https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8864

Maisha Yetu Services Ltd v SA (Minor suing through next friend and mother Airen Khasoha Anyika) (Civil Appeal E020 of 2021) [2026] KEHC 8864 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 8864 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E020 of 2021 RN Nyakundi, J June 24, 2026 Between Maisha Yetu Services Ltd Appellant and SA (Minor suing through next friend and mother Airen Khasoha Anyika) Respondent (Being an appeal from the Judgment and Decree of Hon R. Ndombi (SRM) delivered at Vihiga in the Senior Principal Magistrate’s Court Civil Case No 106 of 2018 on 14th October 2021) Judgment Introduction 1.In her decision of 14th October 2021, the Learned Trial Magistrate, Hon R. M. Ndombi, Senior Resident Magistrate, entered Judgment in favour of the Respondent as against the Appellant in the following terms:-Liability 100%General damages Kshs 250,000/=Special damages Kshs 10,000/=Kshs 260,000/=Plus costs of the suit and interest thereon and on general damages, special damages and costs of the suit at court rates. 2.Being aggrieved by the said decision, on 10th November 2021, the Appellant herein filed a Memorandum of Appeal dated 5th November 2021. It relied on six (6) grounds of appeal challenging the Trial Court’s award on quantum. 3.Its undated Written Submissions were filed on 16th January 2026 while those of the Respondent were dated 21st January 2026 and filed on 22nd January 2026. The Judgment herein is based on the said Written Submissions which parties relied upon in their entirety. Legal Analysis 4.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 5.This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 6.Having looked at the Grounds of Appeal and the respective parties’ Written Submissions, it appeared to this court that all the grounds of appeal were related and the only issue that had been placed before it was whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court. 7.The Appellant submitted that the award of Kshs 250,000/= awarded by the Trial Court as general damages was inordinately high considering that the injuries sustained by the Respondent were soft tissue injuries. It asserted that Kshs 100,000/= would be reasonable and sufficient compensation. 8.It placed reliance on the cases of Power Lighting Company Limited & Another vs Zakayo Saitoti Naingola & Another [2008]eKLR and Jennifer Mathenge vs Patrick Muriuki Maina[2020]eKLR where the common thread was that in determining whether to interfere with the quantum or not, the court has to bear in mind that the damages should not be inordinately too high or too low, damages are meant to compensate and not enrich a party, where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts and an element of inflation should be taken into account as well as the purchasing power of the Kenyan Shillings at the time of the judgment. 9.It relied in the cases of Ndungu Dennis vs Ann Wangari Ndirangu & Another[2018]eKLR and Eva Karemi & 5 Others vs Koskei & Another[2020]eKLR where the courts therein awarded general damages of Kshs 100,000/= and below where the claimants sustained similar soft tissue injuries. 10.It invoked Section 27(1) of the Civil Procedure Act and urged the court to allow its appeal with costs and set aside the Trial Court’s Judgment. 11.On her part, the Respondent submitted that it was an established principle of law that an appellate court would be slow to disturb the Learned Trial Magistrate’s findings on facts unless it was found that the trial court proceeded on wrong principles of law taking into consideration factors that ought not to have been considered or omitted to consider factors it ought to have considered as was held in the cases of Daniel Otieno Owino & Another vs Elizabeth Atieno Owuor[2020]eKLR and Bashir Ahmed Butt vs Uwais Ahmed Khan (1982-88) KAR. 12.She argued that the Trial Court’s award of Kshs 250,000/= general damages was not inordinately high and that the Learned Trial Magistrate’s findings were based on judicial authorities where injuries in those authorities were comparable to those she sustained. She urged this court to find the appeal unmerited and dismiss it with costs. 13.She placed reliance on the case of Ufrah Motors Bazaar & Another vs Kibe[2023] KEHC 1285 (KLR) where it was held that for an appellate court to interfere with the award, it was not enough to show that the award was high or had if the court had handled the case at the lower court it would have awarded a different figure. 14.It is well settled in law that an appellate court will not disturb an award of general damages unless the same was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of Margaret T. Nyaga vs Victoria Wambua Kioko [ 2004] eKLR. 15.It must be understood that money can never really compensate a person who had sustained any injuries. No amount of money could remove the pain that a person went through no matter how small an injury appeared to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person had sustained. It was merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who had suffered an injury. 