https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10616

Izwe Loans Company Ltd v Ndambiri (Civil Appeal 131 of 2024) [2026] KEHC 10616 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 10616 (KLR) Republic of Kenya In the High Court at Kerugoya Civil Appeal 131 of 2024 EM Muriithi, J June 25, 2026 Between Izwe Loans Company Limited Appellant and Festus Ngutu Ndambiri Respondent (An appeal from the original civil suit Wanguru MCCC No. E196 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 196 OF 2022 FESTUS NGUTU NDAMBIRI 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 vide a plaint dated 13th December, 2022. The appellant defended the suit vide a statement of defence dated 11th January, 2023. The case arose from an accident that occurred on the 28th Octobeer,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 a;;egedly 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. 3.The particulars of injury to the plaintiff are fracture of the right patella bone; head injuries and soft tissue injuries. On the 2nd July, 2024 when the matter came up for hearing parties through their counsel recorded consent on liability in the ratio of 80:20 in favour of the respondent against the appellant. The judgment was delivered in favour of the appellant herein as against the respondent on the 8th October, 2024 and respondent was awarded general damages in the sum of Ksh.800,000/= and Ksh 6,890/= as special damages. The respondent was also awarded costs and interest at court rate. Total award less contribution 20% = 645,512. 4.Being dissatisfied with the decision, the appellants filed an appeal in which they appealed against award of quantum as being excessive in the circumstances of teh case. Appellant’s submissions 5.The appellant submits that both parties before the trial court were agreed on the nature and extent of the Respondent's injuries. According to the medical evidence of Dr P.K. Mwangi, the Respondent sustained a fracture of the right patella, blunt injuries to the right knee, a cut wound, head injuries, soft tissue injuries of the anterior chest, and bruises to the left arm and hand. Because of the complexity and severity of the injuries, a second assessment was conducted by Dr Maina Ruga, whose prognosis confirmed that the Respondent had indeed suffered a patella fracture and multiple soft tissue injuries. It was urged that the issue before this Court is not liability but the proper assessment of general damages for pain, suffering, and loss of amenities of life. The trial court awarded Kshs 800,000 for general damages. It was contended that that ward is excessive when measured against established Kenyan precedents involving comparable injuries citing Damaris Ombati vs. Moses Mogoko Levis & another [2019] eKLR where there were two respondents; the 1st respondent sustained the following injuries; tenderness on the neck, a cut wound on the pate of the scalp, facial bruises, tenderness on the lower back, tenderness on the anterior chest wall, tenderness on the abdomen and a fracture of the right patella (knee joint). For these injuries, he was awarded Kshs, 350,000. Kenfreight East Africa limited v Galu [2024] KEH5134(KLR) (13 May 2024) Judgment), the Appellant sustained a fracture of the left patella bone and fracture of the distal 1st phalanx left foot with nail damage. The late Justice Majanja set aside the award of Kshs 500,000/and substituted the same with Kshs 400,000/on general damages for pain and suffering. Even in a scenario to argue competing inflationary trends, in this case the Appellant suffered way severe injuries than the Respondent in the instant appeal. 6.It was urged that in the present case, the Respondent's injuries, are directly analogous to those in the authorities cited above involving similar fractures and soft tissue injuries. There is no evidence of significant permanent disability or complications that would justify distorting the normal range upwards. On the other hand, the timeline for healing and prognosis suggests that these injuries. Consequently, the appellant submits that this Court should find that the trial court erred in its exercise of discretion in awarding Kshs 800,000 in general damages and therefore reduce the award to figure within the range frequently adopted by appellate courts, say Kshs 400,000/-, which would be more appropriate and reflective of the nature of the injuries. Respondent’s submissions 7.Through the medical report of Dr. P K Mwangi dated the 26th March, 2022 shows that the respondent suffered the following injuries:a.Fractures of the right patella bone.b.Blunt soft tissue injuries of the right knee and cut wound.c.Head Injuries-He suffered a cut wound on the nasal septum, bruises on the face and scalp.d.Blunt soft tissue injuries of the anterior chest.e.Blunt soft tissue injuries (bruises and swelling) on the left arm and hand. 8.The doctor classified the injuries as serious in nature. The award of Ksh 800,000/= for the fracture of the patella and other soft tissue injuries was neither excessive or founded in the wrong principle. The learned trial magistrate considered the