https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7985

Thiongo v Mbuya (Civil Appeal E012 of 2024) [2026] KEHC 7985 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 7985 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E012 of 2024 KL Kandet, J June 5, 2026 Between James Kenga Thiongo Appellant and Anne Perra Mbuya Respondent (Being an Appeal from the Judgment and Decree of Hon. K. Sambu, Senior Principal Magistrate, delivered on 14.06.2023 at the Chief Magistrate’s Court at Kiambu in CMCC No. E130 of 2022) Judgment 1.A Consent Judgment on liability in the ratio 80% : 20% in favour of the Plaintiff (hereinafter called the Respondent) and against the Defendant (herein after called the Appellant) was entered and recorded by the court on 29.03.2023. The learned trial Senior Principal Magistrate assessed quantum of damages and delivered the final Judgement in favour of the respondent and against the appellant, subject to liability as follows:a.General Damages of Kshs.400,000/=.b.Special Damages of Kshs.3,550/=.TOTAL Kshs.403,550/=Less 20% contribution Kshs.80,710/=Net Total Kshs.322,840/=Plus costs and interest from the date of Judgment. 2.Aggrieved by the said Judgment, the appellant filed a memorandum of appeal dated 22.01.2024 through Ochieng’K & Associates Advocates. The appellant stated that the trial Court erred in law and fact and misdirected itself as follows:a.By failing to properly evaluate evidence on record thus reaching an erroneous decision on the issue of quantum of damages.b.By failing to properly evaluate the expert evidence on record on the nature of injuries suffered by the Respondent thus reaching an erroneous decision on the issue of quantum of damages payable to the respondent and thereby arriving at a manifestly excessive award.c.By basing his decision on extraneous matters and failing to base his said decision on the facts, evidence on record and the principle of stare decisis. 3.The appellant prayed for orders that:a.The appeal be allowed.b.The Judgment/Decree of the Chief Magistrate’s Court at Kiambu (CMCC No. E130 of 2022) on the issue of quantum of damages be set aside/quashed and this Honourable Court be pleased to reassess the quantum of general damages awardable to the Respondent and substitute the same to a reasonable and fair amount.c.The Appellant be granted cost of this Appeal. 4.The background of the suit is that the Respondent filed her Plaint before the trial Court on 31.03.2022. Her case was as follows;a.That on 01.04.2021 the respondent was traveling as a passenger on motor vehicle registration no KCA 824C along Ndumberi-Kiambu road but while near Mahiga area, motor vehicle Registration No. KBR 753J was so negligently driven, lost control, veered off from its lawful lane and knocked motor vehicle registration No. KCA 824C.b.As a result, she sustained serious bodily injuries, namely;i.Blunt injuries – lower abdomenii.Blunt injuries – lower backiii.Pregnancy 37 weeks gestationc.After the accident she was rushed to Vineyard Hospital for treatment where she was seen by a Dr. Wachira N.M.d.The medical report by the Doctor indicated that at the time of the accident the respondent was pregnant at 37 weeks gestation, with a previous delivery having been through caesarean section.e.When he saw her on 02.04.2021 she had severe lower back pain and lower abdominal pains. Obstetrics Ultra Sound was done and all was found to be normal except the baby had tachycardia. Assessment showed the Respondent had suffered soft tissue injuries and lower back pain trauma.f.She was admitted, given medication and caesarean section done the following day on 03.04.2021.g.She continued to undergo medication for the lower back pain with Celebrex 200mg bd.h.The Respondent blamed the driver of motor vehicle registration No. KBR 753J for the subject accident and laid down particulars of negligence as hereunder:-i.Driving at a speed that was excessive in the circumstances;ii.Driving without care and attention;iii.Failing to keep any or any sufficient look out;iv.Failing to have any regard to other road-users;v.Failing to observe the Traffic Rules;vi.Driving motor vehicle registration no. KBR 753J in a zigzag manner;vii.Changing lanes suddenly and without ascertaining that it was safe to do so.i.The Respondent in her Plaint indicated that she was also relied on the doctrine of Res ipsa loquitor.j.In support of her claim, the Respondent also filed a Medical Report dated 10.07.2021 made by Dr. G. K. Mwaura, who examined her and made the following findings, prognosis and opinion;“healing is fair but: 1.She experiences pains – lower back on exertion (bending, lifting objects) 2.She sustained soft tissue injuries 3.Prognosis is fair “ k.The Respondent prayed for Judgment against the Appellant for General damages, Special damages, Costs of the suit and interest.l.In quantifying the award of damages the Respondent proposed Kshs.600,000/= as general damages and special damages of Kshs.3,550/= and relied on the following cases during the trial; Leah Wambui Ngugi vs. George Mbugua Karanja & 2 others [2016] eKLR where the court awarded the appellant a sum of Kshs.350,000/= in general damages; Francis Njunge Karanu Vs. Rose Ndinda Kitema [2021] eKLR where the court awarded Kshs.500,000/= in general damages. 