https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10053

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEAL NO. E1209 OF 2023** **MUSYOKI KISANGAU………………..…………………….APPELLANT** **VERSUS** **HUMPREY NJOROGE KARIUKI ………………………RESPONDENT** **(*Being an appeal from the Judgment of Honourable Wendy Micheni, Chief Magistrate (as she then was), which was delivered on 13th October 2023 in Milimani Commercial Chief Magistrate’s Court Civil Case Number E3414 of 2022)*** **JUDGMENT** 1. Before the court is a Memorandum of Appeal dated 10th November 2023 seeking orders that: 2. ***The appeal be allowed.*** 3. ***The judgment issued on 13th October 2023, in E3414 of 2022, be set aside and that the court proceeds to assess the general damages and diminished earning capacity.*** 4. ***Costs of the appeal be awarded to the appellant.*** 5. The grounds of the appeal set out are: 6. ***That the learned magistrate erred in law and in fact by failing to appreciate the gravity of the injuries sustained by the appellant and hence awarded minimal damages.*** 7. ***That the learned magistrate erred in law and in fact by awarding minimal damages for diminished earning capacity.*** **Background of the Appeal** 1. The appellant instituted the case vide a plaint dated 24th June 2022 seeking special damages of Kshs 122,760, future medical expenses of Kshs 80,000, general damages, diminished earning capacity, and costs of the suit. The plaintiff, appellant herein, blamed the respondent, the driver of motor vehicle KBS 943 F, for negligent driving, causing the accident that occasioned the appellant severe personal injuries. The particulars of injuries outlined were: open fracture of the right tibia and fibula, extensive skin and muscle loss on the right leg, fracture of the right tibia and fibula and a permanent disability of 26%. 2. In response to the plaint, the defendant, respondent herein, filed a statement of defence dated 15th July 2022 denying the allegations in the plaint and putting the plaintiff to strict proof thereof. The defendant blamed the plaintiff for the occurrence of the accident and outlined the plaintiff’s particulars of negligence: walking on the road, failing to walk on the pavement, crossing the road in an area not designated for pedestrians, not being observant and not taking any steps to avoid the accident. 3. The plaintiff filed a reply to the statement of defence dated 25th July 2022, stating that the statement of defence was fatally defective for want of compliance with Order 5 of the Civil Procedure Rules and was due for an order striking it out. 4. **PW-1** testified on oath and stated that the accident occurred on the 19th October 2022 and it involved three motor vehicles. He stated that he blamed motor vehicle KBS 943 for the accident. He stated that the degree of injury was grievous harm. He stated that the plaintiff had gone to assist the driver of motor vehicle KCK 012X, who appeared injured when he was sandwiched. 5. Upon cross-examination, he stated that the plaintiff was not on his motorcycle when he was injured. He stated that the driver of KBS 943 was blamed for the accident. 6. PW-2 testified on oath and adopted his witness statement as his evidence in chief. He produced his documents as per the list dated 24th June 2022. 7. Upon cross-examination, he stated that the driver was drunk and asleep. He stated that he lost consciousness when he was hit. 8. Humprey Njoroge (DW-1) testified on oath and adopted his statement as his evidence in chief. 9. Upon cross-examination, he stated that he did not produce his driving license as evidence. He stated that he was driving at 70km/hr. He stated that he applied emergency brakes, but unfortunately, the vehicles collided. 10. The plaintiff filed written submissions dated 28th August 2023. The plaintiff submitted that the defendant owed him a duty of care as a road user. The plaintiff submitted that the PC Misiani, in his testimony, blamed the defendant for causing the accident. 11. The plaintiff invited the court to be guided by the holding in the matter of ***Nester Shikuru vs Ibrahim Okwiri (2020) eKLR***. Musyoka J, in the above matter, reiterated that the mere fact that a driver involved in an accident is not charged does not absolve a driver from tortious liability. 12. The plaintiff urged the court to enter judgment in his favour and award general damages of Kshs 4,000,000/= for pain, suffering and loss of amenities and special damages of Kshs 122,760/=. 13. After hearing the parties, Hon. Wendy Micheni CM (as she then was) delivered judgment in favour of the plaintiff in the following terms: general damages of Kshs 650,000/=, diminished earning capacity of Kshs 800,000/=, future medical expenses of Kshs 80,000/=, special damages of Kshs 122,760/=, cost of the suit and interest from the date of the judgment. 14. Dissatisfied with the judgment, the appellant lodged this present appeal. **Proceedings at the High Court** 1. The appeal was canvassed by way of written submissions. Both parties filed written submissions that are in the record of this court. 2. The appellant filed written submissions dated 12th September 2025. The appellant submitted that the trial magistrate erred in law and in fact by failing to appreciate the gravity of injuries sustained by the appellant, hence awarded minimal general damages. 3. The appellant submitted that he had prayed for damages of Kshs 4,000,000/= but instead the court awarded him Kshs 650,000/= which is on the lower side. The appellant submitted that the court in the matter of ***Michael Murage vs Atieno Ndwala (2019) eKLR,*** the court awarded Kshs 2,000,000/= and that due to inflation and the permanent disability of 26%, general damages of Kshs 4,000,000/= would be sufficient. 4. The appellant submitted that the trial magistrate erred in fact and in law by awarding minimal damages for diminished capacity of Kshs 800,000/=. The appellant submitted that at the time the accident occurred, he was 32 years old and that he would have worked until the age of seventy (70) since his job did not require retirement age. 5. The appellant filed supplementary submissions dated 5th February 2026. The appellant submitted that the magistrate was guided by the general damages awarded in the ***Daniel Otieno Owino & Another v Elizabeth Atieno Owuor eKLR,*** in which the plaintiff sustained lesser injuries than the ones suffered by the appellant herein. 6. The respondent filed written submissions dated 19th September 2025. The respondent submitted that the award of general damages is at the court’s discretion. The respondent submitted that courts are guided by the principle that comparable injuries require comparable awards. The respondent submitted that the trial court correctly followed jurisprudence on similar injuries and that the awards issued were not erroneous. 