nature of the injury, the treatment undergone and the residual effects. The award falls within the acceptable range for comparable injuries and does not meet the threshold for appellate interference. The respondent relies on these decisions Alphonce Muli Nzuki v Brian Charles Ochuodho [2014] KEHC 1408 eKLR, where the Respondent sustained compound comminuted fracture of right tibia and fibula and degloving injury medial aspect of right leg and foot and was ‘awarded Kshs. 800,000 general damages; Motrex Co. Limited & Another v Fidelis Njoki Gachoka HC.C.A_No, 205 of 2011, Mbogholi Msagha J, (as he then was) upheld the award of Kshs 800,000/ as General Damages for the Respondent who had sustained Open fracture of tibia and fibula of right leg and non-displaced fracture of right jaw; and Baya v Kipkemboi (Civil Appeal E 106 of 2024) [2025] KEHC 12071 (KLR) where the respondent was awarded Kshs 700 000/= in general damage for pain and suffering and loss of amenities for fracture of the patella bone and other injuries. The respondent thereore urged that the award fell within the acceptable range of injures for such gravity and cannot be said to be inordinately excessive or founded on any misdirection. Issue 9.The issue for determination is whether the award was inordinately excessive as to warrant interference by the appellate court. Analysis 10.The principles for appelalte interference with an award of damages by a trial court are set out in Butt v Khan [1981] KLR 349 (CA), where the Court of Appeal held:“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.” 11.This court accepts the principle that comparable injuries should attract comparable awards, subject to moderation for inflation and the peculiar facts of each case. Analysis of injuries and evidence 12.The medical reports of Dr. P.K. Mwangi (26th March 2022) and Dr. Maina Ruga confirmed a right patella fracture, blunt knee injuries with a cut wound, head injuries with facial/scalp bruising, chest soft tissue injuries, and left arm/hand bruises. There was no evidence of permanent disability, significant loss of amenities beyond the healing period, or complications requiring future major interventions beyond what was pleaded. 13.The trial Magistrate awarded Kshs. 800,000/= for pain, suffering, and loss of amenities. While the injuries were undoubtedly serious and painful, requiring hospitalisation and rehabilitation, the evidence does not disclose exceptional complications or long-term incapacity that would justify an award at the higher end of the spectrum for lower limb fractures. 14.The Appellant cited Damaris Ombati v. Moses Mogoko Levis & Another [2019] eKLR, where a plaintiff with similar injuries—including a right patella fracture, neck/back/chest tenderness, facial bruises, and scalp wound—was awarded Kshs. 350,000/=. In Kenfreight East Africa Limited v. Galu [2024] KEHC (Majanja J.) a left patella fracture with foot phalanx injury attracted an appellate substitution to Kshs. 400,000/= taking into account the element of inflation. 15.The Respondent relied on Alphonce Muli Nzuki v. Brian Charles Ochuodho [2014] eKLR (Kshs. 800,000/= for compound comminuted tibia/fibula fracture with degloving injury) and Motrex Co. Limited & Another v. Fidelis Njoki Gachoka (open tibia/fibula and jaw fracture), which obviously involve more severe, compound, multi-bone fractures with greater disability and are distinguishable. Closely related is Baya v. Kipkemboi (Civil Appeal E106 of 2024) [2025] KEHC 12071 (KLR), Kshs. 700,000/= was awarded/upheld for a patella fracture with other injuries, but context suggests additional factors as the appellant had also suffered fracture of the right tibia leg bone. 16.The Court considers that recent awards for isolated or simple patella fractures with soft tissue injuries as shown in caselaw cited above typically range from Ksh.350,000/= to under 700,000/- at the highest, even accounting for inflation since the 2024 decisions. 17.Having considered the medical evidence holistically and the authorities, the trial court’s award of Kshs. 800,000/= is inordinately high and constitutes an erroneous estimate. The Court considers that the appropriate award, guided by the cited case-law and the unaggravated nature of the injury in the absence of any proven permanent disability, is Kshs. 500,000/= Orders 18.Accordingly, for the reasons set out above, the Court finds that the appeal succeeds and makes the following orders:1.The trial court’s award of general damages for pain and suffering and loss of amenities in the sum of Ksh.800,000/- is set aside and substituted with an award of Ksh.500,000/=.2.The award of special damages of Ksh.6,890/= remain unchanged. 19.Consequently, the total award in damagers is Ksh.506, 890/= together with costs in the trial court and interest until payment in full. 20.The award is subject to the contribution ratio of 20:80 against the appellant/Defendant as agreed between the parties before the trial court. 21.There shall be the regular stay of execution upon judgment on appeal for thirty (30) days. 22.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.