Katanu Kalisa v Gaswara Traders Ltd & another

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL DIVISION (APPELLATE SIDE)** **CIVIL APPEAL NO. E139 OF 2025** **BETWEEN** **KATANU KALISA……………………………………………..............APPELLANT** **AND** **GASWARA TRADERS LIMITED……………………………………1ST RESPONDENT** **NICHOLAS MALILE………………………………………………2ND RESPONDENT** **(*Being an appeal from the Judgment and Decree of Hon. V. Ochanda, SRM dated 28th May 2025 at the Magistrates Court at Machakos in Civil Case No.E019 of 2024*)** **JUDGMENT** **Introduction and Background** 1. Before the court for determination is an appeal by the Appellant on the finding of quantum by the subordinate court in a judgment dated 28th May 2025. The judgment was in respect of a suit filed by the Appellant as a result of an accident that occurred on 6th October 2023 along the Machakos – Kitui route where the Appellant was passenger in a matatu KD\* \*\*\*T. In her plaint, the Appellant averred that she sustained injuries as a result of the accident including an anterior dislocation of the right shoulder joint, a displaced fracture on the head of the right humerus, dislocation of the left thumb base and multiple soft tissue injuries. 2. The Appellant blamed the driver of the matatu for the accident accusing him of negligence in the manner in which he drove the matatu and the Appellant sought inter alia general damages and loss of future earning and special damages. The matter was set down for hearing where the Appellant testified on her own behalf (PW 1). The Respondent did not file present any witnesses of produce any evidence. 3. The subordinate court then rendered the judgment where it was found that the Appellant’s case was uncontroverted as the Respondent did not present any evidence and the court awarded the Appellant 100% liability. On quantum, the subordinate court stated that it had considered the injuries sustained by the Appellant and authorities cited by her and she was awarded general damages of Kshs. 600,000.00. The trial court declined to award future medical expenses as it was not pleaded and it also declined to award special damages as none were specifically pleaded and proven. 4. As stated, this decision by the subordinate court forms the basis of the present appeal which the Appellant has grounded in her Memorandum of Appeal dated 10th June 2025. The court directed that the appeal be canvassed by way of written submissions but only those of the Appellant are on record. I have considered the same together with the record and I will make relevant references to them in my analysis and determination below. **Analysis and Determination** 1. In determining this appeal, I am cognizant of the role of this court as a first appellate court which is to re-evaluate and re-assess the evidence before the court of first instance. At the same time, I have kept in mind the fact that the trial court interacted first hand with the parties (see***Selle v. Associated Motor Boat Co.* [1968] EA 123**). In her Memorandum of Appeal, the Appellant contests the quantum of damages awarded stating the Kshs. 600,000.00 was manifestly low and inadequate given the nature, gravity and multiplicity of injuries sustained. That the trial court failed to analyze and apply decided cases with similar injuries where higher awards were made and ignored the argument regarding currency depreciation and that it failed to give sufficient weight to the uncontroverted medical evidence showing the Appellant suffered serious injuries. 2. The Appellant also stated that the trial magistrate misapprehended the extent of the injuries and failed to appreciate the long-term pain, psychological trauma and diminished quality of life suffered by the Appellant. That the trial magistrate disregarded the principles of fairness and proportionality, especially considering the Appellant was a blameless, fare-paying passenger and that she failed to provide adequate reasoning or justification for the figure awarded. The Appellant faults the trial magistrate for failing to consider the economic, social and physical impact of the injuries on the Appellant and she states that the judgment on quantum was plainly wrong, against the weight of the evidence and amounted to a miscarriage of justice. 3. For these reasons, the Appellant prays that the appeal be allowed, that the award of Kshs. 600,000.00 for general damages be set aside and that this court assesses and substitutes a just award of general damages, preferably in the sum of Kshs. 2,700,000.00 or such higher amount as the court deems fit. The Appellant also seeks costs of the appeal be borne by the Respondent. 4. I am in agreement with the Appellant’s submission that in **Butt v Khan [1978] KECA 24 (KLR)**, the Court of Appeal set out the general principles upon which an appellate court can interfere with an award of damages as follows: *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 inordinately high or low.* 1. The Supreme Court, in **Imanyara & 2 others v Attorney General [2022] KESC 78 (KLR)** endorsed the decision of the Court of Appeal in **Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR)** where it was held as follows: *‘‘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 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.’’* 1. The apex court also cited with approval the decision of the Supreme Court of the UK in **Robert Perekebena Naidike vs The Attorney General of Trinidad and Tobago, [2004] UKPC 49** where it was stated that: *‘‘A court of appeal must be satisfied that: the trial judge either misdirected himself/herself on the relevant facts of law (took irrelevant facts into consideration or ignored relevant (emphasis added) one or misinterpreted or misapplied some relevant legal principle), or the trial judge’s assessment of damages is a ‘wholly erroneous estimate.’’