7. The respondent submitted that the documents presented by the appellant made it difficult for the court to use the multiplier approach since the appellant’s monthly earnings could not be sustained. The respondent urged the court to uphold the trial court’s ruling. **Analysis and Determination** 1. I have carefully considered this memorandum of appeal, the record of proceedings before the lower court, as well as the written submissions filed by the appellant. 2. This is a first appeal. It is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced before the trial court, both on points of law and fact, and come up with its findings and conclusions. 3. In the matter of **Gitobu Imanyara v Attorney General (2016) eKLR,** it was held as follows: ***‘’An appeal to this court is by way of a retrial, and the principles upon which this court acts in such an appeal are well settled. This court must reconsider the evidence, evaluate it itself and draw its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.’’*** 1. The issue arising for determination before this court is: 2. ***Whether the trial court’s assessment of general damages for pain, suffering and loss of amenities was reasonable.*** 3. ***Whether the trial court’s assessment of damages for diminished capacity was reasonable.*** 4. ***Who bears the cost of the appeal?*** 5. The trial court found the respondent 100% liable for the occurrence of the accident. Having established that, it awarded damages on the various headings as sought by the appellant. The only question for determination in this appeal is on the quantum of general damages and damages for diminished capacity. The appellant maintains that the trial magistrate did not follow the established principles on award of damages. 6. In the case of **H West and Son Limited v Shepherd [1964] AC** the court stated that money cannot renew a physical frame that has been battered and shattered. It was stated that nonetheless there is hope in that all that judges can do is to award sums that must be regarded as giving reasonable compensation and that the amounts which are awarded are to a considerable extent conventional. 7. General damages are awarded at the discretion of the court. In the case of **Stanley Maore v Geoffrey Mwenda [2004] eKLR** the court pronounced itself follows regarding damages in accident matters: *‘’We must consider awarding damages in light of the injuries sustained. It has been stated that, in assessing damages, the general approach should be that comparable injuries, should as far as possible, be compensated by comparable awards, keeping in mind the correct level of similar awards.’’* 1. Therefore, the damages awarded must reflect the trend of previous recent and comparable awards*.* 2. The particulars of the injuries suffered by the appellant are: 3. Compound open fracture of the right tibia 4. Compound open fracture of the right fibula 5. Extensive skin and muscle loss on the right leg 6. Fracture of the left tibia 7. Fracture of the right fibula 8. Permanent disability of 26% 9. The appellant sought general damages of Kshs 4,000,000/=, but the trial court awarded him Kshs 650,000/=. The appellant submitted that the ***Otieno Owino case (Supra)***, which the trial court relied on to award damages, was not comparable to the present case. He submitted that in the cited case, the plaintiff suffered less severe injuries. 10. The appellant invited the court to be guided by the determination in the case of **Shreeji Enterprises Limited vs John Mungai Chai (2020) eKLR*,*** where the plaintiff was awarded Kshs 2,000,000/=. The plaintiff submitted that due to inflation, Kshs 4,000,000/= would be sufficient years later after the decision was rendered. 11. In the case of **James Gathirwa Ngungi v Multiple Hauliers Limited [2015] eKLR** the plaintiff was awarded Kshs 1,500,000/= after sustaining fractures of the right tibia and right fibula, head injury, bruises on both hands, facial injuries and lacerations and fracture on the right leg. 12. After carefully evaluating the medical evidence tendered in support of the plaintiff’s case and comparable awards, I find that an award of **Kshs 1,500,000/=** as general damages for pain, suffering and loss of amenities is reasonable, taking into account the inflationary trend of our economy. 13. On diminished capacity, the appellant had submitted for an award of Kshs 2,000,000/=. The trial magistrate awarded a global sum of Kshs 800,000/=. The appellant submitted that he was involved in the accident at the age of 32 and that he would have worked for long time since his job did not have retirement factors. 14. In the case of ***Lavuta vs Kalengo (2022) eKLR*** the court outlined the ingredients for a successful award of diminished capacity to be: 15. *A permanent injury which has some adverse effects on his employability.* 16. *Establish disability from a particular job.* 17. *Establish permanence of the non-obvious injury from an expert’s testimony.* 18. *Once permanence is established, balance of the foundation for the diminished earning capacity claim can be provided by the plaintiff himself or a co-worker.* 19. The monthly earnings of the appellant herein could not be established. As such, would not have been appropriate to use the multiplier approach in assessing the damages. The court resorted to a global sum award approach. 20. Taking into consideration the age of the appellant, the fact that he lost his job and suffered a 26% disability as per the medical records in the record of appeal, I find that a global award of **Kshs 1,200,000/=** would be sufficient. 21. There was no contestation of the awards for special damages and future medical expenses. I will therefore not interfere with the said awards. 22. In conclusion, I find that the appellant’s appeal has merit. Consequently, I do hereby set aside the judgment of the trial court on quantum and substitute therefor the following awards: 23. ***General damages for pain and suffering Kshs. 1,500,000/=;*** 24. ***Damages for diminished capacity Kshs.1,200,000/=;*** 25. ***Special damages of Kshs.122,760/= remain as awarded;*** 26. ***Future Medical expenses of Kshs.80,000/=;*** 27. ***Each party shall bear its own costs for the appeal*.** ***Dated, signed and delivered virtually at Nairobi this 9th day of July 2026.*** **DAVID MBURU** **JUDGE** **In the presence of** M/s Omboko for appellant Ms Odero for Respondent Kalondu – Court Assistant