https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9829

Ali alias Mohammed Omar Ali v Medina Bus Services Ltd & 2 others (Civil Appeal E153 of 2024) [2026] KEHC 9829 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9829 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E153 of 2024 AN Ongeri, J June 25, 2026 Between Mohamed Omar Ali alias Mohammed Omar Ali Appellant and Medina Bus Services Limited 1st Respondent Ismail Musdaf Ali 2nd Respondent Dakaya Bakala 3rd Respondent (Being an appeal from the judgment of HON. KHAPOYA S. BENSON (SPM) in KITHIMANI SPMCC NO. 48 of 2020 delivered on24/4/2024) Judgment 1.The trial court delivered a judgment in Kithimani SPMCC NO. 48 of 2020 on 24/4/2024 , where the appellant, Mohamed Omar Ali, had instituted a civil suit against the respondents, Medina Bus Services, Ismail Musdaf Ali, and Dakaya Bakaja, seeking special damages, general damages for pain, suffering, and loss of amenities, as well as costs and interest. 2.The appellant’s case arose from a road traffic accident that occurred on 2nd December 2019, when he was a fare-paying passenger in a motor vehicle owned by the respondents, which was negligently driven by the third respondent, causing the vehicle to overturn and resulting in severe personal injuries to the appellant. 3.The respondents did not enter appearance or file a defence, leading the matter to proceed by way of formal proof. 4.During the formal proof hearing, the appellant adopted his witness statement and produced documentary evidence in support of his claim, including a medical report and treatment expenses, and the trial court noted that interlocutory judgment had already been entered against the respondents for special damages, leaving only the question of quantum to be determined. 5.In assessing the appropriate award, the trial court considered the nature of the appellant’s injuries, which included soft tissue injuries, and referred to comparable case authorities cited by the appellant’s counsel, although it ultimately found that a sum of Ksh. 50,000 for general damages was sufficient, taking into account the circumstances of the case and inflationary trends. 6.The trial court also awarded the appellant special damages of Ksh. 6,550 as pleaded and proved, and entered judgment in favour of the appellant against the respondents jointly and severally, with liability apportioned at 100% in his favour, resulting in a total award of Ksh. 56,550, together with costs and interest at court rates. 7.The appellant appealed against the said judgment on the following grounds;i.That the learned magistrate erred in law and in fact in awarding general damages for pain and suffering of Kshs. 50,000/= which is manifestly and inordinately low bearing in mind the injuries sustained by the Appellant and the effect of the injuries.ii.That the learned magistrate misdirected himself in law and in fact by failing to appreciate the evidence by the appellant adduced during trial on 06.12.2023 and placed more reliance to the respondents' witness in terms of quantum.iii.That the learned magistrate erred in law and in fact by failing to be guided by the general principle in assessing damages which is that similar injuries should attract similar award and also taking into consideration the peculiar nature of the injuries in each case, effect of inflation in the value of money and the sequel of the injuries. 8.The appellant filed written submissions stating that he appeals the judgment of the Senior Principal Magistrate delivered on 24 April 2024 in Kithimani PMCC No. E048 of 2020, challenging only the award of general damages. 9.The appellant was a fare-paying passenger in motor vehicle registration number KCP 099A on 2 December 2019 when the third respondent negligently drove the vehicle, causing it to lose control and overturn along the Mwingi-Thika Road at Sofia Area, resulting in severe personal injuries. 10.The trial court found the respondents 100% liable and awarded the appellant Kshs. 50,000 as general damages for pain, suffering, and loss of amenities, alongside Kshs. 6,550 as special damages. 11.Aggrieved by the quantum, the appellant filed this first appeal, and the High Court directed that it be dispensed by way of written submissions. 12.The appellant contends that the trial magistrate erred by failing to make an award commensurate with the injuries sustained and by failing to conduct a proper comparative analysis of similar injuries and prior decisions. 13.As this is a first appeal, the appellant relies on the established principle that the appellate court has a duty to re-evaluate, re-assess, and re-analyze the evidence on record and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses, as articulated in Selle v Associated Motor Boat Company Limited [1986] EA 123. 14.Regarding the appeal on quantum, the appellant invokes the principles set out in Kemfro Africa Ltd & Another v Lubia & Another (1982–88) KLR, and Catholic Diocese of Kisumu v Sophia Achieng Tete, Kisumu Civil Appeal No. 284 of 2001, which hold that an appellate court can interfere with an award of damages only if the trial court applied wrong principles, took into account irrelevant factors, left out relevant ones, or arrived at a figure that is so inordinately low or high as to represent a wholly erroneous estimate. 15.The appellant submits that the trial magistrate failed to appreciate the nature and extent of his injuries, which included head injuries, lacerations on the lateral side of the right eye, and lacerations and a cut wound on the left arm, all classified as soft tissue injuries. 16.He also argues that the magistrate did not make a comparative analysis of the cited precedents, namely Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi [2005] eKLR and Lucy Ntibuka v Bernard Mutwiri & Others, HCCC Meru [1983] eKLR, where a plaintiff with similar injuries was awarded Kshs. 500,000 as general damages on 8 February 2007. 17.The appellant maintains that his injuries were more extensive than those in the cited cases, and had the trial court properly considered those decisions and the principle that comparable injuries should attract comparable awards, it would have made a higher award. 