https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8210

Githongo v Mutembei (Civil Appeal E134 of 2024) [2026] KEHC 8210 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEHC 8210 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E134 of 2024 DKN Magare, J May 26, 2026 Between Wilson Kunora Githongo Appellant and Morris Mutembei Respondent Judgment 1.This is an appeal from the Judgment and decree of Hon. Sheila Nyaga (Senior Resident Magistrate) given in Kenol MCCC No. E206 of 2023. The Appellant was a successful Plaintiff in the court below. The appeal is on quantum only hence the court will subsume the facts in the analysis. 2.The respondent filed submissions dated 28.1.2026 stating that the court did not err in awarding Ksh. 700,000/= as general damages. They submitted that the evidence as captured by the trial court was that the Appellant sustained injuries in the nature of a severe head injury with depressed frontal skull fracture, bifrontal hemorrhagic contusions and pneumocephally, fracture of ethmoid bone, bilateral nasal fractures, frontal and ethmoid hemosinus, fracture of right orbit, epistaxis and lacerations on forehead. Further, that the examination was done on 9th May 2023 and permanent incapacity was assessed at 15%. 3.They submitted, rather late in the day, that the injuries were reported in an undated medical report of Dr. Muoki James K. The Appellant was examined by the Respondent’s doctor, Dr. Fredrick Kinama four months after the date of accident who reported the injuries as being, head injury with depressed frontal skull fracture, fracture of ethmoid bone, fractures of right orbital bone, lacerations on the forehead, frontal and ethmoid hemosinus and permanent incapacity was assessed at 5%. 4.They submitted that the court rightly made the decision as per the case of Butt v Khan [1978] KECA 24 (KLR), where the court of appeal [Madan, Wambuzi & Law JJA] stated as follows: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. 5.The Appellant filed submissions dated 8.12.2025. He stated that the ground is only 1, that is, whether the award of Ksh. 700,000/= should be enhanced. Reliance was placed on section 78 of the Civil Procedure Act. They relied on the case of Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR), where the court of appeal [EM Githinji, RN Nambuye & MK Koome, JJA] held as follows:This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way. See the case of Kenya Ports Authority versus Kuston (Kenya) Limited (2009) 2EA 212 wherein the Court of Appeal held inter alia that:On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and Dr.aw 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 that respect. Secondly that the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence” 6.They averred that the award was inordinately low as to be an erroneous estimate of damages. They stated that the report by Dr. Muoki identified the Appellant’s injuries, and further that the Appellant underwent a skull surgery and there were application of dual mesh with implants. There was loss of memory and short-term loss of memory and loss of normal contour of the face. They submitted that the respondent’s doctor gave same injuries but gave 5% permanent incapacity. They submitted that only the Appellant testified hence the court should rely on their evidence. The respondent’s medical report was not legally produced. 7.They submitted that an award of Ksh 3,000,000/= will suffice. They relied on the case of James Wambua Kimila v SinohyDr.o Corporation Limited & another [2020] KEHC 5780 (KLR), where the claimant suffered fracture, compound comminuted, depressed frontal bone of the skull, fracture of the left orbital bone of the skull, fracture of the left maxilla, extradural hemorrhage, injuries to the left eye evidenced by contusion of the optic nerve and bilateral sub conjunctival hemorrhage, fracture bi-malleolar of the right ankle joint. The court awarded Kshs. 6,000,000/=. They prayed for costs. Analysis 8.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. 9.The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle and another Vs Associated Motor Board Company and Others [1968] EA 123, where the Judges in their usual gusto, held by as follows; -“.. 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 re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanor of a witness is inconsistent with the evidence generally.” 10.The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In the case of Peters vs Sunday Post Limited [1958] EA 424, 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…” 11.The appeal is on quantum only. The nature of general damages were discussed in the case of Nyambati Nyaswabu Erick Vs Toyota Kenya Ltd & 2 Others (2019)eKLR , Justice D.S Majanja held as doth:“General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method approach should be that comparable injuries would as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly the same.” 12.The duty of the court regarding damages is settled that the state of the Kenya economy and the people generally, and the welfare of the insured and injured public must be at the back of the mind of the trial Court. The principles for appellate interference with an award of damages by a trial court in Crown Bus Services Ltd & 2 others v BM (Minor suing through his mother & Next Friend) SMA) [2020] eKLR are as follows:“The well-known principles for interference of an award of damages by a trial court are laid down by the Privy Council in Nance v. British Columbia Electric Railway Co. Ltd. (1951) A.C. 601, 613 and applied in East Africa by Sir K. O’Connor (with whom Sir Alastair Forbes, V.