https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10641

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KERUGOYA** **CIVIL APPEAL NO. E007 OF 2024** **JAMES MURITHI KIBUNYA……………………………..…………..........APPELLANT** **VERSUS** **KENYA WILDLIFE SERVICES…………………...…………………….. RESPONDENT** **(Being an Appeal from the Judgment of Honorable S. M Nyaga (P.M) delivered on 25/1/2024 at Baricho SPMCC No. E050 of 2020)** **JUDGMENT** 1. By a plaint dated 19/8/2020, the Appellant sued the Respondent, seeking general damages for pain, suffering and loss of amenities, special damages and costs of the suit plus interest. The Appellant pleaded that on 12/4/2019, while in the course of his duties, he was brutally attacked by a Hippopotamus which had strayed from its habitat, thereby occasioning him serious bodily injuries. The Respondent is directly responsible for the management and control of all wildlife, and therefore owed a duty of care to the Appellant against such attacks. 2. The Respondent denied the claim vide its statement of defence filed on 14/6/2021 and prayed for the Appellant’s suit to be dismissed with costs. 3. Upon full hearing, the trial court apportioned liability at 50% and awarded general damages of Ksh. 500,000 and special damages of Ksh.15,000 together with costs and interest. **The appeal** 1. On appeal, the Appellant vide his memorandum of appeal on 12/2/2024 set out 4 grounds as follows: 1. *The Learned Magistrate erred in law and fact by disregarding testimonial and documentary evidence adduced in court.* 2. *The learned trial magistrate erred in law and fact by making a finding for liability at 50% instead of 100% against the Defendant.* 3. *The Learned Trial Magistrate erred in awarding General Damages at Kshs. 500,000 which amount was not commensurate to the severe injuries sustained by the Appellant; and the same ought to have been higher.* 4. *The Judgment of the trial court was against the weight of the evidence adduced at trial.* **Duty of the Court** 1. This being a first appeal, this court is duty bound to delve at some length into factual details and revisit the facts as presented in the trial court, analyse the same and arrive at its own independent conclusions, but always remembering that, the trial court had the advantage of seeing the witnesses testify. (See **Selle & Another v Associated Motor Boat Company Ltd & Others [1968] EA 123**). **Oral Evidence** 1. **PW1 James Murithi Kibunja**, the Appellant herein adopted his statement dated 18/8/2020 as his evidence in chief and produced the list of documents dated 19/8/2020 as exhibits. He went on to state that, *“I now cannot conduct heavy duty like before.”* 2. On cross examination, he stated that, *“The accident was in a farm-cultivating. I was attacked as I fetched water at the nearby river TANA. I did not expect a hippo but they are animals whose habitat is the river. I informed K.W.S. I filed a form. They were to call me. I was not paid any money. I gave up with them. This is a new matter not an appeal.”* 3. In re-examination, he stated that, *“I was not awarded by K.W.S. They never called me as promised. That led to this suit.”* 4. **DW1 Augustine Langat** adopted his statement dated 2/8/2023 as his evidence in chief. On cross examination, he stated that, *“Plaintiff was injured by hippopotamus. On 12/4/2019 there was approval to pay Plaintiff. He was not paid yet. He is in the waiting lists.”* **Submissions** 1. The Appellant cites ***Selle v Associated Motor Boat Co. Ltd [1968] EA***, on the duty of the first appellate court. He urges that the Respondent owed him a duty of care as the institution charged with the mandate of management and control of all wildlife, which included the duty to confine Wildlife and to prevent among others human wildlife conflict, and cites ***Kenya Wildlife Services v Joseph Musyoki Kalonzo*** [***[2017] KECA 234 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/keca/2017/234/eng%402017-10-19). He urges that an award of Ksh. 2,000,000 would suffice owing to the severity of his injuries and the inflation rate, and cites ***Hellen Atieno Odour v S.S. Mehta & Son LTD and Muthitu Nanua (2015) eKLR***. 2. The Respondent urges that the award of Ksh. 500,000 was commensurate compensation for the injuries the Appellant sustained, and cites ***Easy Coach Bus v Mary Odhiambo [2017] eKLR, Blue Horizon Travel Co Ltd v Kenneth Njoroge [2020] eKLR and Gabriel Kariuki Kigathi & Another v Monica Wangui Wangechi [2016] eKLR***. It faults the Appellant for going to fetch water in a river which was a habitat of Hippopotamus, and lauds the trial court for apportioning liability at 50%. **Analysis and determination** 1. From the grounds of appeal as framed, the issues for determination are whether the apportionment of liability was proper and whether the award of Ksh. 500,000 was commensurate with the pain suffered by the Appellant. **Liabity** 1. TheAppellant acknowledged on cross examination that, he was attacked while fetching water in the river when he stated that, ***“The accident was in a farm-cultivating. I was attacked as I fetched water at the nearby river TANA. I did not expect a hippo but they are animals whose habitat is the river. I informed K.W.S.”