https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10307

Maliko v China Road & Bridge Corporation (K) (Civil Appeal E235 of 2024) [2026] KEHC 10307 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 10307 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E235 of 2024 EO Bitta, J July 2, 2026 Between Daniel Kinza Maliko Appellant and China Road & Bridge Corporation (K) Respondent Judgment 1.The Appellant, being aggrieved by the decision of Hon. Barbara Ojoo, Chief Magistrate, delivered on 21st August 2024 in Mavoko CMCC No. 1149 of 2016, lodged the present appeal, which primarily challenges the quantum of damages awarded by the trial court. 2.The Appellant had instituted the suit seeking damages arising from personal injuries sustained while on duty at the Respondent's premises, after his left hand became trapped in a machine. 3.The Appellant sustained the following injuries:Dislocation of the left shoulder jointFracture of the distal phalanx of the left thumbSevere soft tissue injuries of the left thumbDegloving injury to the left elbow jointLacerated wound on the left side of the chest 4.The trial court found the Respondent 100% liable for the Appellant's injuries and awarded the Appellant KShs. 150,000/= as general damages and KShs. 7,000/= as special damages. 5.In its judgment, the trial court stated that it had considered the applicable principles for assessment of damages and that an award should reflect the trend in previous, recent, and comparable awards, as enunciated by the Court of Appeal in Stanley Maore v Geoffrey Mwenda [2004] eKLR. 6.The Appellant is dissatisfied with the award of damages on the ground that it is inordinately low considering the injuries sustained. 7.The appeal does not challenge the trial court's finding on liability. 8.The Appellant relied on the decision in Shabani v County Council of Nairobi [1985] KLR 516, where the Court of Appeal held:“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 either inordinately high or low." 9.The Appellant submitted that, according to the medical report prepared by Dr. Omuyoma dated 22nd September 2016, the injuries sustained were classified as grievous harm and resulted in permanent disability assessed at 5%. 10.The Appellant further submitted that the trial court failed to consider the severity of the injuries sustained and did not provide reasons or make reference to any of the authorities relied upon in arriving at the award. 11.It was also submitted that the Appellant had cited a decision in which the court awarded KShs. 290,000/= for less severe injuries, notwithstanding that the decision had been rendered more than ten years before the judgment of the trial court. 12.The Appellant further relied on West Kenya Sugar Company Ltd v Bonventure Abwire Were [2019] eKLR, where the plaintiff sustained a shoulder injury and fractures of the distal ends of the right tibia and fibula, and was awarded KShs. 800,000/= as general damages. 13.The Appellant urged the Court to find that the award made by the learned trial magistrate was manifestly low and warranted interference. 14.Consequently, the Appellant prayed that the award of general damages be enhanced to KShs. 600,000/= together with the costs of the appeal. 15.The Appellant's Memorandum of Appeal raises the following grounds:a.That the learned trial magistrate erred in law and in fact by awarding manifestly low damages despite the overwhelming evidence supporting the Appellant's claim.b.That the learned trial magistrate erred in law and in fact by failing to consider the Appellant's submissions on quantum, thereby awarding general damages that were inordinately low in view of the injuries sustained.c.That the learned trial magistrate erred in law and in fact by taking into account irrelevant considerations instead of the applicable legal principles in assessing damages, resulting in awards of both general and special damages that were inordinately low in the circumstances. 16.The Appellant therefore prayed that the judgment and decree of the trial court dated 21st August 2024 be reviewed and/or set aside, and that this Court reassess the damages payable. 17.The Respondent did not file any submissions in response to the appeal. 18.This being a first appeal on quantum only, the parties are entitled to a rehearing through a fresh evaluation and reconsideration of the evidence, culminating in this Court's independent determination with reasons. 