https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8711

Githinji v Ng’ang’a (Civil Appeal E1532 of 2024) [2026] KEHC 8711 (KLR) (Civ) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8711 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1532 of 2024 BW Murunga, J June 18, 2026 Between Moses Warui Githinji Appellant and Esther Wanjiku Ng’ang’a Respondent (Appeal from the Judgment of the Learned Principal Magistrate Hon. N. M. Idagwa delivered at Milimani on 26th November 2024 in Milimani CMCC No. E982 of 2021) Judgment A. Background 1.This appeal arises from the judgment of the learned Principal Magistrate, Hon. N. M. Idagwa, delivered at the Milimani Chief Magistrate’s Court on 26th November 2024 in Milimani CMCC No. E982 of 2021. The appellant, Moses Warui Githinji, was the plaintiff in the subordinate court, where he sued the Respondent, Esther Wanjiku Ng’ang’a, for damages arising out of a road traffic accident that occurred on 11th June 2019 at about 11:00 a.m. along Ngong Road, near the Meteorology Department, when he came into contact with the Respondent’s motor vehicle registration number KCU 835E. 2.As a consequence of the accident the Appellant sustained a fracture of the left tibia and fibula together with soft tissue injuries, was admitted in hospital for four days and thereafter continued treatment on an outpatient basis. A medical assessment placed his permanent incapacity at ten percent (10%) of the lower left limb. 3.Upon hearing the suit the trial court entered judgment in favour of the appellant on liability and assessed general damages for pain and suffering at Kshs 250,000, together with special damages as pleaded and proved. 4.Being dissatisfied with that assessment, the Appellant lodged the present appeal by a Memorandum of Appeal dated 24th December 2024. It is common ground that liability was determined at the trial and is not the subject of this appeal. The appeal is confined to the question of quantum, the appellant contending that the award of general damages was inordinately low having regard to the nature and extent of the injuries he sustained, and praying that it be set aside and substituted with an award of Kshs 1,000,000. B. The Appellant’s Submissions 5.The Appellant relies on the medical report of Dr. G. K. Mwaura of Kinoo Medical Clinic dated 16th November 2020, which records a swollen, painful and tender left leg and a fracture of the left tibia and fibula. He submits that he was admitted for four days, that one year later he remained under treatment, and that the injuries amounted to grievous harm which took more than a year to heal. 6.He further relies on the assessment of permanent incapacity at 10% of the lower left limb, the residual scarring on the left leg and the consequent reduction in his mobility. On that basis he argues that the learned trial magistrate erred in her appreciation of the nature and extent of the injuries and failed to apply the settled principle that comparable injuries ought, as far as possible, to be compensated by comparable awards, a principle restated by the Court of Appeal in Stanley Maore v Geoffrey Mwenda (Nyeri CA Civil Appeal No. 147 of 2002) [2004] eKLR. 7.The Appellant additionally submits that the trial court ought to have had regard to the value of the shilling and the prevailing state of the economy, and that the award of Kshs 250,000 did not reflect contemporary award levels. 8.In support he cites Mwaura Muiruri v Suera Flowers Limited & another and James Gathirwa Ngungi v Multiple Hauliers (E.A.) Limited & another, in which awards of Kshs 1,750,000 and Kshs 1,500,000 respectively were made for what he describes as similar injuries. 9.He accordingly urges the Court to find the award inordinately low, to set it aside and to substitute it with an award of Kshs 1,000,000 for pain and suffering, with costs. C. The Respondent’s Submissions 10.The Respondent opposes the appeal in its entirety. She submits that the assessment of general damages is pre-eminently a matter within the discretion of the trial court, and that an appellate court will not lightly interfere with that discretion. She relies on Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5 and Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini v A. M. Lubia & Olive Lubia [1987] KLR 30 for the proposition that the award will not be disturbed unless it is shown that the trial court proceeded on a wrong principle, misapprehended the evidence in some material respect, took into account an irrelevant factor or left out a relevant one, or that the award is so inordinately high or low as to amount to a wholly erroneous estimate. 