https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9416

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CIVIL APPEAL NO. E064 OF 2025** **JULIANA WAMBUI MWAI ............................................................ 1ST APPELLANT** **RICHARD M. WAMBUGU ........................................................... 2ND APPELLANT** **VERSUS** **CAROLINE WAWIRA NJIRU ......................................................... RESPONDENT** *(Being an appeal from the Judgment of the Honourable Magistrate Mary Kamau delivered on 26th September, 2024 in Thika Small Claims Court in Civil Case No. E559 of 2023)* **JUDGMENT** 1. The wheels of justice may turn slowly, but they grind exceedingly fine. Before this Court is a first appeal challenging the Judgment and Decree of the Small Claims Court at Thika by Hon. M. Kamau, Adjudicator delivered on 26th September 2024. The Appellants herein seek to overturn the said judgment, particularly decrying the quantum of damages awarded to the Respondent, which they vigorously contend is inordinately high and an erroneous estimate of compensation. **BACKGROUND** 1. The factual matrix giving rise to this dispute traces back to the fateful day of 6th June 2021. The Respondent was a lawful passenger aboard a motor vehicle registration number KCK 374B, owned by the 2nd Appellant which was unfortunately hit on its rear side by motor vehicle registration number KCE076Y at Ngarariga area within Limuru Sub-County. While alighting from the same motor vehicle, registration number KCE 076Y, which is owned by the 1st Appellant rammed into the rear of the vehicle she was alighting from for the second time. 2. The impact of this collision caused the body parts of the motor vehicle to fall on the Respondent, resulting in severe bodily injuries. According to the Medico-Legal Report prepared by Dr. G.K. Mwaura, the Respondent sustained a deep cut wound on her left thigh requiring skin stitching, cut wounds and bruises on her forehead and bruises on both legs. 3. Following a full trial, the learned Adjudicator found both the 1st and 2nd Appellants equally culpable for the accident, apportioning liability at 50:50. The trial court further awarded the Respondent Kshs. 300,000/= in General Damages for pain and suffering and Kshs. 26,390/= in Special Damages, culminating in a total award of Kshs. 326,390/= **THE APPEAL** 1. Aggrieved by this outcome, the Appellants filed their Memorandum of Appeal dated 11th March 2025, raising five cardinal grounds: 2. *The learned magistrate erred in law and in fact in failing to appreciate the principle available for consideration in awarding apportionment of liability which led to an erroneous assessment of damages resulting in an award of damages so inordinately high as to represent an entirely erroneous estimate of the compensation to which the Respondent was entitled.* 3. *The learned magistrate erred in law and in fact in awarding excessive and undeserved sum of Kshs. 326, 390/= to the Respondent as general damages for the injuries sustained.* 4. *The learned magistrate erred in law and in fact by failing to consider conventional awards for general damages in cases of similar injuries and awarded general damages for pain and suffering which is very high.* 5. *The learned magistrate erred in law and in fact by failing to consider the Appellant's submissions and judicial authorities on quantum thereby arriving at an erroneous figure on quantum.* 6. *The Judgment was against the weight of evidence.* **THE DUTY OF A FIRST APPELLATE COURT** 1. A first appeal is not merely a cosmetic exercise but a rigorous re-examination of the record. It is a well-trodden path in our jurisprudence that the duty of a first appellate court is to reconsider the evidence adduced before the trial court, re-evaluate it and draw its own independent conclusions. The court must, however, bear in mind that it did not have the distinct advantage of seeing and hearing the witnesses testify. 