* 1. A court should further be mindful to make fair and consistent awards in line with the principle that similar injuries must attract similar awards (see **Nyamete & another v Ogutu [2024] KEHC 2639 (KLR)**. Further, whereas I can agree that since the Respondent filed a defence but it did not call any witness or produce any evidence the Appellant's case remains unchallenged, the latter still had a duty to prove its case on a balance of probabilities as is required by law. This was held by the Court of Appeal in **Karugi & another v Kabiya & 3 others [1983] KECA 38 (KLR)** where it was stated that, *“The burden was always on the Plaintiff to prove his case on a balance of probabilities even if the case was heard as formal proof*”. Likewise, failure by a defendant to contest the case does not absolve a plaintiff of the duty to prove the case to the required standard hence in **Gichinga Kibutha v Caroline Nduku [2018] KEELC 3981 (KLR)** the Court held that, *“It is not automatic that instances where the evidence is not controverted the Claimants shall have his way in Court. He must discharge the burden of proof. He must prove his case however much the opponent has not made a presence in the contest.”* 2. As stated, it is not in dispute that the Appellant sustained the following injuries: 3. Anterior dislocation of the right shoulder joint 4. Displaced fracture on the head of the right humerus 5. Dislocation of the left thumb base 6. Soft tissue injuries to the chest 7. Injury to the neck 8. Injury to the right cheek 9. Multiple bruises on the right side of the face and the left knee 10. The trial magistrate stated that she had considered the authorities cited by the Appellant including **Mwangi v Siloma & another [2023] KEHC 26140 (KLR)** where the Appellant sustained fracture distal end of the right tibia and fibula, fracture left lateral malleolus of the left ankle joint, fracture left medial malleolus of the left ankle joint, blunt injury to the lower back leading to soft tissue injuries, blunt injury to the left hand leading to post traumatic radial nerve palsy, fracture proximal end of the left humerus, soft tissue injury of the right leg and soft tissue injuries of the left ankle joint. An award of Kshs. 800,000.00 as general damages was set aside and substituted with an award of Kshs. 1,200,000.00.00. 11. In **Damaris Wamucii Kagechu v Joseph Kirui & another [2019] KEHC 1837 (KLR)** the plaintiff therein sustained bilateral compound fractures of the tibia and fibula to both right and left legs and was awarded Kshs. 1,700,000.00. In **Subati Flowers Limited v Walter Wanyonyi Wekesa [2019] KEHC 3105 (KLR)** an award of Kshs. 1,600,000.00 was upheld for fracture on the legs and right tibia/fibula, fracture of lumbar vertebrae (2) of the spine, and blunt injuries to the right side of the chest and harm was assessed as grievous with permanent disability assessed at 40%. Further, in **Porim Insurance Brokers Limited v Patrick Rugendo Mugambi [2021] KEHC 5782 (KLR)** an award of Kshs. 1,600,000.00 was upheld for a fracture of the left femur thigh bone with an 18 cm scar, fracture of the right tibia and fibula leg bones which were operated on and fixed with metal implants and the respondent was discharged on a wheel chair and walked with the aid of crutches four months after being discharged. He also suffered neck vertebral bone traumatic disc prolapse (C6) that was operated on and had a scar and was stiff in all directions, cut on the left knee that had a 3 cm scar and was stiff, head injury and blunt object injury to the chest and right shoulder. 12. I am in agreement with the Appellant’s submission that while the Appellant's injuries may not be as severe as those involving bilateral leg fractures, they are far more serious than the soft tissue injuries that ordinarily attract awards in the range of Kshs. 100,000.00 to Kshs.300,000.00. The Appellant’s injuries are not minor or moderate soft tissue injuries. The presence of a displaced fracture of the humerus, multiple joint dislocations in her shoulder and thumb and a 10% permanent incapacity as assessed by Dr. G. K. Mwaura in his report of 12th January 2024 all point to serious orthopedic injuries that would cause significant pain, prolonged immobilization, physiotherapy and residual functional limitations. The medical report itself noted that healing was incomplete and the Appellant was unable to use her right arm and left thumb on exertion. 13. Therefore, I find that the award of Kshs. 600,000.00 places the appellant's injuries in a category far below what comparable authorities suggest for fractures and dislocations involving major joints. I also take note that the trial court's judgment on quantum is remarkably brief as it merely states *"I have considered the authorities above as well as the injuries sustained. I hereby award KES 600,000."*There is no analysis of how the authorities cited supported or differed from the present case or an explanation for why the trial court chose a figure so far below the range proposed by the Appellant, that is Kshs. 2,500,000.00 and even below the authorities the Appellant cited This lack of reasoning deprives the judgment of transparency and suggests the trial court either misapprehended the evidence or failed to engage with it properly. 14. I further agree with the submission by the Appellant that the trial court also failed to account for the depreciation of the Kenya Shilling and inflation. Some of the authorities cited by the Appellant were decided in 2019 and 2023 and in 2025, when the trial court delivered its judgment, an award of Kshs. 600,000.00 would have significantly less purchasing power than similar awards made several years earlier. As the Court of Appeal held in **Tayab v Kinanu [1983] KECA 23 (KLR)**, courts must take judicial notice of inflation and ensure that awards remain realistic and compensatory. 15. In the end, I find that an award of Kshs.600,000.00 for a displaced humerus fracture, two joint dislocations, multiple soft tissue injuries and a 10% permanent disability is so far below the range of comparable awards of between Kshs.1,200,000.00 and Kshs.1,600,000.00 that it cannot be considered a reasonable exercise of judicial discretion but a wholly erroneous estimate of the damages suffered. Considering all factors, I find that an award of Kshs.1,200,000.00 would be appropriate in the circumstances. **Conclusion and Disposition** 1. In the foregoing, it is my finding that the Appellant’s appeal succeeds to the extent that the subordinate court’s award of Kshs.600,000.00 as general damages is set aside and substituted with an award of Kshs.1,200,000.00. There is no order as to costs since the Respondent did not participate in this proceedings. **DATED SIGNED AND DELIVERED virtually this 2nd DAY OF SEPTEMBER** **2026** ............................................................................ **J W W MONGARE** **JUDGE** **In the presence of;** 1. N/A for the Appellant 2. N/A for the Respondent 3. Abdisalan- Court Assistant