https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9974

Kamau v Muthami (Civil Appeal E023 of 2022) [2026] KEHC 9974 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9974 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E023 of 2022 TW Ouya, J July 2, 2026 Between James Murichu Kamau Appellant and Jackline Mwende Muthami Respondent (Being an Appeal from the Judgment delivered by the Honourable K. Sambu Senior Principal Magistrate 10th January 2022 in Kigumo SPSC Civil Case No. 160 of 2020) Judgment 1.This appeal arises from the judgment delivered by Honourable K. Sambu Senior Principal Magistrate on 10th January 2022 wherein the learned trial magistrate awarded the Respondent special damages of Kshs. 4,050 and general damages of Kshs. 1,800,000. The Appellant appealed the decision alleging high quantum of damages. 2.Brief facts of the case are that the Respondent, by plaint dated 12th October 2020 instituted the present suit against the Appellant seeking for general damages of the sum of Kshs. 2,000,000, special damages of Kshs. 4,050, costs and interest of the suit arising from a road traffic accident which had occurred on 26th April 2018 involving the Respondent who at the material time of the accident was a passenger aboard the Defendant’s motor vehicle registration number KBL 489P. 3.The Respondent had maintained that the subject accident was caused by the negligence of the Appellant, his driver, servant and or agent and set out the particulars of negligence attributable thereunder and the particulars of bodily injuries and special damages under paragraph (6) thereof. 4.The Appellant denied the Plaintiff’s claim in toto, invited the Plaintiff to strict proof thereof and maintained that the accident was solely caused and/or substantially contributed to by the negligence of the Respondent. 5.The matter was heard to its logical conclusion and upon conclusion thereof the trial court found the Appellant 100% liable for the accident and awarded the Respondent the sum of Kshs. 1,800,000 on general damages for the pain and suffering in addition to pleaded proven special damages of Kshs. 4,050 and costs and interest of the suit from the date of judgement. 6.The Defendant did not call any evidence on their defence and closed their case at that. Parties filled written submissions. 7.The Plaintiff submitted that at the time of the accident, the Plaintiff was a passenger aboard the Defendant’s motor vehicle and had no control of the subject motor vehicle which was driven by the Defendant. Given the fact that the Defendant did not call any evidence on his defence ought to be held liable for the accident on 100% basis. 8.The Defendant submitted that the Plaintiff on account of the filed pleadings had failed adduced evidence to prove her case against the Defendant. 9.The Defendant further submitted that comparable injuries should be compensated by comparable awards as held in the case of Denshire Muteti Wambua vs Kenya Power & Lighting Co. Ltd and in the instant case proposed the sum of Kshs. 500,000/= as general damages for the Plaintiff and referred court to the sited cases of Warui Elly vs Catherine Mueni Mwangangi (2020) KLR and Roseline Violet Akinyi vs Celestine Opiyo Wagwau. 10.The trial court held that the Plaintiff was on the material date of the accident travelling aboard the Defendant’s motor vehicle registration KBL 489P, Toyota probox driven by the Defendant himself, which motor vehicle was involved in self-involving accident and further that the Plaintiff had proved her case on a balance of probability as required by the law. 11.The Defendant being aggrieved with the decision of the trial court filed a Memorandum of Appeal against the whole judgement of the Magistrate Court on the following grounds namely that:i.The learned trial magistrate grossly mis-directed himself in treating the evidence and the submissions on quantum before him and consequently coming to a wrong conclusion on the same.ii.The learned trial magistrate proceeded on wrong principles when assessing damages to be awarded to the Respondent if any and failed to apply precedents and tenets of the law applicable.iii.The learned trial magistrate decision was unjust, against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.iv.The learned trial magistrate erred in law and fact in relying on extraneous circumstances which were not supported by the evidence on record, hence arriving at the wrong finding as regards the nature of the Plaintiff’s injuries.v.The learned trial magistrate erred in fact and in law by the basing his judgement solely on the testimony of the Plaintiff and disregarding the Defendant’s evidence on record.vi.The learned trial magistrate erred in fact and in law by awarding the Plaintiff inordinately high quantum as damages in the circumstances of this case.vii.The Learned trial magistrate erred in fact and law in awarding damages to the Claimant/Respondent for injuries not pleaded y the Respondent herein.viii.The learned trial magistrate erred in law and in fact in disregarding judicial precedents quoted by the Appellant’s counsel in his submissions.ix.The learned magistrate erred in fact and law in failing to consider conventional awards both on liability and quantum in cases of similar nature. 12.The Appellant prayed that the Appeal be allowed with costs, the Judgement delivered in Kigumo SPMCC of 160 of 2020 on 10th January 2022 by Hon. K. Sambu Senior Principal Magistrate be set aside and the court assess the general damages afresh and that the costs of the appeal be borne to the Respondents. 13.The appeal was canvassed by way of written submissions. 14.The Appellant submits that the quantum of general damages of Kshs. 1,800,0000 awarded is inordinately high considering the injuries sustained. The Appellant submits that a sum of Kshs. 500,000 is fair and adequate compensation for the injuries sustained by the Respondent after the accident. 15.The Appellant relied on the case of amongst others Muraguri vs Njagi & 2 others (Civil Appeal 18 of 2019) [2022] KEHC 13567 (KLR) (6 October 2022) (Judgement) where the court held that:“the Respondent sustained bodily injuries to the neck muscle spasm due to cervical spine hypo lordosis, compress of the right C6 foot nerve root, neural foramina stenosis C3/C4, C5/C6 and C6/C7, severe dislocation of the right shoulder joint, injury to the ulnar-nerve, bruises on the dorsal surface of the left hand and cut-wounds on the left hand. The court awarded Kshs. 800,000.” 