5.The Appellant filed a Statement of Defence on 24.08.2022 and his case was as follows.a.He denied all the allegations made in the plaint and attributed the occurrence of the accident to the negligence of the driver of motor vehicle registration number KCA 824C as well as the Respondent’s negligence.b.The particulars of negligence on the part of the Respondent as outlined by the Appellant were as follows:i.Allowing the driver of the motor vehicle registration number KCA 824C to drive her carelessly in a zigzag manner and too fast and without due regard to her safety and of other road users;ii.Failing to take adequate precaution and/or wearing the necessary protective gear for her own safety while a passenger on the said motor vehicle registration number KCA 824Ciii.Boarding and/or remaining aboard the motor vehicle registration number KCA 824C that she knew and/or ought to have known that the same was being carelessly driveniv.Exposing herself to grave risk that she knew and/or ought to have known.v.Tacitly allowing and/or causing the driver of motor vehicle registration number KCA 824C to carelessly without presence of mind thereby voluntarily assuming the risk and contributing to the causing of the accident and the consequent injuries.c.The particulars of negligence of the owner and/or driver of motor vehicle registration number KCA 824C as outlined by the Appellant were as follows:i.Driving motor vehicle Registration Number KCA 824C in a zigzag manner and without due attention and care of his passengers and other road users.ii.Failing to provide the plaintiff with adequate/proper and/or any protective gear for her safety.iii.Driving in an excessive speed in the circumstance and ramming onto and hitting the motor vehicle registration number KBR 753J and thereby causing the accident.iv.Driving the said motor vehicle registration number KCA 824C without presence of mind thereby solely and/or substantially contributing to causation of the accident.d.The Appellant sought to have the Respondent and/or the driver of motor vehicle Registration Number KCA 824C held liable as having solely caused and/or substantially contributed to the alleged accident. The Appellant also sought indemnification from the Respondent and the owner of motor vehicle Registration Number KCA 824C.e.The Appellant indicated that he relied on the doctrine of Res Ipsa Loquitor, the Traffic Act and the Highway Code.f.The Appellant filed a medical report dated 06.01.2023 by Dr. Wambugu P.M. who examined the Respondent and made the following opinion and prognosis;“Mbuya’s injuries are consistent with those due to blunt trauma as may have occurred during the said accident. She sustained soft tissue injuries from which she has since made adequate recovery. No further complications are envisaged. I assert that no total permanent incapacitation occurred. The obstetric surgery was most probably due to the previous scar”g.The Appellant urged the trial court to award the Respondent the sum of Kshs.150,000/= for pain and suffering, and relied on the following cases; Zakayo Maingi V Hellen Mukii Kilonzi [2012] eKLR where the Court awarded Kshs.180,000/= in damages; Purity Wambui Murithii vs. Highlands Mineral Water Co. Ltd [2015] eKLR where the Court of appeal substituted an award of Kshs.700,000/= with an award of Kshs.150,000/=; and the case of FM(minor suing through the mother and next friend MWM) v. JNM & another [2020] eKLR where the court substituted an award of Kshs.60,000/= with an award of Kshs.100,000/= on appeal 6.The Appellant’s Counsel filed submissions on the appeal and argued that the trial court failed to consider and/or misinterpreted the medical report of Dr. Wambugu P.M. and the medical report of Vineyard hospital and only relied on the medical report by Dr. G.K Mwaura thus arriving at a manifestly high award on the issue of general damages. 7.It is the Appellant’s contention that the only injuries which were proven by the Respondent and appeared in all the medical reports were blunt trauma to the abdomen and lower back which both the medical reports by Dr. G.K Mwaura and Dr. Wambugu P.M classified as soft tissue injuries. The 37 weeks gestation was not an injury attributable to the accident and as per the medical report by Dr. Wambugu P.M., was likely caused by the scar from the Respondent’s previous caesarean section. 8.The appellant’s counsel submitted that in the case of Leah Wambui Ngugi vs. George Mbugua Karanja & 2 others Civil Appeal No. 532 of 2013 [2016]eKLR the Appellant had suffered blunt injury on the lower back, swollen bruised on both knees and blunt injury on the abdomen and loss of pregnancy, where the court awarded Kshs.350,000/= in general damages in September 2016. It is the Appellant's contention that the injury in the aforesaid case was more severe as it involved loss of pregnancy, while in the instant case, the Respondent had a safe delivery and there was no indication that the delivery at 37 weeks was as a result of the accident. 