https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7949

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E077 OF 2024** **HANNAH RUIRU NJERI………………..………………….APPELLANT** **=VERSUS=** **JAMES MBUGUA NJERI………………………………..RESPONDENT** *(Being an Appeal from the Judgment of Hon. Jacinta Orwa (SPM) delivered on 23rd June 2023 in Kikuyu CMCC NO. 213 OF 2021)* 1. This Appeal emanates from the Judgment delivered on 23rd June 2023 in Kikuyu CMCC NO. 213 of 2021. The Suit was commenced by way of Plaint dated 9th August 2021. The Plaintiff by way of Notice of Motion dated 31st May 2026 sought to amend the Plaint in terms of the draft amended Plaint dated 31st May 2022. The Statement of Defence dated the 27th August 2021 was filed in Court on 9th September 2021. 2. From the amended Plaint the Plaintiff prayed for judgment to be entered against the Defendant for: 3. General Damages for pain and suffering and loss of amenities. 4. Special damages of Kshs.39,175/=. 5. Costs of the suit. 6. Interest on (a), (b) and (c) above at Court rates. 7. Loss of earnings from the date of the accident subject matter (18th February, 2021) to the date of filing the suit (10th August, 2021) at Kshs.1,200/= per day 8. Loss of earning capacity from the date of filing suit to a date to be decided by the Honourable Court at Kshs.1,200/= per day. 9. The above prayers were attributed to injuries suffered by the plaintiff (the Respondent in this case) following a road traffic accident that occurred on the 19th February 2021, when he was violently knocked down by the Defendants Motor Vehicle Registration Number KCL 975S along Choma Villa near Wangige. In her statement of defence the Defendant (Appellant) denied the Plaintiff’s claim. 10. When the matter came up before the learned trial magistrate on 2nd May 2023, parties recorded a consent on liability in the ratio of 60%:40% in favour of the Plaintiff and against the Defendant, which consent was consequently adopted as Judgment of the Court. The parties thereafter agreed to canvass the issue of quantum by way of written submissions Special damages were also settled at Kshs.8,550/=. 11. In the final determination, the trial court, by way of Judgment delivered on 23rd June 2023 awarded damages in the following manner. 12. Liability 60%:40% in favour of the Plaintiff and against the Defendant. 13. General damages for pain, suffering and loss of amenities Kshs.2,500,000/=. 14. Special damages…………………..Kshs.8,550/= 15. Grand total ………………………...Kshs.2,508,550/= 16. Less 40% contribution……………Kshs.1,003,420/= 17. Net total………………………………Kshs.1,505,120/= 18. Costs of the suit. 19. Interest at Court rates form the date of the Judgment untill payment in full. 20. Aggrieved by the Lower Court judgment on quantum of damages, the Appellant moved this Court on appeal by filing the memorandum of appeal dated 8th May 2024. He is challenging the award of quantum on the following grounds: 21. That the learned trial magistrate erred in law and in fact in assessing General damages at Kshs.2,500,000/= which was excessive in light of the injuries pleaded to have been sustained by the Respondent and the evidence adduced. 22. That the learned trial Magistrate erred in law and fact by relying on insufficient evidence to rule in favour of the Respondent. 23. That the learned Magistrate failed to consider the submissions and precedents filed on behalf of the Appellants. 24. That the learned Magistrate erred in law and in fact in failing to be guided by recent court awards thus arriving at an unconsciously erroneous finding on quantum. 25. That the learned trial Magistrate failed to consider the relevant factors and based her judgment on irrelevant factors. 26. The Appellant thus prays for orders that: 27. That this Honourable Court be pleased to set aside the Judgment of the Honourable Principal Magistrate, Hon. Jacinta Orwa (Ms.) with regard to the assessment of quantum of damages. 28. That this Honourable Court does its own fresh assessment of the evidence presented before the trial court on general damages and liability and make a determination between the Appellant and the Respondent altogether. 29. That the cost of the Appeal be in the cause. 30. That such further or other orders be granted as this Honourable Court may deem fit and just. 31. Parties, through counsel on record filed their respective submission on this appeal. Directions were given for the appeal to proceed by way of written submissions. The Appellant’s counsel raised two issues for determination: 32. Whether the learned trial Magistrate erred in law and in fact in awarding Kshs.2,500,000/= as general damages. 33. Who should be awarded costs of the Appeal? Counsel listed the injuries sustained by the Plaintiff as follows: 1. Compound, depressed fracture-skull right side. 2. Loss of consciousness. 3. Blunt injuries – chest, abdomen and back. 4. Cut wound – scalp. He further stated that the Plaintiff/Respondent did not sustain permanent disability, as per the medical report of Dr. Mwaura. In the circumstances, he submitted that an award of Kshs.800,000/= (Subject to liability) be awarded as general damages. He cited the following authorities. 1. **Muindu -v- Kinyanjui and another (Civil Appeal E032 of 2022 [2024] KEHC 1794 (KLR) (28 February 2024) (Judgment).