Mutuku v Mulyungi & 2 others (Civil Appeal 142 of 2024) [2026] KEHC 9532 (KLR) (12 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA MACHAKOS** **HCCA 142 OF 2024** **JACKLINE NDUNGE MUTUKU…………………..……………. APPELLANT** **VERSUS** **ROGEOUS MUTETI MULYUNGI ………………….…….1ST RESPONDENT** **NELSON MUTHANGYA KAVALA ………………..…….2ND RESPONDENT** **PATRICK MUSYOKA MULAKI …………………..………3RD RESPONDENT** *(Being an Appeal from the Judgement of Hon. KHAPOYA S. BENSON (SPM) in KITHIMANI SPMC NO. 435 of 2018 delivered on 24/04/2024*) **JUDGMENT** 1. The Senior Principal Magistrate’s Court at Kithimani delivered judgment in Civil Case No. 435 of 2018, in which the appellant, J N M, a minor suing through her next friend, sought damages against the respondents, with the 1st respondent being Rogeous Muteti Mulyungi. 2. The appellant was a fare-paying passenger in motor vehicle registration KBN 146D on 2nd July 2017 along the Matuu–Thika road at Kwa Majini area when the 3rd respondent, driving motor vehicle registration KCG 147E, allegedly lost control and rammed into the appellant’s vehicle. 3. She sustained severe injuries including a degloving wound with major skin and muscle loss on the right arm, cut wounds, and bruising, and she claimed special damages of Ksh. 20,660, general damages, and future surgery costs estimated at Ksh. 300,000. 4. The respondents denied liability, asserting that the accident was caused by the negligence of the driver of KBN 146D. 5. At trial, the appellant testified and adopted her witness statement, producing medical reports, treatment notes, a police abstract, and other documents. 6. A police officer testified that the 3rd respondent lost control, swerved into the right lane, and hit the matatu carrying the appellant. 7. A medical doctor confirmed the injuries and noted that the suggested surgery cost of Ksh. 300,000 applied to private hospitals, being cheaper in public facilities. 8. The respondents did not file submissions. The court analyzed the evidence and found that the appellant had proved her case on a balance of probabilities, holding that as a passenger she bore no liability and that the respondents failed to rebut the evidence on ownership and negligence. 9. Liability was apportioned at 100% in favour of the appellant as against the respondents. 10. The court awarded general damages for pain, suffering, and loss of amenities in the sum of Ksh. 250,000, future medical expenses of Ksh. 100,000, and special damages of Ksh. 20,660, making a total judgment sum of Ksh. 370,660. 11. The appellant was also awarded costs of the suit. Interest on special damages was ordered to run from the date of filing suit until payment in full, while interest on general damages was to run from the date of judgment until payment in full. 12. The appellant has appealed against the said judgment on the following grounds; 13. ***THAT the trial magistrate failed to appreciate and analyze material contradictions between the Respondent’s evidence and that of the traffic police officer (PW2) on how the accident occurred.*** 14. ***THAT the trial magistrate erred in finding the Appellants liable because the Respondent did not discharge the burden of proving actionable negligence against the 3rd Appellant.*** 15. ***THAT the trial magistrate misapplied judicial precedents and failed to assess joint tortfeasors’ respective culpability, instead automatically transferring 100% liability to one vehicle despite a passenger’s immunity from blame.*** 16. ***THAT the award of Kshs. 250,000/= for general damages (pain, suffering, loss of amenities) is excessive, disproportionate, and an erroneous estimate given the soft tissue injuries and medical evidence.*** 17. ***THAT the award of Kshs. 100,000/= for future medical costs lacks specific, cogent, or scientific medical justification and contradicts the medical expert’s cross-examination testimony.*** 18. ***THAT the trial magistrate proceeded on an erroneous view of the law, leading to an unjust and oppressive decision against the Appellants.*** 19. The appellant, Jackline Ndunge Mutuku, submitted that he appeals only the award of general damages from the judgment delivered on 24th April 2024 by the Senior Principal Magistrate at Kithimani in PMCC No. 435 of 2018. 20. She was involved in a road traffic accident on 2nd July 2017 as a fare-paying passenger in motor vehicle KBN 146D, when the 3rd respondent’s vehicle (KCG 147E) lost control and rammed into her vehicle. 