https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8839

Bajila v County Government of Kitui (Civil Appeal E019 of 2021) [2026] KEHC 8839 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8839 (KLR) Republic of Kenya In the High Court at Kitui Civil Appeal E019 of 2021 LW Gitari, J June 18, 2026 Between Mohammed Divo Bajila Appellant and County Government Of Kitui Respondent Judgment Background information 1.The background of this appeal is that the Appellant herein (Plaintiff in the Lower Court case) sued the respondents vide a plaint dated 28th March,2018 and seeking the following reliefs;-i.Special damages of Kshs. 3,500/=ii.General damages for pain and loss of amenities;iii.Costs of suit.iv.Interest in (a) and (c) above. 2.The claim arose from a road traffic accident that occurred on 9th January,2017 while appellant was riding motor cycle registration number KMCA 867Z along Kiatini-Tulia Junction along Kiatini-Muthare Road when respond’s motor vehicle registration number KCG 713G was son carelessly driven at high speed resulting in an accident which caused appellant to sustain serious bodily injuries. 3.The appellant asserted that the accident was solely caused by the negligence of the respondent. Specific allegations of negligence pleaded include: creating circumstances that precipitated and caused the accident; driving motor vehicle registration number KCD 713G at an excessive speed in the circumstances, driving the said motor vehicle recklessly, carelessly and in a dangerous manner, failing to keep any proper lookout, failing to slow down, brake, swerve, or otherwise act reasonably so as to avoid colliding with motor cycle registration number KMCA 867Z,failing to have any or any sufficient regard for the safety of other road users, particularly the Plaintiff, failing to have any or any proper control of motor vehicle registration number KCD 713G and driving without due care and attention. 4.As a result of the accident, the appellant suffered severe injuries including a displaced/ communited fracture,separation(Chastasis) and dislocation right hip joint He therefore prayed for judgment against the respondent. 5.The Defendants entered an appearance, filed Statement of Defence dated 17th May,2019 wherein he denied in which they denied the Plaintiff's claim, put him to strict proof and prayed that this suit be dismissed with costs. 6.However, the parties filed a consent on liability at 80:20% in favour of the appellant as against the respondent. 7.The parties then proceeded to file written submission on quantum. 8.upon considering the evidence on record, the trial magistrate delivered a judgement dated 18th March,2023, in which he awarded the appellant herein damages of Kshs.402,840/= as general damages and special damages Kshs.3550/=. He was also awarded costs and interest. The appeal 9.Being dissatisfied with that decision on quantum, the Appellants herein moved this Court vide a Memorandum of Appeal dated 8th April, 2021 and based on the following grounds:-i.That the learned trial magistrate erred in law and fact by awarding General Damages that were inordinately too high in the circumstances.ii.That the learned trial magiscrate erred in law and fact by failing to consider the nature of injuries suffered by the respondent herein and awarding damages that were too high and incomparable to the injuries sustained.iii.That the learned magistrate erred in law and fact by failing to appreciate the totality of the evidence before him and the submissions on record on quantum of damages and the authorities filed on behalf of the appellant.iv.That the learned magistrate erred in law and fact by failing to apply the principles applicable in award of damages and comparable award made for similar injuries. 10.The appellants therefore prayed :-a)That this Appeal be allowed.b)That the judgment of the Honourable trial magistrate be set aside and/or substituted with a lower award on quantum of damages.c)That the costs of this appeal and that of the trial court be awarded to the appellant. Submissions. 11.This Appeal was canvassed by way of written submissions. The appellant filed written submissions dated 7th February,2024. The respondent did not file written submissions. Appellant’s Submissions 12.The Appellant’s submissions primarily challenge the trial court’s award on general damages, arguing that it was inordinately low given the nature and severity of the injuries sustained. 