https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7818

Kanyiri v Nyambura (Civil Appeal E095 of 2024) [2026] KEHC 7818 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 7818 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E095 of 2024 SC Chirchir, J May 28, 2026 Between Muguro Wainaina Kanyiri Appellant and Derek Kibe Nyambura Respondent Judgment 1.The Respondent herein sued the Appellant seeking for damages for injuries arising out of a Road Accident along Maragua road. The accident involved Motor Vehicle registration Number KDA 486F and a motorcycle. The Respondent was a pillion passenger on the Motor Cycle.The trial Court entered Judgment in favour of the Respondent and awarded general damages for ksh. 2,000,000 damages and ksh. 150,000 being the futute cost of treatment. 2.The Appellant was aggrieved by the Judgment and moved this Court on Appeal. Memorandum of Appeal. 3.The Appellant has listed the following grounds.a.That the learned Magistrate erred in Law in awarding general Damages of Ksh. 2,000,000 which amounts is manifestly excessive considering the injuries sustained by the Respondent.b.That the learned Magistrate erred in law and in fact in warding the costs of future medical expenses at Ksh. 150,000/= which amount is manifestly excessive.c.That the learned Magistrate erred in Law and in fact in failing to consider the Written Submissions of the Appellant and the authorities annexed therein in support of the Appellant’s case in arriving at the award in damages.d.That the Judgment of the learned trial Magistrate is against weight of the evidence on record, the law and against the doctrine of stare decisis. 4.The Appeal was heard by way of Written Submissions. Appellant’s Submissions 5.The Appellant only addressed two issues, namely; - The award of Ksh. 2,000,000 on general damages, and future cost of treatment at Ksh. 150,000. 6.On general damages, the Appellant has argued that according to the discharge summary dated 19/04/2021, the only injuries sustained by the plaintiff were fractures of the pelvis, left femur fracture and right humerus. That the rest of injuries pleaded in the plaint was not corroborated by documentary evidence and should be discarded. 7.The Appellant further Submits that in the light of the said injuries the award of Ksh. 2,000,000 for pain and suffering was manifestly excessive. The Court is urged to consider the laid down principles in assessing damages as set out in the following decided cases: -a.Butler vs. Buther [1984] KLR 225.b.Kigaraani vs. Aya [1982-88], KAR 768.c.Simon Taveta vs. Mary Njeri [2014] eKLR.d.Mbaka Nguru & Ano vs. James George[1998]eKLR. 8.The Appellant then proposes an award of between Ksh. 400,000. For comparative purposes, they have cited the case of Daniel Owino & Ano vs. Elizabeth Otieno [2020] KEHC 4895 (KLR) where the award was Ksh. 400,000; the case of Joseph Mwangi vs. Joyce Nowele (2018) eKLR where the damages was Kshs. 700,000; Barnabas vs Ombati [2022] KEHC 12136 (KLR) where the Appellant Court upheld Ks. 800,000 and finally the case of Daneva Heavy Trucks & Anor vs. Chrispine Otieno where Ksh. 800,000 was awarded. 9.On the costs of future medical treatment, it is submitted that the award of Ksh. 150,000 was too excessive. That the expert who made the above estimate was a Clinical Officer, yet on the other hand the estimated of 80,000 was made by a qualified Doctor. It is further submitted that the estimate of Ksh. 80,000 is more recent. The Court is therefore urged to reduce the award to Ksh. 80,000. Respondent’s Submissions. 10.On the injuries sustained, the Respondent submits that the discharge suffering cannot be the only basis for ascertaining injuries; That as testified by the Doctor, he arrived at his findings upon examining the Respondent in person, the P3 form, the treatment notes and having looked at the x-rays. That the same Doctor holds a degree in Clinical Medical and Surgery. It is further pointed out that the Appellant’s own Doctor estimated the permanent disability at 35%. 11.The Respondent further submits that the allegation of extra injuries pleaded in the plaint, is an afterthought as the same was never raised in the lower court; that the trial Magistrate considered all relevant consideration; and finally, that the award was fair. In defence of the award of Ksh. 2,000,000 the Respondent was relied on the decision of Penninah Waithira vs. LP(2019] eKLR where the Court awarded Ksh. 2,000,000 and the case of Millicent Otieno vs. Katula Richard[2015] eKLR, where a similar awards were made. 12.On the cost of future medical treatment, it is submitted that the estimate was made by Dr. P.K. Mwangi who is a qualified medical practitioner. It is further submitted that the Appellant has failed to demonstrate that the award was inordinately high. Analysis & Determination. 13.The duty of this Court as the 1st Appellant Court is well-settled. It is to review the evidence, carry out its own analysis and make its own findings. ( see: Selle and Another v Associated Motor Boat Company Ltd and Others [1968] EA 123 ) 14.Though the Appellant had stated that he is appealing against the whole judgment, it is evident from both the grounds of Appeal and his submissions that his only complaint is in respect to the award on damages. In particular the trial court is being faulted on huge awards on general damages and the cost of future treatment. Consequently, the only issues for determination by this Court are:a).What were the extent of the injuries.b).Whether the award on general damages was excessive.c).Whether the award on future medical expenses was excessive. Extent of the injuries 15.This issue has not been raised in the memorandum of Appeal. It was only raised in the Submissions. However, it is evident from the respondent’s submission that he has taken note of this issue and has responded to it. Thus, since the Respondent has not only had Notice but has opted to respond, court will make it an issue for determination. 