https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10688

Kimani v Khamala & another (Civil Appeal E001 of 2025) [2026] KEHC 10688 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10688 (KLR) Republic of Kenya In the High Court at Bungoma Civil Appeal E001 of 2025 E Ominde, J July 16, 2026 Between Jesse Kimani Appellant and Rodah Chelagat Khamala 1st Respondent John Kabuthi Ndungu 2nd Respondent (Being an appeal from the judgment/decree of the Honourable J.O. Manasses, Resident Magistrate, delivered on 27th December 2024 in Sirisia Principal Magistrate's Court Civil Suit No. E097 of 2023) Judgment 1.This is an appeal arising from the judgment and decree of the Honourable J.O. Manasses, Resident Magistrate, delivered on 27th December 2024 in Sirisia PMCC No. E097 of 2023. The Appellant herein, Jesse Kimani, was the 1st Defendant in the subordinate court, the 1st Respondent, Rodah Chelagat Khamala, was the Plaintiff, the 2nd Respondent, John Kabuthi Ndungu, was the 2nd Defendant. 2.The 1st Respondent's case, as pleaded in the Amended Plaint dated 27th May 2023, was that on or about the 11th day of November 2022, she was lawfully travelling as a fare-paying passenger aboard motor vehicle registration number KBX 361W along the Chwele-Cheptais road, particularly at Cheptais area, when the driver of the said motor vehicle so negligently, recklessly and carelessly drove and/or managed thee said motor vehicle that it collided with motor vehicle registration number GKB 202U, thereby causing the 1st Respondent to sustain bodily injuries. 3.It was contended that the Appellant was, at all material times, the beneficial owner, possessor and insurer of motor vehicle registration number KBX 361W, while the 2nd Respondent was the registered owner of the said motor vehicle. The particulars of negligence pleaded against the driver of KBX 361W included driving at excessive speed while negotiating a sharp bend, failure to have proper control of the said motor vehicle, failure to apply brakes or take evasive action, and generally being reckless and causing the accident. 4.The 1st Respondent pleaded that because of the accident she sustained blunt injuries to the face, neck, chest and back, together with bruises on the left hand and the left lower limb, and that she continued to suffer pain in the neck, chest and back. She sought general damages for pain and suffering, special damages pleaded and particularized at Ks. 6,550/-, being the cost of the medical report (Ks. 6,000/-) and copies of records (Ks. 550/-), costs of the suit, and interest. 5.The Appellant entered appearance and filed a Statement of Defence denying that the accident occurred in the manner pleaded and attributing the cause of the accident to the negligence of the driver of the other motor vehicle. The defence case was, however, closed on 17th October 2024 without the Appellant calling a single witness in his defence. 6.Upon full hearing, at which the 1st Respondent testified as PW1 on 18th July 2024 and adopted her witness statement as her evidence in chief, the learned trial magistrate delivered judgment on 27th December 2024 in the following terms:a.Liability at 100% against the Defendants;b.General damages for pain and suffering in the sum of Kshs. 300,000/-c.Special damages in the sum of Kshs. 6,830/-d.Costs of the suit; ande.Interest on (b) and (c) above at court rates from the date of judgment. 7.Being dissatisfied with the award on quantum only, the Appellant lodged the instant appeal vide a Memorandum of Appeal dated 31st December 2024. The Memorandum of Appeal raises four grounds:a.That the Learned Trial Magistrate erred in law and in fact in awarding general damages of Ks. 300,000/- which award was excessive and not commensurate to the nature of injuries sustained by the plaintiffb.That the Learned Trial Magistrate erred in law and in fact in failing to pay regard to authorities in the 1st Defendant's submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case he was decidingc.That the Learned Trial Magistrate's exercise of discretion in assessment of quantum was injudiciousd.That the Learned Trial Magistrate erred in fact and in law in failing to consider the Appellant's submissions on the award on quantum and as a result arrived at an unjustified decision. 8.The Appellant prayed that the appeal be allowed, the decree of the lower court be set aside, this Court do re-assess the evidence on record and award its own decision on quantum, and that the Appellant be awarded costs of the appeal. Submissions 9.The appeal was canvassed by way of written submissions and the respective parties filed their submissions. The Appellant's Submissions 10.The Appellant, through the firm of KRK Advocates LLP, filed submissions dated 20th January 2026, in which it was submitted that this being a first appeal, the Court is duty bound to re-evaluate, re-assess and reconsider the evidence adduced and arrive at its own conclusions, bearing in mind that it did not have the advantage of hearing the witnesses testify, relying on the celebrated authority of Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123. 