Keyo & another v SNN (Suing as the Minor through the Next Friend ANM) (Civil Appeal E173 of 2025) [2026] KEHC 11977 (KLR) (30 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CIVIL APPEAL NO. E173 OF 2025** **MOSES OGWENO KEYO ……………………..…………............ 1ST APPELLANT** **CRISSCROSS CO. LTD. …………………………………….…… 2ND APPELLANT** **VERSUS** **SHARON NYAWIRA NYAMBURA (*suing as the minor through*** ***the next friend* ANNE NYAMBURA MUHOHO) …………………..… RESPONDENT** ***(Being an Appeal from the Judgment/ Decree of Hon. Dr. V. Wakumile (CM) delivered on 4th June 2025 in Thika MCCC No.334 of 2018)*** **J U D G M E N T** **Introduction** 1. This appeal arises from the judgment of the Chief Magistrate’s Court at Thika (***Dr. V. Wakumile, CM***) delivered on 4th June 2025 in Thika MCCC No. 334 of 2018. **Factual History** 1. On or around 7th November 2016 at 5.00 p.m., Sharon Nyawira Nyambura, the respondent, was standing by the roadside along Mwihoko Road within Githurai area awaiting to cross over when motor vehicle registration number KAG 445T, a Mazda Canter, owned by Crisscross Co. Ltd. (the 2nd appellant) and driven by Moses Ogweno (the 1st appellant) veered off the road and hit the respondent. She sustained grievous bodily injuries, including: laceration on the right hand and right arm; degloving injuries on the right hand, arm and breast; open fracture of the right humerus; right radial neck fracture; proximal ulna fracture; and distal ulna styloid fracture. Permanent disability was assessed at 15%. 2. As a result, the respondent filed **Thika MCCC No. 334 of 2018** on 2nd March 2018 seeking relief for the injuries she sustained. She also claimed special damages for the expenses incurred totaling Kshs. 428,436.43/-. 3. The appellants opposed the claim vide their defence dated 15th May 2018, instead blaming the respondent’s negligence for the accident. Without prejudice to the denial, they averred that the accident was inevitable and amounted to an act of God, and that the 1st appellant took all reasonable measures to avoid it. They further pleaded *volenti non fit injuria* as against the respondent. 4. The matter proceeded to formal proof. The respondent called 2 witnesses. **PW1, Ann Nyambura Muhoho**, the respondent’s mother, largely reiterated the contents of her witness statement dated 2nd March 2018 and produced the documents. She added that the respondent was admitted for 24 days and she underwent several surgeries. She also averred that she paid Kshs. 90,000/- at Valley Hospital in Nakuru on 3rd May 2019 for removal of the metal plate fixed in the respondent’s hand. **PW2, Sharon Nyawira,** adopted her witness statement dated 10th November 2020, though the same has not been attached to the record of appeal. 5. By a Judgment delivered on 4th June 2025, the trial court found the appellants jointly and severally liable for the accident. As for quantum, the trial Magistrate awarded Kshs.6,500,000/- as general damages, holding that the evidence was uncontroverted and further, that the respondent sustained serious injuries that were likely to affect her development, confidence and physical capacity in the long term. On special damages, the respondent was awarded Kshs. 518,263.43/- as pleaded. The appellants were granted 30 days stay of execution. **The Appeal** 1. Disgruntled, the appellants filed a Memorandum of Appeal dated 2nd July 2025 raising the following grounds of appeal, that the Learned Trial Magistrate erred: 2. *In failing to properly evaluate evidence on record thus reaching an erroneous decision on the issue of quantum of damages.* 3. *In failing to properly evaluate the expert evidence on record thus arriving at an erroneous decision on the issue of quantum of general damages for pain and suffering and loss of amenities as well as special damages payable to the respondent and thereby arriving at a manifestly excessive award.* 4. *In basing her decision on extraneous matters and failing to base her said decision on the facts, evidence on record and the principle of stare decisis.* 5. Accordingly, they sought that the appeal be allowed, the trial court’s Judgment be set aside and for this court to be pleased to reassess the quantum of general damages and costs of the appeal. **The Appellants’ Submissions** 1. Supporting their appeal, the appellants filed written submissions dated 31st October 2025 challenging the quantum awarded by the trial court. They posited that Kshs.6,500,000/- was excessive in the circumstances and urged this Court to interfere with the said award. In point of comparison, they cited the following decisions: 1. ***Nairobi Logistics Construction Co. Ltd. vs Obondi (Civil Appeal E092 of 2022) [2024] KEHC 4798 (KLR)*** *where the respondent was awarded Kshs. 1,500,000/- as general damages for a displaced fracture of the distal radial metaphysic with deformity, ulna styloid process fracture, fracture of the right femur midshaft, fracture of the right radial ulna, multiple injuries on the right femur/ tibia, swollen forehead, neck and tenderness, loss of consciousness and back injuries.