaced and led the trial court into awarding a sum that was excessive in the circumstances. The case cannot be regarded as a suitable precedent for the injuries suffered herein. 17. It invites the court to rely on the decisions in **Easy Coach Bus Limited v Mary Adhiambo Ohuru [20171 KEHC 7997 (KLR) and K. B. Sanqhani v Lydia Waniiku Niuqung & 2 others (20161 KEHC 3343 (KLR**), where the injuries sustained by the plaintiffs were more comparable to those of the Respondent in the present case. In those matters, the courts awarded general damages of Kshs. 300,000 and Kshs.450,000 respectively. These cases provide a more appropriate benchmark for assessing general damages, both in terms of the nature and extent of injuries. 18. It invites the Court to interfere with and set aside the award on general damages and to substitute it with a fair and just amount of Kshs. 300,000/- as guided by the cited authorities. **The respondent’s submissions;** 1. The respondent submits that he suffered the following injuries; b. Fractured ribs (4). c. Right haemothorax. d. Diaphragmatic hernia. e. Raptured diaphragm. 1. According to him this was not disputed by Dr. Waithaka Mwaura who filed a medical report dated 6th September, 2023. Dr.Waithaka further assessed the degree of residual permanent disability at 6%. 2. The p.3 form dated 20th May, 2022 by JOHN. N MWANGI indicated that the respondent suffered grievous harm. 3. He Further, submits that the respondent was hospitalized for a total of 37 days at Murang'a hospital and later Kenyatta Hospital and underwent a raft of treatment procedures that were painful and uncomfortable including surgical interventions. 4. In **Butt vs kham (1981) KLR 349 on paqe 356 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. It submits that the trial magistrate did not err in the assessment of general damages. 2. It submits that the trial magistrate applied the established legal principles governing such awards, including the need for consistency with comparable awards in similar cases and thus the sum awarded manifestly excessive contrary to the Appellant’s submissions. 3. According to the Respondent, the authorities cited in the appellants submissions dated 2nd July, 2025 are not comparable to the injuries suffered by the appellant. 4. **In Easy Coach Bus Services Ltd vs Mary Adhiambo Ohuru (2017) EKLR** the judge found the injuries suffered to be mild head injuries and shock and anemia and a hand injury. The judge found the trial magistrate to have misapprehended the evidence which resulted in a figure that was inordinately high warranting the courts intervention. 5. It submits that this is not the case in the instance case as the injuries are clear from the doctor's reports from both sides. 6. On its part The respondent had relied on the authority of **Sammy Mwania v new Joqoo road hardware's ltd (2018) Eklr** where the judge awarded damages at for a raft of injuries including the ones suffered by the respondent though more serious. 7. The trial magistrate however relied on more comparable authorities being; **Arrow car limited vs Eliiah & 2 others (2004) Eklr**. The judge awarded to the 2nd respondent, Dishon Mubali for a raptured diaphragm, spleen and not wounds on the forehead, bruises on the face and hands and broken teeth which are similar to injuries sustained by the respondent. 8. The trial magistrate was therefore correct in giving an award herein having taken into account the cases cited and rate of inflation due to the passage of time since the time those authorities were decided. **Analysis and determination;** 1. In **Selle & Another vs. Associated Motor Boat Co Ltd & Others [1968] EA** The court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 2. The Supreme Court of India on the 27th day of April, 2015 in the case **of K. Anbazhagan v. State of Karnataka and Others**, as follows; *“The appellate court has a duty to make a complete and comprehensive appreciation of all vital features of the case. The evidence brought on record in entirety has to be scrutinized with care and caution. It is the duty of the Judge to see that justice is appropriately administered, for that is the paramount consideration of a Judge. The said responsibility cannot be abdicated or abandoned or ostracized, even remotely.....The appellate court is required to weigh the materials, ascribe concrete reasons and the filament of reasoning must logically flow from the requisite analysis of the material on record. The approach cannot be cryptic. It cannot be perverse. The duty of the Judge is to consider the evidence objectively and dispassionately. The reasoning in appeal are to be well deliberated. They are to be resolutely expressed. An objective judgment of the evidence reflects the greatness of mind - sans passion and sans prejudice. The reflective attitude of the Judge must be demonstrable from the judgment itself. A judge must avoid all kind of weakness and vacillation. That is the sole test. That is the litmus test.”* 1. In embarking into the journey of reevaluating the case, this court has considered the settled principles that have been settled when it comes to the question whether the court can interfere with the judgment of the trial court as enunciated by the Court of Appeal in the case of **Butt v. Khan [1981) KR 349**, Law (JA) where it was stated that: *"An appellate court will not disturb an award of damages unless it is so inordinate 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 some material respect, and so arrived at a figure which was either inordinately high or low......"