https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7997

Mweu & another v Mbeke alias Komu (Civil Appeal E005 of 2023) [2026] KEHC 7997 (KLR) (8 June 2026) (Judgment) Neutral citation: [2026] KEHC 7997 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E005 of 2023 NIO Adagi, J June 8, 2026 Between Charles Mwanzia Mweu 1st Appellant Kenya Malik Limited 2nd Appellant and Jane Mbeke Alias Jane Mbeke Komu Respondent Judgment 1.The Respondent in this matter instituted a suit against the Appellants by way of a Plaint dated 03/09/2019. She claimed general damages for pain, suffering and loss of amenities of life, provision for future medical expenses, and special damages plus costs of the suit and interest following an accident in which she was involved in on the 19/01/2019 while she was lawfully riding as a pillion passenger aboard motor cycle registration No. KMEP 077U at Garden area along Machakos- Kangundo Road and by reason of negligence on the part of the 2nd Appellant in driving, managing and/or controlling motor vehicle registration No. KCQ 506R, it veered off it’s lawful lane onto the lane of the motor cycle registration No. KMEP 077U thereby colliding with it as a result of which the Respondent sustained a blunt forehead injury, a blunt right lower limb injury, a fracture of the right femur, a blunt chest injury, cut wounds on the right knee and bruises on the left foot. 2.The 1st Appellant filed a Statement of Defence dated 10/07/2020 while the 2nd Appellant filed a Statement of Defence dated 16/07/2020. They both basically denied in toto the Respondent’s claim and in the alternative without prejudice to the denial, averred that in the event the accident occurred as alleged, then the same was inevitable, solely and or overwhelmingly occasioned by the recklessness and negligence of the Respondent and without a shred of negligence on the part of the Appellants. 3.On 30/06/2022, the advocates representing both parties recorded a consent on liability against the Appellants jointly and severally in the ratio of 10:90 (in favour of the Respondent). Judgement on liability was therefore entered in accord with Order 25, Rule 5 of the Civil Procedure Rules. In this regard, parties consented to production of the claim supporting documents as exhibits. Further, parties compromised special damages at Kshs.51,555/= and future medical expenses at Kshs.187,500/=. The said compromise was accordingly adopted by the trial court.The quantum of general damages was to be canvassed by way of written submissions. 4.The Respondent submitted that an award of Kshs.1,000,000/= would be reasonable and fair compensation for general damages for pain, suffering and loss of amenities staking this in Rosemary Bulinda vs. Peter Kinyanjui Gakumu & 5 Others, Civil Appeal No. 86 of 1998; and Kiru Tea Factory & Another vs. Peterson Watheka Wanjohi, Civil Case No. 1045 of 2004 5.The Appellants submitted that an award of Kshs.500,000/= in general damages would be adequate compensation placing reliance in Julie Akoth Onyango vs. Daniel Otieno Owino & Another (2020) eKLR; Elizaphen Mokaya Bogonko vs. Fredrick Omondi Ouna (2022) eKLR; Peter Gakere Ndiangui vs. Sarah Wangari Maina (2021) eKLR; and Justine Nyamweya Ochoki & Another vs. Francis Ndurya Thoya & Another (2020) eKLR. 6.Upon considering the parties’ submissions on quantum of general damages for pain, suffering and loss of amenities, the trial magistrate awarded Kshs.800,000/= less 10% apportioned liability which is Khs.720,000/=. 7.The trial magistrate found the cases relied on by both parties in support of their proposed awards for pain, suffering and loss of amenities to be incomparable with the injuries which the Respondent herein sustained. The court found that in determining a dispute, a court is not restricted only to the provisions of the law and or precedents cited by a party. Guidance was placed in the Court of Appeal decision in Kwanza Estates Limited vs. Dubai Bank of Kenya Limited (in liquidation) & Another [2016] eKLR. 8.The trial magistrate relied in Benuel Bosire vs. Lydia Kemunto Mokora [2019] eKLR where the Plaintiff sustained a compound fracture of the mid femur leg and R. E. Ougo, J awarded Kshs.700,000/= and in Omar Musa Hassan & Another vs. Rashid Salim & Another, Nairobi HCCC No. 239 of 1995, the 2nd Plaintiff sustained a comminuted fracture of the right femur and the court awarded Kshs.700,000/=. 