16.It is the Appellant’s case that the only injuries proved were those contained in the discharge summary, which injuries were indicated as: fractures of the pelvis, the left femur and right numerus. 17.The key witnesses who testified on the injuries the respondent is said to have sustained were the two Doctors, each representing either side. The Respondent’s Doctor appeared in court and testified (PW3) . However, the other report was produced without calling the maker. 18.I have perused the proceedings and I have noted that the plaintiff’s doctor (PW3) who is the one who came to court was not put to task on what the Appellant is referring to as extra injuries. This is the witnesses who should have been held into account. The Appellant’s counsel did not challenge him. I agree with the respondent that the issue is being raised only in the Appeal as an afterthought. 19.The only major injury missing in the discharge summary is the fracture of the wrist. PW 3 told the Court that he viewed the x-ray and confirmed the existence of the fracture. He also observed that there was deformity of the same wrist. The Appellant’s Doctor, in h also noted the deformity of the wrist and made sure that the observation appeared in his report. Finally the trial Magistrate made a note to the effect that he noticed the deformity (Par. 3 at Page 143 of the Record of Appeal.) 20.In view of all the aforestated observations I have no reason therefore to doubt Dr. P.K. Mwangi’s report. Was the award excessive 21.The Appellant has submitted that the award should be between Ksh. 400,000 to Ksh. 600,000 based on the Authorities he has cited . The injuries in the cited cases were however less severe. In Daniel Otieno’s case (Supra) for instance the claimant had suffered a compound fracture of tibia and fibula and soft tissue injuries. In Joseph Mwangi (Supra) the fractures were two, involving the femur tibia /fibula. The Court awarded Ksh. 800,000, and the decision was made 8 years ago. In Barnabas Ombati (Supra) the award was Ksh. 800,000, it involved three fractures, and the decision was made in 2022 22.I have also considered the Respondent’s authorities. The case of Pennina Waithira (Supra) involved multiple fractures of the pelvis and raptured urethra. The claimant had been subjected to two surgeries and according to the two doctors who examined him, the problem with the Urethra was likely to recur. I am of the view that based on the prognosis made by Doctor in the cited case, the injuries were slightly more severe than the present case. In the case. of Millicent Otieno(supra), permanent disability was assessed at 40% and the fracture caused some separation to the pelvis. The Court awarded 2,000,000. I hasten to state that much as the decision in Millicent’s case is persuasive, this court is not bound by it. 23.In the present case the main injuries were the fracture of the femur, multiple fractures of the pelvis, fracture of the wrist and fracture of the humerus bone, and with permanent disability of 35%.I have considered the following past decisions with fairly similar injuries and I am persuaded by the same:-a.Mwaura Muiruri vs. Suera flowers Ltd & Ano [2014] KEHC 6761 (KLR) The Court awarded Ksh. 1,450,000 in 2019 for comminuted fractures of the right humerus and compound fractures of tibia & fibula plus multiple soft tissue injuries.b.In Ochiel & Ano vs. Musyoki [2024] The Court awarded Ksh. 1,000 for fairly similar injuries. 24.I am further persuaded by the decision of J. Ngugi in Magwina Akonya vs. Samuel Kairu chege where he observed that the prevailing condition of Kenya today and ensuring uniformity in the award of damages must be considered. 25.Taking into consideration the above cited decisions and the factors of inflation, I consider the award of ksh. 2, 000,000 to have been excessive, and an award of ksh. 1,800,000 would have been a fair estimate. I award the same. Cost of future treatment. 26.The Appellant’s Doctor opined that 80,000 would be adequate while the Respondent’s proposed. Ksh. 150,000. The Appellant has argued that the former estimate is persuasive as it was made by a fully qualified Doctor. I donot know the basis of that assertion. Looking at the two proposals I will take the estimated average of Ksh. 120,000, and award this figure. 27.In conclusion: -a)The award of Ksh. 2,000,000 in general damages is hereby set aside, and substituted with Ksh. 1,800,000.b).The cost of future treatment of Ksh. 150,000 is hereby set aside and substituted with Ksh. 120,000.c).The award will attract interest from the date of the judgment at the trial court.d).The Appellant shall have the costs of this Appeal. DATED, SIGNED AND DELIVERED VIRTUALLY , AT ISIOLO, THIS 28TH DAY OF MAY 2026S. CHIRCHIRJUDGEIn the presence of:-Roba Katelo -Court AssistantMr. Kipngetich for the AppellantMs Maina for the Respondent