-P. and Newbold, J.A. agreed) in Henry H. Ilanga v. M. Manyoka [1961] EA 705, 713 as follows: “The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or a jury, the appellate court is justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tired the case at first instance. Even if the tribunal of first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing the damages, applied a wrong principle of law (as taking in some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage (Flint v Lovell, [1935] 1 K.B.), approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd. [1942] A.C. 601.” 13.This is also further enunciated in the case of Henry Hidayo Ilanga versus Manyama Manyoke [1961] EA 705, 713 at paragraph c, where Sir Kenneth O’Connor P, in the lead decision to which Sir Alastair Forbes, VP, and Newbold JA agree with nothing useful to add, the former court of appeal for East Africa held as follows:In considering this question, I apply the rule laid down by the Privy Council, that is Nance vs British Columbia Electric Co Ltd, [1951]A.C. 601, at 613, when discussing the principles to be observed in disturbing the quantum of damages awarded by a judge.“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance even if the tribunal of the first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing damages, applied a wrong principle of law(as by taking into account some irrelevant factor and or leaving out a relevant one); or short of this, that the mount awarded is so inordinately low or so inordinately high that it must be wholly erroneous estimate of damages. 14.Finally, in deciding whether to disturb quantum given by the lower court, the court should be aware of its limits. Being an exercise of discretion, the exercise should be done judiciously, considering the circumstances, to ensure that the award is not too high or too low as to be an erroneous estimate of damages. The court of Appeal, pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows:“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. 15.The foregoing statement had been ably elucidated by Sir Kenneth ‘Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Counsel, that is Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the learned Judge ably pronounced himself as doth regarding disturbing quantum of damages: -“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…” 16.Therefore, for me to interfere with the award it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. 17.So my duty as the appellate court is threefold regarding quantum of damages: -a.To ascertain whether the Court applied irrelevant factors or left out relevant factors.b.To ascertain whether the award is too high as to amount to an erroneous assessment of damages.c.To ascertain whether the award is simply not justified from evidence. 18.To be able to do this, I need to consider similar injuries, take into consideration inflation and other comparable awards. 19.The Appellant suffered the following injuries:i.Severe head injury with depressed frontal skull fracture, bifrontal hemorrhagic contusions and pneumocephally.ii.Fracture of ethmoid boneiii.Bilateral nasal fracturesiv.Frontal and ethmoid hemosinusv.Fracture of right orbitvi.Epistaxisvii.Lacerations on forehead 20.Orwaya Dennis noted that the Appellant suffered head injury with depressed frontal bone fracture. He was in a fair general position. He was advised on neuro maxillofacial surgeon review for possible reconstruction and repair of the frontal depressed fracture. The discharge summary also indicated that there was a need for skull elevation and orbital reconstruction. Dr. Gitonga concluded that the Appellant suffered Bifrontal hemorrhagic contusions, pneumocephally, skull and facial bone fractures – depressed frontal bone fracture-8cm, displaced right orbital and medial wall fractures, fractures of the cribriform plate of ethmoid bone, frontal and ethmoid hemosinus, mucal thickening of maxillary sinuses, right frontal sculpt swelling. 21.The P3 classified the injuries as grievous harm. Dr. Muoki found the same injuries but gave 15 % disability. The defence documents were admitted by consent of the party vide a consent letter dated 26.9.2024. Therefore, the postulation that they are not properly on record is otiose. A consent is like a contract between parties. It is binding and can only be set aside on the following grounds:i.Illegality.ii.Fraud or misrepresentation.iii.Inducement oriv.Force. 