11.Counsel for the appellant submitted that the main issue for determination is whether the trial court misdirected itself on the issue of quantum, and specifically whether the learned trial magistrate erred in law in awarding the 1st Respondent Kshs. 300,000/- in general damages for pain and suffering. 12.Counsel further submitted that assessment of quantum, while a discretionary exercise, must be exercised judicially and upon sound legal principles, and that an appellate court is entitled to interfere with an award of general damages where the trial court took into account an irrelevant factor, left out of account a relevant factor, or where the amount awarded is so inordinately high or so inordinately low as to represent a wholly erroneous estimate of the damages. 13.Reliance was placed on Kigararaji vs Aya (1982-88) 1 KAR 768, as cited with approval by Kamau J. in Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018] eKLR, for the proposition that:“Damages must be within the limits set out by decided cases and also inevitably passed on to members of the public, the vast majority of whom cannot within the limits the Kenyan economy can afford. Large awards are the burden in the form of increased insurance and increased fees.” 14.It was further submitted that awards must be made within consistent limits, taking into account comparable or similar injuries and awards, and that the particulars of injury pleaded, namely blunt injuries to the face, neck, chest and back and bruises on the left hand and lower limb, were consistent with mild to moderate soft tissue injuries which had healed by the time the 1st Respondent testified. 15.Reference was made to the Court of Appeal's observation in Simon Taveta v Mercy Mutitu Njeru [2014] eKLR that the compensation payable is to be evaluated by reference to the nature and extent of the injuries and comparable awards made in the past. In further support of the contention that Ks. 300,000/- was manifestly excessive; the Appellant cited two comparable decisions. In Catholic Diocese of Muranga v EEO (suing as grandmother and next friend of MA, a minor) (Civil Appeal E056 of 2022) [2025] KEHC 1603 (KLR) (27 February 2025), the respondent therein, having sustained similar soft tissue injuries, had the trial court's award reduced on appeal from Ks. 350,000/- to Ks. 180,000/-. 16.In Onyango v Obura (Civil Appeal E180 of 2023) [2024] KEHC 11506 (KLR), the respondent, who sustained a deep cut wound to the head in addition to other soft tissue injuries, was awarded Ks. 180,000/-. On this basis the Appellant urged that an award of Ks. 180,000/- would be reasonable in the circumstances and prayed that the appeal be allowed with costs. 1st Respondent's Submissions 17.Counsel for the 1st Respondent filed submissions in opposition to the Appeal observed that it is on quantum only. In conceding that this is a first appeal, counsel also reiterated the submission that the Court has the unfettered discretion under Section 78 of the Civil Procedure Act to re-evaluate and re-look into the trial magistrate's judgment. He contended that the trial magistrate did not misdirect herself and considered the correct principles in arriving at the award. Reliance was placed on Butt v Khan (1981) KLR 198, where it was held that:“It is trite law 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.Counsel also submitted that the 1st Respondent suffered soft tissue injuries and, according to her testimony, was rushed to Bungoma County Hospital after the accident, where she was treated as an outpatient, and that the awards and authorities cited before the trial court in the 1st Respondent's submissions were proper as the injuries sustained in those cases were comparable to hers. 19.The 1st Respondent further pointed out that, in her own submissions before the trial court, she had prayed for an award of Ks. 506,550/-, and that against that prayer, the award of Ks. 306,830/- comprising of Ks. 300,000/- in general damages and Ks. 6,830/- in special damages made by the trial magistrate was reasonable and ought not to be disturbed. 