https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8496

Nyange v Keru (Civil Appeal E011 of 2025) [2026] KEHC 8496 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8496 (KLR) Republic of Kenya In the High Court at Nyeri Civil Appeal E011 of 2025 DKN Magare, J June 11, 2026 Between Lucy Wanjiru Nyange Appellant and Peter Kamau Keru Respondent (Being an appeal from the Judgment and decree of Hon. Naomi Wanja (Resident Magistrate) dated 7.2.2025 arising from Othaya PMCC No. E002 of 2024.) Judgment 1.This is an appeal from the Judgment and decree of Hon. Naomi Wanja (Resident Magistrate) dated 7.2.2025 arising from Othaya PMCC No. E002 of 2024. The Appellant was the plaintiff in the lower court. 2.The Memorandum of Appeal dated 7.3.2025 raised the following material grounds:a.The trial court erred in law and fact in failing to find the Respondent 100% liable for the accident despite overwhelming evidence.b.The learned magistrate erred in awarding general damages of Ksh. 600,000/= that was not commensurate with the injuries.c.The learned magistrate erred in failing to consider the submissions and authorities by the Appellant. 3.The Plaint dated 22.2.2024 claimed damages arising from an accident that occurred on 20.2.2022. The accident involved the appellant while a passenger in motor vehicle Registration No. KCA 917M along Othaya – Kiriaini road when the Respondent’s motor vehicle Registration No. KVX 122 was negligently driven that it lost control and hit motor vehicle Registration No. KCA 917M hence the accident. 4.The Plaintiff set forth particulars of negligence for the accident motor vehicle. The Plaintiff pleaded Ksh. 32,050/= as special damages and also pleaded general damages. The injuries were pleaded as follows:i.Loss of consciousnessii.Right frontal parietal and occipital brain contusioniii.Facial laceration consisting of 2 lacerations on the forehead, cut wound to the left eye, cut wound to the left upper lip.iv.Injuries to the trunk consisting of left hemothorax, pneumothorax, lung contusion, fractures to the 6th, 7th and 9th posterior ribs.v.Dislocation on the left shoulder and left acromioclavicular joint.vi.Fracture of the right femur, fracture of the left femurvii.Blunt soft tissue injuries to the lower legs. 5.The Respondent entered appearance and filed defence denying the particulars of negligence and injuries pleaded in the plaint. 6.The trial court heard the parties and proceeded to render judgment awarding liability at 50:50 and general damages of Ksh. 600,000/=. Loss of earnings Ksh. 290,000/=, loss of earning capacity Ksh. 1,080,000/=, future medical expenses Ksh. 150,000/=. The court also awarded special damages of Ksh. 83,000/=. Aggrieved by the finding of the lower court, the Appellant lodged a memorandum of appeal hence this appeal. Evidence 7.During the hearing, the Appellant testified as PW3. She relied on her witness statement and produced documents in her list. It was her case that she was a passenger in motor vehicle registration No. KCA 917M. When they reached Gikira River, she saw motor vehicle registration No. KVX 122 lose control, leave its lane and hit motor vehicle registration No. KCA 917M. She suffered the injuries pleaded. Prior to the accident, she was farmer and sold vegetables making Ksh. 15,000/= per month. She was not working after accident. She prayed for loss of earning. 8.PW2 was Cpl. Sidi Chiyonzo. She produced the police abstract. According to her, they received the report at about 2050hrs. According to her, the Respondent was to blame for the accident as he lost control and hit motor vehicle registration No. KCA 917M on its rightful lane. On cross examination, it was her case that the motor vehicle is the one that hit the motor vehicle. The case was pending investigations. She did not attend the scene and was not the investigating officer. 9.PW1 was the Dr. Washington Wokabi. He produced his medical report as exhibit. The Appellant suffered permanent disability of 28%. This was based on totality of the injuries. Femur fractures had not united. 10.On his part, the Respondent closed his case without calling witnesses. Submissions 11.The Appellant filed submissions dated 2.3.2026. It was submitted that the court erred in finding liability at 50:50 despite overwhelming evidence that the Respondent was wholly liable for the accident. She cited inter alia West Kenya Sugar Co. Ltd v Lilian Auma Saya (2020) eKLR to submit that the Appellant as passenger would not be held liable. 12.It was submitted that the case of the Appellant was not controverted as no defence witness was called. Reliance was placed on Peter Ngigi Kuria & Another v Joseph Ondili Oduol & Another (2019) eKLR. 13.On damages, it was submitted that the award of Ksh. 600,000/= in general damages was inordinately low and did not consider the severity of the injuries proved. 