*** 2. In ***Kakuzi Limited v Stephen Njoroge Mungai & another [2020] KEHC 9838 (KLR)***, cited by the Respondent, the court, *(Ruth Sitati J)* expounded that; ***“To this end it is my conclusion that all parties were negligent and/or negligently contributed to the attack/accident against the 1st respondent. The appellant was negligent in not warning users of its property of the foreseeable danger of wild animals within its property and for not taking the necessary and reasonable precautions to ensure that the wild animals within its property do not conflict with the human population. The appellant was thus in breach of the duty of care they owed to members of the public including the 1st respondent. It is my conclusion that the 1st respondent, despite being aware of the danger and risk posed by the hippos in the appellant’s farm, recklessly put himself in harm’s way and contributed to his own misfortune by using the road in the appellant’s farm at night. The 1st respondent was thus guilty of contributory negligence.”*** 1. This court finds that the Appellant, fully cognisant of the presence of hippopotamus in the river, nonetheless proceeded to fetch water therefrom, thereby voluntarily exposing himself to an imminent risk. On its part, the Respondent was equally liable for failing to take precautionary measures, to wit erection of warning signage or containment mechanism of the hippopotamus, to safeguard the public. 2. This court finds that both the Appellant and the Respondent were equally at fault, and the trial court’s apportionment of liability at 50% was justified. **Award of damages** 1. This court has previously considered the principles for appellate interference with an award of damages by a trial court in ***Crown Bus Services Ltd & 2 others v BM (Minor suing through his mother & Next Friend) SMA) [2020] eKLR*** as follows: ***“The well-known principles for interference of an award of damages by a trial court are laid down by the Privy Council in*Nance v. British Columbia Electric Railway Co. Ltd.*(1951) A.C. 601, 613 and applied in East Africa by Sir K. O’Connor (with whom Sir Alastair Forbes, V.-P. and Newbold, J.A. agreed) in*Henry H. Ilanga v. M. Manyoka*[1961] EA 705, 713 as follows: “The principles which apply under this head are not in doubt. Whether the assessment of damages be by a judge or a jury, the appellate court is justified in substituting a figure of its own for that awarded below simply because it would have awarded a different figure if it had tired the case at first instance. Even if the tribunal of 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 the damages, applied a wrong principle of law (as taking in some irrelevant factor or leaving out of account some relevant one); or, short of this, that the amount awarded is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage*** *(****Flint v Lovell****,* ***[1935] 1 K.B.), approved by the House of Lords in Davies v. Powell Duffryn Associated Collieries Ltd.******[1942] A.C. 601.”*** 1. The injuries sustained by the Respondent are particularized in the medical report of Dr. Muthuri Kenneth dated 13/8/2020 as fractures of four right ribs, right hemothorax, right 4th Intercostals space mid clavicular line small surgical incision scar 2 cm long and left hypogastric region scar with irregular margin approximately 10× CM× 4CM× 3CM. 2. At the time of examination by the doctor, the Appellant complained of chronic chest pain, easy fatigability and right upper numbness. 3. It would appear that the fractures have fully re-united and the Appellant made a complete recovery, save for residual pain. 4. This court in ***Kagira & another v Rimberia (Civil Appeal E024 of 2023) [2024] KEHC 15760 (KLR) (11 December 2024) (Judgment)***, upheld the trial court’s award of general damages of Ksh. 450,000 for a claimant who sustained a fracture to the proxima phalanx, left thumb, soft tissues injuries over the scalp, soft tissue injuries to the right shoulder and soft tissue injuries to the left ankle. 5. This court finds that the trial court’s award of Ksh.500,000 was supported by the evidence on record, and therefore, there is no basis for interference. **ORDERS** 1. Accordingly, for the reasons set out above, the Court finds the Appellant’s appeal is without merit and it is dismissed. 2. There shall be no orders as to costs. *Orders accordingly.* **DATED AND DELIVERED THIS 14TH DAY OF MAY 2026.** **EDWARD M. MURIITHI** **JUDGE** **APPEARANCES:** Mr. Muriithi for the Appellant. Mr. Kalisto for the Respondent.