* 1. This court must consider the award of damages in the light of the injuries sustained noting that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases. 2. The court has looked at the medical report of Dr. P. K. Mwangi dated 3rd September 2022 from where it finds that the Respondent sustained the following injuries-Right Haemothorax Blood collection between chest wall and lungs - At the pleural cavity]. 3. Raptured diaphragm- A muscle that separates the abdomen from the chest. 4. Right Diaphragmatic Hemia- A defect where abdominal organs pass through a hole at the diaphragm. 5. The court has also looked at the second medical report of Dr. Waithaka Mwaura dated 22nd March [2023](http://2023.it) who concluded that the Respondent sustained chest trauma that necessitated surgical intervention and prolonged hospital stay. Healing occurred with residual permanent scars. His complaint of inability to lift heavy objects is to be expected. He assessed the degree of residual permanent disability at six percentage (6%). 6. The court has also considered the authorities of where the appellant being the matter of **Easy Coach Bus Services Limited v. Mary Adhiambo Ohuru [2017) eKLR**, the Respondent sustained several injuries that included bruises on the left temporal region, fracture on the right posterior 6th, 7th and 8th ribs, mid line incisor scar, haemothorax, raptured liver, right lower scapula blade fracture and bruises on the right upper limb. The court initially awarded her Kshs. 1,200,000 which was set aside upon appeal and substituted with an award of Kshs. 300,000 for general damages. 7. **In K.B Sanghani v. Lydia Waniku Njugung & 2 Others [2016] eKLR** where the plaintiff therein suffered fracture of the ribs (9th right rib as well as 5th, 6th, 7th. 8ih and 9th ribs on the left side, bruised knee and developed chest problems and the court awarded general damages of Khs. 450,000-. 8. On the Respondent’s part, during the trial, he submitted that the pain and suffering occasioned to the plaintiff was immense. 9. He asked the court to award him khs1,500,000/= for the pain and suffering and rely on the following authorities of **Hellen Atieno Oduor v SS Mehta & Sons Ltd & Muthitu Nanua (2015] eKLR** plaintiff suffered fracture of the right tibia and fibula, multiple fractures of the right ribs on the right side of the chest (3, 4\*, 5th, 6th, 7th and 8th), chest injury with hemothorax, blunt abdominal trauma, fracture of the right scapula, surgical scars on the right knee interiorly and right ankle joint medially. Permanent disability was assessed at 10%. She was awarded general damages of Kshs. 1,500,000/- on 3/01/2015. 10. He also relied on the case of **Sammy Mwania v New Jogoo Road Hardwares Ltd [2018] eKLR** plaintiff suffered ruptured diaphragm, hermalion of the stomach into thorabit cavity, liver disfunction, acute renal failure necessitating dialysis, empyema of the left thorax necessitating ventilation support, injury to trachea necessitating tracheostomy, multiple fractures to the humerous, femur and a cetum, interteochanteric fracture, shortened leg into the hip joint and total loss of the libido. On 23rd November, 2018 he was awarded general damages of Kshs. 2,000,000/. 11. The plaintiff in the case of **Hellen Atieno Oduor v SS Mehta & Sons Ltd & Muthitu Nanua (2015] eKLR** suffered fracture of the right tibia and fibula, multiple fractures of the right ribs on the right side of the chest (3rd, 4th, 5th, 6th, 7th and 8th) interalia. The court awarded Kshs. 1,500,000/-. 12. In the case of **Sammy Mwania v New Jogoo Road Hardwares Ltd [2018] eKLR.** The plaintiff sustained multiple fractures to the humerous, femur and a cetum, interteochanteric fracture, shortened leg into the hip joint and total loss of the libido inter alia. He was awarded general damages of Kshs. 2,000,000/-. 13. The injuries in these two precedents were more severe than what the Respondent in the instant appeal sustained. 14. During the trial, the Appellant had submitted that the Respondent should be awarded Kshs.450,000 while in this appeal he is asking the court to award the Respondent Kshs.300,000. 15. I have also looked at the analysis that was carried out by the trial court in arriving at the quantum awarded for general damages and the court finds that the amount awarded is not inordinately high. 16. The amount awarded as general damages is not inordinately high in my opinion. It accords with the nature of the injuries sustained by the Respondent and the awards in the precedents that the Respondent relied on at the trial and I so hold. **Costs;** 1. In **Joseph Oduor Anode v. Kenya Red Cross Society*,* Nairobi High Court Civil Suit No. 66 of 2009; [2012] eKLR** Odunga, J. thus observed: *“…whereas this Court has the discretion when awarding costs, that discretion must, as usual, be exercised judicially. The first point of reference, with respect to the exercise of discretion is the guiding principles provided under the law. In matters of costs, the general rule as adumbrated in the aforesaid statute [the Civil Procedure Act] is that costs follow the event unless the court is satisfied otherwise. That satisfaction must, however, be patent on record. In other words, where the Court decides not to follow the general principle, the Court is enjoined to give reasons for not doing so. In my view it is the failure to follow the general principle without reasons that would amount to arbitrary exercise of discretion* …” [emphasis supplied]. 1. The appellant shall shoulder costs of this appeal. **Disposition**; 1. The appeal lacks merit. **Orders**; The appeal is dismissed with costs. **Dated, Signed and Delivered Virtually at Eldoret this 21stday of July, 2026** **………………………………** **J. CHIGITI (SC)** **JUDGE**