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Karuga & another v Njuguna (Civil Appeal E033 of 2024) [2026] KEHC 9420 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 9420 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E033 of 2024 JM Chigiti, J June 30, 2026 Between Kenneth Nganga Karuga 1st Appellant Evans Nduati Ng'Ang'A 2nd Appellant and Jamleck Nduati Njuguna Respondent (Appeal from the Judgment delivered by the Honourable Principal Magistrate E.M Nyagah on the 25t day of April, 2024 in Maranga CMCC No. 273 of 2012) Judgment 1.On or about 5th day of May 2010 at Maragwa Junction along Maragwa - Kaharati Road, the Plaintiff was lawfully traveling as a passenger in motor vehicle registration number KAZ 207F, when motor vehicle KAZ 207F owned by the 1st Defendant and driven by his driver, employee, servant and/or agent was so negligently and recklessly driven, managed and/or controlled that it occasioned a violent collision with motor vehicle KAZ 306V which was being driven on the main road. As a result, thereof the Plaintiff sustained severe injuries and has suffered loss, pain and damage. 2.The plaintiff filed a suit against the Defendants jointly andseverally for: -a.General damages to be assessed by this Honourble Court.b.Special damages amounting to Kshs. 2,700/=c.Costs of this suit.d.Interest on (a), (b) and (c) above at Court rates.e.Any other relief that this Honourable Court may deem fit and just to grant. 3.The suit was vehemently opposed.After hearing both sides, on the 25th day of April, 2024 the Court delivered a judgment in favour of the plaintiff in the following terms;a.Liability 100%.b.General damages for pain and suffering Kshs. 250,000/-.c.Special damages Kshs. 2,700/-.d.Costs of the suit and interest. 4.Being dissatisfied with the judgment, the appellant lodged a Memorandum of Appeal raising the following grounds, that;a.The Learned Magistrate erred in law and in fact in unduly disregarding the appellant's evidence adduced in trial.b.The learned trial magistrate erred in law and misdirected himself when she failed to consider the Appellant's submissions on both points of law and facts.c.The Learned Trial Magistrate erred and misdirected himself as to the exact cause of the accident and the nature of the Respondent's injuries and therefore erred in law and in his assessment of damages.d.The learned trial magistrate erred in fact and law and misdirected herself in finding that the Applicant 100% to blame and that the Respondent is entitled to general damages of Kshs.250,000/= and special damages of Kshs. 2,700/= which amount is manifestly excessive for soft tissue injuries.e.The Learned Trial Magistrate misdirected himself in ignoring the principles applicable in awarding quantum of damages and relevant authorities on quantum cited in the written submissions presented and filed by the Appellant. Kimondle Gachela& Company Advocatesf.The Learned Trial Magistrate proceeded on wrong principles when assessing the damages to be awarded to the Respondent and further failed to apply the precedents and tenets of law applicable.g.That the learned magistrate erred in law and fact in arriving at his said decision.h.That the learned trial magistrate's 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. 5.The Appellants seeks the following Orders;a.That this Appeal be allowed.b.That the Judgment of the Honorable Senior Principal Magistrate Hon.-E.M Nyagah on quantum be set aside the same be heard and assessed afresh.c.That the costs of this Appeal and that of the trial court be awarded to the Appellant.d.That such further orders may be made by this Honourable Court may deem fit to grant. The Appellants’ submissions; 6.The Appellants submit that an award of general damages is at the discretion of trial court, but the appellate Court may disturb such an award if it can be shown that the judge proceeded on wrong principles or misapprehended evidence.In the Court of Appeal case Butt v. Khan [1981) KR 349, Law (JA) stated that:“An appellate court will not disturb an award of damages unless it is so inordinate high or low as to represent an entirely erroneous estimate. It must be shown that th judge proceeded on wrong principles, or that he misapprehended the evidence some material respect, and so arrived at a figure which was either inordinately high or low......" 7.They submit that the learned trial Magistrate erred in law and fact in adopting the wrong principles in awarding an excessive amount as general damages considering the injuries sustained by the Respondent. 8.Reliance is placed in the case of Stanley Maore V Geoffrey Menda [2004] eKLR where the Court of Appeal stated:“.....Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases." 9.Reliance is also placed in the locus classicus of West (H) & Son Ltd. vs. Shepherd (1964) A.C. 326 at page 345 as follows:“But money cannot renew a physical frame that has been battered and shattered. All that Judges and Courts can do is to award sums which must be regarded as giving reasonable compensation. In the process there must be an endeavor to secure some KRK Advocates LLP uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said still must be that amounts which are awarded are to a considerable extent conventional." 10.The Appellants thus reiterates the cases that were supplied in hissubmissions in the trial court where in the case of Eva Karemi & 5 others v Koskei Kieng & another /2020] eKLR., in which the trial court awarded Ksh.90,000 for Soft tissue injuries. 11.The Appellants further places reliance on the following authorities in which this Honourable Court has interfered with the award of General Damages for comparable injuries:In Jitan Nagra v. Abidnego Nyandusi Oigo (2018] eKLR. The Respondent sustained injuries of lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, segmental distal fracture of the right femur. In that case, a medical report was produced where the doctor noted that the Plaintiff complained severe headache, severe pains on the chest, back, right hand and right leg. 12.The Plaintiff could also not walk without crutches and was still on plaster of paris. The Court set aside the trial court's award of Kshs. 1,000,000/- and substituted the same with an award of Kshs. 450,000- 13.In the case of Daniel Otieno Owino & Another-us- Elizabeth Atieno Owuor/2020 eKLR the court gave an award of Kshs.400,000/- for a compound fracture of tibia and fibula bones of the right leg, deep cut wound and tissue damage of the right leg, head injury with cut wound on the nose, blunt chest injuries and soft tissue injury on the lower left leg, injuries which are more severe than the instant case. 14.They submit that these authorities are comparable to the ones in this suit and Kshs 90,000 should suffice. The Respondents submission’s: 15.On the issue as to whether the appellate court should interfere with an award of damages by a trial court,relaince is placed in the case of Kemffro Africa Ltd t/a Meru Express Services(1976) & Another Vs- Lubia and Another(No. 20(1985)eKLR where it was 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 Eastern Africa to be that it must be satisfied that either the Judge, in assessing damages, took into account an irrelevant factor, or that short of this, the amount is so inordinately low or so inordinately high that it must be wholly erroneous estimate of damages"(emphasis ours). 