Lwangu v Shivachi (Civil Appeal E673 of 2025) [2026] KEHC 11668 (KLR) (Civ) (23 July 2026) (Judgment)

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS - CIVIL APPELLATE DIVISION** **CIVIL APPEAL NUMBER E673 OF 2025** **GRACE KHATENJE LWANGU ……………..……………… APPELLANT** **-VERSUS-** **FELIX SHIVACHI………. …………..………………………. RESPONDENT** ***(Being an appeal from the judgment and decree of Honourable M. Kinyanjui (S.P.M) delivered on 18th June, 2025 in Milimani Small Claims Court Case No. SCCC E066 of 2025)*** **JUDGMENT** **I. INTRODUCTION AND BACKGROUND** 1. This is a first appeal arising out of the judgment and decree of the Milimani Small Claims Court in **SCCC No. E066 of 2025**, delivered on 18th June, 2025. The Appellant herein was the Claimant before the lower court. 2. The primary suit arose out of a road traffic accident that occurred on 18th October, 2024 along Valley Road near Sarova Pan Afric, Nairobi. The Appellant was a lawful passenger in motor vehicle registration number **KAR 611Q** when she sustained multiple soft tissue bodily injuries due to an accident involving the Respondent’s motor vehicle. 3. Liability was settled via interlocutory judgment entered against the Respondent on 15th May, 2025, leaving quantum and costs as the only issues for formal proof. By its judgment dated 18th June, 2025, the trial court awarded the Appellant **Kshs. 80,000/=** as general damages, **Kshs. 20,419/=** as special damages, and **Kshs. 10,000/=** as certified costs, with interest. 4. Aggrieved by the parameters of quantum and costs, the Appellant preferred this appeal via a Memorandum of Appeal dated 23rd June, 2025. The Respondent did not participate in the appeal despite being duly served with the Memorandum of Appeal and notice of directions. **II. THE GROUNDS OF APPEAL** 1. In his Memorandum of Appeal, the Appellant appeals against the Trial Court's decision on the following grounds: 2. THAT the Learned Trial Adjudicator erred in law by awarding extremely low general damages of **Kshs. 80,000/=** for multiple soft tissue injuries devoid of any judicial backing and/or case law to support the impugned award. 3. THAT the Learned Trial Adjudicator erred in law and in fact by failing to be guided by relevant caselaw on comparable injuries which the Appellant cited in her filed written submissions dated 16th May, 2025. 4. THAT the learned adjudicator erred in law by failing to be bound by the doctrine of stare decisis in making the award on general damages. 5. THAT the learned adjudicator erred in law by awarding extremely low costs of **Kshs. 10,000/-** for the claim devoid of any judicial backing and/or precedent. **IV. The Appellant's Written Submissions** 1. The Appellant’s filed written submissions dated 14th July 2025 in support of the appeal and submitted as follows: ***On Quantum of General Damages*** 1. It is submitted for the Appellant that the trial court's award of Kshs. 80,000/= as general damages for pain and suffering was so low as to constitute a wholly erroneous estimate of the damages. The medical report by Dr. Titus Ndeti dated 20th November 2024 demonstrates that the Appellant sustained multiple soft tissue injuries to the head, neck, and lower limbs, requiring long-term treatment and observation. 2. The appellant submitted that under the well-established judicial principle of *stare decisis*, courts must make awards that are comparable to previously decided cases to maintain consistency and predictability in the administration of justice and relied on the case of *Poa Link Services Co. Ltd & Another v Sindani Boaz Bonzemo [2021] KEELRC 2012 (KLR)*, where the Court upheld an award of Kshs. 350,000/= for comparable soft tissue injuries. Similarly, in *Lake Naivasha Growers v Muigai Thuka [2020] eKLR*, the court awarded Kshs. 250,000/= for soft tissue injuries to the leg. 3. It was the appellant’s submission that by awarding Kshs. 80,000/=, the trial court completely ignored the prevailing economic conditions, inflation, and the trend of recent judicial decisions. The Appellant submitted that a sum of Kshs. 300,000/= is the most reasonable and fair award under this head to restore the Appellant to the position she would have been if the tort had not occurred. ***On the Award of Costs*** 1. The Appellant submitted that the trial adjudicator erred by fixing an arbitrary sum of Kshs. 10,000/=. While the Small Claims Court is meant to offer a simplified and affordable procedure, the court must not abuse its discretion by making arbitrary lumpsum awards that do not reflect the actual legal work done, court fees paid, and disbursements incurred by the Appellant in prosecuting a matter to formal proof. 2. The Appellant further submitted that Section 32 of the Small Claims Court Act, 2016 preserves the court’s discretion to award costs, but such discretion must be exercised judicially. A flat award of Kshs. 10,000/= is grossly insufficient and does not indemnify the Appellant. The Appellant prayed that this Honourable Court sets aside the lump-sum award and orders that the costs of the trial court be taxed by the taxing officer of the Small Claims Court in accordance with the Advocates Remuneration Order. **V. ISSUES FOR DETERMINATION** 1. Having evaluated the lower court record, the pleadings and the Appellant's written submissions, this Court identifies two core issues for determination: 2. *Whether the trial court’s award of Kshs. 80,000/= as general damages for pain, suffering, and loss of amenities was inordinately low to warrant appellate interference.