19.In Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR, the Court of Appeal stated:“[A]n appeal to this Court from a trial by the High Court is by way of retrial, and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect." 20.Having considered the Memorandum of Appeal and the submissions on record, the only issue for determination is whether the award of general damages by the trial court was so inordinately low as to warrant interference by this Court. 21.It is now settled law that an appellate court will not readily interfere with the exercise of discretion by a trial court in assessing damages unless it is shown that the trial court applied the wrong principles, took into account irrelevant matters, failed to consider relevant factors, or arrived at an award that is so inordinately high or low as to represent an entirely erroneous estimate. 22.In Kemfro Africa Ltd t/a Meru Express Service, Gathogo Kanini v A. M. Lubia & Olive Lubia (1985) 1 KAR 727, the Court of Appeal stated:“...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 court are well settled. The appellate court must be satisfied either that the judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages." 23.Similarly, in Odinga Jackton Ouma v Moureen Achieng Odera [2016] eKLR, the Court of Appeal reiterated that:“Comparable injuries should attract comparable awards." 24.Likewise, in Penina Waithira Kaburu v LP [2019] eKLR, the Court observed:“While no injuries occurring in different circumstances can be similar in every respect and hence the possibility of varied awards in general damages, the trial court must always make a comparative analysis of the injuries sustained and the extent of the awards made for similar injuries in previous decisions. As I have stated elsewhere, if not for anything else, the comparison is necessary for purposes of certainty and uniformity; the award must, as far as possible, be comparable to any other award made in a previous case where the injuries for which the award is made are relatively similar." 25.The Appellant also relied on Osienya v Wamalwa [2024] KEHC 14208 (KLR), where the plaintiff sustained: Fractures of the right clavicle, dislocation of the right shoulder joint, swollen right shoulder, degloving wound on the right hand, exposing tendons; The High Court (Aburili J.) upheld an award of KShs—600,000/= as general damages. 26.Further reliance was placed on Irungu v Muthoka (Civil Appeal E203 of 2023) [2024] KEHC 10717 (KLR) (22 August 2024) (Ougo J.), where the Court observed that current awards for dislocated elbows range between KShs. 300,000/= and KShs. 450,000/= depending on the severity of the injuries. The Court further held that, where the respondent had sustained both a dislocated elbow and a fracture, an award of KShs. 500,000/= could not be said to be inordinately high. 27.I consider the decision in Osienya v Wamalwa more apt for comparison purposes because it combines shoulder dislocation, degloving injury and upper limb trauma, which injuries are comparable to those suffered by the Appellant. In that case, Aburili J upheld an award of Kshs 600,000/-. 28.The trial court's award of KShs. 150,000/= appears significantly below the range of comparable awards, even after accounting for the fact that the accident occurred in 2016. 29.I believe that damages should be assessed according to awards prevailing at the time judgment is delivered, not the date of the accident. 30.I am inclined to set aside the award of KShs 150,000/- which is not in keeping with the principles that comparable injuries should attract comparable awards. 31.The trial court, to that extent, proceeded on wrong principles in the assessment of damages, which justifies interference with its award. 32.Considering that the injuries in the Osienya vs Wamalwa case were slightly more severe than in the present case, I believe an award of kshs 500,000/ would be reasonable. 33.That figure is supported by the seriousness of the combination of injuries, the assessed permanent disability, and the trend in comparable authorities. 34.It also falls comfortably within the range recognized by recent High Court decisions and accords with the principle that comparable injuries should attract comparable awards.Consequently, the Appeal succeeds, and I order as follows:A.The award of Kshs 150,000/- as general damages in Mavoko CMCC No. 1149 of 2016 is hereby set aside and substituted with an award of Kshs 500,000/- for general damages against the Respondent.B.The Appellant shall have costs of the Appeal. DELIVERED VIA MICROSOFT TEAMS, DATED AND SIGNED THIS 2ND DAY OF JULY 2026 AT MOMBASA.EMMANUEL BITTAJUDGE OF THE HIGH COURTDelivered in the presence of C/A NechesaIn the absence of the parties, who were aware of the judgment date