https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11213

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS COUNTY COURT NAME: MACHAKOS HIGH COURT CASE NUMBER: HCCA/E189/2024 ISSACK IBRAHIM ALI ALIAS ISSAC IBRAHIM ALI VS MEDINA BUS SERVICE LIMITED AND ISMAIL MUSDAF ALI AND 1 OTHERS JUDGMENT The Appellant, Issack Ibrahim Ali alias Issac Ibrahim Ali being dissatisfied with the judgment of the learned magistrate, Honourable Mr B S. Khapoya (SPM), delivered at Kithimani on 10th July, 2024, hereby appeals to the High Court against the decision on award of general damages for pain, suffering and loss of amenities on the following grounds: 1. That the learned magistrate erred in law and in fact in awarding general damages for pain and suffering of Kshs 70, OO0/ which is manifestly and inordinately low bearing in mind the injuries sustained by the Appellant and the effect of the injuries; 2. That the learned magistrate misdirected himself in law and in fact by failing to appreciate the uncontroverted evidence by the appellant adduced during trial on 17.04.2024 in terms of quantum; 3. The learned magistrate erred in law and in fact by failing to ha guided by the general principle in assessing damages which is that similar injuries should attract similar award and also taking into consideration the peculiar mature of the injuries in each case, effect of inflation in the value of money and the sequel of the injuries. Brief facts The appellant/plaintiff filed this case through his plaint dated 6th May, 2020 against the Respondents. The Appellant/plaintiff herein was involved in a road traffic accident on the 02.12.2019 at about 4: 00 a. m., whilst lawfully travelling as a fare paying passenger aboard motor vehicle registration number KCP 099A along Mwingi-Thika Road at Sofia Area, when the 3rd Respondent so negligently and carelessly drove, managed, and/or controlled motor vehicle registration number KCP 099A that he caused and/or permitted the same to lose control, veer off its lane and violently overturn. Consequently, the Appellant sustained severe personal injuries. She filed a personal injury claim against the Respondents in the lower court; being Kithimani, PMCC No. E048 of 2020. In paragraph 5 of the Plaint the plaintiff pleaded the following injuries: 1. Tender haematoma formation over the forehead. 2. Very tender neck on all neck movement. 3. Severe tenderness involving the left anterior chest wall. 4. Tender oedematous soft tissues over the proximal left leg near left knee joint; giving rise to left knee joint movement limitations. The plaintiffs/appellant prayed for judgement against the defendants for: - 1. General damages 2. Special damages- Kshs. 6,810 3. Costs of the suit. 4. Interests on (a), (b) and (c) above The defendant entered appearance and filed a statement of defence dated 17th August, 2020. The matter proceeded for full hearing. In a judgment delivered on 10.07. 2024, the Learned Magistrate found the Respondents 100% liable for the accident. He awarded the Appellant Kshs. 70, 000/= as general damages for pain, suffering, and loss of amenities and Kshs. 6, 810/= as special damages. The Appellant being aggrieved by the judgment of the lower court lodged this appeal, against the award of general damages. Appellant submissions The Appellant's submission is that the injuries he sustained were severe as to attract a higher award. Therefore, bearing in mind the evidence adduced and decisions on similar injuries, the trial court’s award is manifestly low. The plaintiff pleaded injuries that he sustained in paragraph 5 of the plaint. The evidence relied upon to prove the injuries is as follows: The Appellant produced P3 form (P. Exh.5) and medical reports by Dr. Muli produced as P. Exh.8 Dr. Muli in his medical report dated 13.01.2020 (P.Exh 8) confirmed the injuries sustained. He examined the Appellant on the 13.01.2020. At the time of examination, he noted healed scars on the head. He classified the injuries as harm. The appellant submits that the multiple soft tissue injuries sustained are not disputed. Accordingly, the Appellant submits that the foregoing re-evaluation reveals that the trial court failed to appreciate the fact that the Appellant’s injuries merited a higher award. Further, the Court failed to appreciate that similar injuries should, so far as possible, attract similar awards. On whether the Learned Magistrate erred in awarding quantum of damages, the Appellant submits that the learned Magistrate erred in two respects. One, he failed to appreciate the nature and extent of the Appellant's injuries. Two, by failing to do a comparative analysis of the Appellant's injuries and the decisions cited, he failed to take into account the principle that comparable injuries should attract comparable awards. Before the trial Court, the Appellant had cited two decisions in support of his submissions. Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichubi [2005] eKLR The 3rd Plaintiff suffered multiple soft tissue injuries, injury on the left elbow joint, and injuries on both ankles. The Court awarded her Kshs. 350, 000/= as general damages for pain, suffering and loss of amenities on 01/07/2005. HCCC MERU- Lucy Ntibuka v Bernard Mutwiri & Others [1983] eKLR, The plaintiff sustained the following injuries, classified as soft tissues; head injuries, lacerations on the lateral side of the right eye, lacerations and cut wound on the left arm (elbow). The court awarded her Kshs, 500,000/as general damages for pain, suffering and loss of amenities on 08/02/2007. The Appellant submits that the above decisions are comparable to his case. Indeed, he sustained more soft tissue injuries than the Respondents in the above cases. The Appellant submits that the above decisions are comparable to his case. Indeed, he sustained more soft tissue injuries than the Respondents in the above cases. Therefore, in view of the fact that he sustained severe injuries, had the Learned Magistrate truly considered the above decisions, he ought to have made an award higher than Kshs. 70,000. The Appellant submits that the appropriate award is Kshs. 300, 000/= as submitted in the lower court. Respondent submissions There are no submissions on record. Issue 1. The sole issue is whether the award of Kshs. 70,000/= as general damages is inordinately low so as to warrant interference by this Court. Analysis The principles guiding an appellate court in interfering with an award of general damages are well settled. In Butt v Khan [1978] KECA 24 (KLR), the Court of Appeal held that an appellate court will not disturb a trial court’s award unless it is satisfied that the judge acted on a wrong principle of law, misapprehended the evidence, or that the amount is so inordinately high or low as to amount to a wholly erroneous estimate of the damages. Comparable injuries should, as far as possible, attract comparable awards, with due regard to inflation and the facts of each case. The Appellant’s grounds of appeal are that the award of Kshs. 70,000/= is manifestly low given the injuries and their effects; that the magistrate failed to appreciate the uncontroverted evidence on quantum; and that he did not apply the principle that comparable injuries should attract comparable awards, while taking into account inflation and the peculiar nature of the injuries. The Appellant relied on Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichubi [2005] eKLR (Kshs. 350,000/= in 2005 for multiple soft tissue injuries) and Lucy Ntibuka v Bernard Mutwiri & Others [2007] eKLR (Kshs. 500,000/=). He urged an award of Kshs. 300,000/=. The learned magistrate correctly identified the injuries as soft tissue in nature but appears to have undervalued the multiplicity (head, neck, chest, and leg) and the immediate painful effects, including movement limitation at the knee and tenderness. General damages for pain, suffering and loss of amenities are not capable of mathematical calculation. The court must compensate the victim fairly without enriching him, while ensuring awards remain stable yet reflective of economic realities. Recent authorities show that for multiple soft tissue injuries with no fractures or permanent disability, awards typically range between Kshs. 100,000/= and Kshs. 250,000/= depending on severity, number of body parts affected, duration of pain, and evidence of residual effects. It is trite that while comparable injuries should attract comparable awards, no two cases are exactly alike. In Stanley Maore v Geoffrey Mwenda [2004] eKLR, the Court of Appeal observed that comparable injuries should, as far as possible, receive comparable awards, while recognizing that each case depends on its own peculiar facts. In Chemwolo & Another v Chichir [2024] KEHC 161 (KLR), the High Court reduced an award of Kshs. 400,000/= to Kshs. 180,000/= for bruises on the forehead, cut wound on the supra-orbital region, and blunt injuries to the shoulder and knee multiple soft tissue injuries with no disability. In Oyaro v Morris [2025] KEHC 5361 (KLR), an award of Kshs. 300,000/= for bruises, abrasions on the forehead, and blunt trauma to chest, abdomen, knee, and back was reduced to Kshs. 130,000/= on appeal, the court noting these were minor soft tissue injuries. It is my finding that while the award is not based on a wholly wrong principle, it is inordinately low in light of current comparable awards and the uncontroverted medical evidence. This court is entitled to interfere and substitute a more appropriate figure. The appeal on quantum succeeds in part. The award of Kshs. 70,000/= is set aside and substituted with an award of Kshs. 150,000/= as general damages for pain, suffering and loss of amenities. READ AND PUBLISHED IN THE CTS THIS 16TH JULY 2026 IN THE PRESENCE OF: NO APPEARANCE BY EITHER PARTY BEFORE HON JOYCE GANDANI JUDGE COURT ASSISTANT BEN SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. LADY JUSTICE JOYCE MKAMBE GANDANI** Machakos High Court High Court Div Date: 2026-07-16 11:14:27