https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9005

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL DIVISION** **CIVIL APPEAL NO. E254 OF 2023** **MICHAEL WAITHAKA MUNYUA.......……………..1ST APPELLANT** **KAKA TRAVELLER SACCO SOCIETY LIMITED……………………….……………………….. 2ND APPELLANT** **ASSUMPTER WANAGARI NJENGA………….…...3RD APPELLANT** **-VERSUS-** **PETER MBUGUA KARINGA…..………………..........RESPONDENT** ***(Being an Appeal against on Quantum in the Judgment of Hon. Manuela W. Kinyanjui delivered on*** ***26.06.2023 in*** ***Kiambu CMCC No. 75 of 2018)*** **JUDGMENT** **BACKGROUND** 1. This appeal is in respect of the judgment delivered on 26.06.2023in Kiambu CMCC No. 75 of 2018 (the suit). The same was commenced by way of plaint dated 7th February 2018 filed by **Peter Mbugua Karinga** being the plaintiff in the lower court (hereafter the Respondent) against **Michael Waithaka Munyua**, the 1st defendant in the lower court (hereafter the 1st Appellant), **Kaka Traveller Sacco Society Limited** being the 2nd defendant in the lower court (hereafter the 2nd Appellant), and **Assumpter Wangari Njenga** being the 3rd defendant in the lower court (hereafter the 3rd Appellant). The reliefs sought therein were in the nature of general and special damages arising out of a road traffic accident which occurred on or about 2nd December 2016 along Kiambu- Ndumberi Road near Maandus. The 1st Appellant was sued in his respective capacity as the driver and 2nd and 3rd Appellants as registered owners of **motor vehicle registration No.** **KBY 204(?)** (hereafter the subject motor vehicle). 2. It was alleged that on the material date, the Respondent was lawfully walking along the abovementioned road when the Appellant so negligently and/or carelessly drove, controlled and/or managed the subject motor vehicle that it lost control and hit the Respondent, causing him to sustain bodily injuries particularized as **Blunt injury -neck, Compound fracture-right humerus,** **fracture of the left tibia and fibula-mid 1/3** and **fracture of the left tibia and fibula-upper 1/3**. The particulars of negligence were equally set out under paragraph 7 of the plaint. 3. Having settled the issue of liability in favour of the Respondent against the Appellants at the ratio of 70%:30%, the trial court proceeded to asses and award the Respondent Kshs1,700,000/-as general damages (subject to liability) plus special damages of Kshs 7,150/. 4. The Appellants, being dissatisfied with the trial court’s judgement, filed a Memorandum of Appeal dated 12th July 2023 on the following grounds: 5. The learned magistrate erred in law and in fact when he failed to consider the Appellant’s evidence on points of law and facts on finding the Appellants liable for the accident which is the subject matter of this suit 6. The learned Magistrate’s decision was unjust against the weight of evidence and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice. 7. The learned Magistrate’s decision was unjust against the weight of evidence and was misguided on deciding that the Respondents was entitled to Kshs.1,700,000/ as General Damages and Kshs.7,150/ as special damages which ought to be dismissed. 8. The learned Magistrate erred in law and in fact in awarding excessive and underserved sum of Kshs.1,700,000/- as General Damages and Kshs.7,150/ as Special Damages to the Respondents and liability as against the Appellants at 70%:30% 9. The learned Magistrate erred in law and in fact in unduly disregarding the Appellants’ evidence, submissions and facts produced in assessing liability and quantum to the Respondent 10. That the judgement delivered on 26th June 2023 be set aside and damages be assessed afresh. That this Honorable court re-assesses the extent of General Damages and reduce the same. **SUBMISSIONS ON THE APPEAL** 1. The appeal was canvassed by way of written submissions. However, I note that the Appellant did not file any submissions. 2. The Respondent through his Counsel on record defended the trial court’s findings in their totality. Counsel upon reiterated that the appeal lies solely against quantum. He anchored his submissions on the decision in **Selle Vs Assosciated Motor Boat Company (1968) EA 126b** where the court set out the principles for consideration by an appellate court in determining whether to interfere with the award made by a trial court. Counsel supports the award made by the trial court on general damages, arguing that the same was made on the foundation of the medical evidence adduced during trial, the severity of the injuries and the written submissions of the authorities cited. 3. The Respondent further argued that the award made by the trial court was justified and within the range of awards made in respect of comparable injuries. The Respondent cited the following authorities in support of his case; **George William Awuor v Beryl Awuor Achieng (2020)** where the court awarded a sum of Kshs. 1,200,000/- to a plaintiff who had suffered a fracture to the right femur(simple) and (left tibia fibula(compound), **Francis Ndungu Wambui & Anor Vs VK Minor 2019 (KLR)** where an award of Kshs. 1,000,000/- was made in respect of soft tissues injuries to the upper limbs, compound fracture of distal tibia fibula shaft as well as loss of consciousness in 2019, and **George Njenga & another V Daniel Wacira Mwangi 2017** where the High Court upheld an award of Ksh.800,000 for a plaintiff who sustained a fracture of the pelvic, unstable left knee joint and soft tissue injuries to the chest. 1. In summation, the Respondent submitted that the trial court considered the legal principles that awards on damages should be reasonable, assessed with moderation, conventional and comparable, and that inflation factors should be considered and urged the court to uphold the award. **ANALYSIS AND DETERMINATION** 1. The court has considered the original trial court record, the record of appeal and the submissions on record plus the authorities cited in support thereof. As a first appellate court, the duty of this court is to re-evaluate the evidence and draw its own conclusions, but always bearing in mind that it did not have the opportunity to see or hear the witnesses testify. See **Peters v Sunday Post Limited (1958) EA 424; Selle and Another v Associated Motor Boat Co. Limited and Others (1968) EA 123** and **Williams Diamonds Limited v Brown (1970) EA 1**. 