https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9888

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU COUNTY COURT NAME: THIKA HIGH COURT CASE NUMBER: HCCA/E277/2025 TERESIA GATHONI KINYANJUI VS ENTIRE COMPANY LIMITED AND COLLINS MWARIRI JUDGMENT ***(Being an Appeal from the Judgment from the judgment of the Honourable Rachel Ng’ang’a sitting at the Chief Magistrate court at Gatundu in CMCC Case No. E023 OF 2024 dated 22nd day of July 2025)*** **A. INTRODUCTION/ FACTS OF THE CASE** 1. The Plaintiff, vide a Plaint dated 30th January 2024, instituted a suit against the Defendants seeking damages arising from a road traffic accident that occurred on 1st April 2023 involving the Plaintiff and Motor Vehicle Registration Number KCV 797N Toyota Prado, belonging to the 1st Defendant and being driven and/or controlled by the 2nd Defendant. 2. The Plaintiff averred that she was a lawful fare-paying passenger aboard Motor Vehicle Registration Number KBJ 843C Toyota Hiace Matatu along the Kenyatta-Gatundu Road at the Kimunyu area. It was pleaded that the driver of the said matatu had stopped to drop passengers when the 2nd Defendant, while driving from the opposite direction, lost control of the motor vehicle, veered off the road, and collided with the matatu. As a result of the accident, The Judiciary of Kenya Doc IDENTITY: 409712028138917800698324706841 Tracking Number:OOJ6232026 1/11 the Plaintiff sustained severe injuries, namely an open degloving injury to the right leg and a fracture of the left femur. 3. Subsequently, on 8th April 2025, counsel for the parties recorded a consent on liability in the ratio of 85:15 in favour of the Plaintiff against the Defendants. The parties further agreed to canvass the issue of quantum by way of written submissions, which were duly filed. 4. On the issue of general damages, counsel for the Plaintiff proposed an award of Kshs. 3,000,000/=, while counsel for the Defendants proposed Kshs. 500,000/=. Upon considering the evidence on record and the parties’respective submissions, the trial court held that the amount proposed by the Plaintiff was excessively high, while the amount proposed by the Defendants was inordinately low and not commensurate with the injuries sustained. The learned trial magistrate noted that the Plaintiff had suffered a degloving injury to the right leg and a fracture of the femur and found that an award of Kshs. 800,000/= was reasonable and sufficient in the circumstances. 5. The learned magistrate, in conclusion, held as follows: ***"In the upshot, I find that the Plaintiff has proved the case against the Defendants jointly and severally and enter judgement in her favour as follows:-*** ***1. Liability agreed at 85:15%*** ***2. General damages for pain and suffering at Kshs. 800,000/= 3. Future medical expenses Kshs. 85,000/=*** ***4. Special damages Kshs. 60,550/=*** ***Gross award Kshs. 945,550/=Less 15% contribution Kshs. 141,832.50/=Net award Kshs. 803,717.50/=*** ***5. Costs and interests of the suit to the Plaintiff."*** 6. Being dissatisfied with the judgment of the trial court, the Plaintiff lodged the present appeal vide a Memorandum of Appeal dated 25th July 2025, raising the following grounds: - *1. That the learned magistrate erred in law and in fact in failing to appreciate the relevant principles, case laws and the submissions on record in assessing damages thereby arrived at a very low award on damages.* The Judiciary of Kenya Doc IDENTITY: 409712028138917800698324706841 Tracking Number:OOJ6232026 2/11 *2. The learned trial magistrate misdirected herself and failed to give any due and proper consideration to the pleadings and evidence on record and submissions and thereby made an erroneous judgement on the damages.* 7. The Appeal was canvassed by way of written submissions and before this court delves into the submissions of both parties, it is important to note that this being a first appeal, this court is under a duty to re-evaluate, reassess and reanalyze the evidence tendered before the trial court and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify. This principle was well stated in **Okeno v R**. **B. SUBMISSIONS BY PARTIES Appellant’s Submissions** 8. The sole issue in contention by the Appellant is whether the trial court awarded an appropriate quantum of general damages. 9. On the principles Governing Appellate Interference with Damages, the Appellant submitted that an appellate court may interfere with the discretion exercised by a trial court where the lower court: Misdirected itself on the law, Misapprehended the facts, Considered irrelevant factors, Failed to consider relevant factors; or Reached a plainly wrong decision. In support of this proposition, reliance was placed on **Said Sweilem Gheithan Saanum v Commissioner of Lands (2015) eKLR and Mrao Ltd v First American Bank of Kenya Ltd & 2 Others (2003) KLR 125.** The submissions emphasized that appellate intervention is justified where the exercise of judicial discretion is based on wrong principles or erroneous consideration of the evidence. 