https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6932

Waiganjo alias Ngigi v Wakulima Dairy Sacco Limited & 3 others (Civil Appeal E089 of 2023) [2026] KEHC 6932 (KLR) (20 May 2026) (Judgment) Neutral citation: [2026] KEHC 6932 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E089 of 2023 DKN Magare, J May 20, 2026 Between Jackson Ngahu Waiganjo alias Jackson Waiganjo Ngahu alias Jackson Ngigi Alias Waiganjo Jackson Appellant and Wakulima Dairy Sacco Limited 1st Respondent Samuel Kamiri Chrispoh 2nd Respondent Gladys Gathigia Maina 3rd Respondent Patrick Mutahi Gitonga 4th Respondent (appeal against the judgment and decree of Hon. M.E. Analo (SRM) given on 18.10.2023 in Murang’a CMCC No. 78 of 2020.) Judgment 1.This appeal arises from the judgment and decree of Hon. M.E. Analo (SRM) given on 18.10.2023 in Murang’a CMCC No. 78 of 2020. The appellant was the plaintiff in the lower court and a succession one at that. The court entered judgment as follows:a.100% liability in favour of the appellant.b.General damages for pain, suffering and loss of amenities of Kshs. 650,000/=c.Special damages Kshs. 60,000/=d.Future medical treatment Kshs. 30,000/= 2.The appellant was aggrieved and filed a memorandum of appeal and raised the following grounds:a.That the learned magistrate erred in law and in fact by failing to address his mind on the evidence adduced by the plaintiff and hence made an erroneous finding.b.That the learned magistrate erred in law and in fact by failing to consider the totality of the evidence adduced at trial.c.That the learned magistrate erred in law and in fact in awarding general damages of Kshs. 650,000/=, which is manifestly and inordinately low bearing in mind the injuries sustained by the Appellant.d.That the learned magistrate misdirected himself in law and in fact by failing to appreciate the evidence adduced by the Appellant that gave rise to an inference that the nature of injuries sustained are serious and grave to attract a higher award.e.That the learned magistrate erred in law and in fact by failing to consider the Appellant’s authorities on awards made in relation to similar injuries.f.That the learned magistrate misdirected himself in law and in fact by failing to appreciate that similar injuries should generally attract similar awards, and thereby arriving at an erroneous award. 3.The appeal is basically on the single question of quantum of damages for pain, suffering and loss of amenities. The appellant pleaded the following as the injuries that were suffered:a.Blunt soft tissue injury to the headb.Broken upper incisorsc.Fracture base of the skulld.Blunt soft tissue injuries to the abdomene.Frontal epidural hematoma 4.There is no to regurgitate the evidence given the question is on fairly agreed circumstances. The court will subsume evidence in the analysis. Parties filed submissions. The respondent posited that the amount of Ksh. 650,000 was not inordinately low as submitted by the appellants for pain and suffering as awarded to the appellant. Reliance was placed on the case of Nkube-Vs-Nyamiro (1983) KLR 403, regarding the duty of the first appellate, where the court stated:A court of Appeal will not normally interfere with the finding of fact by the trial court unless it is based on no evidence or on misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.” 5.They stated further that an award of general damages by a trial court is an exercise of discretion, as held in the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 6.They also reiterated the principles in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 and Johnson Evan Gichere Vs- Andrew Morton & Another (2005) eKLR and Kirugo -Vs- Kirugo & Another (1988) KLR 348. 7.They submitted that the present appeal is based on award for multiple soft tissue injuries and fracture to the base skull. Notably, assessment of damages are matters that are within the discretion of the trial court and the appellate court ought to respect that discretion if properly exercised reliance was placed on the cases of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] KECA 318 (KLR). 8.The appellant filed short submissions on two aspects. The first one being the duty of the court and the second one being award of damages. On the duty of the court reliance was placed on the case Odera t/a AJ Odera & Associates v Machira t/a Machira & Co Advocates [2013] KECA 208 (KLR). It is not clear what the case is supposed to do. 9.Further reliance was placed on the case of Catholic Diocese of Kisumu v Tete [2004] KECA 154 (KLR), where the court of appeal [PK Tunoi, EO O'Kubasu & EM Githinji, JJA]posited as follows:It is trite law that the assessment of general damages is at the discretion of the trial court and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a difference figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles,9.As by taking into account some irrelevant factor or leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate (see Kemfro v A M Lubia & Olive Lubia (1982-88) 1 KAR 727 and Kitavi v Coast Bottlers Limited [1985]KLR 470).10.In Kitavi v Coast Bottlers Ltd (Supra) Kneller JA said at page 477 para10:“It is now settled law that what the appellant was entitled to was a reasonable compensation assessed with moderation and conformity with the general method of approach, local courts have taken. Guidelines and brackets for various injuries are useful aids to some hope of consistency but awards will very much depend on the facts of each case and any attempt to standardize “or rigidily” classify them will be in vain and wrong…”It is our humble submissions that the appellants other than