https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13104

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL APPEAL NO. E076 OF 2025** **D.K. RONO, J** **29 JUNE 2026** **BETWEEN** **MT. KENYA WHOLESELLERS TRADERS……………1st APPELLANTS** **SIMON MWANGI NDUNGU……………………………2nd APPELLANTS** **BOAZ MUTUA…………………………………………….3rd APPELLANTS** **AND** **CALEB MUTUA WAMBUA……...………………………. RESPONDENT** *(Being an appeal from the whole judgement delivered by Honourable Stephen Jalango (SPM) on 25 August 2025 in Tawa PMCC No. E248 of 2025)* **JUDGEMENT** **Background** 1. This Appeal arises from the Judgment delivered in Tawa PMCC No. E248 of 2025, in which Mt. Kenya Wholesellers Traders, Simon Mwangi Ndungu and Boaz Mutua (“the Appellants”) herein were the Defendants while Caleb Mutua Wambua (“the Respondent”) was the Plaintiff. By a Plaint dated 30 September 2024, the Respondent instituted a suit against the Appellants seeking general damages for pain, suffering and loss of amenities, special damages in the sum of Kshs 8 900, together with costs of the suit and interest on the general damages, special damages and costs. 2. The genesis of the dispute between the parties is set out in paragraph 4 of the Respondent’s Plaint, wherein it was pleaded that on 1 July 2023, the Respondent was lawfully travelling as a cyclist along Kangundo-Tala road when at Siathani area Motor vehicle Registration No. KBD 319M was negligently and/or carelessly driven at a very high speed , managed and/or controlled by the Appellants authorized agents and/or the 3rd Appellants that he permitted it to lose control and hit the respondent as a consequence whereof he sustained severe bodily injuries and has suffered loss and damage. 3. The Respondent maintained that the accident was caused by the sole negligence of the 1st and/or 2nd Appellants or their duly authorized driver, servant and/or their employee who was at the time driving the motor vehicle registration number KBD 319 M belonging to the Appellants. 4. The Respondent stated that due to the accident he sustained severe injuries to wit: - 5. Fracture of the left neck femur; 6. Blunt head injury; 7. Blunt neck injury; 8. Cut on the head; 9. Blunt chest injury; 10. Blunt injury to the left shoulder; 11. Bruises to the right hand; 12. Blunt injury to the left ankle joint; 13. Bruises to the left knee. 14. The Appellants through its statement of defence dated 11 June 2024 denied in toto the occurrence of the accident and that if the accident indeed occurred as alleged by the respondent, then the same was solely and/or substantially contributed to by the Respondent and prayed that the suit against them be dismissed. 15. The parties on 30 October 2024 recorded a consent that judgement on liability be entered in favour of the Respondent in the ratio of 80:20 against the Appellants and further that the documents filed be produced without calling the makers; and that parties were to file submissions on quantum. 16. The trial court proceeded with assessment of general damages for pain, suffering and loss of amenities and special damages which it did culminating in a judgment dated 21 August 2025 where the trial court made an award for Kshs 800 000 as General damages, Kshs 7 350 as special damages. The total award was subjected to 20 percent contribution leaving a net total of Kshs 645 880. **The Appeal** 1. The Appellants being aggrieved by the decision rendered by the trial court preferred an appeal against the whole decision through a memorandum of appeal dated 20 September 2026 and stated that: 1. The learned trial court erred by overestimating, misapprehending and misunderstanding the extent of injuries therein so as to reach an overly high and unreasonable award in general damages; 2. The learned trial court erred in failing holding that the Respondent sustained inter alia fracture of the left neck femur whilst medical records produced in court clearly indicated that there was no evidence of the respondent having sustained fracture of the neck of the femur; 3. The learned trial court erred by failing to consider with fair measure the submissions of the defendant in writing the judgement; 4. The trial court erred in the evaluation of evidence before it and disregarded important elements of the evidence, principles and practices thus reaching a quantum so inordinately high; 5. That the learned trial magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature. 2. TheAppellants prayed that the Appeal be allowed, the judgement in Tawa PMCC No. E 248 OF 2024 on quantum be set aside the same be assessed afresh, the costs of the appeal be awarded to the Appellants. 3. In spite of the Appellants listing a total of four grounds of appeal the gist of the present appeal is with respect to the quantum of damages awarded by the trial court, it is on this basis that this court will make a determination noting that the parties filed a consent with regard to liability. **Analysis and Determination** 1. This being a first appeal, this court is under a duty pursuant to Section 78 of the Civil Procedure Act to re-evaluate, reassess and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The principles governing a first appellate court were well settled in *Selle v Associated Motor Boat Co. Ltd & Anor* **[1968] 1EA 123** where Sir Clement De Lestang stated as follows: ‘This court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.’ 