https://new.kenyalaw.org/akn/ke/judgment/keca/2026/1610

JKN (A minor suing through next friend and mother DWN) & another v Chege & another (Civil Appeal 335 of 2019) [2026] KECA 1610 (KLR) (31 July 2026) (Judgment) Neutral citation: [2026] KECA 1610 (KLR) Republic of Kenya In the Court of Appeal at Nairobi Civil Appeal 335 of 2019 J Mohammed, M Ngugi & F Tuiyott, JJA July 31, 2026 Between JKN (A minor suing through next friend and mother DWN) 1st Appellant Njuguna Bernard 2nd Appellant and Tirus Mburu Chege 1st Respondent Mburu John 2nd Respondent (Being an appeal from the judgment and decree of the High Court at Kiambu (H. Ong’udi J.) dated 11th October 2018 in Civil Appeal No. 100 of 2017) Judgment 1.This is a second appeal arising from the judgment of the High Court at Kiambu in Civil Appeal No. 100 of 2017. The appeal before the High Court arose from a suit in the Senior Principal Magistrate’s Court in Limuru in Civil Suit No. 96 of 2014 in which the 1st appellant, JKN (a minor suing through his mother and next friend, DWN) sought damages for injuries sustained in a road traffic accident that occurred on 13th January 2014. 2.The 1st appellant’s claim was against Njuguna Bernard, who is named in this appeal as the 2nd appellant, and the 1st and 2nd respondents. At the hearing of the appeal before us on 4th November 2025, Mr. Mwangi, learned counsel for the 1st appellant, indicated that Njuguna Bernard had been joined to the appeal erroneously. We shall therefore refer to the 1st appellant as ‘the appellant’ in this judgment. 3.The appellant’s case was that on the material day, he was a fare paying passenger in motor vehicle registration number KBK 207D. He averred that due to the negligence of Njuguna Bernard, the authorised driver of the 1st respondent, Tirus Mburu Chege, the registered owner of motor vehicle registration number KBK 207D, and the 2nd respondent, Mburu John, the registered owner of motor vehicle registration number KBA 369Q, a road traffic accident involving the said motor vehicles occurred, as a result of which he sustained personal injuries enumerated in the plaint. 4.In its judgment dated 20th May 2015, the trial court noted that liability in this matter had been agreed at 100% against the respondents pursuant to a judgment in a related matter, PMCC No. 95 of 2014, and it only proceeded to address itself to the issue of quantum of damages. The court assessed general damages of Kshs. 800,000 for pain, suffering and loss of amenities, and Kshs. 14,020 in special damages, together with costs and interest. 5.In making this award, the trial court considered the proposal of Kshs. 300,000 and Kshs. 200,000 made by the 1st and 2nd respondents respectively too low, though we note that it did not enter into an analysis of comparable awards, save to mention the decision relied on by the appellant, which it used as a basis for comparison in arriving at the award of general damages of Kshs. 800,000. The trial court observed that the injuries sustained by the plaintiff in the decision cited by the appellant, in which an award of general damages of Kshs. 1, 595,196.40 was made, were more severe, hence its award of Kshs 800,000. 6.Dissatisfied, the respondents appealed to the High Court in Kiambu in Civil Appeal No. 100 of 2017, asserting, in the memorandum of appeal dated 17th January 2017, that the award of Kshs. 800,000 was inordinately high in the circumstances. 7.In the judgment dated 3rd October 2018 and delivered on 11th October 2018 impugned in this appeal, the first appellate court allowed the appeal on quantum. It set aside the trial court’s award of Kshs. 800,000 as general damages for pain, suffering and loss of amenities, and substituted it with an award of Kshs. 500,000. The court upheld the award of special damages of Kshs. 14,020. It ordered that the appellant bears the costs of the appeal and the lower court case. 8.Aggrieved by the decision, the appellant filed the present appeal in which it raises two grounds of appeal in the memorandum of appeal dated 18th July 2018. These are that the High Court erred in law and fact in its assessment of the quantum of damages, thereby making an inordinately low award on general damages; and in disregarding the medical evidence adduced at the trial and thereby making a wholly erroneous estimate of the damages suffered by the appellant. It asks this Court to vary or set aside the judgment of the High Court and replace it with a higher award on general damages, together with the costs of the appeal. 9.This being a second appeal from a judgment of the High Court in its appellate jurisdiction, our remit is confined to matters of law- see Afrofreight Forwarders Limited v Pil (K) Limited [2023] KECA 1510 (KLR) and Agnes Kwamboka Ombuna vs Birisira Kerubo Ombuna [2014] eKLR. 10.In the matter before us, the trial court made an award of damages for pain, suffering and loss of amenities of Kshs. 800,000. This amount was reduced, on appeal, to Kshs. 500,000. The sole issue of law before us, then, is whether the learned judge of the High Court was justified in interfering with and reducing the award of damages made by the trial court. 11.The principles under which an appellate court may interfere with an award of damages are well settled. In Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR), the Court held that:“The principles to be observed by an 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 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.” 