14.They submitted that Ksh. 3,500,000/= would be adequate compensation. Reliance was placed on inter alia Board of Trustees of the Catholic Church of Kenya Diocese of Marsabit v Diba [2022] KEHC 14986 (KLR) in which Ksh. 2,500,000/= was awarded for the following injuries:i.Bilateral shaft femur fractures ii. Serious abdominal injury with splenic rupture. He had his spleen removed surgically. iii. Massive blood loss. iv. Deep cut wound at the right lower limb. v. Left chest injury that caused fracture to the rib vi. Gross contusion to the shoulder vii. Injury to the right eye. 15.They also cited Otieno v South Sioux Farms Ltd [2023] KEHC 21083 (KLR) in which Ksh. 3,000,000/= was granted for the following injuries:a.Compound right tibia fracture;b.Compound right fibula fracture;c.Left ulna fracture;d.Left radius fracture;e.Chest contusion; andf.Blunt trauma to the back. Analysis 16.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. 17.This Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 the court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 18.The duty of the first appellate court was set out in the case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the Judges in their usual gusto, held as follows;-“.. this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of re-subordinate and the Court of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.” 19.The Court is to bear in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. 20.This court’s the jurisdiction to review the evidence should be exercised with caution. In the cases of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 21.This court does not have the advantage of seeing and hearing the witnesses as did the lower court, yet it must reconsider the evidence, evaluate it itself and draw its own conclusions. 22.The Appellant urged the court to find that the lower court erred in not finding the Respondent 100% liable for the accident. On the other hand, the Respondent’s general case is that the judgment of the lower court was correct on both quantum and liability and should not be disturbed. 23.The court is asked to establish whether the lower court erred in finding, on a balance of probabilities that the Appellant and the Respondent were 50:50 liable for the accident. The legal burden of proof lies upon the party who invokes the aid of the law and asserts an issue based thereon. In Anne Wambui Ndiritu –vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 24.It follows that the initial burden of proof lies on the Plaintiffs, but the same may shift to the Defendant, depending on the circumstances of the case. In Evans Nyakwana –vs- Cleophas Bwana Ongaro [2015] eKLR it was held that:“As a general preposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. That is the purport of Section 107 (i) of the Evidence Act, Chapter 80 Laws of Kenya. Furthermore, the evidential burden…is cast upon any party, the burden of proving any particular fact which he desires the court to believe in its existence. That is captured in Section 109 and 112 of law that proof of that fact shall lie on any particular person…The appellant did not discharge that burden and as Section 108 of the Evidence Act provides the burden lies in that person who would fail if no evidence at all were given as either side.” 25.The question then is what amounts to proof on a balance of probabilities. Kimaru, J in William Kabogo Gitau –vs- George Thuo & 2 Others [2010] 1 KLE 526 stated that:“In ordinary civil cases a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely that not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred.” 26.The balance of probabilities is also about what is likely to have happened than the other. Lord Nicholls of Birkenhead in Re H and Others (Minors) [1996] AC 563, 586 held that;“The balance of probability standard means that a court is satisfied an event occurred if the court considers that, on the evidence, the occurrence of the even was more likely than not. When assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriated in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on the balance of probability…..” 27.Furthermore, the standard of proof in civil cases must carry a reasonable degree of probability, but not so high as is required in a criminal case for such standard is based on a preponderance of probabilities. In Palace Investment Ltd –vs- Geoffrey Kariuki Mwenda & Another [2015] eKLR, the Judges of Appeal held that:“Denning J, in Miller –vs- Minister of Pensions [1947] 2 All ER 372 discussing the burden of proof had this to say;-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say: we think it more probable than not; the burden is discharged, but, if the probabilities are equal it is not.This, burden on a balance or preponderance of probabilities means a win however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept where both parties…are equally (un) convincing, the party bearing the burden of proof will lose because the requisite standard will not have been attained.” 