https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8089

Okoth v Said & another (Civil Appeal E269 of 2022) [2026] KEHC 8089 (KLR) (Civ) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 8089 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E269 of 2022 JM Nang'ea, J June 9, 2026 Between Margaret Nekesa Okoth Appellant and Fawzi Mohamed Said 1st Respondent Douglas Aol Onyango 2nd Respondent (Being an Appeal from a Decree of the Chief Magistrate’s Court at Nairobi (Honourable S.A . Opande -Principal Magistrate ) arising from Judgement delivered on 6th April, 2022 in Nairobi CMCC No. E4936 of 2020) Judgment 1.This Appeal arises from Judgement and Decree of the lower court entered in favour of the Appellant in which liability was apportioned against the Respondents, the 1st and 2nd Defendants in the suit, and in favour of the Appellant in the ratio of 80% to 20%. The trial court subsequently granted Kshs. 60,000/= and Kshs. 5,550/= in general and special damages respectively to the Appellant. The Appellant was also awarded the costs of the suit and interest. 2.Aggrieved by the Judgement on the quantum of general damages only, the Appellant relies on the following two grounds as per Memorandum of Appeal dated 25/4/2022;1.That the Honourable trial magistrate erred in law and fact in failing to appreciate relevant principles and case law in assessing damages thereby arriving at a very low award of general damages.2.That the trial magistrate misdirected himself and failed to give any due and proper consideration to the pleadings, evidence and submissions on record thereby making an erroneous Judgement on damages. 3.The Appellant therefore prays for;a.Setting aside of the trial court’s Judgement and re-assessment of the quantum of damages based on the evidence and submissions on record;b.The costs of the Appeal and in the lower court. 4.A brief background to the Appeal is that the Appellant sued the Respondents in the lower court for special damages of Kshs. 5,550/=, general damages as well as costs and interest. The cause of action arose from a road traffic accident in which the Appellant suffered bodily injuries while she was a passenger in the 1st Respondent’s motor vehicle registration KBQ 785 A driven at the material time by the 2nd Respondent. 5.The Appellant contended in the suit that she sustained the injuries as a consequence of negligent driving of the motor vehicle which knocked her down while she was a pedestrian at Dandora Phase 5 area. 6.The Appellant complained of sustaining blunt injuries to the right ankle and the pelvis. The doctor noted in a medical report dated 29/7/2020 that recurrent pains resulted on the injured parts. 7.The 1st Respondent appears to have entered appearance but did not file defence. The 2nd Respondent traversed all the material particulars of the suit including negligence attributed to them. They urged the court for the above reasons inter alia to dismiss the suit with costs. 8.On 11/3/ 2021 the suit as against the 2nd Respondent was by consent marked as withdrawn. A further consent on the issue of liability was entered on 14/2/2022 in the ratio of 80% t0 20% in favour of the Appellant and the parties filed written submissions for assessment of damages. 9.I have perused the submissions against the Record of Appeal. I shall consider the grounds of appeal above set out together. 10.This being a first appeal I am required to reconsider the evidence adduced, evaluate it and draw my own conclusions bearing in mind that I did not hear and see the witnesses who testified {(see Selle & Another Vs Associated Motor Boat Company Ltd & Others [1968] EA 123}. The Court of Appeal for East Africa in Peters vs Sunday Post Limited [1958] EA 424 underscored the same principles delivering itself thus:“i.First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; andiii.It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.” 11.In arriving at its judgement the trial court, as is relevant to this Appeal, assessed general damages in favour of the Appellant in the sum of Kshs. 60,000/=, stating that it considered relevant case law having regard to the injuries the Appellant sustained. Learned Counsel for the Appellant submit in this Appeal as they did in the lower court that Kshs. 350,000/= in general damages and Ksh. 5,000/= in special damages is appropriate compensation for her injuries. Regarding quantum of damages, the court was told that this court may only increase the damages award if the lower court’s award is so inordinately low as to represent an entirely erroneous estimate or the court proceeded on a wrong principle or misapprehended the evidence in some material respect, (see case law in Sheikh Mustaq Hassan vs Nathan Mwangi Kamau Transporters & 5 Others (1986) KLR 457 cited and relied upon by Counsel. 