9.The Appellant’s counsel also relied on the case of Adembesa & another vs. Gweno (civil appeal E192 of 2023) [2024] KEHC 5379 (KLR) (17 May 2024) (Judgment) where the Court substituted an award of Kshs.1,200,000/= with an award of Kshs.120,000/= for soft tissue injuries to the head, back, chest, shoulders, elbow joints and knees. 10.The Appellant’s counsel maintains that the trial court’s award of general damages in the sum of Kshs.400,000/= was manifestly excessive and that the proposed sum of Kshs.150,000/= as submitted in the trial court was sufficient and the appellant urged this court to find as such and substitute the award of Kshs.400,000/= with an award of Kshs.150,000/= in general damages. 11.The Respondent’s counsel filed submissions opposing the appeal and stated that the learned magistrate delivered a reasoned judgment that reflected a thorough consideration of all evidence adduced, including expert reports. 12.In the submissions, the Respondent relied on the case of Loice Wanjiku Kagunda Vs. Julius Gachau Mwangi C. A. No 142 of 2003 (UR) where the court held:“We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence, an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those or other reasons made a wholly erroneous estimate of the damages suffered. The quantum is not what the appellant court would award but whether the lower court acted on the wrong principles.” 13.The Respondent’s counsel submitted that the Respondent suffered injuries that directly impacted her reproductive health, resulting in an emergency caesarean section, a serious medical intervention associated with physical and psychological trauma, increased risk in future pregnancies and extended recovery time. 14.The Respondent’s counsel maintained that the award of Kshs.400,000/= in the circumstances was moderate, reasonable and supported by precedent. He relied on the case of Leah Wambui Ngugi vs. George Mbugua Karanja & 2 others [2016] eKLR where the court awarded the appellant a sum of Kshs.350,000/= in general damages, having suffered blunt injury on the lower back, swollen bruised on both knees and blunt injury on the abdomen and loss of pregnancy. The Respondent’s Counsel also relied on the case of Francis Njunge Karanu Vs. Rose Ndinda Kitema [2021] eKLR where the court awarded Kshs.500,000/= for deep cut wounds on the face, blunt trauma to the right shoulder, blunt trauma to the left shoulder and vaginal bleeding with incomplete abortion. 15.The Respondent’s Counsel maintained that the trial court exercised its discretion judiciously and that the doctrine of stare decisis is not an entrapment that binds the trial court to identical awards in every case. The Respondent submitted that comparable injuries will attract comparable awards but each case must be decided on its own merits and that the trial magistrate cited relevant case law and gave cogent reasons for the quantum awarded which was well within acceptable limits and not a departure from precedent. 16.This is a first appeal and the role of the Court is to re-evaluate the evidence and arrive at a conclusion one way or the other, bearing in mind it did not by itself take the evidence. The decision of the trial Court ought not be disturbed unless shown the court misdirected itself and thereby arrived at conclusions that were not just or correct. 17.This being an appeal on quantum, I am also guided by the decision of the Court of Appeal in Bashir Ahmed Butt v. Uwais Ahmed Khan [1982-88] KAR 5 where the Court held 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…” 18.The appeal before this Court is confined solely to the issue of quantum of general damages, liability having been settled by consent, and special damages not in dispute. The sole question for determination is whether the trial court's award of Kshs.400,000/= in general damages was justified on the evidence, or whether it was so inordinately high as to warrant interference by this Court. 19.In determining the appropriate quantum of general damages, the Court is guided by the nature and extent of the injuries sustained, the medical evidence on record, the prognosis, and comparable awards in similar cases. Each case must, however, be decided on its own particular facts. 20.Turning to the injuries sustained by the Respondent, it is common ground from all the three medical reports tendered in evidence, from Vineyard Hospital, Dr. G.K. Mwaura, and Dr. Wambugu P.M respectively that the Respondent suffered soft tissue injuries to the lower abdomen and lower back. Dr. Mwaura's report notes that the Respondent experiences pain in the lower back on exertion and that prognosis is fair. Dr. Wambugu, on behalf of the Appellant, opined that the Respondent had made adequate recovery, that no permanent incapacitation occurred, and that no further complications were envisaged. 21.A central issue in this appeal is whether the caesarean section performed on 03.04.2021 is properly attributable to the accident. The Appellant contends, relying on Dr. Wambugu's report, that the obstetric surgery was most probably necessitated by the Respondent's previous caesarean section scar rather than by the accident. The Respondent's counsel, on the other hand, maintains that the accident directly impacted the Respondent's reproductive health and precipitated an emergency medical intervention. 