10. The Appellant further relied on; **Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55**. **Sheikh Mustaq Hassan v Nathan Mwangi Kamau Transporters & 5 Others (1986) KLR 457**, where the court held that an award may be increased if it is so inordinately low as to amount to an erroneous estimate, or where the trial court acted on wrong principles or misapprehended the evidence. The Judiciary of Kenya Doc IDENTITY: 409712028138917800698324706841 Tracking Number:OOJ6232026 3/11 11. The Appellant’s general argument was that the trial court correctly found that the accident occurred and that liability had been proved and having made that finding, the court ought to have awarded damages that adequately reflected the nature and gravity of the injuries suffered. 12. The Appellant argued that comparable injuries should attract comparable awards, and the court should have been guided by the authorities presented by the Appellant. The appellant argued that the trial magistrate failed to consider the relevant authorities and comparable awards cited by the Appellant, the magistrate did not rely on any authority demonstrating comparable awards before arriving at the final award and consequently, the trial court applied wrong principles, took into account irrelevant considerations, and arrived at an award that was inordinately low and prejudicial to the Appellant. 13. The Appellant urged the appellate court to set aside the trial court’s award on general damages, reassess the damages payable, enhance the award of general damages to **Kshs. 3,000,000**; and award **Kshs. 200,000** for future medical expenses. **Respondent’s Submissions** 14. The Respondent framed the first issue for determination as whether the learned trial magistrate’s award on quantum was proper in law and fact. The Respondents submitted that the Appellant’s evidence, together with the medical report dated 21st August 2023, established that the Appellant sustained an open degloving injury to the right leg and a fracture of the left femur. 15. The Respondents further submitted that, before the trial court, the Appellant relied on the decisions in *John Kinyua & 2 Others v Joseph Onyango Obura* (2018) eKLR and *Zipporah Nangila v Eldoret Express Limited & 2 Others*. According to the Respondents, the Plaintiffs in both cases sustained far more severe injuries than those suffered by the Appellant in the present case. 16. The Respondents also submitted that, although the injuries sustained by the Appellant were serious, there was no evidence demonstrating that they The Judiciary of Kenya Doc IDENTITY: 409712028138917800698324706841 Tracking Number:OOJ6232026 4/11 resulted in total functional disability or catastrophic incapacity. Further, the Respondents contended that the trial court had already made a separate award for future medical expenses and, therefore, ought not to have enhanced the award for general damages on account of the anticipated implant removal procedure. 17. In support of his position, the Respondents relied on, among other authorities, *Daniel Orieno Owino & Another v Elizabeth Atieno Owuor* and *Bonafide Clearing and Forwarding Co. Ltd v Karanja* (2024), submitting that the injuries sustained therein were comparable to those in the instant case and that the court awarded Kshs. 500,000/= as general damages. 18. The Respondents further submitted that, while the assessment of general damages is an exercise of judicial discretion, such discretion must be guided by comparable awards in similar cases, as was held in *Odinga Jacktone Ouma v Moureen Achieng Odera* (2016) eKLR. In support of this proposition, the Respondents relied on *F A (Minor Suing Through Next Friend and Father AFWK) v Kariuki Jane & Another* (2018) eKLR and *Jackson Mbaluka Mwangangi v Onesmus Nzioka & Another*. 19. The Respondent’s final issue for determination was whether the award for future medical expenses was proper in law. The Respondents submitted that claims for future medical expenses must be specifically pleaded and strictly proved through credible medical evidence. It was further submitted that, owing to the conflicting medical opinions regarding the estimated cost of implant removal, the trial court reasonably adopted the sum of Kshs. 85,000/= as a fair and justified assessment of the anticipated expenses. 