20.Counsel submitted that the amount awarded by the trial court was neither inordinately high nor excessive, was within the range of the decisions cited before the trial court, and that this Court ought to uphold the lower court's finding, dismiss the appeal with costs to the 1st Respondent, and grant interest at the rate of 14% per annum from the date of the judgment of the trial court, being 27th December 2024. Determination 21.The court agrees with the submissions of both Counsel that the duty of the 1st Appellate Court is as was set out in the case of Selle vs Associated Motor Boat Company Ltd [1968] E.A. 123 to the following effect;“.... An appeal from a High Court is by way of rehearing and the Court of Appeal is a first appellate court. It is not sufficient to merely scrutinize the evidence and say whether the trial Judge was right or wrong. An appellate court is not bound to accept the trial Judge’s findings of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of the demeanour of a witness is inconsistent with the evidence generally.” 22.The court shall therefore be guided by it and also Abok James Odera t/a AJ Odera & Associates -vs- John Patrick Machira t/a Machira & Co Advocates [2013] eKLR, wherein the holding is of a similar tenor. 23.Having carefully considered the record of appeal, the judgment of the trial court, the grounds set out in the Memorandum of Appeal and the rival submissions of the parties, the court finds that the following issues arise for determination:a.Whether the learned trial magistrate erred in awarding the 1st Respondent Ks. 300,000/- as general damages for pain and suffering.b.What is the appropriate quantum of general damages payable to the 1st Respondent, if the trial court's award is to be disturbedc.Whether the interest at the rate of 14% per annum is merited; andd.Who bears the costs of the appeal 24.This appeal is confined to the quantum awarded in general damages only. The finding on liability at 100% against the Appellant and the 2nd Respondent was not appealed against and the same therefore stands undisturbed. Similarly, the award of Ks. 6,830/- in special damages is not the subject of this appeal and this amount too remains undisturbed. 25.The applicable principles guiding an appellate court's interference with a trial court's assessment of general damages are well established in our jurisprudence. In Butt v Khan (1981) KLR 19 herein cited in the submissions by Counsel and I wholly subscribe to the principles therein enunciated. It is also trite, that awards in general damages must fall within consistent and comparable limits, having regard to comparable injuries and comparable awards, so that damages are neither a windfall to a litigant nor an undue burden passed on to the public through increased insurance premiums. 26.The court in this regard is guided by the holding in Morris Njagi & Another v Beatrice Wanjiku Kiura [2019] KEELC 784 (KLR), where the Environment and Land Court, sitting on appeal, set out the following principles to guide a court in determining whether to interfere with a trial court's assessment of damages:“Damages should not be inordinately too high or too low”, and are “meant to compensate a party, for the loss suffered but not to enrich a party”, such that they must be commensurate to the injuries suffered, while past decisions relied upon as comparators are to be treated only as guides, since each case depends on its own facts.” 27.Based on the principles herein set out, the court now proceeds to examine whether the trial magistrate's award of Ks. 300,000/- for general damages, measured against the injuries pleaded and proved, and the comparable awards given by the courts for comparable injuries represents a wholly erroneous and excessive estimate that warrants the court’s interference. 28.The Medical Report by Dr Joseph C. Sokobe dated 9th May 2023 prepared for the plaintiff indicates that the 1st Respondent sustained blunt injuries to the face, neck, chest and back, as well as bruises on left hand and left lower limb. The wounds were healed at the time of examination. He classified them as soft tissue injuries. From my perusal of the Lower Court record, I have not come across any alternative Medical Report filed on behalf of the Respondents. The Report by Dr. Sokobe further indicates that all the injuries sustained were treated conservatively on an outpatient basis without surgical intervention, fracture, or lasting incapacity or disability 29.In the two authorities relied upon by the Appellant to wit Catholic Diocese of Murang'a v EEO (Civil Appeal E056 of 2022) [2025] KEHC 1603 (KLR), an award for comparable soft-tissue injuries was reduced on appeal from Ks. 350,000/- to Ks. 180,000/- and in Onyango v Obura (Civil Appeal E180 of 2023) [2024] KEHC 11506 (KLR), an award of Ks. 180,000/- was made in respect of injuries that included a deep cut wound to the head, in addition to soft tissue injuries, injuries 30.The 1st Respondent, on her part, did not place before either the trial court or this Court any comparable authority supporting an award in the region of Ks. 300,000/- for injuries of this nature, resting her case instead on the general principle in Butt v Khan regarding the threshold for appellate interference, and on the fact that she had prayed for a higher sum before the trial court. 