** The Court of Appeal in the above authority awarded Kshs.750,000/= where the Respondent suffered loss of consciousness, soft tissue injury on the head, cut on the face, multiple non displaced bone fractures of right occipital bone-right zygomatic arch right orbital wall-right maxillary hemosinus and tenderness and pain of the right shoulder. 1. **Mapesa -v- Egesa (Civil Appeal 143 of 2022) [2024] KEHC 6246 (KLR) (16th May 2024) (Judgment).** In the above case the Court of Appeal set aside an award of Kshs.250,000/=, substituting with Kshs.800,000/= where the Respondent had suffered a fracture of the skull left eye socket (orbital floor), fracture of the skull left cheek bone (zygomatic cheek bone), deep cut on the left eye, cut on the left little finger, blunt object injury to the face (left -cheek-zygomatic) and left knee. 1. Learned counsel for the Respondent in his submissions stated that the trial Magistrate exercised her unfettered judicial discretion based on the evidence placed before her. He noted that judicial discretion is not to be interfered with unless it is manifest that it was exercised on the wrong principles. Counsel cited various authorities to emphasize on the need not to interfere with judicial discretion. **In Ratnam -v- Cumarasamy & Another, A11 ELR (1964) Volume 3 at pg. 933,** it was held: **“…..it was impossible to say that the discretion of the Court of Appeal was exercised on the wrong principle”.** Counsel further submitted that in Civil Application NO. 204 of 1998: **Peter Mburu Echaria** **And** **Priscilla Njeri Echaria** The Court of Appeal delivered itself as follows: **“……We have said on numerous occasions that the discretion conferred on a single Judge under Rule 4 is exercised on behalf of the Court and on a reference from his decision, the full court cannot interfere with that exercise unless it is shown:** 1. That in the exercise of its discretion the single Judge took into account irrelevant matters. 2. That he did not take into account a relevant factor. 3. That he misapprehended the law applicable to the situation. 4. Or that the decision is plainly wrong**.** **In Mbogo -vs- Shal (1968) EALR at pg. 93,** the Court of Appeal (Second holding) pronounced itself thus ***……..” A Court of Appeal should not interfere with the exercise of the discretion of a Judge unless it is satisfied that he misdirected himself in some matter and as a result arrived at a wrong decision; or unless it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of his discretion that as a result there has been misjustice…”*** Based on the above counsel for the Respondent submitted that the Appellant has failed to persuade the court that the trial Magistrate was wrong in her finding on quantum in her judgment and as such the Appeal be dismissed with costs to the Respondent. 1. The Court has perused the original record being CMCC No.213 OF 2021, the Record of Appeal and considered the submissions filed in respect of the Appeal. This Court has the duty to re-evaluate the evidence tendered in the Lower Court and to draw its own conclusions as a first Appellate Court. In **Abok James Odera t/a A. J. Odera & Associates -vs- John Patrick Muchira t/a Machira & Co. Advocates 2013 eKLR,** the Court of Appeal 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 re-analyze and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way”.** 1. The present Appeal is primarily challenging the award made by the trial Magistrate under quantum of damages. In considering this Appeal the Court has been guided by the holding of the Court of Appeal in **Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini -v- A. M Lubia and Olive Lubia (1987) KLR 30.** It was held that: ***“The principles to be observed by this Appellate Court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge are that it must be satisfied that either the Judge, in assessing the damages took into account an irrelevant factor or left out of account 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 the damages.”*** 1. The Court of Appeal in **Bashir Ahmed Butt -v- Uwais Ahmed Khan [1982-1988], KAR 5** stated: **“An Appellate Court will not disturb an ward 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 same material respect and so arrived at a figure which was either inordinately high or low.”** 1. The Court has re-evaluated and re-examined the Lower Court Record; and particularly the judgment delivered by the learned trial Magistrate on 23rd June 2023. In the Judgment, the learned trial Magistrate briefly reproduced the facts of the case and proceeded to award Kshs.2,500,000/= as general damages for pain, suffering and loss of amenities. From the said judgment of the learned trial Magistrate, this Court has observed the following: 2. That the learned trial Magistrate failed to make reference to the injuries suffered by the Plaintiff as itemized in the Medical Reports by Dr. G. K. Mwaura and Dr. Wambugu respectively. 3. That the learned trial Magistrate made no reference to the submissions filed by learned counsel on record for the parties. 4. That the learned trial Magistrate made no reference to precedents cited by counsel on record in support of their respective submissions and proposals on quantum of damages. 