12.In support of the proposed award of Kshs. 350,000/=, reference is made to the judicial determinations in Civicon Limited vs Richard Njomo Omwancha & Others (2019) eKLR and Samuel Martin Njoroge Kamunyu vs Mildred Okweya Barasa (2020) eKLR. In the former case, the Claimant suffered a swollen lacerated iliac region; bruises on the left knee joint; swollen and tender left knee; bruised and tender left ankle joint; more bruises on the left foot and pelvic fractures. An award of Kshs. 450,000/= in general was assessed in favour of the Claimant. For more or less the same injuries the other Claimants in the case were awarded between Kshs. 450,000/= and Kshs. 500,000/= general damages. 13.On their part, the Respondents through their Advocates support the trial court’s award. Reliance is placed on the case of JK vs Jasper Nchonga & Another, Malindi HCCA No. 13 of 2020 in which Kshs. 30,000/= general damages were granted for blunt object injuries to the right wrist. The Respondents think that the decisions cited by the Appellant relate to more severe injuries relative to those sustained by the Appellant herein. 14.Counsel correctly stated principles guiding this court when invited to disturb a general damages award of the lower court. The Appellant suffered soft tissue injuries. I agree with the Respondents that the case law relied upon by Counsel for the Appellant relates to more severe injuries that include fractures. 15.I shall sample some relevant decisions. In Lake Naivasha Flowers vs Muigai Thuku Naivasha Civil Appeal Number 36 of 2017, the Claimant therein suffered soft tissue injuries to the left thigh and the left leg from which he recovered, and Kshs. 250,000/= general damages were awarded in the case. 16.In Lilian Anyango Otieno vs Philip Mugoya Ogila (2022) eKLR, Kshs. 150,000/= general damages were granted for head injury; dislocation of the cervical spine of the neck; chest injury with damage to the rib cage; blunt abdominal injury; soft tissue injuries to both upper limbs with dislocated wrist and elbow joint; dislocated pelvis frame involving both hip joints and damage to the right lower limb with dislocation of the ankle joint. 17.In Duncan Mwenda & 2 Others vs Silas Kinyua Kithela (2018) eKLR, the Claimant sustained severe head injury with intracerebral haematoma; damage to the exterior tendon of the left middle figure and soft tissue injuries on the chest wall. He was admitted in hospital for 5 months in an unconscious state. He complained of recurrent headache, chest pain, inability to extend the left middle finger and inability to hold tightly with the left hand. Like in the instant case the injuries, however, healed well without permanent disability. This court assessed and awarded general damages of Kshs. 350,000/= in that case in which the injuries sustained are obviously more severe relative to the instant case. 18.In Catherine Wanjiru King’ori & 3 Others vs Gibson Theuri Gichubi (2005) the Claimant was granted Kshs. 300,000/= for soft tissue injuries to the left ankle, legs and chest. 19.In the case of Poa Link Services Co. Ltd & Another vs Sidhani Boaz Bonzemo [2021] eKLR the court assessed general damages in the sum of Kshs. 350,000/= for blunt injury to the chest as well bruises to the lower abdomen; the right hip joint, thigh and knee. These injuries are also soft tissue in nature as compared to the instant matter. 20.The injuries subject of this matter are clearly less severe. The trial did not however, cite comparable cases that informed its decision. It is therefore difficult to tell the basis on which the award of Kshs. 60,000 was arrived at and so the estimate is erroneous. Because of the incidence of inflation, I think the award of Kshs. 60,000/= is a bit on the lower side and I would enhance it. Considering that the decisions this court has cited were handed down between 2005 and 2022, I would enhance general damages to Kshs. 150,000/=. 21.Consequently, the Appeal is allowed and the trial court’s Judgement on quantum of general damages is set aside and substituted with this court’s award of Ksh.150,000/= (Kenya Shillings One Hundred Fifty Thousand), subject to the agreed rate of contribution. 22.Because the Appellant only marginally succeeded, the parties shall bear their own costs of the Appeal while the costs incurred in the lower court go to the Appellant as ordered by that court. JUDGEMENT DELIVERED VIRTUALLY THIS 9TH DAY OF JUNE, 2026.J. M. NANG’EA - JUDGEIn the presence of:Appellant’s Advocate, Ms Aluodo.Respondents’ Advocate, Absent.Court Assistant(Jeniffer).