13.The Appellant submits that the trial court applied wrong principles in assessing damages and failed to properly consider the extent of the injuries, which included displaced/comminuted fracture of the right acetabulum, diastasis of the pubic symphysis, right hip dislocation, and a swollen and painful right buttock, with assessed permanent incapacity. It is argued that the award of Kshs. 500,000/= was manifestly low compared to comparable case law and the Appellant’s submissions at trial Kshs. 2,500,000/=. The Appellant relies on authorities in James Mukatui Mavia v M. A. Bayusuf & Sons Ltd [2013] eKLR on appellate interference with damages, as well as comparable awards in cases involving pelvic fractures and similar injuries, including Nguku v Kiria-ini Farm [2022] KEHC 342, Peace Kemuma Nyangeria v Michael Thuo (2014) eKLR, and Milicent Atieno Ochuonyo v Katola Richard (2015) eKLR. 14.The Appellant therefore urges the court to find that the trial magistrate misapplied the principles governing assessment of general damages and to substitute the award of Kshs. 500,000/= with an enhanced award of Kshs. 2,500,000/=, arguing that this figure is more consistent with comparable judicial precedents and the severity of the injuries sustained. Issue for Determination. 15.The issue for determination in this appeal is whether the award of Kshs. 402,840/= as general damages for pain, suffering and loss of amenities was so inordinately low as to warrant interference by this Court. Analysis and Determination 16.This is an appeal on quantum of damages only, as Liability was recorded by consent in the ratio of 80:20 in favour of the appellant as against the respondent herein. 17.This being an appeal on quantum damages, this court is guided by the legal principle enunciated in Butt v Khan (1981) KLR 349, which was applied in Kemfro Africa Ltd t/a Meru Express Service & Gathongo Kanini v A.M Lubia and Olive Lubia (1982 – 1988) I KAR 727 at page 730, wherein Kneller JA stated 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 for East Africa to be that it must be satisfied that either the Judge in assessing 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.” 18.I have perused the evidence on record and I note that the medical evidence before the trial court disclosed that the appellant sustained severe injuries including a displaced/ communited fracture,separation(Chastasis) and dislocation right hip joint He therefore prayed for judgment against the respondent. 19.In assessing damages, a court is required to be guided by comparable awards made in cases involving similar injuries while taking into account the passage of time and inflationary trends. Although no two cases are exactly alike, comparable injuries should, as far as possible, attract comparable awards. 20.Before the trial court, the Respondent relied on authorities where claimants who suffered compound fracture,engloving injury,cut wound on scalp,deep cut wound right knee causing loss of blood. In particular, in Racheal Mihaki Kiragu v Karimi Mwihaki & another [2015] eKLR, where high court awarded damages of Kshs.450,000/= as general damages. The Respondent also cited Kenyatta University V Isaac Karumba NRB HCCA No.193 of 2012 [2014]eKLR where an award of Kshs.350,000/= was made for soft injuries in which the plaintiff sustained permanent incapacity assessed at 20%. 21.The Appellant, on the other hand, proposed an award of Kshs. 2,500,000/= and argued that the injuries sustained did not justify the award made by the trial court. However, having reviewed the nature of the injuries and the medical evidence on record, this Court finds that the proposed figure was manifestly low and did not adequately reflect the permanent disability suffered by the Respondent. 22.The trial magistrate considered the injuries sustained, the medical reports produced, the parties' submissions and the authorities cited before arriving at the award of Kshs. 500,000/=. 23.Having carefully considered the record of appeal, the judgment of the trial court, the medical evidence on record, and the submissions made by the Appellant, the sole issue for determination is whether the award of Kshs. 500,000/= as general damages for pain, suffering and loss of amenities was so inordinately low as to warrant interference by this Court. 24.The principles upon which an appellate court may interfere with an award of damages are well settled. In Butt v Khan (1981) KLR 349, the Court of Appeal held that an appellate court should not disturb an award of damages unless it is shown that the trial court took into account an irrelevant factor, left out of account a relevant factor, or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages. The same principle was reiterated in Kemfro Africa Ltd t/a Meru Express Service & Another v A.M. Lubia & Another (1982–1988) 1 KAR 727. Similarly, in James Mukatui Mavia v M.A. Bayusuf & Sons Ltd [2013] eKLR, the court reaffirmed that appellate interference is only justified where the trial court acted on wrong principles or arrived at an award that is manifestly excessive or inadequate. 25.The medical evidence before the trial court established that the Appellant sustained serious injuries namely a displaced/comminuted fracture of the right acetabulum, diastasis of the pubic symphysis, dislocation of the right hip joint and a swollen and painful right buttock. The medical reports further disclosed that the Appellant suffered residual disability and continued pain arising from the injuries. 