1. From the memorandum of appeal and the submissions filed by the Appellants, the gravamen of the appeal relates to the question of quantum, specifically whether the awards made under the heads of general and special damages were excessive, erroneous or unsupported by the evidence on record. 2. The Appellants did not in the memorandum of appeal, appeal against special damages awarded by the trial court, this court will not make a determination on the same save to hold that the same is assessed at Kshs 7 350 and the same is upheld based on the concession made by the Appellants in their submission. 3. As regards general damages, the issue falling for determination is whether the award made by the learned trial magistrate was so inordinately high or excessive as to warrant interference by this court. 4. The evidence tendered before the trial court demonstrated that the Respondent sustained fracture of the left neck femur, blunt head injury, blunt neck injury, cut on the head, blunt chest injury, blunt injury to the left shoulder, bruises to the right hand, blunt injury to the left ankle joint and bruises to the left knee. These injuries were confirmed by the medical report dated 2 August 2024 prepared by Dr. Kimuyu, P.3 form filed on 3 July 2023 filed at Machakos level 5 hospital, a report by Dr. Githaiga of German Medical Centre and treatment notes from Machakos Level 5 hospital for this the trial court awarded a sum of Kshs 800 000 as general damages for pain and suffering and Kshs 7 350 as special damages. 5. The Appellants, in their submissions, in a bid to demonstrate that the award made by the trial court was excessive and out of sync with comparable awards for similar injuries, relied on a number of authorities involving fractures of the femur and related orthopedic injuries. Counsel submitted that courts have consistently maintained moderation in the assessment of general damages where recovery was satisfactory and permanent disability was either minimal or absent. 6. Particular reliance was placed on *Litembekho v Namasaka*(Civil Appeal E156 of 2023) [2025] KEHC 773 (KLR), where the respondent sustained a fracture of the femur and was awarded Kshs 1 600 000 by the trial court. On appeal, the High Court found the award excessive and reduced it to Kshs 650 000 after considering comparable authorities. Counsel argued that the decision illustrates the principle that even in cases involving femur fractures, awards in the region of Kshs 650 000 may be considered reasonable depending on the severity of the injury and the extent of recovery. 7. The Appellants further cited *Jitan Nagra v Abidnego Nyandusi Oigo*[2018] KEHC 3078 (KLR), where the respondent sustained substantially more severe injuries, including lacerations, blunt chest trauma, a compound fracture of the right tibia and fibula, and a segmental distal fracture of the right femur. Notwithstanding the gravity of those injuries and evidence that the claimant remained dependent on crutches, the High Court set aside an award of Kshs 1 000 000 and substituted it with Kshs 450 000. Counsel also referred the court to *Reamic Investment Limited v Joaz Amenya**Samuel* [2021] KEHC 7483 (KLR), in which the respondent suffered an open fracture of the left femur, multiple abrasions and a chest contusion. The appellate court found an award of Kshs 600 000 excessive and substituted it with an award of Kshs 350 000. 8. On the basis of the foregoing authorities, the Appellants contended that the award made by the trial court was manifestly excessive and represented a substantial departure from the range of awards that courts have ordinarily made for comparable femoral fractures and associated soft tissue injuries. They therefore urged this court to interfere with the award and substitute it with a more moderate sum consistent with prevailing judicial trends. 9. On the one hand, the plaintiff relied on decisions such as *Edwin Otieno Japaso v East Coach Bus Ltd*[2016] eKLR,*Charles Niamenge Wachama**v Melek Ukongo*[2021] eKLRand *Gakuo v Kilii & Another*[2024] eKLR, wherein the claimants sustained relatively serious orthopedic injuries, including fractures and permanent disabilities, and were awarded substantial sums in general damages. 10. On the other hand, the defendant relied on authorities including *Ephraim Wagura Muthui & 2 Others v Toyota Kenya Limited & 2* Others [2019] KEHC 8395 (KLR)**,** *Otieno & Another v Odhiambo*[2024] eKLR and *FM (Minor suing through mother and next friend MWM) v JNM & Another*[2020] eKLR**,** which involved comparatively less severe soft tissue injuries and attracted significantly lower awards. 11. The principles upon which an appellate court may interfere with an award of damages are now well settled. In *Price & Another v Hilder,* (Civil Appeal 68 of 1982) hold [1984] KECA 29 (KLR)the court held that: *‘The court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong decision.’* 1. Similarly, in *Gitobu Imanyara & 2 Others v Attorney General*, (Civil Appeal 98 of 2014) [2016] KECA 557 (KLR) the Court of Appeal observed that: *‘…it is firmly established that this court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum.’* The court further stated that: *‘In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this court, an entirely erroneous estimate of the damages to which the plaintiff is entitled.’