https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10818

Izwe Loans Company Ltd v Kanyora (Civil Appeal 130 of 2024) [2026] KEHC 10818 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 10818 (KLR) Republic of Kenya In the High Court at Kerugoya Civil Appeal 130 of 2024 EM Muriithi, J June 25, 2026 Between Izwe Loans Company Limited Appellant and Festus Muriithi Kanyora Respondent (An appeal from the original civil suit Wanguru MCCC No. E197 of 2022 judgment delivered on 8/10/2024 by Hon. M. Opanga SPM) Judgment 1.The appellant being aggrieved by the Judgment/Decree of Hon. Martha Opanga(PM) delivered on 8th October, 2024 in Wang’uru CMCC No. E 197 OF 2022 Festus Muriithi Kanyora Vs Sizwe Loans Company Limited appeals to the High Court on the following grounds: -1.That the learned trial magistrate erred and misdirected herself in fact and law in the by awarding damages to the Respondent that were manifestly “excessive in the circumstances and thus failed to appreciate the principles applicable in the award of damages.2.That the Learned Trial Magistrate erred in Law and in fact in failing to consider the medical evidence tendered holistically and thus arrived at an impartial finding on the aspect of Future medical expenses.3.That the learned Magistrate erred in law and in fact in assessing damages and failed to apply the principles applicable in award of damages of comparable awards made for analogous injuries.4.That the learned magistrate erred in abdicating its judicial function and mandate of making appropriate awards independent of the parties’ suggestions/proposals.5.That the learned magistrate erred in failing to consider the nature of the injuries sustained by the respondent and awarding what was excessive and unjustified in the circumstances. Brief facts 2.The appellant was sued by the respondent by Plaint dated 13th December, 2022. The appellant defended the suit by a statement of defence dated 11th January, 2023. The case arose from an accident that occurred on the 28th October, 2021 when the respondent was lawfully a pillion passenger aboard motor cycle registration number KMDX 938X along the Embu-Mwea road at red soil area when the defendant themselves or their driver or agent allegdly negligently and carelessly drove managed and/or controlled motor vehicle registration number KCJ 343N in a careless manner causing it to lose control and hit the plaintiff and as a consequence thereof the plaintiff sustained serious injuries. The defendnat admitted liability in the contribution ratio of 80:20 in favour of the Plaintiff. Upon hearing the court awarded general damages for pain and suffereng and loss of amenities at ksh.4,000,000/-, Ksh.1,00,000/- for future medical expenses and Ksh.3,550/- together with costs and interst at court rates. 3.Being dissatisfied with the decision, the appellants filed an appeal in which they appealed against award of quantum as excessive in the circumstances of the case. Appellant submissions 4.The Appellant urged that the Respondent's injuries, as borne out by the medical reports on record, were:a.Mangled (severely crushed) injuries of the right lower limb.b.Head injuries -he suffered a cut wound and swelling on the left side of the head.c.Blunt soft tissue injuries (bruises and swelling) of both arms. 5.The appelalnt urged that the law is settled’ that comparable injuries should, as far as possible, attract comparable awards, subject only to moderation for. inflation and the peculiar facts of each case. This principle was firmly stated by the Court of Appeal in Butt v Khan [1981] KLR 349 CA, where the Court held that an appellate court may interfere with an award. of damages where it is so inordinately high or low as to represent an erroneous estimate of the loss suffered. 6.Applying that principle, courts have: consistently awarded sums in the region of Kshs 1,500,000/for severe soft tissue. injuries, crush injuries to a limb, and associated head injuries, where there is no amputation or permanent total disability, citing Sokoro Saw Mills Ltel v Benard Muthimbi Nenea [2014] eKIR the High Court upheld an award of Kshs 1,500,000 where the claimant had sustained severe crush injuries to the lower limb alongside multiple soft tissue injuries; Frodak Clearning Services & another where the Respondent’s left leg was amputated above the knee leaving a permanent feature with, 50% permanent disability amnd the court awarded the Respondent Kshs. 1,500,000/= as general damages for pain and suffering and loss amenities; and Patrick Mbatha Kyengo vs. Bayusuf Freighters Ltd. [2013] eKLR, where Kshs.1.6 million was awarded for amputation of the leg and fracture of the right radius and ulna. 7.It was urged that in the circumstances, this is a proper case for appellate interference, an award of Kshs 1,500,000 would adequately compensate the Respondent for the pain, suffering and loss of amenities occasioned by the injuries sustained, while remaining faithful to the principle of consistency and proportionality in the assessment of general damages. 