5. It is therefore clear from the record that the figure of Kshs.2,500,000/= awarded by the learned trial Magistrate was not based on any analysis of the injuries suffered by the Plaintiff or guided by any comparable precedents. It would appear that the learned trial Magistrate solely exercised her discretion to award Kshs.2,500,000/= as general damages. 6. In view of the above circumstances, it is clear from the record that the trial Court failed to take into consideration relevant factors to guide the exercise of discretion in assessing general damages. This therefore calls for this Court’s intervention as it is satisfied that the learned trial magistrate was wrong in failing to consider relevant factors in awarding general damages. As stated above the figure awarded was not based on any legal principles or based on any comparable jurisprudence. As stated elsewhere in this judgment the learned trial Magistrate did not even make reference to the injuries suffered by the Plaintiff and as a result made an award based on her own discretion. Whereas the Court would not ordinarily question the exercise of discretion by the trial court, it is important to emphasize that such discretion must always be exercised judiciously. 7. In assessing quantum of damages, the Court should be guided by key principles including consideration of comparable awards for comparable injuries as well as the medical evidence produced that demonstrate the extent of injuries suffered by the plaintiff/Respondent. 8. Having looked at the two Medical Reports on record, by Dr. G. K. Mwaura dated 16th June 2021 and Dr. Wambugu P. M. dated 21st June 2021 respectively, I note that the Plaintiff/Respondent had suffered the following injuries: 9. Compound, depressed fracture-skull right side. 10. Loss of consciousness for one month. 11. Blunt injuries – chest, abdomen and back. 12. Cut wound – scalp. 13. Counsel for the Appellant submitted that an award of Ksh.800,000/= (subject to liability) as general damages is sufficient to compensate the Plaintiff. As mentioned above Counsel relied on two authorities: 14. **Muindu -v- Kinyanjui and another (Civil Appeal E032 of 2022 [2024] KEHC 1794 (KLR)** and 15. **Mapesa -v- Egesa (Civil Appeal 143 of 2022) [2024] KEHC 6246 (KLR).** In the case of Muindi -v- Kinyanjui, the Plaintiff is shown to have sustained the following injuries: 1. Loss of consciousness. 2. Soft tissue injuries on the head. 3. Cut on the face. 4. Multiple none displaced bone fractures of the right occipital bone, right zygomatic arch, right orbital wall, right maxillary jaw, cerebral edema, right maxillary hemosinus and tenderness and pain of the right shoulder. The Plaintiff in **Mapesa -v- Egesa**, according to the treatment records, had suffered fracture of bones and soft tissue injuries. 1. Counsel for the Respondent did not cite any authorities in support of the award on quantum. However, he maintained that the learned trial Magistrate had properly exercised her discretion by awarding the Respondent Kshs.2,500,000/= as general damages for pain and suffering. 2. The Court has carefully considered this appeal in light of the above authorities and the submissions on record. The injuries sustained by the Plaintiff were slightly more serious than those sustained by the Plaintiffs in the cited authorities. He suffered a compound depressed skull fracture and one month unconsciousness in addition to blunt injuries and a scalp cut wound. Whereas the authorities are comparable, the Court has taken into account the passage of time and inflation in determining the appropriate award for general damages for pain, suffering and loss of amenities payable to the Plaintiff. In the circumstances of this case, I find the award of Kshs.2,500,000/= awarded to the Plaintiff to be excessive and unsupported. I therefore set aside the said award and substitute with an award of Ksh.1,200,000= (subject to liability). 1. The Court notes that there was no appeal on liability and special damages and the two limps will remain the same as agreed by consent before the trial Court. 2. On costs, the appeal has partially succeeded. Though costs would usually follow the event, I hereby order that each party shall bear own costs of this appeal. **DETERMINATION** 1. The Court finds that the appeal is merited and the same is allowed as hereunder. 2. The trial Court’s award of Kshs.2,500,000/= is hereby set aside and substituted with an award of Kshs.1,200,000/= as general damages for pain, suffering and loss of amenities. The award will be subject to liability in the ratio of 60%:40% in favour of the Respondent in terms of the consent recorded before the trial court. 3. The net total works out as follows: General damages Kshs.1,200,000/= Less 40% contribution Kshs.480,000/= Sub-total Kshs.720,000/= Add Special damages Kshs.8,550/= Total Kshs.728,550/= 1. The above award shall attract interest at court rates from the date of filing the suit in the Lower Court. 2. Parties shall bear own costs of this appeal. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI ON THIS 5TH DAY OF JUNE, 2026 THROUGH THE MICROSOFT TEAMS ONLINE PLATFORM.** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **NO APPEARANCE FOR THE APPELLANT** **MWANGI FOR THE RESPONDENT** **COURT ASSISTANT: MS. JAEL NOSIM**