11.She contends that the learned trial magistrate expressly considered the nature of the injuries, the medical evidence including the 10% permanent incapacity, and the parties’ respective submissions, and that no misdirection has been demonstrated; the complaint, she says, amounts to no more than dissatisfaction with the figure arrived at. 12.On the comparable authorities, the Respondent emphasises that the record discloses no compound or open fracture, no surgical complication, no malunion, no chronic osteomyelitis, no multiple limb fractures and no catastrophic disability. In essence a single closed limb fracture attended by moderate residual incapacity. She relies on Nyambura v Njuguna & another [2024] KEHC 4185 (KLR), where an award of Kshs 400,000 was upheld, and Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR), where an award was assessed at Kshs 400,000 on appeal. 13.She distinguishes the appellant’s authorities as concerning markedly more serious injuries of open or compound fractures, multiple fractures, chronic complications and very high disability and prays that the appeal be dismissed with costs and the judgment of the trial court upheld.D. Issues For DeterminationHaving considered the Memorandum of Appeal, the record of the subordinate court and the rival submissions, the issues that fall for determination are:i.Whether the learned trial magistrate misdirected herself in principle, or otherwise erred, in the assessment of general damages for pain and suffering;ii.Whether the award of Kshs 250,000 was so inordinately low as to warrant interference by this Court and, if so, what award ought properly to be substituted; andiii.Who should bear the costs of the appeal. E. Analysis And DeterminationPARA 14.This being a first appeal, I am alive to my duty to re-evaluate the evidence tendered before the subordinate court, to subject it to a fresh and exhaustive scrutiny and to arrive at my own independent conclusions, bearing always in mind that, unlike the trial court, I neither saw nor heard the witnesses as they testified as it was held in Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123). 15.That duty, however, must be exercised against the particular character of this appeal. Liability is not in issue. What is challenged is an assessment of general damages, an exercise that lies within the discretion of the trial court, and the appellate task is therefore not to ask what sum this Court would itself have awarded had it sat at first instance. 16.The principles governing appellate interference with an award of damages are well settled. In Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini v A. M. Lubia & Olive Lubia [1987] KLR 30, the Court of Appeal held that an appellate court will be justified in disturbing the quantum of damages awarded by a trial court only where it is satisfied that the trial court, in assessing the 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. The same threshold was affirmed in Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5. 17.The Appellant must therefore bring himself within one of those limbs; it is not enough that another tribunal might have been more generous. 18.I turn first to the injuries. The medical evidence, which is not seriously contested, establishes a fracture of the left tibia and fibula and soft tissue injuries, four days’ admission, follow-up treatment on an outpatient basis, residual scarring, and a permanent incapacity assessed at 10% of the lower left limb. 19.It is equally important to note what the record does not disclose. There is no evidence of a compound or open fracture, of malunion or non-union, of chronic osteomyelitis or recurrent bone infection, of multiple limb fractures, of repeated surgical intervention or of a high degree of permanent disability. 20.The injury is properly characterised as a fracture of the two bones of one leg attended by moderate residual incapacity, a serious orthopaedic injury, but not one falling within the catastrophic or grossly disabling category. 21.That characterisation disposes, at the outset, of the principal authorities upon which the Appellant builds his claim for Kshs 1,000,000. In James Gathirwa Ngungi v Multiple Hauliers (E.A.) Limited & another, the claimant sustained compound comminuted fractures of the tibia and fibula, fractures of the radius and ulna, a head injury, and prolonged complications including chronic bone infection necessitating repeated surgery; the award of Kshs 1,500,000 reflected that extensive and enduring trauma. 