21. She sustained multiple soft tissue injuries, including scars on the head, neck, back, elbow, knee, and feet. 22. The trial magistrate found the respondents 100% liable and awarded her Kshs. 250,000 as general damages for pain, suffering, and loss of amenities, Kshs. 100,000 for future medical expenses, and Kshs. 20,660 as special damages. 23. The appellant argues that the general damages award of Kshs. 250,000 is manifestly and inordinately low. 24. She contends that the trial magistrate failed to appreciate the nature and extent of her injuries. 25. She also argues that the magistrate failed to conduct a proper comparative analysis with previous similar cases and did not account for inflationary trends. 26. The appellant cites three comparable cases: 27. Anne Nduta Thandi v. J.M. Maina & Another (HCCC No. 117 of 1997) – Kshs. 500,000 for degloving wound and deep laceration. 28. Easy Coach Limited v. Emily Nyangasi (2017) – Kshs. 700,000 for soft tissue and degloving injuries. 29. Mor v. Franciscan Sisters of Immaculate (2017) – Kshs. 700,000 for degloving injury to scalp and forehead. 30. She submits that her injuries are more severe than those in the cited cases, and therefore the appropriate award should be at least Kshs. 800,000. 31. Regarding future medical expenses, she notes that Dr. Wokabi estimated Kshs. 300,000 for scar removal surgery, while Dr. Kahuthu estimated Kshs. 250,000. 32. The trial magistrate awarded Kshs. 100,000, which the appellant argues was not quoted by either doctor. 33. She urges the court to prefer Dr. Wokabi’s opinion as the initial examining doctor and award Kshs. 300,000 for future medical expenses. 34. Accordingly, the appellant prays that the High Court interfere with the trial court’s decision and award Kshs. 800,000 in general damages and Kshs. 300,000 in future medical expenses. 35. The respondents did not file any submissions in this appeal. 36. The issues for determination in this appeal are as follows; 37. ***Whether the award of general damages for pain, suffering, and loss of amenities in the sum of Kenya Shillings two hundred and fifty thousand (Ksh. 250,000) was so inordinately low as to represent an entirely erroneous estimate of the damages due to the appellant, and*** 38. ***whether the award of Kenya Shillings one hundred thousand (Ksh. 100,000) for future medical expenses lacked proper evidentiary foundation or failed to accurately align with the expert medical testimonies on the cost of scar removal surgery.*** 39. This is a first appeal to the High Court from the decision of the Senior Principal Magistrate’s Court at Kithimani. 40. Under the long-established principle set out in **Selle and Another v. Associated Motor Boat Company Ltd and Others [1968] EA 123,** this court is under a statutory obligation to re-examine, re-assess, and re-evaluate the evidence on the record to arrive at its own independent findings and conclusions. 41. However, because this appeal strictly disputes the quantum of damages, the court must also guide its judicial discretion by the strictures laid down **in Mbogo and Another v. Shah [1968] EA 93.** 42. This authority dictates that an appellate court will not disturb an assessment of damages unless it is shown that the trial court proceeded on a wrong principle of law, misapprehended the material evidence, or that the resulting award is so inordinately high or low as to constitute a wholly erroneous estimate of the loss suffered. 43. The first issue is whether the trial court failed to conduct a proper comparative analysis and appreciate the severe nature of the injuries, specifically the right arm degloving wound accompanied by extensive skin and muscle loss, alongside several cut wounds and bruising. 44. General damages for personal injuries are at large, yet the principle of consistency demands that comparable injuries should, as far as possible, attract predictable awards, while allowing adjustments for inflationary trends and the diminishing purchasing power of the Kenya Shilling over time. 45. The appellant has invited the court to consider three relevant precedents. In **Anne Nduta Thandi v. J.M. Maina & Another (supra),** the court awarded Kenya Shillings five hundred thousand (Ksh. 500,000) for a degloving wound and deep laceration. 46. In **Easy Coach Limited v. Emily Nyangasi (supra**), an award of Kenya Shillings seven hundred thousand (Ksh. 700,000) was granted for soft tissue and degloving injuries. 