* 3. *Whether the trial court erred in law by capping the costs of the suit at a flat rate of Kshs. 10,000/=.* **VI. DETERMINATION** **A. *Principles Governing Appellate Interference with Damages*** 1. The regulatory standard for an appellate court reviewing a trial judge or adjudicator's exercise of discretion on quantum is strictly circumscribed. As established by the Court of Appeal in the case of **Kemfro Africa Limited t/a Meru Express Services & Another v Aziri Kamu Mudika Lubia & Another [1985] eKLR** (citing *Ilanga v Manyoka [1961] EA 705*) the court stated: ***"The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate."*** ***B. Assessment of General Damages*** 1. The medical evidence compiled by Dr. Titus Ndeti proves that the Appellant suffered multiple soft tissue injuries targeting the forehead, neck, and lower limbs, accompanied by intense pain and residual physical discomfort. 2. A review of recent superior court jurisprudence for comparable soft tissue injuries demonstrates that the trial court’s award of Kshs. 80,000/= was entirely out of step with inflation and prevailing judicial trends. 3. In **Poa Link Services Co. Ltd & Another v Sindani Boaz Bonzemo [2021] eKLR**, the High Court affirmed a trial court’s award of **Kshs. 350,000/=** for multiple soft tissue injuries affecting the chest, abdomen, hip joint, thigh, and knee, stating that such an award correctly factors in economic inflationary indices. Similarly, in **Lake Naivasha Growers v Muigai Thuka [2020] eKLR**, the High Court sustained an award of **Kshs. 250,000/=** for soft tissue injuries to the leg and thigh. 4. More recently, in **Huma Oscar Adembesa & Another v John Odiwour Gweno [2024] KEHC 5379 (KLR)**, the High Court clarified that while exorbitant awards for soft tissue injuries cannot stand, a reasonable compensation spectrum under modern inflationary conditions sits between **Kshs. 100,000/=** to **Kshs. 250,000/=** depending on the spread and severity across body parts. 5. In this case, the Appellant sustained injuries across three separate body areas (forehead, neck, and limbs). The trial adjudicator failed to address or distinguish the comparable precedents cited and offered no rationalized basis for departing into a significantly lower threshold. Consequently, the award of Kshs. 80,000/- is inordinately low and represents a wholly erroneous estimate of the damage. This Court finds a sum of **Kshs. 250,000/=** to be just, balanced, and mirrors current judicial trends. ***C. Assessment of Costs*** 1. On the question of costs, the trial court capped the award at a flat sum of **Kshs. 10,000/=.** While the Appellant contends that this award is arbitrary and fails to provide for a standard party-and-party taxation under the Advocates (Remuneration) Order, this Court must view the order through the unique statutory architecture of the Small Claims Court. 2. **Section 32(2) of the Small Claims Court Act** explicitly mandates that the court shall determine costs with an eye toward affordability, simplicity, and the quick resolution of disputes. Furthermore, Section 4 of the Act binds the court to ensure the timely disposal of cases using the least expensive methods. Unlike traditional courts where costs are invariably subjected to complex taxation processes, the Small Claims Court is intentionally designed to bypass protracted post-judgment proceedings to keep litigation costs proportionate and accessible to ordinary litigants. 3. The discretion to award and cap costs is well-rooted in our jurisprudence.In ***Jasbir Singh Rai & 3 Others v Tarlochan Singh Rai & 4 Others [2014] eKLR*,** the Supreme Court of Kenya reaffirmed that the award of costs is a matter of judicial discretion, stating: ***"Costs are at the discretion of the Court... it is a fettered discretion to be exercised judicially, depending on the facts and circumstances of each case."*** 1. In the context of a Small Claims Court proceeding that was determined expeditiously through formal proof, a fixed award of Kshs. 10,000/- is neither arbitrary nor a misapplication of legal principles. Rather, it represents a proper and lawful exercise of the trial adjudicator’s statutory discretion to provide a predictable, affordable, and final determination on expenses without saddling the parties with the disproportionate expenses of formal taxation. Consequently, the trial court's award under this head is affirmed. **VI. DISPOSITION** 1. The upshot of the foregoing is that this appeal succeeds partially only on the question of general damages. The judgment and decree of the trial court delivered on 18th June, 2025 is hereby varied in the following terms: 2. **The appeal on the quantum of General Damages is allowed.** 3. **The award of Kshs. 80,000/= under the head of General Damages is set aside and substituted with an award of Kshs. 250,000/=.** 4. **The trial court’s award of Kshs. 10,000/= as costs of the primary suit is hereby affirmed.** 5. **The award of Special Damages of Kshs. 20,419/= and interest from the date of filing remains undisturbed.** 6. **The costs of this appeal are awarded to the Appellant.** **It is so ordered**. **DATED AND DELIVERED at NAIROBI this …23rd……Day of …July… 2026** **…………………………………….** **E. K. OGOLA** **JUDGE** **In the Presence of:** Mr Sundwe...………………..for the Appellant No Appearance…..………for the Respondent Gisiele..…………...………… Court Assistant