22.In Mwaura Muiruri v Suera Flowers Limited & another, the claimant suffered compound double fractures of the leg, fractures of the humerus and multiple lacerations, with permanent disability assessed at 70%. Those injury profiles bear no real equivalence to a single closed tibia/fibula fracture with 10% incapacity. 23.The very principle the Appellant invokes that comparable injuries should attract comparable awards, per Stanley Maore v Geoffrey Mwenda [2004] eKLR cuts against him here. where the injuries relied upon are demonstrably more severe, the awards made in those cases cannot dictate the award in this one. To that extent, the Appellant’s prayer for Kshs 1,000,000 is not supported by the comparable authorities, and the Respondent’s submission that the magistrate could not be faulted for declining so high a figure has considerable force. 24.It does not, however, follow that the award of Kshs 250,000 is thereby insulated from scrutiny, for the inquiry into whether an award is inordinately low is distinct from the inquiry into whether it is inordinately high. The recognised band for fractures of the tibia and fibula must therefore be identified. 25.In Karanja & another v Mwachala [2024] KEHC 7171 (KLR), this Court adopted the reasoning in Daniel Oduor Shieuda v Christopher Wambugu [2021] eKLR, that courts have been awarding damages ranging between Kshs 450,000 and Kshs 1,300,000 for fractures of the tibia and fibula depending on the specific case, and proceeded to assess Kshs 700,000 for compound fractures of the tibia and fibula with a 10% disability. 26.More tellingly, the authorities upon which the Respondent herself relies confirm rather than displace that band. In Nyambura v Njuguna & another [2024] KEHC 4185 (KLR), the claimant sustained a closed tibia/fibula fracture, a crush injury to a toe leading to disarticulation at the distal phalanx, and multiple soft tissue injuries, with permanent incapacity assessed at the same 10% as in the present case, an injury profile that is, if anything, somewhat more extensive than the Appellant’s and the award of Kshs 400,000 was held not to be excessively low and was left undisturbed on appeal. 27.In Daniel Otieno Owino & another v Elizabeth Atieno Owuor [2020] KEHC 4895 (KLR), a compound fracture of the tibia and fibula together with head and chest injuries was assessed, on appeal, at Kshs 400,000. The Respondent invokes these decisions to resist any interference; yet, on a fair reading, they establish that the proper award for injuries of this character is in the region of Kshs 400,000, a figure substantially above the Kshs 250,000 fixed by the trial court. They thus furnish the answer to the appeal, though not the answer for which the respondent contends. 28.Bringing these threads together, I am satisfied that while the learned trial magistrate cannot be faulted for declining the inflated figure pressed by the Appellant, an award of Kshs 250,000 for a fracture of both the tibia and the fibula, attended by 10% permanent incapacity and residual scarring, falls below the lowest of the comparable awards in this category and is more consonant with the level of awards made for soft tissue or minor injuries than for fractures of two long bones. 29.Applying the test in Kemfro and Bashir Ahmed Butt (supra), such an award reflects a misapplication of the comparable-awards principle and represents a wholly erroneous estimate of the damage. It cannot stand. 30.Taking into account the nature and extent of the injuries, the assessed permanent incapacity, the residual scarring, the comparable authorities, and the continuing erosion in the value of money, I consider that a fair and adequate award for pain and suffering is Kshs 400,000. 31.Consequently, the appeal succeeds to that extent, and to that extent only; the Appellant’s prayer for Kshs 1,000,000 is declined. F. OrdersFor the foregoing reasons, the Court makes the following orders:a.The appeal partly succeeds.b.The award of Kshs 250,000 made by the trial court as general damages for pain and suffering is hereby set aside and substituted with an award of Kshs 400,000.c.The substituted award shall carry interest at court rates from the date of the judgment of the trial court, 26th November 2024, until payment in full.d.The award of special damages and the order on liability made by the trial court are undisturbed.e.The Appellant, having substantially succeeded on the determinative question in this appeal, shall have the costs of the appeal.It is so ordered. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 18 DAY OF JUNE, 2026.BENARD MURUNGA WAFULAJUDGEIn the presence of:Njoroge for the AppellantN/A for the RespondentKevin Babu - Court Assistant