2. The Court of Appeal in **Ephantus Mwangi and Another v Duncan Mwangi Wambugu (1982) – 88) 1 KAR 278** stated that: **“A court of appeal will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on a misapprehension of the evidence or the Judge is shown demonstrably to have acted on wrong principles in reaching the findings he did.”** 1. Upon review of the memorandum of appeal and submissions on record, it is apparent that the appeal turns solely on the issue of quantum, namely the awards made under the heads of general damages and special damages. The court will first address the award made on general damages. 2. The main contention raised by the Appellants concerning general damages in particular, is that the same is excessive and undeserved and was awarded by unduly disregarding the Appellant’s evidence, submissions and facts produced in before the trial court. 3. In that respect, the Court of Appeal in **Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55** set out the circumstances under which an appellate court can interfere with an award of damages, in the following terms: **“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”** 1. The same court previously stated in **Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] I KAR 5** 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. In assessing general damages, the trial court considered the nature and extent of the injuries sustained by the Respondent, the medical evidence on record and the authorities cited by the parties. The court awarded a sum of Kshs.1,700,000/= as general damages for pain, suffering and loss of amenities. 2. The question for determination is ***whether the award was so inordinately high as to warrant interference by this Court****.* It is settled that comparable injuries should, as far as possible, attract comparable awards, while bearing in mind the passage of time and the prevailing economic conditions. See **Kemfro Africa Ltd t/a Meru Express Service & Another v A.M. Lubia & Another [1982-88] 1 KAR 727** 3. The medical evidence before the trial court showed that the Respondent sustained a blunt injury to the neck, a compound fracture of the right humerus and fractures of the left tibia and fibula. The medical report prepared by Dr. G.K. Mwaura dated 11th December 2017 indicated that the fractures had healed with residual effects and assessed permanent incapacity at 20%. The injuries cannot therefore be described as minor. They involved multiple fractures affecting both the upper and lower limbs and resulted in a degree of 20% permanent disability. 4. In support of the award, the Respondent relied on, inter alia, the case of ***George William Awuor v Beryl Awuor Achieng [2020] eKLR*** where the plaintiff sustained fractures of the right femur and left tibia/fibula and was awarded Kshs. 1,200,000/=, and ***Francis Ndungu Wambui & Another v V.K. (Minor) [2019] eKLR*** where an award of Kshs. 1,000,000/= was made for, among other injuries, a compound fracture of the distal tibia/fibula. 5. Although the Appellants challenged the award as excessive, they did not file submissions before this Court and consequently failed to place before the Court any authorities demonstrating that the award made by the trial court fell outside the acceptable range for comparable injuries. An Appellant who invites an appellate court to interfere with an award of damages bears the burden of demonstrating that the trial court acted on wrong principles or arrived at a wholly erroneous estimate of damages. 6. Upon comparing the injuries sustained herein with those in the authorities cited and taking into account the inflationary trends since the decisions relied upon were rendered, this court is satisfied that the trial court awarded a reasonable and comparable sum on general damages for pain, suffering and loss of amenities. The Respondent suffered multiple fractures, including a compound fracture, and was left with a permanent disability assessed at 20%. In the circumstances, the award falls within the range of reasonable compensation. This court therefore sees no reason to disturb the said award. 7. On special damages, the standing legal position is that they must be specifically pleaded and strictly proved. This position was re-affirmed by the Court of Appeal in **David Bageine v Martin** **Bundi [1997] eKLR**when itstated thus: **“It has been held time and again by this Court that special damages must be pleaded and strictly proved. We refer to the remarks by this Court in the case of Mariam Maghema Ali v. Jackson M. Nyambu t/a Sisera store, Civil Appeal No. 5 of 1990 (unreported) and Idi Ayub Sahbani v. City Council of Nairobi (1982-88) IKAR 681 at page 684:** **“... special damages in addition to being pleaded, must be strictly proved as was stated by Lord Goddard C.J. in Bonham Carter vs. Hyde Part Hotel Limited [1948] 64 TLR 177 thus;** **“Plaintiffs must understand that if they bring actions for damages, it is for them to prove damage, it is not enough to write down the particulars and, so to speak, throw them at the head of the court, saying, ‘this is what I have lost, I ask you to give me these damages, ‘They have to prove it.”** 1. From a glance at the pleadings on record, it is clear that the Respondent pleaded the sum of Kshs.7,150/- under the head of special damages. Upon a re-examination of the evidence tendered by way of medical related receipts as well as the receipt issued to the Respondent as payment for obtaining the copy of records in respect of the subject motor vehicle, the court observes that the same totals to the pleaded sum of Kshs.7.150/-. In the circumstances, the court is satisfied that the trial court acted correctly in awarding the above sum, in line with the above principles pertaining to special damages. **DISPOSITION** 1. This Appeal is found to be lacking in merits and the same is hereby dismissed. 2. The judgment delivered by the learned trial magistrate on 26.06.2023is hereby upheld. 3. The Respondent shall have the costs of the appeal. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 26TH DAY OF JUNE,2026 VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORM** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **MS GATHONI FOR THE APPELLANT** **NO APPEARANCE FOR THE RESPONDENTS** **COURT ASSISTANT:AGGREY OCHIENG**