31.However, the mere fact that a plaintiff requested a higher amount in submissions before the trial court does not, in and of itself, justify the sum awarded as reasonable. The assessment remains one of comparing the injuries sustained with comparable injuries in similar cases and the awards given in genuinely comparable cases for reasons that no two injuries can be exactly the same in many different ways. 32.The above said, the court will now proceed to consider awards given by various courts for comparable injuries as follows: In Odinga Jactone Ouma v Moureen Achieng Odera [2016] KEHC 2922 (KLR), Majanja J (as he then was) reduced an award of Ks.400,000/ in general damages for Head injury (concussion),cut wound on the right mandible, neck muscle contusion, chest pain on the left side and lacerations, cut wound on the right shoulder blade region, multiple lacerations over the left shoulder and upper arm, cut wounds and lacerations over right forearm, Painful swollen 4th left finger to Ks. 180, 000/- 33.In Highlands Mineral Water Company v Purity Wambui Muriithi [2014] eKLR the High Court on appeal held that an award of Ks. 700,000/- for soft tissue injuries was excessive and substituted the same with an award of Ks. 150,000/- and on appeal, the Court of Appeal upheld the decision of the High Court. 34.In Channan Agricultural Contractors Ltd vs Fred Barasa Mutayo [2013] eKLR, the Respondents sustained injuries to the chest, cut wounds on the head and left leg which were summarized as moderate soft tissue injuries; the Trial Court’s award of Ks. 250,000/- in general damages was reduced to Ks. 150,000/- on appeal. 35.Taking these awards together with the awards given in the authorities cited by Counsel for the Appellant, the concussion is that reasonable general damages for soft tissue injuries range between Ks. 150,000/- to Ks. 180,000/- or thereabouts. In this regard, the court is satisfied that given the fact that the injuries herein sustained were basic as opposed to severe soft tissue injuries, the award of Ks. 300,000/- was excessive in the circumstances. 36.I note further from my perusal of the Lower Court record that the trial magistrate erred by failing to properly consider the comparable authorities provided, and particularly those cited in the 1st Defendant's, who is the Appellant herein in their submissions before the trial court, a matter that has been explicitly raised in ground 2 of the Memorandum of Appeal and the court therefore finds in favour of the Appellant in this regard. 37.Bearing in mind however, that the 1st Respondent sustained injuries to multiple sites of the body the court considers that an award of Ks. 180,000/- as urged by the Appellant would not be a fair compensate the 1st Respondent for the multiplicity of injuries sustained. 38.Based on the material before it therefore and guided by the need for consistency in awards for comparable injuries while avoiding an inordinately high or conversely a mere token award, the court assesses a fair and reasonable award in general damages for pain and suffering at Ks. 200,000/- 39.Further to that, the court has considered the 1st Respondent submissions where he has urged that the court awards interest at 14% per annum from the date of the trial court's judgment. This Court notes that the trial court's decree awarded interest on the damages and costs at court rates from the date of judgment, and that the 1st Respondent did not lodge any cross-appeal challenging the rate of interest awarded by the trial court. 40.It is trite that a respondent who has not cross-appealed cannot, through submissions alone, obtain a variation of the decree in terms more favourable than those granted by the trial court. This Court is accordingly not persuaded that it has jurisdiction, on this appeal as constituted, to vary the rate of interest awarded by the trial court, and declines to grant the prayer for interest at 14% per annum. The interest awarded by the trial court at court rates shall stand. 41.In conclusion, the court makes the following orders:a.The finding on liability at 100% against the Appellant and in favour of the 1stRespondent is now hereby upheld.b.The appeal is hereby allowed with respect to the award of general damages at Ks. 300,000/-. The said award is now hereby varied and set aside and is substituted with an award of Ks. 200,000/- as general damages for pain and suffering.c.The award of special damages of Ks. 6,830/- made by the trial court is now hereby upheld.d.The 1st Respondent's prayer for interest at 14% per annum is declined for want of a cross-appeal and interest it to be paid on the decretal sum at court ratese.Each party shall bear its own costs of this appeal. READ DATED AND SIGNED AT BUNGOMA ON 16TH JULY 2026E. OMINDEJUDGE