28.The Appellant herein was a passenger in motor vehicle registration No. KCA 917M. She testified that motor vehicle registration No. KVX 122 lost control and entered into the lane of motor vehicle registration No. KCA 917M hence the accident. 29.The Appellant thus proved that it is the Respondent who was 100% to blame for the accident. Where the Appellant as Plaintiff in the lower court proved her case to the required standard, it was the duty of the Respondent to prove contributory negligence which in my view he failed. In the case of Mac Drugall App V Central Railroad Co. Rbr 63 Cal 431 the court held that; -“In an action to recover damages for a personal injury alleged to have been received through the negligence of the defendant, contributory negligence on the part of the plaintiff is a matter of defence and it is an error to instruct the jury that the burden of proof is on the plaintiff to show that the injury occurred without such negligence”. 30.There could be no liability against the Appellant as passenger without establishing her fault. No fault was established against her. In the case of Kiema Muthuku v Kenya Cargo Handling Services Ltd (1991) 2 KAR 258, the court of appeal posited as doth:There is, as yet, no liability without fault in the legal system in Kenya, and a plaintiff must prove some negligence against the defendant where the claim is based on negligence. 31.This was also the rule in Embu Road Services V Riimi (1968) EA22 and 25 Mzuri Muhhidin V Nazzar Bin Seif (1961) EA 201, Menezes Stylianicers Ltd CA No.46 of 1962 in which the courts held inter alia; -“Where the circumstances of the accident gave rise to the inference of negligence, the defendant, in order to escape liability, has to show that there was a probable cause of the accident, which does not create negligence or that the explanation for the accident was consistent only with absence of negligence. The essential point in this case, therefore is a question of fact, that is whether the explanation given by the Respondent shows that the probable cause of the accident was not due to his negligence or that it was consistent only with absence of negligence”. See also Odungas Digest on Civil case law and Procedure 3rd Edition Vol 7 page 5789 at paragraph (D). 32.Therefore, the Appellant proved want of care on the part of the driver of the accident motor vehicle. Conversely, the Respondent did not lead any evidence to blame the Appellant and the manner in which she could have caused or avoided the accident. I am in consonance with the reasoning of the Court in the case of Mombasa Maize Millers & another v Elius Kinyua Gicovi [2021] eKLR where Nyakundi J referred to Wayne Ann Holdings Limited (T/a Superplus Food Stores) v Sandra Morgan, and held as follows:“In this case contributory negligence was raised as a defence. When such a defence [sic] is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury. In Nance v British Columbia Electric Rly [1951] AC 601, at page 611, Lord Simon said:“……When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.” 33.The Respondent failed to call any witness and his defence was but mere denials. As such, the evidence of the Appellant as against the Respondent was uncontroverted. In the case of Janet Kaphiphe Ouma & Another –vs- Maries Stopes International (Kenya), Kisumu HCCC No. 68 of 2007, Ali Aroni, J citing the decision in Edward Muriga suing through Stanley Muriga –vs- Nathaniel D. Schulter, Civil Appeal No. 23 of 1997 said that:“In this matter, apart from filing its statement of defence the defendant did not adduce any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remain uncontroverted and the statement in the defence therefore remains mere allegations…Sections 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”16.Guided by the above case, I find the statements in the defence filed on 10th December 2014 remain mere allegations having not been substantiated orally in court by the Appellant to controvert the Respondents testimony.” 34.The lower court erred in referring to the evidence of the Appellant as uncorroborated. The Appellant’s case was that she was a passenger and she saw the accident motor vehicle lose control and hit the motor vehicle in which she was travelling. This evidence was not rebutted. The evidence of the police officer had no use except in demonstrating that the accident occurred and was reported. The inescapable finding is that the court erred in apportioning liability without basis. The Respondent was clearly 100% liable for the accident and I so find. 35.On quantum, the lower court awarded of Kshs. 600,000/= in general damages. The Appellant suffered the following injuries:i.Loss of consciousnessii.Right frontal parietal and occipital brain contusioniii.Facial