26.It is an established principle in general damages for personal injuries that comparable injuries ought to attract comparable awards. In Charles Owino Odeyo -vs- Apollo Justus Andabwa And Another [2017] eKLR, the Court of Appeal held: -“i.An award of damages is not meant to enrich a victim but to compensate such victims for the injuries sustained.ii.The award should be commensurate with the injuries sustained.iii.Previous awards for similar injuries sustained are a mere guide but each case must be treated of its own facts.iv.Previous awards are to be considered to maintain stability of awards but factors such as inflation should be considered.v.The award should not be inordinately low or high.” 27.In considering whether to disturb the award by the trial court, I must be alive to the guiding principles of the Court of Appeal as well as the nature and extent of the injuries sustained by the appellant and the rendition in the Butt -vs- Khan [1981] KLR 349 case. 28.In Peace Kemuma Nyang’era v Michael Thuo & another [2014] KEHC 659 (KLR) wherein the claimant had a fracture of the sacrum bone – lowest back bone spine, fracture of the right superior pubic ramus of the pubic bone – right hip bone, fracture of the right ischium bone part of the pelvis – lower part as one sits down, haematoma on both thighs & haematoma in the lumbar - sacral – lower part of spine between the 2 buttocks with permanent incapacitation of 45%. The Court awarded Kshs. 2,500,000/- in general damage for pain and suffering; 29.I have considered the authorities relied upon by the Appellant. On the other hand, I have considered the authorities relied upon by the Respondent, including Racheal Mihaki Kiragu v Karimi Mwihaki & Another [2015] eKLR and Kenyatta University v Isaac Karumba, Nairobi HCCA No. 193 of 2012 [2014] eKLR, involved injuries that were either less severe or materially distinguishable from those sustained by the Appellant. Consequently, those decisions provide limited guidance in determining an appropriate award in the present case. 30.Taking into account the nature and extent of the injuries sustained by the Appellant, the degree of permanent incapacity, the comparable authorities cited, inflationary trends, and the passage of time since the decisions relied upon, I am persuaded that the award of Kshs. 500,000/= made by the trial court was inordinately low and did not represent fair compensation for the injuries suffered. 31.Comparing the Respondent’s injuries with the earlier captured decisions and adjusting for severity and in discretionary trends, the Court is persuaded to disturb the award by the trial Court on the premise of the persuasive decision in Peace Kemuma Nyang’era v Michael Thuo & another [2014] KEHC 659 (KLR) in which claimant sustained comparable injuries and Court award to Kshs. 2,500.000/-. 32.Ultimately, it appears from my own review of the material presented before the trial Court and comparisons with authorities cited, that the Appellants complaint with regards to the award on damages is slightly merited and the Court does feel justified to interfere given the nature of injuries disclosed in the medical evidence available. 33.Taking into account the nature and extent of the injuries sustained by the Appellant, the degree of residual incapacity, the comparable authorities cited, inflationary trends, and the passage of time since the decisions relied upon, I am persuaded that the award of Kshs. 500,000/= made by the trial court was inordinately low and did not represent fair compensation for the injuries suffered. 34.I therefore find that the learned trial magistrate misdirected himself in the assessment of damages and that this Court is justified in interfering with the award. Guided by the comparable authorities, particularly Peace Kemuma Nyangeria v Michael Thuo Mbugua [2014] eKLR, I find that an award of Kshs. 2,500,000/= as general damages for pain and suffering and loss of amenities is fair, reasonable and commensurate with the injuries sustained. Disposition 35.Consequently, the appeal succeeds. The award of Kshs. 500,000/= as general damages is hereby set aside and substituted with an award of Kshs. 2,500,000/= as general damages for pain and suffering and loss of amenities. The award of special damages of Kshs. 3,550/= is upheld. Both awards shall be subject to the agreed apportionment of liability at 80:20 in favour of the Appellant. The sum due to the appellant shall be as follows;1.Special Damages- Kshs.3550.002.General Damages-Kshs.2,500,000.003.Less 20%- Kshs.500,710.004.Total due to the appellant- Kshs.2,002,800.00/=Costs to the appellant. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18TH DAY OF JUNE, 2026...............................LUCY GITARIJUDGE