https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10073

Musyoki & another v Muindi (Civil Appeal E096 of 2024) [2026] KEHC 10073 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 10073 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E096 of 2024 EO Bitta, J July 2, 2026 Between Alphonce Mbinda Musyoki 1st Appellant Phylis Mutheu Mbinda 2nd Appellant and Elvis Zakayo Muindi Respondent (Appeal dated 28th March 2024, challenging the judgment of the Principal Magistrate's Court at Machakos (Hon. Hellen Masika Mbati) delivered on 5th March 2024 in Machakos MCCC No. E117 of 2023.) Judgment 1.The 1st and 2nd Appellants filed this appeal vide a Memorandum of Appeal dated 28th March 2024, challenging the judgment of the Principal Magistrate's Court at Machakos (Hon. Hellen Masika Mbati) delivered on 5th March 2024 in Machakos MCCC No. E117 of 2023. 2.The Appellants raised the following grounds of appeal:i.The learned trial magistrate erred in law and fact by failing to consider and find that the Appellants had established a prima facie case with a high probability of success.ii.The learned trial magistrate erred in law and fact by failing to consider that the Respondent allegedly sustained injuries, all of which had healediii.The learned trial magistrate erred in law and fact by failing to appreciate the principle that comparable injuries should, as far as possible, attract comparable awards, while bearing in mind that no two cases are exactly alike.iv.The learned trial magistrate erred in law and fact, and misdirected herself, by awarding an excessive and inordinately high sum of Kshs. 2,500,000/= as general damages, and by failing to be guided by comparable awards for similar injuries.v.The learned trial magistrate erred in law and fact by failing to judiciously analyse the evidence on record, thereby arriving at a quantum that was erroneous, untenable, unfair, and unjust to the Appellants.vi.The learned trial magistrate erred in law and fact by failing to consider that compensatory damages are intended to indemnify the victim for the loss suffered and not to punish the tortfeasor. 3.On the issue of quantum, the Appellants submitted that it is settled law that comparable injuries should attract comparable awards, while acknowledging that no two cases are exactly alike. 4.They relied on Alphonce Odero Augo v Sinihydro Corporation Limited (2017) eKLR and Stanley Maore v Geoffrey Mwenda, Civil Appeal No. 147 of 2002 (2004) eKLR. 5.The Appellants further submitted that compensatory damages are intended to indemnify a victim for losses suffered rather than to punish the tortfeasor. 6.In support of this proposition, they relied on FM (Minor Suing Through Mother and Next Friend MWM) v CJNM & Another (2020) eKLR. 7.They also cited Jesky Enterprises Limited & Another v Nancy Wachinga Wanjiru & Another (2019) eKLR, wherein the court approved the holding in Kigaraari v Aya (1982–88) KAR 768 that:“Damages must be within the limits set out by decided cases and also within the limits that the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.” 8.The Appellants relied on Barnabas v Ombati (2022) KEHC 12136 (KLR), where the respondent sustained a head and chest contusion, bruises on the right hand and waist, and fractures of the right femur, right humerus, and pelvis. The trial court awarded Kshs. 800,000/= in general damages, which award was upheld on appeal. 9.They also cited Nyatera v Nyakundi (2023) KEHC 24532 (KLR), where the respondent sustained blunt trauma to the neck, bruises on both upper limbs, a compound fracture of the right tibia, right intertrochanteric fracture, right femur shaft fracture, left bicondylar tibial plateau fracture, and pulmonary contusion. 10.The appellate court found that the trial court had awarded an inordinately high sum of Kshs. 1,400,000/= and consequently reduced the award to Kshs. 900,000/=. 11.Further reliance was placed on Batti v Katana (2023) KEHC 21300 (KLR) and Kerandi & Another v Okongo (Civil Appeal No. E028 of 2023) (2024) KEHC 3823 (KLR). 12.Based on the foregoing authorities, the Appellants urged the Court to reduce the award of general damages to Kshs. 800,000/=, which they contended would constitute adequate compensation for the Respondent. 13.Regarding special damages, the Appellants submitted that such damages must be specifically pleaded and strictly proved, citing Gitobu Imanyara & 2 Others v Attorney General (2016) KECA 557 (KLR). 14.They contended that whereas the trial court awarded Kshs. 380,728/= as special damages, the Respondent only proved Kshs. 296,159/= through documentary evidence. 15.On costs, the Appellants relied on Section 27(1) of the Civil Procedure Act and submitted that costs follow the event. They therefore prayed for the costs of the appeal. 16.The Respondent addressed the duty of a first appellate court by relying on Munyu Maina v Hiram Gathiha Maina (2013) KECA 94 (KLR), wherein the Court cited with approval the celebrated decision in Selle v Associated Motor Boat Co. Ltd (1968) EA 123. 17.The Respondent also cited Jabane v Olenja (1986) KLR 661, where the Court held that an appellate court will not lightly interfere with findings of fact made by a trial court unless such findings are based on no evidence or are founded on wrong principles. 18.The Respondent submitted that the Appellants' contention that the trial court failed to consider that they had established a prima facie case was misconceived. 19.According to the Respondent, the trial court carefully evaluated the pleadings, testimonies, and submissions before arriving at its judgment. 20.It was submitted that the award on quantum was properly supported by both oral and documentary evidence. 21.The Respondent called Dr. Kimuyu, a qualified surgeon, who examined him and prepared the medical report produced as Exhibit 2. 22.The medical report, together with the P3 Form, substantiated the injuries sustained by the Respondent. 23.The Respondent further argued that the Appellants did not subject him to a second medical examination and therefore the medical evidence on record remained unchallenged. 