Goldsmith Enterprises Ltd & another v Mueti (Civil Appeal E124 of 2024) [2026] KEHC 9110 (KLR) (26 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL DIVISION** **CIVIL APPEAL NO. E124 of 2024** **GOLDSMITH ENTERPRISES LIMITED….………….1ST APPELLANT** **RAPHAEL MUSYOKA….………...……….…………. 2ND APPLELLANT** **VERSUS** **PETER MUSAU MUETI………………….……...……… RESPONDENT** ***(Being an appeal from the ruling of Hon. Felix Makoyo PM dated 2nd August, 2024 at the Magistrates Court at Kilungu in Civil Case No. E304 of 2023)*** **JUDGMENT** 1. This appeal arises out of the decision of Hon. Felix Makoyo **Principal Magistrate dated 4th September, 2025 at the Magistrates Court at Kilungu. In the trial court, the Respondent had sued the appellants for** general damages for pain and suffering and loss of amenities, special damages of Kshs. 28,150/- costs and interest together with any other relief that the court may deem fit to grant. 1. In his Plaint, the plaintiffs in the lower court, the Respondent averred that on or about 9th December, 2022, he was lawfully riding Motor cycle registration number **KMFN 285W** along the Nairobi Mombasa Highway at Konza area when the 2nd Appellant as the authorised driver, servant, employee and/agent of the 1st Appellant so carelessly and negligently drove or controlled MV registration Number **KCM 373M** at a very high speed that he caused it to lose control causing the motor vehicle to collide onto the motor cycle on which he was riding and thereby occasioning the Plaintiff serious bodily injuries loss and damage. He particularised the Respondent’s negligence at paragraph 4 of the Plaint, he also particularised the injuries he sustained and special damages at paragraph 5 of the plaint and stated that the 2nd Appellant is vicariously liable for the actions of the 1st Appellant and prayed that judgement be entered in his favour as prayed. 2. The Appellants who were the Defendants in the trial court, denied all the averments and invited the plaintiff to strict proof thereof. They attributed the accident to the Defendant’s negligence which they particularised at paragraph 8 of the statement of Defence and prayed that the Plaintiff’s suit be dismissed with costs. 3. Judgement on liability was compromised by consent of the parties in the ratio of 80:20% in favour of the Plaintiff. The parties further consented to file written submissions on quantum. The trial court considered the submissions and awarded the Respondent a sum of Kshs. 2,000,000/- as damages for pain, suffering and loss of amenities. The court further awarded the Plaintiff special damages of Kshs. 28,150 together with costs and interests. 4. The appellant was aggrieved by the trial court’s decision and filed the instant appeal. In the memorandum of appeal, the appellant impugned the trial Magistrate’s quantum award on grounds that 1. The Hon. Magistrate erred in law, principle and fact by misapprehending the applicable principles of law in assessing quantum thereby arriving at an award that is manifestly and inordinately high 2. The trial magistrate erred in law and fact by failing to consider and analyse the medical evidence tendered by the appellant. 3. That the trial magistrate erred in law and fact by completely failing to consider the medical report of Dr. Madhiwala thus arrived at an erroneous finding on the nature of injuries sustained by the Respondent. 4. That the trial magistrate erred in law and fact by failing to consider and apply the appellant’s submissions and the authorities relied on. 5. That the trial magistrate erred in law and fact in assessing damages without applying comparable awards made for analogous injuries, and; 6. That the trial magistrate erred on law and fact by failing to consider the Defendants submissions while writing his judgement. 5. The Appellants prayed that the appeal be allowed and the trial court’s judgement on quantum be set aside and the same be revised to be commensurate with the evidence on record. They also prayed for costs of the appeal. 6. 