* 1. The foregoing principle was originally enunciated in *Rook v Rairrie*[1941] 1 All ER 297 and was echoed with approval in *Butt v Khan* [1981] KLR 349**,** where Law JA held that: ‘*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.’* 1. Equally instructive is the decision in *Mbogo & Another v Shah*[1968] EA**,** where the court held inter alia that: *‘An appellate court will interfere if the exercise of the discretion is clearly wrong because the judge has misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration matters which it should be taken into consideration and in doing so arrived at a wrong conclusion. It is trite law that an appellate court should not interfere with the exercise of the discretion of a judge unless satisfied that the judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been injustice.’* 1. It is trite that in assessing damages, courts ought to strive for consistency so that comparable injuries attract comparable awards, while at the same time appreciating that each case must ultimately be determined on its own peculiar facts and circumstances. Having considered the nature of the injuries sustained by the Respondent, and the applicable principles governing interference with awards of damages. I find and hold that the decisions relied upon by the trial court were not instructive since the injuries in the cited decisions were in the case of the decisions cited by the Appellants very low and in the instance of decisions cited by the respondent very high for this reason the trial court made an award that was an erroneous estimate of damages based on the injuries suffered by the respondent based on comparative decisions. 1. For the reasons set out above the Judgement of the trial court on General damages at Kshs 800 000 is set aside and the same is substituted with a Judgement of Kshs 650 000 in general damages for pain suffering and loss of amenities this is in consonance with the awards made for comparative injuries 2. In *David Kimathi Kaburu v Dionisius Mburugu Itirai [2017] eKLR*, the plaintiff sustained a dislocated hip and fragmented fractures of the right femur. The court awarded Kshs. 630,000/= in general damages. The injuries in that case were considerably more severe than the injuries sustained by the respondent herein, involving both a major joint dislocation and a fragmented femoral fracture. 3. Similarly, in *EWO (suing as the next friend of a minor COW) v Chairman Board of Governors Agoro Yombe Secondary School [2018] eKLR*, the plaintiff sustained a fracture of the femur and was awarded Kshs. 800,000/= as general damages. In *Joseph Mwangi Thuita v Joyce Mwole [2018] eKLR*, the plaintiff suffered a fractured right femur, compound fractures of the right tibia and fibula, shortening of the right leg, episodic pain in the thigh and difficulty walking without support. The court awarded Kshs. 700,000/= in general damages. The injuries in both cases were substantially more serious than the respondent’s injuries, involving fractures of weight-bearing bones and, in the latter case, lasting functional impairment. 4. Further, in *David Mutembei v Maurice Ochieng Odoyo [2019] eKLR*, the respondent sustained a fracture of the right femur and a proximal fracture of the left tibia. An award of Kshs. 1,600,000/= made by the trial court was reduced on appeal to Kshs. 800,000/=. Again, the injuries involved multiple fractures affecting the lower limbs and were more severe than a single fracture of the humerus. 5. The court has also considered *Florence Njoki Mwangi v Peter Chege Mbitiru [2014] eKLR*, where the plaintiff sustained fractures of both femurs, a degloving injury to the right leg, amputation of the right foot and multiple cuts. An award of Kshs. 700,000/= was made. Although the injuries in that case were significantly graver, the decision nevertheless provides useful guidance on the range of awards for serious orthopaedic injuries. 6. Having considered the foregoing authorities, it is evident that awards ranging between Kshs. 630,000/= and Kshs. 800,000/= have generally been made in cases involving fractures of the femur, multiple fractures, associated complications and, in some instances, residual disability. The respondent herein sustained a fracture of the humerus, which, although serious, is less severe than the injuries suffered in most of the cited authorities and was not shown to have resulted in permanent incapacity. 7. Taking into account the nature of the injury, the comparable awards, the passage of time and the need for consistency in awards, an award of Kshs. 650,000/= in general damages is fair, reasonable and commensurate with the injuries sustained. 8. The appeal is therefore allowed to the extent that general damages have been reduced from Kshs 800 000 to Kshs 650 000 with costs to the Appellants. **DISPOSITION** 1. The upshot is that the appeal succeeds. 2. Liability 80:20 3. General damages Kshs 650 000 4. Less 20 percent Kshs 130 000 **Total Kshs 520 000** 1. Special damages Kshs 7 350 **Total Kshs 527 350** 1. For avoidance of doubt, the special damages shall attract interest from the date of filing the suit. General damages shall attract interest at court rates from the date of judgment in the lower court. Costs of the lower court shall be borne by the Appellants. There shall be no order as to costs in respect to the appeal. DATED, SIGNED AND DELIVERED VIRTUALLY AT MAKUENI THIS 29th DAY OF JUNE 2026. **D K RONO** **JUDGE**