offering a global attack on the award of Ksh. 650,000 as general damages for pain and suffering, have not set out any viable and arguable grounds of appeal to enable the appellate court interfere with its award vide Judgment dated 18/3/2023court is guided by the processes and precedents in situ. In deciding whether to disturb quantum given by the lower court, the court should be aware of its limits. Being exercise of discretion, the exercise should be done judiciously in the circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages. 10.They relied on the case of Weddy Kendi Kabira & Grace Muthoni Kobia v VM alia VM(A minor suing though her next friend and mother IKH) [2021] KEHC 6954 (KLR), where the court confirmed an award of Ksh 2,500,000/= for the nature of injuries suffered (depressed fracture, depressed right parietal skull fracture, loss of consciousness, fracture of the right humerus and bruises on scalp and knees), the possibility of future complications (5% chance of developing epilepsy or convulsion. 11.They relied on the case of John Joel Koskei v Kenya Power & Lighting Co. Ltd [2005] KEHC 2832 (KLR), where a claimant suffered fracture of the skull, soft tissue injuries on the knee, and 2 broken teeth and had permanent disability of 30%, where the claimant was awarded Ksh 1,700,000/=. They also relied on the case of James Njuguna V Fredrick Githinji Ndegwa [1999] [2008] KEHC 2504 (KLR) and Gerald Musungu Otwani (suing through Father and next friend Ferdinand Emmanuel Otwani) v Kulsum Alibhai & IQBAL Mohamed Hussein, Mombasa HCCC No. 250 of 2023, where the plaintiff who had sustained a head injury, multiple facial, arm and leg bruises and scalp laceration was awarded Kshs. 2,500,000/= for pain and suffering and loss of amenities on 30.11.2006. 12.They prayed for the award of a sum of Ksh 3,000,000/=. Analysis 13.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. In the case of Mbogo and Another vs. Shah [1968] EA 93 where the Court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 14.The duty of the first appellate Court was settled long ago by Clement De Lestang, VP, Duffus and Law JJA, in the locus classicus case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the law looks in their usual gusto, held by as follows;-“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 15.The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the trial court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. 16.In the case of Peters vs Sunday Post Limited [1958] EA 424, court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 17.Unfortunately for a single issue, the appellant filed a 6-ground memorandum of appeal. It is repetitive and prolix. This is contrary to Order 42 Rule 1 of the Civil Procedure Rules, which provides as follows:1.Every appeal to the High Court shall be in the form of a memorandum of appeal signed in the same manner as a pleading.2.The memorandum of appeal shall set forth concisely and under distinct heads the grounds of objection to the decree or order appealed against, without any argument or narrative, and such grounds shall be numbered consecutively. 18.The Court of Appeal [Nambuye, Karanja & M’Inoti, JJ.A.] had this to say about compliance with Rule 86 (now Rule 88) of the Court of Appeal Rules (which is pari materia with Order 42 Rule 1 of the Civil Procedure Rules) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] KECA 224 (KLR):“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…” 19.The court abhors repetitiveness of grounds of appeal which tend to cloud the key issues in dispute for determination. In the case of Kenya Ports Authority v Threeways Shipping Services (K) Limited [2019] KECA 472 (KLR), the court of appeal [Nambuye, M. Warsame & Otieno-Odek JJA] observed that:“Our first observation is that the memorandum of appeal in this matter sets out repetitive grounds of appeal. The singular issue in this appeal is whether Section 62 of the Kenya Ports Authority Act ousts the jurisdiction of the High Court. We abhor repetitiveness of grounds of appeal which tend to cloud the key issue in dispute for determination by the Court. In William Koross V. Hezekiah Kiptoo Kimue & 4 others, Civil Appeal No. 223 of 2013, this Court stated:“The memorandum of appeal contains some thirty-two grounds of appeal, too many by any measure and serving only to repeat and obscure. We have said it before and will repeat that memoranda of appeal need to be more carefully and efficiently crafted by counsel. In this regard, precise, concise and brief is wiser and better.” 20.Finally, in deciding whether to disturb quantum given by the Lower Court, the Court should be aware of its limits. Being exercise of discretion the exercise should be done judiciously in the circumstances to ensure that the award is not too high or too low as to be an erroneous estimate of damages. The court of Appeal, pronounced itself succinctly on these principles in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows:“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant 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 damages. 21.In the case of Henry Hidayo Ilanga versus Manyama Manyoke [1961] EA 705, 713 at paragraph c, Sir Kenneth O’Connor P, in the lead decision to which Sir Alastair Forbes, VP, and Newbold JA agree with nothing useful to add, the former court of appeal for East Africa held as follows:In considering this question, I apply the rule laid down by the Privy Council, that is Nance vs British Columbia Electric Co Ltd [1951]A.C. 601, at 613, when discussing the principles to be observed in disturbing the quantum of damages awarded by a judge.