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” 1. I have considered the consent entered by the parties herein and adopted as a judgement of the trial court on 4th July, 2024. It reads; “by consent; * 1. Lability (sic) be entered in favour of the Plaintiff against the Defendants in the ratio of 80:20% 2. The Plaintiffs statements and documents be admitted into evidence without calling the makers 3. The parties file submissions on issues liability (sic) 4. The 2nd medical report shall be entered onto the Defendant’s submissions(sic)” 1. The court considered the submissions and noted that none of the authorities relied on was recent enough to be considered. The court noted that the Plaintiff sustained fracture of the posterior 5th, 6th and 7th ribs on the left side, non-displaced communuted fracture of the left clavicle distally, complete fracture of the proximal phalanx of the right finger and abdominal soft tissue injuries. The injuries were confirmed by Dr. Siboko’s medical report dated 21st May, 2023 wherein he opined that the Respondent suffered grievous harm with an estimate permanent incapacity of 10%. On his part, Dr. Madhiwala in his medical report dated 7th June, 2024 equally assessed the Respondent’s degree of permanent incapacity at 10% hence the rival doctors’ reports were in concurrence on the Respondent’s degree of permanent incapacity. 2. In **Great Rift Express Shuttle Service & another v Kiplagat** [2025] KEHC 6687 (KLR), the Plaintiff suffered Multiple abrasions on the right and left upper limb, Fracture ribs 5th and 7th ribs and Fracture (R) clavicle which injuries are similar to the injuries suffered by the Plaintiff herein. My Sister Grace L Nzioka J, who has concurrent jurisdiction with me, upheld the trial court’s decision and award of Kshs. 1,000,000 as damages for pain, suffering and loss of amenities. 3. I am alive to the dicta in **Loice Wanjiku Kagunda vs. Julius Gachau Mwangi** [*CA 142/2003*](https://kenyalaw.org/akn/ke/act/ca/2003/142) (unreported) where the court of appeal relied on **Manga vs Musila** [1984] KLR 257) and stated that : - “We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on the wrong principles (see Manga vs Musila [1984] KLR 257).” 1. I am further guided by the Court of Appeal’s decision in **Butt vs. Khan** [1981] KLR 349, where the court held that “an appellate court will only interfere with the award of damages where it is shown that the trial court took into consideration an irrelevant fact or that the sum awarded is inordinately low or high that it must be an erroneous estimate of the damages or that a wrong principle of law was applied in awarding the damages. See **Kemfro Africa Ltd v A. M. Lubia & Another** (1988)1 KAR 727. 1. Whereas I appreciate that the assessment of damages is more like an exercise of judicial discretion and hence an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law , I note that besides the authorities relied on by the parties were rendered several years back and that none of them could be said to be of injuries similar to those suffered by the respondent herein, the trial Magistrate did not give any reasons, authorities or justification on the award of kshs. 2,000,000 for pain and suffering for the injuries suffered by the Respondent herein. 2. I am therefore in concurrence with the appellant that the award is inordinately high compared to the injuries sustained. I will adopt the Court’s award in **Great Rift Express Shuttle Service & another v Kiplagat** (supra) and bearing in mind inflation and this being a relatively recent authority and award the Respondent a sum of kshs. 1,200,000/- as general damages for pain, suffering and loss of amenities. 3. I consequently allow the appeal and substitute the award in general damages of Kshs. 2,000,000/- with a sum of Kshs.1, 200,000/-. 4. Consequently, I set aside the Trial Court’s judgement and enter judgement as follows: 5. Pain and suffering Kshs. 1,200,000/- 6. Special damages Kshs. 28,150/- **Total Kshs. 1,228,150** Less 20% contribution (Kshs. (245,630) 1. **Net award** **Kshs. 982,520/-** 2. On costs, it is trite law that costs follow the event. The Appellants will get the costs of the appeal. 3. It is so ordered. Right of appeal 30 days. Dated, signed and delivered this 26th day of June, 2026 **………………….….** **ROSELINE A. OGANYO** **JUDGE** **In the presence of; -** Court Assistant…E, Sana. Counsel for the Appellant…. Miss Mwangangi Counsel for the Respondent…Miss Muende Miss Mwangangi-The Respondent was paid half the decretal sum as awarded in the lower court, of Kshs. 900,000/- with costs thereon. We seek 30 days stay of execution herein to defray the difference as found by this court. Miss Muende-No objection. **Order.** There be a stay of execution for 30 days. **………………….….** **ROSELINE A. OGANYO** **JUDGE**