* 2. ***Lumumba vs Adero (Civil Appeal E040 of 2024) [2024] KEHC 13084 (KLR)****: Kshs.500,000/- for injury to the chest, tender back ache; deformed lower arm; dislocated left wrist joint; cut wound on the left leg; cut wound on the left hand; swollen and dislocated left wrist joint; deformed left foot; compound fracture of the left foot; compacted vertical fracture of the medial malleolus on left foot; mild disruption of the cortical surface on left foot x-ray; and none displaced transverse fracture of the distal ulna styloid left hand with associated mild soft tissue swelling locally.* 3. ***Njihia vs Kipkutola (Civil Appeal 6 of 2019) [2023] KEHC 18094 (KLR)*** *Kshs.1,500,000/- as general damages for: fracture of the right ulna; fracture of the left tibia; multiple rib fractures on the right; wound on the right forearm; tenderness of the left lower leg; and blunt injury on the chest.* 2. In their view, an award of Kshs.1,000,000/- was commensurate with the injuries sustained. As for special damages, they faulted the trial court for awarding Kshs.518,236.43/- whereas the respondent produced receipts totaling Kshs.28,381/-. They maintained that the respondent merely produced invoices from Kijabe Hospital in the sum of Kshs.276,827.20/- but did not adduce proof of payment. **The Respondent’s Submissions** 1. The respondent opposed the appeal vide her submissions dated 17th November 2025. She submitted that the appellants failed to demonstrate that the trial court misdirected himself, acted on any wrong principle of law, ignored a relevant factor, considered an irrelevant factor or referred to extraneous matters. Furthermore, she contended, the respondent failed to cite awards for comparable injuries to warrant displacing the trial court’s award. **Analysis and Determination** 1. As this is a first appeal, this Court is obligated to re-evaluate and re-analyze the evidence on record and arrive at its own conclusions in the matter, as put more succinctly in ***Selle v. Associated Motor Boat Co. [1968] EA 123***. 2. The present appeal turns on the single issue *whether the trial court erred in its assessment of general damages*. I further find useful guidance in ***Ogembo Tea Factory vs George Biringi Oino [2019] KEHC 8975 (KLR)*** where the Court cited ***Boniface Waiti & Another vs Michael Kariuki Kamau Civil Appeal 705 of 2003 [2007] eKLR***, where the following principles were highlighted: 1. *An award of damages is not meant to enrich the victim but to compensate such a victim for the injuries suffered.* 2. *The award should be commensurate to the injuries suffered.* 3. *Awards in decided cases are mere guides and each case should be treated on its own facts and merit.* 4. *Where awards in decided cases are to be taken into consideration then the element of inflation has to be taken into consideration.* 5. *Awards should not be inordinately too high or too low.* 3. It is an established principle of law that the award of general damages is a discretionary power. See ***Kenya Power & Lighting Co. Ltd. vs Andrea Otieno Odhiambo [2016] eKLR***. The principles to be observed before interfering with a court’s award of damages were pronounced in ***Kemfro Africa Ltd. t/a Meru Express Service Gathogo Kanini vs A.M.M. Lubia & Another (1982-88) 1 KAR 777*** in the following terms: ***“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 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. (See Ilango – v- Mayoka (1961) EA 705,709-713)”*** 1. The respondent sustained multiple serious injuries and was hospitalized for 24 days, during which she underwent several surgical procedures. This evidence was not controverted. The trial court awarded the respondent Kshs.6,500,000/- on account of the said injuries, based on the respondent’s submissions. 2. The issue before this Court is therefore whether the trial court erred in its award of general damages. In determining this issue, I am guided by the principle that comparable injuries should attract comparable awards. See ***Odinga Jacktone Ouma vs Moureen Achieng Odera [2016] eKLR; and Taveta vs Njeru (Civil Appeal 26 of 2013) [2014] KECA 755 (KLR)***. 