47. Similarly, in **Mor v. Franciscan Sisters of Immaculate (supra)**, the court sustained an award of Kenya Shillings seven hundred thousand (Ksh. 700,000) for a degloving injury to the scalp and forehead. 48. In comparing these cases with the minor appellant’s condition, it is clear that a degloving wound with major muscle and skin loss on an arm is an intensely painful, traumatic, and disfiguring injury that goes far beyond a routine soft tissue injury. 49. By awarding only Kenya Shillings two hundred and fifty thousand (Ksh. 250,000), the trial magistrate misapprehended the clinical severity of a degloving injury and failed to align the award with the baseline range of current judicial thought. 50. Considering the compounding effects of economic inflation since 2017, the trial court’s award is manifestly low and represents an erroneous estimate. 51. The appellant’s injuries are highly comparable to the cited authorities, and an upward adjustment is fully warranted to achieve a just and fair outcome. 52. Consequently, this court sets aside the trial court's award and substitutes it with an award of Kenya Shillings eight hundred thousand (Ksh. 700,000) for general damages. 53. The second issue addresses the award for future medical expenses. The law regarding future medical care requires that such expenditures be pleaded and supported by clear, cogent medical evidence demonstrating both the medical necessity and a realistic cost projection. 54. The trial record reveals that two medical experts provided professional projections for the mandatory scar removal surgery. 55. Dr. Wokabi, the initial examining physician, estimated the surgical intervention at Kenya Shillings three hundred thousand (Ksh. 300,000), while Dr. Kahuthu estimated it at Kenya Shillings two hundred and fifty thousand (Ksh. 250,000). 56. The trial magistrate inexplicably settled on a figure of Kenya Shillings one hundred thousand (Ksh. 100,000). 57. This figure was completely arbitrary, lacked any scientific or medical justification within the testimonies, and failed to reflect the realistic costs of reconstructive surgery, even when considering the lower cost boundaries of public medical facilities. 58. Where the court is faced with competing medical opinions on necessary future treatment, it is proper to lean toward the well-founded estimate of the primary examining expert whose treatment notes directly track the wound's evolution. 59. This court finds that the trial magistrate erred by substituting a speculative figure for the uncontradicted expert assessments. 60. The appellant is entitled to a sum that realistically guarantees the means to undergo the required surgery. 61. Accordingly, the award of Kenya Shillings one hundred thousand (Ksh. 100,000) is set aside, and Dr. Wokabi’s estimate is preferred, resulting in an enhanced award of Kenya Shillings three hundred thousand (Ksh. 300,000) for future medical expenses. 62. The upshot of the matter is that this appeal is allowed in its entirety. The judgment of the Senior Principal Magistrate’s Court at Kithimani in Civil Case No. 435 of 2018 is hereby varied only as to the quantum of damages. 63. The final awards are adjusted and substituted as follows; 64. ***General damages for pain, suffering, and loss of amenities are increased to Kenya Shillings eight hundred thousand (Ksh. 700,000);*** 65. ***Future medical expenses are increased to Kenya Shillings three hundred thousand (Ksh. 300,000); and*** 66. ***Special damages of Kenya Shillings twenty thousand, six hundred and sixty (Ksh. 20,660) remain undisturbed as they were strictly proved and unchallenged.*** 67. The total decretal sum is therefore adjusted to Kenya Shillings one million, and twenty thousand, six hundred and sixty (Ksh. 1,020,660). 68. Since the respondents did not file submissions or oppose the appeal, the appellant is awarded the costs of this appeal and the costs of the suit in the lower court. 69. Interest on special damages shall run from the date of filing the suit in the trial court until payment in full, while interest on the enhanced general damages and future medical expenses shall run from the date of the trial court's judgment until payment in full. 70. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026**  **ASENATH N. ONGERI** **JUDGE** **In the presence of** Mr Ndungu for the Appellant No appearance for the Respondent Chrispin - Court Assistant