8.It was furtehr submitted that in the present matter, the trial court awarded Kshs 1,000,000 under the head of future medical expenses without any evidential or legal foundation. The only medical evidence placed before the court was the report of Dr. P. K. Mwangi whose prognosis was clear, limited and specific that the Respondent would require a prosthesis at an estimated cost of Kshs 400,000. He further estimated annual maintenance at Kshs 10,000 for a period of ten years, translating to Kshs 100,000. On the face of that evidence, the total projected future medical costs amounted to Kshs 500,000, there was no suggestion in the report of additional surgeries, replacement of the prosthesis, escalation of costs, or any other future intervention that-would justify a higher figure. 9.The appellant contended that no supporting documents were produced, there were no quotations from prosthetic providers, no invoices, no hospital estimates, and no supplementary medical opinions to bridge the gap between the doctor's estimate and the figure ultimately awarded by the court. In the absence of such proof, the award of Kshs 1,000,000 was entirely speculative. The appellant submits that an ex gratia amount of Kshs 200,000 should be awarded under this head. Respondent’s submissions 10.The Respondent submits that the medical report of Dr. P.K Mwangi dated the 26th March, 2022 shows that the respondent suffered the following injuries:a.Mangled (severely crushed) injuries of the right lower limb.b.Head injuries -He suffered a cut wound and swelling on the left side of the head.c.Blunt soft tissue injuries (bruises and swelling) of both arms. 11.The doctor classified the injuries as serious in nature and assessed the respondent's incapacity at 50%. The mangle injuries sustained by the respondent meant that he limb was severely crushed ad the tissue torn and mutilated as defined by the Black law dictionary. It was urged that the word mangled is used in courts to denote catastrophic limb injuries involving crushing, tearing and permanent damage rather than ordinary fractures and such injuries are by their nature grave, permanent and life-altering as supported by Doctor P.K. Mwangi’s medical feport. 12.The respondent cited the Magistrate’s Court’s decision in Muiruri v Mwilu & another (2025) KEMC 59 KLR, where the court (Y.A. Shikanda, SPM) awarded Ksh 3.500,000/= to the plaintiff who sustained paralysis on the left lower limb, with permanent incapacity was assessed at 65% by the plaintiff’s dcotor and 25% by the Defendant’s doctor. The respondent also cited Gitu Geoffrey & another v Charlene Njeri Kuria [2017] KECA 394 KLR and alleged that the Plaintiff therein was awarded Ksh. 5,000,000/= in general damages whereby he had suffered injuries that were assessed at 60% permanent disability. 13.The respondent urges the honourable court to uphold the lower courts judgment as the court in its assessment of damages falls within the acceptable range. It is not excessive and is not manifestly low. 14.Assessment of damages is indeed discretionally and not guesswork and the court in its judgment observed the above factors before passing the award of Ksh 4,000,000/= in general damages for pain, suffering and loss of amenities. 15.On the Issue of future medical expenses, the court took into consideration the medical reports by both doctors. The plaintiff doctor in his report confirmed that he will require a prosthetic at an estimation Ksh 400,000/= and maintenance of the same at Ksh 10,000/= for a period of 10years. 16.Future medical expenses must be specifically pleaded, strictly proved and must be supported by medical evidence.in paragraph 7 of the plaint future medical expenses were pleaded and the doctor in his medical report dated 26th March, 2022 confirmed that the need of an artificial leg(prosthesis} to be maintained at accost of Ksh. 10,000/= per year. The Respondent urged that the medical evidence was uncontroverted and it was fair that the court makes adequate provision for future medical treatment, citing Tracom Limited & another v Hassan Mohamed Adan [2009] KECA 48 KLR. Issue 17.The issue for determination in the appeal was whetehr the award was inordinately high or excessive as to warrant interference by this honourable court. Analysis 18.The principles for appellate interference with an award of damages by a trial court are set out in Butt v Khan [1981] KLR 349 (CA), that “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.”This Court accepts the principle that comparable injuries should attract comparable awards, subject to moderation for inflation and the peculiar facts of each case. Assessment of General Damages 19.The Respondent, who was a pillion passenger on a motorcycle, sustained injuries when the Appellant’s motor vehicle negligently collided with it on 28th October, 2021 along the Embu-Mwea road. The injuries, as per the medical report of Dr. P.K. Mwangi dated 26th March, 2022, were:a.Mangled (severely crushed) injuries of the right lower limb;b.Head injuries (cut wound and swelling on the left side);c.Blunt soft tissue injuries (bruises and swelling) to both arms. 20.The doctor assessed permanent incapacity at 50%. The Respondent pleaded and led evidence on future medical needs, including a prosthesis estimated at Kshs. 400,000 and annual maintenance of Kshs. 10,000 for 10 years. 21.The Appellant cited cases such as Sokoro Saw Mills Ltd v Benard Muthimbi Nenea (2014) eKLR (upholding Kshs. 1,500,000 for severe crush injuries to the lower limb with soft tissue injuries) and Patrick Mbatha Kyengo v Bayusuf Freighters Ltd [2013] eKLR .Kshs. 1.6 million for leg amputation plus other fractures. The Court notes the old age of these decisions. 