12.In Kenya Power & Lighting Company Limited v Ganjoni Towers Limited & another [2024] KECA 1803 (KLR), the court held as follows:“We reach this conclusion on the authority of Butt v Khan (1977) 1 KAR where this Court addressed itself to the discretionary nature of awards of general damages and the Court’s approach in determination of appeals from such awards, thereby holding as follows:“An appellate court will not disturb an award of damages unless it is 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….” 13.The appellant has argued, in brief written submissions dated 22nd January 2020, that the first appellate court went into error in reducing the quantum of damages from Kshs. 800,000 to Kshs. 500,000, considering the gravity of the injuries suffered by the appellant. The appellant submits that in its decision, the court merely stated that the award of Kshs. 800,000 was manifestly high, warranting interference by the court, giving no reasons for so holding. 14.The appellant cites, among others, the case of Stanley Gicheru Njogo v Kijara Joseph Kagu & another [2018] KECA 749 (KLR) and urges the Court to allow the appeal and enhance the amount of general damages from Kshs 500,000 to the original sum of Kshs. 800,000. 15.The respondents did not file submissions before us, nor did they appear at the hearing of the appeal. 16.We have set out above the principles applicable in determining whether an appellate court should interfere with an award of damages against which we have considered the impugned judgment. As a first appellate court, the High Court was under a duty to evaluate the evidence before the trial court and reach its own conclusion. In so doing, it was under a duty to do so while bearing in mind the established principles with regard to interference with an award in damages. We note that the first appellate court, properly so, evaluated the evidence before the trial court. It also, again properly so, considered the jurisprudence with respect to the principles to be considered in determining whether a first appellate court should interfere with an award of damages by the trial court. 17.In its analysis, the court noted the injuries sustained by the appellant as being fractures of the tibia and fibula on both legs; blunt injury on the forehead; broken upper right second front tooth; nose bleeding and ‘consistent loss of consciousness’. This latter statement, we believe, is erroneous as the appellant had pleaded ‘transient (brief) loss of consciousness’. 18.The court observed that the medical report presented in court confirmed that the minor appellant sustained these injuries; that the injuries could not be termed as minor; and that they were serious in that he sustained fractures on both legs, with no disability. 19.The court analysed various awards made in several decisions in which the injuries sustained were significantly more severe, among them the case of Agnes Wakaria Njoka v Josphat Wambugu Gakungi [2015] eKLR in which an award of Kshs.650,000 was made in 2015 to the plaintiff who had sustained two deep cut wounds on her hand, fracture of the skull, deep compound fracture on the right forearm and loss of left hand at the wrist, which was cut off; Zachary Kariithi v Jashon Otieno Ochola [2016] eKLR in which the plaintiff, who had sustained compound fractures of the right tibia and fibula, compound fracture of the left femur bone mid shaft, fracture of the right femur bone, fracture of the 3rd 4th and 5th ribs of the right side and injuries to the forehead, hip joint, big left toe, waist and pains in the chest was awarded general damages of Kshs. 1,500,000 in 2016; and the case of Margaret T. Nyaga v Victoria Wambua Kioko [2004] eKLR in which the plaintiff, who had sustained a ruptured urinary bladder, fracture of the fibula and superficial injuries to the right axle, left hand and both knees, was awarded general damages of Kshs. 450,000, reduced on appeal to Kshs. 300,000 as the appellate court found the award of Kshs 450,000 to have been excessive. 20.Taking into consideration the awards in these decisions and weighing them against the injuries sustained and damages awarded in this case, the court concluded that it was justified in interfering with the award of damages by the trial court, observing that:26.…..Bearing in mind the recent awards and the injuries that the minor sustained, it is this court’s view that the award of the sum of Kshs 800,000 was manifestly high warranting interference by this court.27.In the assessment of this court, it is my considered opinion that an award of Kshs 500,000 as general damages, pain and suffering and loss of amenities would be fair and reasonable to compensate the minor for the injuries that he sustained as PW 1 had opined that he never suffered any permanent disability as a result of the said injuries.” 21.Having considered the decision of the first appellate court and its analysis of the facts and the law relating to award of damages, we are satisfied that, in the circumstances of this case, it was justified in interfering with the award of damages by the trial court, having found it to be manifestly excessive in the circumstances. 22.We therefore find no basis for interfering with the decision of the first appellate court, and we hereby dismiss the appellant’s appeal. Given the nature of the matter, however, we direct that each party bears its own costs of the appeal. DATED AND DELIVERED AT NAIROBI THIS 31ST DAY OF JULY, 2026.JAMILA MOHAMMED………………………………JUDGE OF APPEALMUMBI NGUGI………………………………JUDGE OF APPEALF. TUIYOTT………………………………JUDGE OF APPEALI certify that this is a true copy of the original.SignedDEPUTY REGISTRAR