“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance even if the tribunal of the first instance was a judge sitting alone, then before the appellate court can properly intervene, it must be satisfied either that the judge, in assessing damages, applied a wrong principle of law(as by taking into account some irrelevant factor and or leaving out a relevant one); or short of this, that the mount awarded is so inordinately low or so inordinately high that it must be wholly erroneous estimate of damages. 22.Therefore, for me to interfere with the award it is not enough to show that the award is low or had I handled the case in the subordinate court, I would have awarded a different figure. So my duty as the appellate court is threefold regarding quantum of damages:a.To ascertain whether the Court applied irrelevant factors or left out relevant factors.b.To ascertain whether the award is too high as to amount to an erroneous assessment of damages.c.To ascertain whether the award is simply not justified from evidence. 23.I am alive to the fact that an award of damages by a trial court is an exercise of the discretionary powers conferred on the trial court and the court’s business is not to enrich a victim but to do the best it can to compensate such a victim considering that no amount of money can renew or restore a physical frame that has been battered and shattered. Lord Morris of Borth-y-Gest in the case of West (H) & Son Ltd Vs Shepherd (1964) AC 326, 345 observed that:-But money cannot renew a physical frame that has been battered and shattered. All that Judges and Courts can do is to awards sums, which must be regarded as giving reasonable compensation. In the process there must be endeavor to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerate extent conventional. 24.Secondly I am also alive to the fact that an appellate court should not disturb an award of damages simply because it would have awarded a different award had it been the one sitting at the trial level. See the case of Savanna Saw Mills Ltd Vs George Mwale Mudomo (2005) eKLR, where the court stated:-‘It is trite law that the assessment of damage sis at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court simply because it would have awarded a different figure it is had tried the case at the first instance…. 25.The court has to look at the comparable authorities give the awards. In the case of Moiz Motors Limited & another v Harun Ngethe Wanjiru [2021] KEHC 8702 (KLR), the court reduced an award from 700,000/= to 500,000/= for a depressed frontal bone fracture of the skull) severe tissue injuries in the face, soft tissue injury of the chest, soft tissue injury of both knees, soft tissue injury of both hip joints and severe soft tissue injury of the toes of the right leg. 26.Further, in the case of Walter Gekombe Omari v Vincent Kipkirui [2021] KEHC 2198 (KLR), the court confirmed an award of 694,000/= as general damages for severe cerebral trauma and head concussion, fracture base of the skull, penetrating abdominal wound with foreign body retention, fracture of the left clavicle and severe head injury accompanied by left ear ontohoce, facial lacerations and subgaleae hematoma. 27.The awards range between 600,000/=-800,000/= where there is no permanent disability noted. The award may be low but the test is never whether it is low or high. It is whether, it is inordinately low as to amount to an erroneous estimate of damages. The report from Dr. Wokabi does not give any form of disability, temporary or permanent. The question of loss of hearing was to be fully restored. The appellant exaggerated his injuries. Dr. Wokabi indicated that he did not detect any deafness. This was on 18.12.2019 barely six months after the accident. He was hearing relatively well and there was recently healed abrasion on the right forehead. The award could be higher, but it cannot be said to be so inordinately low as to amount to an erroneous exercise of discretion. 28.In the circumstances, the appeal lacks merit and is accordingly dismissed 29.In the circumstances, the appeal lacks merit. It is accordingly dismissed. The issue of costs is governed by Section 27 of the Civil Procedure Act, which provides as follows:(1)Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.(2)The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such. 30.Costs are generally discretionary. However, the discretion is not arbitrary. The Court of appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown. 31.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of Rai & 3 others v Rai & 4 others [2014] KESC 31 (KLR), as follows:18.It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, prior-to, during, and subsequent-to the actual process of litigation22.Although there is eminent good sense in the basic rule of costs - that costs follow the event- it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings - a position well illustrated by the considered opinions of this Court in other cases. The relevant question in this particular matter must be, whether or not the circumstances merit an award of costs to the Applicant. 32.Given the circumstances of the matter, the appeal is dismissed with no order as to costs. Determination 33.In the circumstances, I make the following orders:-a.The appeal herein lacks merit and is consequently dismissed with each party bearing its costs.b.14 days right of appeal.c.The file is closed. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 20TH DAY OF MAY, 2026. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGEIn the presence of:-Mr. Gichuki for the AppellantMr. Maingi for the RespondentsCourt Assistant – Martin