16.However, this assessment was not without limits. A court had to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court therefore had to be guided by precedents. 17.Indeed, in the case of Kigaraari vs Aya(1982-88) 1 KAR 768, it was stated that damages had to be within the limits set out by decided cases and also within the limits the Kenyan economy could afford. This was because high awards would lead to higher insurance premiums which would in turn affect the members of the public. 18.This court also had due regard to the case of Lim vs Camden HA [1980] AC 174 where it was held that even in assessing compensatory damages, the law sought to indemnify the victim for the loss suffered and not to punish the tortfeasor for the injury that he had caused. 19.Similar injuries ought to attract comparable awards. However, in the quest for consistency, courts also had to recognize that no case was exactly the same as the other. It must be noted that cases cannot contain exact injuries and they are merely for comparison purposes. Each case therefore had to be decided according to its own peculiar circumstances but keeping in mind that any monies awarded had to be sustainable. 20.Towards this end, an appellate court ought not to interfere with the discretion of a trial court merely because it could have awarded a lower or higher sum than that which was awarded by the trial court. It could only interfere where the award of general damages was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended as was held in the case of Margaret T. Nyaga vs Victoria Wambua Kioko (Supra). 21.In her Plaint dated 27th July 2018 and filed on 29th October 2018, the Respondent pleaded that as a result of the accident she suffered severe soft tissue injuries of the chest, deep cut wound on the occipital region of the head and the left leg leading to soft tissue injuries. 22.Irene Kasoa Anyika (hereinafter referred to as “PW 1”) testified as PW 1. She was the minor’s mother. She stated that her daughter was involved in a an accident on 18th May 2018 and when she was called to see her, she found that she had sustained injuries on the head, chest and leg. She produced the P3 form as exhibit in court. 23.Dr Obed Muyoma (hereinafter referred to as “PW 2”) testified and produced her Medical Report as exhibit in court. Arnest Namai (hereinafter referred to as “PW 4”) testified that he was the Records and Information Officer at Vihiga County Hospital. He confirmed that the minor was treated in their facility and produced the original treatment booklet as exhibit in court. 24.The Appellant did not call any witness. 25.The Medical Report of Dr Obed Omuyoma dated 19th June 2018 showed that the Respondent suffered similar injuries as pleaded on the Plaint. At the time of the medical examination, the child was irritable and cried a lot. The Doctor indicated that she had a permanent scar on the head and the left thigh. He termed her injuries as harm. 26.Remaining faithful to the doctrine of stare decisis and taking the inflationary trends into consideration, It was the considered view of this court that general damages in the sum of Kshs 250,000/= that was awarded by the Trial Court was not unreasonable. 27.In arriving at the said conclusion, this court had due regard to the following cases:-1.Isaac Muriungi Mbataru vs Silas Kalumani [2017] eKLR where the respondent sustained multiple soft tissue injuries on the right side of the face and loss of 2 incisor teeth as well as tenderness and swelling on the lower back and was awarded general damages of Kshs. 200,0002.Ufrah Motors Bazaar & Another vs Kibe (Civil Appeal 39 of 2021) [2023] KEHC 1285 (KLR) (27 January 2023) (Judgment) where the Respondent sustained soft tissue injuries to the right shoulder joint, chest, back, knee joints, and right hip joint and deep lacerations on the right-hand arm, forearm, and hand. The appellate court upheld the award of Kshs 220,000/= in 2023.3.Fred Barasa Matayo vs Channan Agricultural Contractors [2013] eKLR where the court reviewed an award of Kshs 250,000/= downwards to Kshs 150,000/= where the respondent therein had sustained moderate soft tissue injuries that were expected to heal in eight months’ time. 28.As the issue of special damages was not in contention between parties, this court found it prudent not to belabor as there was no reason to disturb the same. 29.In the premises foregoing, Grounds of Appeal Nos (1), (2), (3), (4), (5) and (6) were not merited and the same be and are hereby dismissed. Disposition 30.For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal that was dated 5th November 2021 and lodged on 10th November 2021 was not merited. 31.As the Appellant was not successful in his Appeal herein, he will bear the costs of the Appeal herein. 32.It is so ordered. DATED AND DELIVERED AT VIHIGA VIA CTS AND EMAIL THIS 24TH DAY OF JUNE 2026………………………………R. NYAKUNDIJUDGE