laceration consisting of 2 lacerations on the forehead, cut wound to the left eye, cut wound to the left upper lipiv.Injuries to the trunk consisting of left hemothorax, pneumothorax, lung contusion, fractures to the 6th, 7th and 9th posterior ribs.v.Dislocation on the left shoulder and left acromioclavicular jointvi.Fracture of the right femur, fracture of the left femurvii.Blunt soft tissue injuries to the lower legs. 36.In my reevaluation, I have no reason to doubt the evidence of the medical doctor obtained in the medical report by Dr. Wokabi dated 21.6.2023. The respondent did not tender any medical evidence. Viewed in line with the finding of the lower court, I equally, in the absence of any contrary medical evidence, find no reason to fault the lower court’s finding and therefore uphold the injuries suffered as the injuries pleaded and proved on evidence. 37.Therefore, this court has to establish similar fact scenarios though bearing in mind that no two cases are precisely the same and that it is inevitable that there will be disparity in awards made by different courts for similar injuries as established in Southern Engineering Company Ltd. vs. Musingi Mutia Civil Appeal No 46 of 1983 [1985]eKLR. However, the Court of Appeal in Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards.” 38.The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -1)An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.2)The award should be commensurable with the injuries sustained.3)Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.4)Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.5)The awards should not be inordinately low or high. 39.Circumstances in which an appellate court will interfere with the quantum of damages awarded by a trial court were clearly laid out in the case of Kenya Bus Services Limited vs. Jane Karambu Gituma Civil Appeal Case No. 241 of 2000 where the Court of Appeal stated as follows:“…in this regard, both the East African Court of Appeal (the predecessor of this Court) and this court itself have consistently maintained that an appellate court will not interfere with the quantum of damages awarded by a trial court unless it is satisfied either that the trial court acted on a wrong principle of law (as by taking into account some irrelevant factor or leaving out of account of some relevant one or adopting the wrong approach), or it has misapprehended the facts, or for those or any other reasons the award was so inordinately high or low so as to represent a wholly erroneous estimate of the damages.” 40.The Court of Appeal pronounced itself succinctly on the principles of disturbing awards of damages in Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] eKLR 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. 41.The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance v British Columbia Electric Co Ltd, in the decision of Henry Hilanga v Manyoka 1961, 705, 713 at paragraph c, where the learned Judge ably pronounced himself as doth regarding disturbing quantum of damages:-'The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance.'We find the words of Lord Denning in the West (H) & Son Ltd (1964) A.C. 326 at page 341 on excessive awards on damages important to replicate herein thus:“I may add, too, that if these sums get too large, we are in danger of injuring the body politic, just as medical malpractice cases have done in the United States of America. As large sums are awarded, premiums for insurance rise higher and higher, and they are passed to the public in the shape of higher and higher fees for medical attention. By contrast we have a National Health Service. But the health authorities cannot stand huge sums without impending their service to the community. The funds available come out of the pockets of the taxpayers. They have to be carefully husbanded and spent on essential services. They should not be dissipated in paying more than fair compensation.” 42.The words of Lord Denning were reiterated by Nyarangi, JA. in Kigaragari v Aya [1985] eKLR thus:“I would express firmly the opinion that awards made in this type of cases or in any other similar ones must be seen not only to be within the limits set by decided cases but also to be within what Kenya can afford. That must bear heavily upon the court. The largest application should be given to that approach. As large amounts are awarded, they are passed on to members of the public, the vast majority of whom cannot just afford the burden, in the form of increased costs for insurance cover (in the case of accident cases) or increased fees.” 43.Further, in the case of Kilda Osbourne v George Barned and Metropolitan Management Transport Holdings Ltd & another Claim No. 2005 HCV 294 being guided by the principles enunciated by both Lord Morris and Lord Devlin in H. West & Sons Ltd v Shephard {1963} 2 ALL ER 625 Sykes J stated as follows:“The principles are that assessment of damages in personal injury cases has objective and subjective elements which must be taken into account. The actual injury suffered is the objective part of the assessment. The awareness of the claimant and the knowledge that he or she will have to live with this injury for quite sometime is part of the subjective portion of the assessment. The interaction between the subjective and the objective elements in light of other awards for similar injuries determines the actual award made to a particular claimant.” 