22.It can only be set aside if one of the contracting parties can demonstrate that he or she was not sane or incapable of knowing what he or she was signing. The burden of establishing any of the above grounds is on the one alleging and the standard is usually higher than standard applicable in civil matters. In Flora .N. Wasike –vs- Destino Wamboku (1988) eKLR the Court of Appeal stated as follows;“It is now settled that a consent judgment or order has contractual effect and can only be set aside on grounds which would justify setting a contract aside, or if certain conditions remain to be fulfilled.” 23.In Kenya Commercial Bank Ltd –vs- Specialized Engineering Co Ltd (1982) KLR 485, the court made similar observations as follows;“A consent order entered into by consent is binding on all parties to the proceeding and cannot be set aside or varied unless it is proved that it was obtained by fraud or collusion or by agreement contrary to the policy of the court or where the consent was given without sufficient material facts or in misapprehension or ignorant which would enable the court to set aside an agreement”. 24.Therefore, the court was entitled to look at all the evidence on record. Medical evidence was expert evidence. It must be viewed with the rest of the documents. The extent of application of an expert opinion in judicial proceedings, and the general trend is that such evidence is not necessarily conclusive and binding. As was held in Shah and Another vs. Shah and Others [2003] 1 EA 290:“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.” 25.Further, the Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.” 26.Courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them as stated in Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that:“While the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:"The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:- "Because this is the evidence of an expert, I believe it." 27.The assessment of 5% disability basically means it is a nominal disability. This is not reflected in the two reports. The finding of 5% therefore does not reflect the general nature of the evidence on the record. I hold and find that the report by Dr. Muoki is more in line with the P3, Discharge summary and Orwaya Dennis’s notes. I set aside the finding of 5% disability as it has no basis on the facts of the matter. If the respondent wished to challenge the evidence, they ought to have addressed in the report, the rationale for differing with Dr. Muoki who was first in time. 28.The Respondent used decisions that were over 6 years old and had awarded between Ksh 400,000-500,000/= for less serious injuries. On the other hand, the decision relied on by the Appellant was exaggerated. It awarded Ksh 6,000,000/= but the Appellant is using the same to request for an award of Ksh. 3,000,000/=. It equally has no basis in fact and in law. In Nyota Tissue Products v Charles Wanga Wanga & 4 Others [2020] KEHC 6207 (KLR), the court awarded Ksh 500,000/= where there was no permanent disability. 29.In the case of Sansora Bakers Limited v Naftali George Obare [2019] KEHC 6747 (KLR), the court awarded Ksh. 1,500,000/= 7 years ago for multiple skull fractures, fracture of the radial ulna, fracture of ribs left side 3, 4, 5, 6., plating of radial ulna with multiple fractures, loss of consciousness for 3 days, confusion, radial ulna plating, bruises to the left upper limb, contusion on left side of the chest and multiple bruises on the face. These were more serious injuries although the decision is also fairly old. 30.In the case of Amazon Energy Limited v Magdaline Nthenya Mathias & another [2019] KEHC 5851 (KLR), the claimant suffered comminuted fracture of the left femur thigh bone (intertrochanteric region and shaft), displaced fracture of the right femur thigh bone (mid shaft), skull fractures at left eye socket, orbital floor and left lamina propia, fracture of the right clavicle shoulder blade bone, deep cut on the forehead extending to the left eye, bleeding in the skull air spaces (left orbit and left ethmoid hemosinus), total loss of vision in the left eye. The injuries attracted an award of Ksh. 2,500,000/= 7 years ago. The injuries suffered are fairly serious. 31.I find the award of Ksh. 700,000/= to be so inordinately low as to be an erroneous estimate of damages. Doing the best I can, a sum of Ksh 1,500,000/= will have sufficed. The award of Ksh 700,000/= is thus set aside and substituted with Ksh 1,500,000/=. 32.This leaves the issue of costs, which is governed by Section 27 of the Civil Procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 33.Costs are generally discretionary. However, the discretion is not arbitrary. The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 34.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 35.The Appellant is entitled to costs. A sum of Ksh. 75,000/= shall suffice. Determination 36.In the upshot, I make the following orders: -a.The appeal is allowed. The award of general damages for pain, suffering and loss of amenities is set aside and substituted thereof with Ksh. 1,500,000/=.b.All the other awards remain.c.Costs of Ksh. 75,000/= for the appeal are awarded to the Appellant.d.30 days stay of execution.e.14 days right of appeal.f.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 26TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of: -Ms. Mbabu for the AppellantMs. Kamau for the RespondentCourt Assistant – Martin