18.He further submits that the trial magistrate did not account for inflationary trends or explain why the cited decisions were found incomparable, thereby failing to adhere to the doctrine of stare decisis and exercising her discretion wrongly. 19.The appellant therefore urges the High Court to interfere with the trial court's decision and substitute the award of Kshs. 50,000 with Kshs. 300,000, which he contends is fair and reasonable given the severity of his injuries and the impact of inflation, noting that the cited decisions were fairly recent, being less than six years old at the time of the lower court's judgment. 20.In conclusion, the appellant prays that the judgment on general damages be set aside and replaced with Kshs. 300,000, and that he be awarded costs and interest in both the lower court and this appeal. 21.The respondent did not file any submissions since the primary suit and this appeal proceeded exparte. 22.The sole issue for determination in this appeal is whether the quantum of damages is adequate or is inordinately low given his injuries the appellant sustained. 23.The appellant was a fare-paying passenger in a motor vehicle owned by the respondents when it overturned due to the negligent driving of the third respondent, resulting in personal injuries. 24.As the respondents did not enter appearance, the trial proceeded by way of formal proof, and interlocutory judgment was entered on liability with the trial court subsequently awarding the appellant Kshs. 50,000 as general damages and Kshs. 6,550 as special damages. 25.The appellant contends that the award of Kshs. 50,000 is inordinately low given his injuries, which included head injuries, lacerations on the lateral side of the right eye, and lacerations and a cut wound on the left arm. 26.He also argues that the trial magistrate failed to properly consider the principles governing assessment of damages by not conducting a comparative analysis of similar injuries and the effect of inflation. 27.The appellant relied on the authorities cited, namely Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi [2005] eKLR and Lucy Ntibuka v Bernard Mutwiri & Others, HCCC Meru [1983] eKLR, where plaintiffs with similar soft tissue injuries were awarded between Kshs. 300,000 and Kshs. 500,000 as general damages, albeit in the latter case in 2007. 28.The appellant therefore prays that this court sets aside the award of Kshs. 50,000 and substitutes it with Kshs. 300,000. 29.As a first appellate court, this court has a duty to re-evaluate, re-assess, and re-analyze the evidence on record and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses [Selle v Associated Motor Boat Company Limited [1986] EA 123]. 30.The principles governing interference with an award of damages by an appellate court are well settled. 31.An appellate court can only interfere with an award of damages if the trial court applied wrong principles, took into account irrelevant factors, left out relevant ones, or arrived at a figure so inordinately low or high as to represent a wholly erroneous estimate [Kemfro Africa Ltd & Another v Lubia & Another (1982–88) KLR; Catholic Diocese of Kisumu v Sophia Achieng Tete, Kisumu Civil Appeal No. 284 of 2001]. 32.This court is persuaded that the trial magistrate fell into error in the exercise of her discretion. 33.While the trial magistrate noted the nature of injuries as soft tissue injuries, the award of Kshs. 50,000 appears to be a wholly erroneous estimate given the circumstances and the authorities presented. 34.The magistrate failed to engage in a meaningful comparative analysis of the cited precedents, which is a crucial step in ensuring consistency and fairness in the assessment of damages for similar injuries. 35.The principle that comparable injuries should attract comparable awards is a fundamental tenet in the assessment of damages, and this was not adequately observed. 36.The authorities cited by the appellant, such as Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi (supra), involved multiple soft tissue injuries and the High Court awarded global sums ranging from Kshs. 100,000 to Kshs. 350,000 in July 2005. 37.In Lucy Ntibuka v Bernard Mutwiri & Others, HCCC Meru (supra), the court awarded Kshs. 500,000 in February 2007 for similar injuries, including head injuries, lacerations on the lateral side of the right eye, and lacerations and a cut wound on the left arm. 38.These decisions, although from courts of concurrent jurisdiction and therefore not binding but persuasive, demonstrate that for comparable soft tissue injuries, the conventional awards at that time were significantly higher than what the trial court awarded in this case in 2024. 39.The trial court's failure to account for inflationary trends, which is a relevant factor in assessing current damages, further underscores the erroneous nature of the award. 40.The failure to adequately consider the cited authorities and the effect of inflation represents a misdirection in principle. 41.The appellant has therefore demonstrated that the trial court acted on a wrong principle and arrived at a wholly erroneous estimate of the damages, justifying this court's interference. 42.The appeal is allowed. The judgment of the trial court is set aside insofar as it relates to the award of general damages for pain, suffering, and loss of amenities. 43.Substituting it with this court's own assessment, and considering the nature of the injuries, the persuasive authorities, the need for consistency in awards for similar injuries, and the impact of inflation, an award of Kshs. 300,000 is deemed fair and reasonable. 44.The award for special damages of Kshs. 6,550 is upheld as it was pleaded and proved and is not contested. 45.Consequently, judgment is hereby entered for the appellant against the respondents jointly and severally for Kshs. 300,000 in general damages and Kshs. 6,550 in special damages, totaling Kshs. 306,550. 46.The appellant shall also have costs of this appeal and interest on the general damages at court rates from the date of the lower court's judgment until payment in full, and interest on special damages from the date of filing suit. 47.Orders to issue accordingly. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 25TH DAY OF JUNE, 2026.A. N. ONGERIJUDGEIn the presence of:No appearance for the AppellantNo appearance for the RespondentChrispin – Court Assistant