20. In the circumstances, I have considered the submissions from both the Appellant and the Respondents and I therefore wish to have the following as issues for determination; **C. ISSUES FOR DETERMINATION** i. Whether the trial court properly assessed the quantum of damages ii. Who bears the costs of the suit? **D. ANALYSIS AND DETERMINATION** The Judiciary of Kenya Doc IDENTITY: 409712028138917800698324706841 Tracking Number:OOJ6232026 5/11 **Whether the trial court properly assessed the quantum of damages** 21. In determining whether the award of damages by the trial court was proper, this court is guided by the principles set out in **Charles Oriwo Odeyo v Appollo Justus Andabwa & Another (2017) eKLR** where the court laid down the guiding principles in assessment of damages as follows: - (i) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained; (ii) The award should be commensurate with the injuries sustained; (iii) Previous awards are to be taken into account to maintain stability and consistency in awards, though factors such as inflation must also be considered; and (iv) The awards should neither be inordinately high nor inordinately low. 20. Applying the foregoing principles to the present appeal, this court has carefully reconsidered the evidence on record, the rival submissions by the parties, the authorities cited before the trial court, and the impugned judgment. The central question is whether the award of Kshs. 800,000/= as general damages for pain and suffering was so inordinately low as to warrant interference by this court. 21. It is not in dispute that the Appellant sustained an open degloving injury to the right leg and a fracture of the left femur. These were undoubtedly serious injuries which caused pain, suffering and necessitated medical intervention. However, the seriousness of an injury, by itself, is not the sole determinant of the quantum of damages to be awarded. The court must evaluate the nature of the injuries, the extent of permanent incapacity, the residual effects, comparable awards in similar cases, and the prevailing economic circumstances. 22. The Appellant faulted the trial court for allegedly failing to consider the authorities that were cited and for arriving at an award that was inordinately low. However, a careful reading of the judgment demonstrates that the The Judiciary of Kenya Doc IDENTITY: 409712028138917800698324706841 Tracking Number:OOJ6232026 6/11 learned trial magistrate expressly considered the parties' respective proposals and the nature of the injuries sustained before arriving at an award that lay between the figures proposed by the parties. The Appellant proposed Kshs. 3,000,000/= while the Respondents proposed Kshs. 500,000/=. The trial court ultimately awarded Kshs. 800,000/= after finding that the Appellant's proposed figure was excessive and that the Respondent's proposal was on the lower side. 23. In this court's view, that approach cannot be faulted. The assessment of damages is not a mathematical exercise. It involves the exercise of judicial discretion founded on the evidence and guided by comparable awards. The mere fact that the trial court did not adopt the authorities or the proposed figure advanced by the Appellant does not amount to a misdirection in law. A trial court is not bound to follow the figures proposed by either party and retains the discretion to determine what constitutes fair and reasonable compensation in the circumstances of each case. 24. The authorities relied upon by the Appellant before the trial court and on appeal are distinguishable from the present case. As correctly submitted by the Respondents, the injuries sustained by the plaintiffs in *John Kinyua & 2 Others v Joseph Onyango Obura* (2018) eKLR and *Zipporah Nangila v Eldoret Express Limited & 2 Others* were more severe and involved greater long-term consequences than those established in the instant matter. Consequently, those authorities could not provide a direct basis for an award of Kshs. 3,000,000/=. 25. Equally significant is the fact that there was no evidence before the trial court demonstrating that the Appellant suffered permanent total disability, catastrophic incapacity, loss of bodily function, or any other exceptional consequence that would justify a substantially enhanced award. The medical evidence showed that the injuries healed, albeit with residual effects requiring implant removal. The learned magistrate was therefore entitled to distinguish the Appellant's authorities and arrive at an award that reflected the actual injuries proved. 26. On the other hand, the authorities relied upon by the Respondent demonstrate that awards in cases involving fractures of the femur and soft The Judiciary of Kenya Doc IDENTITY: 409712028138917800698324706841 Tracking Number:OOJ6232026 7/11 tissue injuries generally fall within a range that is substantially lower than the amount sought by the Appellant. While no two cases are exactly alike, comparable awards remain an important guide in ensuring consistency and predictability in the administration of justice. The award of Kshs. 800,000/= therefore falls within a reasonable range and cannot be said to be wholly erroneous. 27. This court further notes that the learned trial magistrate appreciated the distinction between general damages and future medical expenses. The Appellant sought enhancement of both heads of damages, arguing that future surgery for implant removal justified a higher award. However, the trial court separately awarded Kshs. 85,000/= for future medical expenses. To further inflate the award for pain and suffering on account of the same anticipated procedure would amount to compensating the Appellant twice for the same eventuality. 