44.It is common reasoning that astronomical awards may lead to increased insurance premiums thus hurting the insurance industry as well as the economy. See the case of H. West and Son Ltd v. Shepherd [1964] AC.326 (supra) where it was stated that:…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 the endeavour to secure some 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 it still must be that amounts which are awarded are to a considerable extent conventional…..” 45.With the above guide, if the award is inordinately high, then I will have to set it aside. If, however, it is just high but not inordinately high, I will not do so. For the appellate court to interfere with the award, it is not enough to show that the award is high or had I handled the case in the Subordinate Court I would have awarded a different figure. 46.I proceed to determine similar fact cases in relation to damages as applicable to this appeal. Therefore, I find the following cases to present similar fact situation to the appeal herein. The cases cited by the Appellant were as follows:a.Board of Trustees of the Catholic Church of Kenya Diocese of Marsabit v Diba [2022] KEHC 14986 (KLR) in which Ksh. 2,500,000/= was awarded for the following injuries:i.Bilateral shaft femur fractures ii. Serious abdominal injury with splenic rupture. He had his spleen removed surgically. iii. Massive blood loss. iv. Deep cut wound at the right lower limb. v. Left chest injury that caused fracture to the rib vi. Gross contusion to the shoulder vii. Injury to the right eye.(b)Otieno v South Sioux Farms Ltd [2023] KEHC 21083 (KLR) in which Ksh. 3,000,000/= was granted for the following injuries:a.Compound right tibia fracture;b.Compound right fibula fracture;c.Left ulna fracture;d.Left radius fracture;e.Chest contusion; andf.Blunt trauma to the back. 47.The above authorities present injuries that were more severe as compared to this case. 48.In Reuben Mongare Keba v L P N [2016] eKLR the court set aside the award of Kshs 1,200,000/= and substituted with an award of Kshs. 800,000/= where the respondent therein had sustained the following injuries; Fracture of the tibia-fibula bones of right leg, dislocation of the right hip joint, bruises on the chin, fracture of the right femur and degloving injury of the right leg. 49.In Marles Vivian & another v AMW [2020] eKLR Machakos HCCA No. 62 of 2016 the Plaintiff sustained mild head injury, deep cut wound left eyebrow, soft tissue injuries to the chest, fracture of left femur and bilateral fractures of tibia/fibula open and deep cut wound left leg. The High Court awarded him general damages of Kshs. 800,000/= in February 2020. 50.In the case of MAW (Suing as The Mother and Next Friend to) IM (Minor) v Solomon Kabiriri Mwangi [2021] eKLR Kakamega HCCA No.76 of 2019 the Plaintiff sustained severe head injuries, a segmented fracture of the left femur, a segmented fracture of the right femur and a fracture right radius and ulna. He was unable to walk or run, and could not use his arm well due to the accident. The High Court awarded him general damages of Kshs 700,000.00/= in August 2021. 51.The lower court proceeded in disregard of the injuries related to dislocation of the shoulder and fracture of the ribs and appeared to bear in mind femur related fractures only. 52.The above authorities show that the award of Kshs. 600,000/= was inordinately low and not a fair estimate of general damages. The award of Ksh. 1,500,000/= would in my view be adequate compensation taking into regard the passage of time and inflation. 53.The Appellant appealed only against general damages. I will not belabor the findings on other awards in the judgment. 54.The appeal is merited and allowed. 55.In the upshot, I make the following orders: -a.The Judgment on liability is set aside and liability awarded at 100% in favour of the Appellant against the Respondent.b.The award on general damages is set aside and substituted with an award of Ksh. 1,500,000/=.c.The Appellant shall have the costs of the appeal assessed at Ksh. 95,000/=. DELIVERED, DATED AND SIGNED AT NYERI ON THIS 11TH DAY OF JUNE, 2026.Judgment delivered through Microsoft Teams Online Platform.KIZITO MAGAREJUDGEIn the presence of: -Ms. Masika for the AppellantNo appearance for the RespondentCourt Assistant – MartinM. D. KIZITO, J.