22.On this issue, I find that while Dr. Wambugu's report states that the obstetric surgery was "most probably due to the previous scar," the chronology of events is relevant. The Respondent was at 37 weeks gestation at the time of the accident. Following the accident, she presented with severe lower back pain and lower abdominal pains. An obstetric ultrasound revealed that the baby had tachycardia. She was admitted to hospital and the caesarean section was performed the following day. It is clear, on a balance of probabilities, that the accident precipitated or accelerated the decision to perform the caesarean section, whether or not the pre-existing scar was also a contributing factor. The Respondent was undeniably subjected to the physical and psychological stress of undergoing surgical delivery in the aftermath of a road traffic accident. This Court therefore accepts that the caesarean section and its attendant trauma form part of the Respondent's injuries for the purposes of the award of general damages, albeit noting that the baby was safely delivered and there was no loss of pregnancy. 23.The Court of Appeal in Simon Taveta vs. Mercy Mutitu Njeru [2014] eKLR held;“the context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past” 24.I have considered the authorities relied on by both parties in this appeal as well as before the trial court. 25.With regard to comparable awards, the Respondent relied on the case of Leah Wambui Ngugi vs. George Mbugua Karanja & 2 others [2016] eKLR where Kshs.350,000/= was awarded for blunt injuries to the lower back and abdomen, swollen and bruised knees, and loss of pregnancy. The injuries in that case included actual loss of pregnancy, a more severe outcome than in the present case where the Respondent had a safe delivery. The Respondent also relied on Francis Njunge Karanu vs. Rose Ndinda Kitema [2021] eKLR where Kshs.500,000/= was awarded for deep cut wounds on the face, blunt trauma to both shoulders, and vaginal bleeding with incomplete abortion, injuries that are plainly more severe and numerous than those sustained by the Respondent. 26.The Appellant relied on Adembesa & another vs. Gweno [2024] KEHC 5379 where the Court substituted an award of Kshs.1,200,000/= with Kshs.120,000/= for soft tissue injuries to the head, back, chest, shoulders, elbow joints and knees. That case, however, involved pure soft tissue injuries with no accompanying obstetric or pregnancy-related complications, and the reduction was from a significantly higher initial award. The appellant also relied on the case of Purity Wambui Murithii vs. Highlands Mineral Water Co. Ltd [2015] eKLR where the Court of Appeal substituted an award with Kshs.150,000/=, and Zakayo Maingi vs. Hellen Mukii Kilonzi [2012] eKLR where Kshs.180,000/= was awarded. 27.Having regard to all the foregoing, this Court finds that the injuries sustained by the Respondent, properly evaluated, consist of soft tissue injuries to the lower back and abdomen with residual pain on exertion, and the additional trauma of an emergency caesarean section performed in the immediate aftermath of the accident. These are injuries of moderate severity. The Respondent made adequate recovery with a fair prognosis and suffered no permanent incapacitation. The injuries are less severe than those in Leah Wambui Ngugi, which involved loss of pregnancy and considerably less severe than those in Francis Njunge Karanu. 28.In the circumstances, this Court is satisfied that the trial court's award of Kshs.400,000/= in general damages was inordinately high and not adequately supported by the evidence and the applicable precedents. The trial court appears to have placed undue weight on the caesarean section as a standalone injury without sufficiently interrogating the medical evidence on its likely causation and the Respondent's documented recovery. The award of Kshs.400,000/= is accordingly set aside. 29.Taking into account the nature and extent of the injuries, the residual effects, the prognosis, the additional pregnancy-related trauma, and the range of awards in comparable cases, this Court substitutes the award of general damages with a sum of Kshs.250,000/=. 30.For the foregoing reasons, the appeal is allowed in part. The award of general damages is reduced from Kshs.400,000/= to Kshs.250,000/=. The award of special damages of Kshs.3,550/= remains undisturbed. Applying the agreed contributory negligence ratio of 80% : 20% in favour of the Respondent and as against the Appellant, the net award is computed as follows:a.General damages Kshs.250,000/=b.Special damages Kshs.3,550/=Total Kshs.253,550/=Less 20% contribution Kshs.50,710/=Net Total Kshs.202,840/= 31.Each party shall bear their own costs of the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 5TH DAY OF JUNE 2026, THROUGH THE MICROSOFT TEAMS PLATFORMKENNEDY KANDETJUDGEIn The Presence Of:Ochieng For The AppellantMararo For The RespondentCourt Assistant: Jael Nosim