9.In the end, the trial magistrate in a judgement delivered on 22/09/2023 made the following awards:a.Liability at 10% :90%b.General damages ........................Kshs.800,000Less 10% contribution ................Kshs. 80,000Kshs.720,000c.Future medical expense...............Kshs.187,500d.Special damages ........................Kshs. 51,555Total Award ...................... ....Kshs.959,055 10.The Respondent was also awarded the costs of the suit, simple interest on the general damages, future medical expenses, special damages and costs from the date of judgement until payment in full. 11.Being aggrieved with the above trial court’s judgement, the Appellants lodged a Memorandum of Appeal dated 05/01/2023 which raises three grounds of appeal as follows:-a.That the learned magistrate erred and misdirected himself in law, principle and facts when he misapprehended and misunderstood the applicable principles and law in assessing quantum thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the damages in the circumstances of the case.b.That the learned magistrate erred in fact and in law in awarding the Respondent Kshs.720,000/= general damages which award was too excessive in the circumstances.c.That the learned magistrate erred in law and in fact in failing to accord due regard to the Appellant’s submissions and authorities on quantum on applicable principles for assessment of damages. 12.The Appellants pray that: -a)This Appeal be allowed and the lower court’s judgement on quantum be set aside.b)That the award of the lower court on general damages be revised to commensurate levels as per the evidence on record.c)The costs of this appeal and of the lower court be awarded to the Appellants. 13.The Appeal was canvassed through written submissions. The parties filed and exchanged their respective submissions which basically replicate the summary of the submissions made before the trial court and I wish not to duplicate the same here Analysis and Determination 14.I have carefully perused and considered the record of appeal, the grounds of appeal and the Parties’ advocates written submissions to the appeal. The Appellants seem to be challenging only the award for general damages for pain, suffering and loss of amenities which they assert to be excessive. This court will therefore consider whether the said general damages of Kshs.720,000/= should be disturbed and reduced as sought by the Appellants. 15.The nature and extent of the injuries sustained by the Respondent herein are not in dispute. 16.For an Appellate Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied. In the case of Maraga V Musila (1984) 1 KLR 251, where the Court of Appeal when addressing its mind to this issue expressed itself thus;“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”. 17.The approach taken by courts in the assessment of damages is that comparable injuries should as far as possible be compensated by comparable awards although the court should bear in mind that no two cases are exactly the same. The court will also consider factors such as the state of the economy and the rate of inflation in its assessment of damages. (See Stanley Maore v Geoffrey Mwenda [2004] eKLR and Ugenya Bus Service v Gachoki [1982] eKLR). 18.In the circumstances, it is my considered finding that the cases cited by both the Appellants and the Respondent are not only a bit old but also do not reflect the injuries or are not comparable to those sustained by the Respondent in the instant appeal. 19.Having given due consideration to the injuries sustained by the Respondent and having independently scoured through recent decisions and specially around comparable injuries to those sustained by the Respondent herein, I was fortunate to come across the following decisions:- In Kipchumba vs. Esata (Civil Appeal E111 of 2022 [2025] KEHC 10635 (KLR) (23 July 2025) (Judgement) where the Plaintiff suffered Head injury with Loss of consciousness for 30 seconds, Cut wound on the right parietal scalp, Bruises on both upper limbs, Fracture right femur and Bruises on both ankles, on appeal the lower court award of Kshs.1,000,000.00 as general damages was set aside and substituted with an award of Kshs.500,000/=. In Wanje v Samwel (Civil Appeal E095 of 2023) [2025] KEHC 3478 (KLR) (21 February 2025) (Judgment) where the Plaintiff sustained Fracture midshaft right femur bone Cut wound posterior ankle area exposing tendon cut wound on the head, on appeal the lower court award of Kshs.450,000/= was set aside and the appellate court awarded Kshs.700,000/=. In Ogwang v Obed (Civil Appeal E037 of 2024) [2026] KEHC 5483 (KLR) (27 April 2026) (Judgment) where the Plaintiff sustained a fractured right clavicle, a fractured right femur, bruises on the right elbow, and a cut on the left leg. The appellate court upheld the trial court’s award of Kshs.800,000/= in general damages less 15% contributory negligence. 20.Hence, from the foregoing comparison, this court finds that the trial court’s award of Kshs.700,000/= as general damages for pain suffering and loss of amenities to be adequate compensation. The same cannot be said to be manifestly excessive as to amount to a wrong assessment. In the premises, there is no sufficient cause, in my view, for disturbing the award made by the trial court under the general damages head. 21.Accordingly, this court upholds the trial court’s awards. The appeal is dismissed with costs to the Respondent assessed at Kshs.30,000/=. 22.It is so ordered. This file is closed. JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 8TH JUNE 2026NOEL I. ADAGIJUDGEDELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 8TH JUNE 2026