16.In Johnson Evan Gichere Vs- Andrew Morton & Another(2005) eKLR, the Court of Appeal stated;“It is trite law that this court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they would have given a larger sum. In order to justify reversing the trial Judge on the question or the amount of damages it will generally be necessary that this court should be convinced either that the Judge acted upon some wrong principle of law or that the amount awarded was extremely high or so small as to make it in the Judgment of this court an entirely erroneous estimate of the damages to which the plaintiff is entitled". 19.In dealing with the same point the Court of Appeal in Kirugo -Vs-Kirugo & Another(1988)KLR 348 observed as follows; "An Appeal Court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the Judge can be said to have been plainly wrong". 17.The present appeal herein lies on the issue of quantum as awarded to the Respondent by the trial in the sum of Ksh.250,000 as general damages based on multiple soft tissue injuries as set out in paragraph 8 above. 18.Notably, assessment of damages are matters that are within the discretion of the trial court and the appellate court ought to respect that discretion if properly exercised(See Hellen Waruguru Waweru(Suing as the Legal Representative of Peter waweru Wmenya)-Vs- Kiarie Shoe Spares Ltd(2015)eKLR. 19.This court being the first appellate court is bound as a matter of law and fact to reconsider and reevaluate the evidence in the lower court and draw its own conclusions by way of a retrial bearing in that it neither saw nor heard the witnesses who testified in the lower court. 20.It is submitted by the appellants that the award of Ksh.250,000 as general damages for pain and suffering as awarded to the appellant by the lower court was excessive in the circumstances in the case of Nkube-Vs-Nyamiro(1983)KLR403;"A court of Appeal will not normally interfere with the finding of fact by the trial court unless it is based on no evidence or on misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching his conclusion. 21.In Mbogo & Another-Vs- Shah(1968)E.A 93, the court stated as follows;“A Court of Appeal should not interfere with the exercise of Discretion of the Judge unless it is satisfied that he misdirected itself in some matter and as a result arrived at a wrong decision or unless it is manifest from the case as a whole that the Judge was clearly wrong in the exercise of his discretion and as a result then has been injustice". 22.The respondent in his written submissions dated 4/3/2024 had proposed an award of Ksh.250,000. However, the appellants did not file any submissions on their part and make their own offer as the reasonable award to be awarded to the respondent. 23.This Appellate Court should not interfere with the lower court's award of Ksh.250,000as general damages for pain and suffering as the appellants had not made any offer in the lower court by their failure to file written submissions. Analysis 24.In the case of SELLE and Another -vs- Associated Motor Boat Company Ltd &Others [19681 1. E.A123 it was stated as follows: -"“This court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind [the fact] 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 that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.' 25.I have confirmed from the proceedings in the lower court that an accident took place as pleaded. This fact is clearly set out the police abstract. The Appellants dont deny this fact. 26.During cross examination, the Respondent confirmed that he was in the motor vehicle that caused the accident when the accident occurred as a passenger.He further testified that he was rushed to hospital in another Matatu. 27.In arguing his case for general damages, The Respondent pleaded that as a result of the accident, he sustained injuries. 28.I am satisfied that the injuries were proven through the medicalproduced by John Ndereva Mwangi who testified for the Respondent and produced the said medical report as evidence. 29.The court has established that the respondent sustained the following injuries;a.Deep cut on the left eyebrowb.Laceration below the left eyelidc.Blunt chest injuryd.Bruise on the right elbowe.Laceration on the right knee. 30.The claim for general damages was further advanced and supported by the P3 Form and the treatment notes that were produced by the Respondent. 31.In the case of Harjeet Singh Pandal v Aloyce Oloo Randa (2019) eKLR the Respondent suffered serious head injury with extensive deep cut wound on parietal region of the scalp above left ear, blunt chest injury, damage to the lumbar sacral vertebrae which involved compression of left bone and dislocation and fracture of right ulna and radius. On appeal court confined trial court award of Kshs 250,000. 32.It is my finding that the amount awarded as general damages was not excessive. Costs; 33.The Supreme Court in the case of Jashir Singh Rai & Others vs. Tarlochan Rai & Others observed that,” In the classic common law style, the courts have to proceed on a case-by-case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…” 34.The appellants shall bear the costs. Determination: 35.Upon reassessing and re-evaluating the entire evidence on record this court has arrived at its own independent conclusion that the judgment on quantum was arrived at after the application of the appropriate legal principles and the same is legally sound. The Appeal lacks merit.Order:The Appeal is dismissed with costs. DELIVERED, DATED AND SIGNED ON THIS 30TH DAY OF JUNE 2026 VIRTUALLY AT ELDORET HIGH COURT.………………………………J. M. CHIGITI (SC)JUDGE