24.The Respondent submitted that the award of Kshs. 2,500,000/= was justified by the severity and multiplicity of the injuries sustained, all of which were supported by medical evidence. 25.The Respondent testified as PW3 and stated that he sustained the following injuries:a.Fractures of the left 5th, 6th, 7th and 8th ribs with hemothorax;b.Lung contusion;c.Fracture of the left clavicle;d.Fracture of the right supracondylar humerus;e.Blunt chest injury;f.Degloving wound at the right elbow;g.Fracture of the head of the femur and right acetabulum; andh.Blunt injury to the right pelvis. 26.It was further submitted that the Respondent underwent multiple surgical procedures to treat the fractures sustained and would consequently live with permanent disfiguring scars for the remainder of his life. 27.The Respondent maintained that the trial court properly relied on comparable authorities, while taking into account prevailing economic conditions, inflation, and the cost of living. 28.The Respondent argued that injuries differ in nature and severity from one individual to another. Reliance was placed on Geoffrey Mwaniki Mwinzi v Ibero (K) Limited & Another (2014) KEHC 8139 (KLR), where the court held that an award of Kshs. 2,500,000/= for pain, suffering, and loss of amenities was reasonable in light of the injuries sustained and the prolonged hospitalization of the claimant. 29.On special damages, the Respondent submitted that he specifically pleaded and strictly proved the same through the production of receipts. 30.He referred the Court to Exhibit No. 4 in his List of Documents dated 10th March 2023 and to the Amended Plaint dated 6th September 2023. 31.In conclusion, the Respondent drew the Court's attention to Mkube v Nyamuro (1983) eKLR, where Kneller JA and Hancox Ag JA held that an appellate court will not ordinarily interfere with findings of fact unless they are based on no evidence, a misapprehension of the evidence, or a demonstrable misapplication of legal principles. 32.The Respondent therefore prayed that the appeal be dismissed with costs for want of merit. 33.Having considered the Memorandum of Appeal, the Record of Appeal, and the submissions of the parties, the following issues arise for determination: 34.Whether the trial court applied the correct principles in the assessment of general damages, and whether the award of Kshs. 2,500,000/= for pain, suffering, and loss of amenities was inordinately high to warrant interference by this Court. 35.Whether the Respondent specifically pleaded and strictly proved special damages, and, if so, whether the award of Kshs. 380,728/= was supported by the evidence on record. 36.Whether the Appellants have established sufficient grounds to justify appellate interference with the findings and awards of the trial court. 37.Who should bear the costs of the appeal. 38.This being a first appeal, this Court is enjoined to re-evaluate and re-analyse the evidence on record and draw its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. 39.However, the Court must also exercise restraint and should not interfere with findings of fact unless they are based on no evidence, are founded on a misapprehension of the evidence, or the trial court demonstrably acted on wrong principles of law. 40.The principles upon which an appellate court may interfere with an award of damages are equally settled. 41.An appellate court will only disturb an award where it is shown that the trial court took into account an irrelevant factor, failed to take into account a relevant one, proceeded on wrong principles, or that the award is so inordinately high or low that it represents an entirely erroneous estimate of the damage suffered. 42.The trial magistrate in awarding damages was guided by the decision of the Court in Florence Hare Mkaha v Pwani Tawakal Mini Coach and another (2012) eKLR, which was decided in 2012. 43.In that case as was stated in the judgment of the trial court, the court granted an award of Kshs 2,040,000/- as general damages for fractures of the right superior and inferior ramus pubis, fracture of ischium, fracture of the left acetabulum, fracture lateral condlyl of femur, dislocation left knee with torn collateral ligament, skin grafting surgery on left leg and left leg shortened by 4 cm, the court also took into account inflation and cost of living and awarded kshs 2,500,000/- 44.The Respondent suffered multiple severe orthopaedic and thoracic injuries. 45.The injuries are more severe than ordinary fracture cases. 46.I also note that PW1, a medical doctor, testified that the Respondent may need to have implants removed in the future at a cost of kshs 600,000/- for two operations in a private setting since the implants are spread out. 47.Considering all the above, I would have awarded the Respondent more or less what was awarded by the trial court. 48.The law is settled that special damages must not only be specifically pleaded but must also be strictly proved. 49.I have perused the record, and it is apparent that there was not only a specific claim for the special damages (the amended plaint dated 6/09/2023) but proof by way of receipts produced for the awarded amount of kshs 380,728/-. 50.The trial court record goes even further to reflect that the total sum of the receipts for kshs 380,728/- was confirmed by both counsel during the hearing. 51.The Appellants have not demonstrated that the learned trial magistrate misdirected herself on the evidence or applied wrong legal principles. 52.The findings on liability and the assessment of general damages were based on the evidence adduced, the medical reports produced, and the applicable legal principles governing assessment of damages. 53.The mere fact that this Court might have arrived at a different figure is not, by itself, sufficient justification for appellate interference.The upshot is that I find the Appeal lacking in merit and order as follows:A.The Appeal be and is hereby dismissed with costs to the Respondent. DELIVERED VIA MICROSOFT TEAMS, SIGNED AND DATED AT MOMBASA THIS 2ND DAY OF JULY 2026EMMANUEL BITTAJUDGE OF THE HIGH COURTDelivered in the presence of:C/A NechesaMudeizi for the 1st and 2nd AppellantsMutuku for the Respondent