22.The Respondent relied on Magistrate’s Court decision of Muiruri v Mwilu & another (2025) KEMC 59 for an award of Ksh.3.5 million for paralysis with 50% disability and Gitu Geoffrey & another v Charlene Njeri Kuria [2019] KECA 394 stated to have awarded Kshs. 5 million for 50% disability. This Court was unable to take benefit of the lower court award as it may be subject to appeal and the injuries therein were more severe as noted in the judgment of “(i) Left brachial plexus root avulsion af C7, C8 and T1; and ii. Loss of sensation motor power of the left upper limb (paralysis).” 23.The Court of Appeal decision of Gitu Geoffrey & another v Charlene Njeri Kuria [2019] KECA 394, relates to a single judge application “under Rule 4 of the Rules of this Court seeking extension of time within which to lodge and serve a notice of appeal and the memorandum and record of appeal.” 24.The trial court’s award of Kshs. 4,000,000 is on the higher side when compared to recent awards for analogous crush injuries and partial limb loss. In Njogu v Nyaga [2024] KEHC 1876 (KLR), the court (LM. Njuguna, J.as she then was) awarded Kshs. 900,000.00 where the victim suffered 80% disability. In Kurawa Industries Limited vs. Dama Kiti & another [2017] eKLR, the Court (Chitembwe, J.) observed that, “The scenario given by the above awards show that damages for amputation of one’s leg above the knee would range from Kshs.1.2 million to Kshs.2.5 million. The trial court awarded Kshs.2 million on 26.6.2015. I find that assessment not to be excessive. It is within the amounts awarded for similar injuries. There is the case of Samuel Musinga Mwatete(supra) where Kshs.1.5 million was awarded in 2012. The case of Patrick Mbatha Kyengowas decided in 2013. Kshs.1.6 million was awarded. An award of Kshs.2 million in 2015 cannot be excessive noting that Kshs.2.5 million was awarded in March 2014 in the case of Cosmas Mutiso Mwema(supra).” 25.Having considered the evidence, the injuries here involve a severe crush/mangled right lower limb with 50% permanent disability, plus head and soft tissue injuries, while not a case of full amputation, the “mangled” description indicates serious damage requiring prosthetic intervention; and significant pain, suffering, and loss of amenities. In the light of the authorities and considering the 50% disability, life-altering nature of the injuries the award of Ksh.4,000,000/= does appear excessive in the circumstances of the case. 26.The Court finds that an award of Ksh.2,000,000 as general damages for pain, suffering and loss of amenities is just and reasonable, regard being had to the principle of consistency with comparable awards for comparable injuries,while accounting for the severity of injuries in this case and inflationary trend by passage of time. Future Medical Expenses 27.Future medical expenses must be specifically pleaded and proved on a balance of probabilities, though some degree of estimation is permissible where supported by medical evidence. In Tracom Limited & another v Hassan Mohamed Adan [2009] KECA 48, while the Court of Appeal finally reduced the amount of future medical expenses, it accepted that the need for such an award may arise from the evidence by medical reports produced in Court, as follows:“It is clear to us that all the medical reports agree that the respondent would require future medication. Two reports i.e, that prepared by Kenyatta National Hospital and that prepared by Dr. Wangai suggest the estimated amount whereas others are silent on that but that he will need future medication is not in our mind in dispute.” 28.In this case, Dr. Mwangi’s uncontroverted report estimated Ksh.400,000 for a prosthesis and Ksh.10,000 per maintenance per year for a period of 10 years, making a total of 100,000/=. There are no quotations, invoices, or evidence of additional procedures (e.g. multiple replacements or surgeries) were produced to justify Kshs. 1,000,000, and this award would appear speculative and excessive. The Court will substitute the award with an award of Ksh.500,000 for future medical expenses. Loss of earning capacity 29.The trial court properly found that the claim for loss of earning capacity was not supported by evidence, and there was no cross-appeal on the issue. Special Damages 30.The award of Ksh.3,550 is undisputed and it is upheld. Orders 31.Acccordingly, for the reasons set out above, the Court finds that the appeal partially succeeds and the Court sets aside the trial court’s awards on general damages for pain and suffering and loss of amenities and future medical expenses and substitutes the awards as follows:1.General damages for pain and suffering Ksh.2,000,000/=; and2.Future medical expenses Ksh.500,000/=; 32.The awad for Special damages of Ksh.3,550/= remain unchanged. 33.Consequently, the total award in damagers is Ksh.2,503,550/= together with costs in the trial court and interest until payment in full. The award is subject to the contribution ratio of 20:80 against the appellant/Defendant as agreed between the parties before teh trial court. 34.There shall be the regular stay of execution upon judgment on appeal for thirty (30) days. 35.There shall be no orders as to costs in the appeal.Order accordingly. DATED AND DELIVERED THIS 25TH DAY OF JUNE 2026.EDWARD M. MURIITHIJUDGEAppearances:Ms. Ng’ang’a with Mr. Ahanda for the Appellant.Ms. Njuguna for the Respondent.