16.The Respondent submits that the amount awarded by the trial Magistrate was not inordinately high to warrant interference and there is no evidence whatsoever that the trial court acted on wrong principles of law, misapprehended the facts or made a wholly erroneous estimate of the damages suffered by the Respondent. 17.The evidence adduced by the Respondent of the injuries sustained remained uncontroverted as it was not challenged during cross examination. The Respondent further submitted that the Respondent went for a second medical examination at the request of the Appellant’s advocates but Appellant never produced the report in evidence. 18.The Respondent further submits that the award of Kshs. 1,800,00 by trial court is actually inordinately low and urges the Court to enhance the award to Kshs. 2,000,00 considering the severe injuries sustained by the Respondent. 19.The Respondent relied on the case of Board of Trustees Anglican Church of Kenya Diocese of Marsabit versus Chukulisa Roba Halakhe [2019] eKLR where the court held that the Respondent suffered a C5 spine fracture. Her earning capacity had not been affected and she had made improved recovery and was fully working. There were other injuries to the right fore arm, right knee and foot and left shoulder. The court set aside the award of Kshs. 3,000,000 and replaced it with Kshs. 2,000,000/=. 20.This is a court of first appeal, the law requires the court to conduct a retrial, evaluate the evidence on its own and draw conclusions thereon, but with the usual caveat that they did not see the witnesses as they testified and must therefore give due allowance for that. That task was well stated in Selle v Associated Motor Boat Co. Ltd [1968] E.A. 123 as follows: -“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 21.Having evaluated the record of appeal, the parties written submissions and authorities cited, the court finds that the issue arising for determination is whether the quantum of damages awarded to the Respondent were inordinately high. 22.In the Memorandum of appeal, the Appellant stated that the learned trial magistrate erred in fact and in law by the basing his judgement solely on the testimony of the Plaintiff and disregarding the Defendant’s evidence on record. 23.The trial court noted that the Respondent furnished the court with sufficient evidence that was not controverted that the Appellant and therefore held the Appellant was 100% liable for the accident. 24.The trial court further noted that the Appellant did not call any evidence on their defence and closed their case. In the circumstances, the court does understand how the Appellant could have expected the learned magistrate to hold otherwise regarding liability. The court respectively agrees and adopts the holding of Lesiit, J. in Trust Bank Limited v Paramount Universal Bank Limited & 2 Others [2009] eKLR that: -“It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings.” 25.The Appellant appealed the decision of the trial court by stating that the learned trial magistrate erred in fact and in law by awarding the Plaintiff inordinately high quantum as damages in the circumstances of this case. 26.On addressing the issue of quantum of damages, it is not in doubt that the Respondent through her advocate submitted that the spinal injuries sustained by the Respondent cannot be compared to fractures of the limbs. The Respondent sustained skeletal injuries of the spine which were of grievous harm in nature and stayed with a cervical collar for one month and further complains of occasional headaches during hot weather. 27.The Appellant suggested an award of Kshs. 500,000 while the Respondent urged the court to award Kshs. 2,000,000. The learned trial magistrate awarded Kshs. 1,800,000 as general damages. 28.It is trite that for this Court to interfere with the quantum of damages awarded by the trial court, the Court must be satisfied that either the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that short of this, the amount awarded is so inordinately low or high that it must be a wholly erroneous estimate of damages (see Kemfro Africa Ltd v Lubia and another [1982-1988] 1 KAR 727. Kneller JA, as he then was, at p 730 said -)“The principles to be observed by the appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the judge, in assessing the damages, took into account an irrelevant factor, 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 the damage. This Court follows the same principles.” 29.While the court appreciates that assessment of damages is an exercise of judicial discretion that can only be interfered with if an appellate court is satisfied that in assessing the damages the trial court took into account factors it ought not to have considered or failed to take into account factors that it ought to have, and thereby arrived at a figure that was inordinately high or inordinately low, as held in Butt v Khan [1981] KLR 349, among other decisions, the court must also ensure that the amount awarded is reasonable and within limits set by other courts and which the Kenyan economy can afford. 30.It is not disputed that particulars of bodily injuries suffered by the Respondent are an undisplaced fracture C6, a deep cut wound on the right side of the forehead extending from the forehead to the right eyebrow region, cut wound right upper arm, bruises on right upper arm and resultant occasional headaches in hot weather. 31.Having considered the authorities that were cited by both parties, and bearing in mind the award of Kshs. 1,800,000 which is a relevant consideration in assessment of general damages, the court is of the opinion that the award of Kshs. 1,800,000 as awarded by the trial magistrate is not inordinately high. 32.Based on the reasons given and taking into consideration the injuries sustained by the Respondent, this court dismisses the Appeal in its entirety and upholds the decision of the trial magistrate to award the Respondent Kshs. 1,800,000 as the quantum for general damages for pain and suffering. 33.Each party shall bear the costs of this appeal and those of the subordinate court. 34.Final Orders:i.Appeal dismissed.ii.Judgment of the lower court delivered on 10th January, 2022 is upheld.iii.Each party to bear their costs of this appeal and of the lower court. DATED, SIGNED AND DELIVERED VIRTUALLY ON THIS 2ND DAY OF JULY, 2026.HON. T. W. OUYA, OGWJUDGEIn the presence of:Kiranga for RespondentHamza/Kevin – Court Assistants