28. With regard to future medical expenses, the law is settled that although such expenses relate to future expenditure, they must nonetheless be specifically pleaded and proved by credible medical evidence. The evidence before the trial court disclosed differing estimates regarding the cost of implant removal. Faced with competing medical opinions, the trial court exercised its discretion and awarded Kshs. 85,000/=. 29. This court finds no basis for interfering with that award. The learned magistrate evaluated the medical evidence that was available and arrived at a figure that was supported by the record. The Appellant has not demonstrated that the learned magistrate misapprehended the evidence or relied upon an incorrect principle in assessing future medical expenses. The mere fact that another court may have awarded a higher amount does not justify appellate interference. 30. The role of this court on appeal is not to substitute its own opinion merely because it may have reached a different figure had it heard the matter at first instance. As was stated in **Butt vs. Khan (1982-1988) KAR 1**, *“Anappellate court will not disturb an award for 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* The Judiciary of Kenya Doc IDENTITY: 409712028138917800698324706841 Tracking Number:OOJ6232026 8/11 *misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low*” 31. Having independently reviewed the entire record, I am not persuaded that the award of Kshs. 800,000/= for general damages and Kshs. 85,000/= for future medical expenses was either inordinately low or founded on any erroneous principle. 32. On the contrary, the learned trial magistrate properly appreciated the nature of the injuries sustained, considered the submissions and authorities presented by the parties, distinguished the authorities that were not comparable, and exercised her discretion judiciously. The resulting award represents a fair and reasonable compensation for the injuries proved and accords with the principles governing assessment of damages. 33. Consequently, I find that the Appellant has failed to establish any basis upon which this court can interfere with the trial court's exercise of discretion. **Who bears the cost of the suit** 34. On the issue of costs, Section 27 of the Civil Procedure Act grants the court discretion to determine by whom and to what extent costs shall be paid. The general rule, however, remains that costs follow the event unless the court, for good reason, orders otherwise. 35. In the present appeal, the Appellant challenged the trial court's assessment of damages, contending that the award was inordinately low and that the learned magistrate failed to properly consider the applicable principles and comparable authorities. While the Appellant was entitled to exercise the right of appeal, this court has found that the trial court properly directed itself on the law, considered the relevant evidence and authorities, and arrived at an award that was fair, reasonable, and within the range of comparable awards for similar injuries. 36. The Respondents have successfully defended the appeal and have The Judiciary of Kenya Doc IDENTITY: 409712028138917800698324706841 Tracking Number:OOJ6232026 9/11 demonstrated that the judgment of the trial court was sound both in fact and in law. Having been required to defend the judgment on appeal, the Respondents are entitled to the costs incurred in doing so. The court finds no exceptional circumstances that would justify a departure from the established principle that costs follow the event. 37. Accordingly, the costs of this appeal shall be borne by the Appellant. The Respondents shall also be entitled to interest on the taxed costs at court rates from the date of taxation until payment in full. **E. DISPOSITION** 38. Having carefully considered the pleadings, the record of appeal, and the rival submissions by counsel, together with the applicable law and authorities, this court now proceeds to render its determination on the issues arising for resolution in this appeal as follows; (a) The Appeal is hereby dismissed in its entirety. (b) The Judgment and Decree of the Chief Magistrate's Court in Gatundu CMCC No. E023 of 2024 delivered on 22nd July 2025 are hereby upheld. (c) The Respondents shall have the cost of this Appeal. (d) Interest on the costs of the Appeal shall accrue at court rates from the date of taxation until payment in full. It is so ordered. Ms. Matuku for the Respondents: We pray for 30 days stay of execution as we comply with the decree of the lower court. **Mr. Lucheli for the Appellant** No objection to the prayer for 30 days stay of execution. Court 30 days stay of execution granted. The Judiciary of Kenya Doc IDENTITY: 409712028138917800698324706841 Tracking Number:OOJ6232026 10/11 SIGNED BY/FOR: **★ T H E J U D I C I A R Y O F K E N Y A ★** **HON. JUSTICE ABDI M. HASSAN** Thika High Court High Court Div Date: 2026-07-07 11:56:03 The Judiciary of Kenya Doc IDENTITY: 409712028138917800698324706841 Tracking Number:OOJ6232026 11/11