3. In ***Mnyaturu vs Mulela (Civil Appeal E207 of 2021) [2024] KEHC 13119 (KLR)***, the High Court awarded Kshs. 1,500,000/- for multiple severe injuries, including compound fractures of the right upper limb, degloving injuries on the right upper limb inclusive of right axilla, neurological impairment on the right upper limb-right branchial plexus injury leading to hypoesthesia right hand, chest trauma with fracture ribs and right sided haemothorax leading to chronic respiratory insufficiency and permanent disability assessed at between 50% and 70%. 4. In ***Robert Ngatia & Another vs Marco Ndome Madina [2014] KEHC 876 (KLR)***, the Court awarded Kshs. 750,000/- for the following injuries: compound fracture of the right humerus with a degloving injury in the right arm, fracture of the radius, fracture of the right ulna, profuse haemorrhage and lacerated scars on the right arm and elbow. Permanent disability was assessed at 30%. However, this decision was delivered in 2014. 5. In ***Ngugi & Another vs Nuthoni (Civil Appeal E014 of 2024) [2024] KEHC 12473 (KLR)***, the Court awarded Kshs. 1,200,000/- for fracture of left humerus, wounds on the left chest, crash injuries on the left hand fingers which were later amputated and permanent disability was assessed at 45%. The respondent later developed diabetes mellitus, high blood pressure and was unable to lift heavy objects using her left upper limb. 6. The above injuries refer to injuries that were slightly more severe than the ones that the respondent sustained. I find that indeed the trial court fell into error in awarding Kshs. 6,500,000/- which is inordinately excessive in the circumstances. Further, neither the respondent’s submissions nor the authorities relied upon before the trial court, nor the authorities relied upon by the trial court, disclose comparable awards that would justify such a figure. 7. Having considered the nature and extent of the injuries sustained by the respondent, the period of hospitalization of 24 days and the assessed permanent incapacity of 15% together with comparable awards cited herein, and doing the best I can in the circumstances, I am satisfied that an award of Kshs. 1,800,000/- for pain and suffering is a fair and reasonable compensation. In arriving at this figure, I have particularly considered the ***Mnyaturu Case*** **(supra)** where the respondent suffered injuries that were substantially more severe. The injuries in the present case, while serious, are comparatively less debilitating, and an award of Kshs.1,800,000/- is proper in the circumstances. 8. With respect to special damages, the appellants contended that the trial court fell into error in awarding a sum that was not strictly pleaded or proved. It is trite law that special damages must be proved and pleaded. See ***Hahn vs Singh [1985] KECA 129 (KLR)***. The bone of contention was the invoices attached. Are invoices proof of expenses incurred to warrant an award of special damages? 9. The Court of Appeal has had occasion to settle this. In ***Total (Kenya) Ltd. Formerly Caltex Oil (Kenya) Ltd. vs Janevams Ltd. [2015] KECA 822 (KLR)***, it was held that proforma invoices are not satisfactory proof of loss as they reflect a commitment and not an expense incurred. The High Court as well has abided by this principle. See ***Christine Mwigina Akonya vs Samuel Kairu Chege [2017] KEHC 1484 (KLR); Abdi Werdi Abdulahi vs James Royo Mungatia & Another [2019] KEHC 2791 (KLR)*** 10. In this case, the trial court appears to have treated the invoices as proof of payment. In line with settled law, only amounts strictly proved are recoverable. Although the appellant urged this Court to award special damages of Kshs. 28,381/-. However, upon review of the record, I find that the receipts on record support a total of Kshs. 32,693/-. I am satisfied that the respondent is entitled to special damages amounting to Kshs. 32,693/- being the amount supported by the documentary evidence. This ground of appeal must therefore succeed. **Orders** 1. In the end, I make the following orders: 1. ***The Judgment dated 4th June 2025 is hereby set aside.*** 2. ***The respondent is awarded general damages of Kshs. 1,800,000/- and special damages of Kshs. 32,693/-.*** 3. ***Interest shall accrue on the general damages from the date of the trial court’s Judgment while the special damages shall accrue interest from the date of filing the suit.*** 4. ***The appellants shall have the costs of this appeal.*** It is so ordered. ***Dated, Signed and Delivered virtually*** *at* ***Nairobi this 30th day of July 2026.*** **DAVID MBURU** **JUDGE** **In the presence of:** *Mr. Ochieng for the Appellants* *M/s Odago holding brief for Mwanza for the Respondent* *Kalondu - Court Assistant*