2. The High Court in **Faulu Kenya Dtm Limited v James Simatei Kendagor [2013] KEHC 5901 (KLR)**reiterated this strict mandate by aptly stating: **“ It is now settled principle that the duty of the first appellate court is to reconsider the evidence of the trial court, re-evaluate it and make its own conclusions... Again an appellate will not normally interfere with a finding of fact by the trial court unless it is based on no evidence or on misapprehension of the evidence or the trial court acts on wrong principles in arriving at its findings”** **ISSUES FOR DETERMINATION** 1. Having carefully perused the record of appeal, the written submissions, and the impugned judgment, the singular overarching issue that crystalizes for determination is: 2. Whether the trial court's award of Kshs. 300,000/= as general damages was so inordinately high as to warrant this Court's interference. **ANALYSIS AND DETERMINATION** 1. I will briefly touch on the issue of liability, though the Appellants’ submissions seemingly abandoned a rigorous attack on it, choosing instead to train their guns on quantum. The trial court apportioned liability at 50:50. The Respondent was an innocent passenger caught in the crossfire of the Appellants' negligence. In law, an innocent passenger is entitled to 100% liability against the tortfeasors. As the old adage goes, "it takes two to tango." The first vehicle drove carelessly on the road and the second vehicle failed to maintain a safe braking distance, ramming into the former. The magistrate’s finding on equal culpability is anchored on sound evidence and I find no reason whatsoever to disturb it. 2. This brings me to the gravamen of the appeal: Quantum. The Appellants argue that the award of Kshs. 300,000/= for General Damages is excessively high. It is trite law that the assessment of damages is at the discretion of the trial court. An appellate court will not use a fine-tooth comb to lightly interfere with such discretion unless satisfied that the judge acted on wrong principles of law, took into account irrelevant matters, or that the amount awarded is so inordinately high or low that it must be a wholly erroneous estimate of the damage. 3. He who wears the shoe knows where it pinches. The Respondent suffered a deep cut wound on her left thigh anteriorly that necessitated surgical intervention, degloving and suturing, alongside head bruises and recurring headaches. She spent weeks admitted at Kiambu Level 5 Hospital. Pain and suffering cannot be subjected to mathematical precision, yet the courts must strive to arrive at a fair and reasonable compensation that is neither punitive to the Respondent nor a windfall to the Claimant. 4. In arriving at its figure, the trial court appropriately guided itself using comparable jurisprudence, noting the case of **Omondi v Anzofu (Civil Appeal 04 of 2020) [2024] KEHC 2675.** Further, the Respondent, in her submissions before the lower court, successfully cited **Wycliffe Lumula Mmasi v Ernest Waithaka & Another (2020) eKLR,** where an award of Kshs. 800,000/= was upheld for a degloving injury. Against this backdrop, an award of Kshs. 300,000/= for the severe injuries sustained by the Respondent is not only reasonable but arguably conservative. 5. The Appellants have failed to demonstrate that the trial Adjudicator acted on wrong principles, misapprehended the evidence, or that the award induces a sense of shock. Accordingly, I find that the award of Kshs. 300,000/= as general damages is fair, just and commensurate with the injuries sustained. **ON COSTS** 1. It is a fundamental principle of our civil procedure that costs follow the event, unless the court, for good reason, directs otherwise. 2. Section 27 of the Civil Procedure Act vests this Court with the discretion to award costs, a discretion that must be exercised judiciously. It specifically provides that: **“Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge, and the court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers:** **Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.”** 1. The Respondent, having successfully defended this appeal, is rightfully entitled to the costs thereof. **DETERMINATION** 1. In the upshot, I find that this appeal lacks merit and I make the following final orders: 2. The Appellants' Appeal dated 11th March 2025 is hereby dismissed in its entirety. 3. The Judgment and Decree of the Small Claims Court at Thika in Civil Case No. E559 of 2023 delivered on 26th September 2024 is wholly upheld. 4. The Respondent shall have the costs of this Appeal. **IT IS SO ORDERED.** **Dated and delivered at Nairobi this 2nd Day of July, 2026.** **BENARD WAFULA MURUNGA** **JUDGE OF THE HIGH COURT** *Delivered on virtual platform in the presence of:* *In the presence of:* *Kimotho h/b for Mwangi instructed by KRK Advocates for the Appellants* *Mumo instructed by Mumo & Associates for the Respondent* *Kevin Babu - Court Assistant*