https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9609

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEALNO. E190 OF 2024** **MZAMIL MUSA HUSSEIN alias MUSAMIL** **MUSA (A minor suing through next friend** **one FERIDA MUSA HUSSEIN…………………………….APPELLANT** **VERSUS** **MEDINA BUS SERVICES LIMITED…………..….1ST RESPONDENT** **ISMAIL MUSDAF ALI…………………………….…2ND RESPONDENT** **DAKAYA BAKAJA…………………………….……..3RD RESPONDENT** ***(Being an appeal from the judgment of HON. KHAPOYA S. BENSON (SPM) in KITHIMANI SPMCC NO. E50 of 2020 delivered on 19/06/2024).*** **JUDGMENT** 1. The trial court delivered a judgment in a civil suit where the appellant, a minor suing through a next friend, sought damages against the respondent following a road traffic accident that occurred on 2nd December 2019. 2. The appellant was a fare-paying passenger in a motor vehicle owned and controlled by the respondents when the driver allegedly drove negligently, causing the vehicle to lose control, veer off the road, and overturn, resulting in the appellant sustaining injuries including tenderness over the right forehead and the right chest wall, with continuing complaints of chest pains. 3. The appellant claimed special damages of Ksh. 6,550 and general damages for pain, suffering, and loss of amenities. 4. The respondents did not enter appearance or file a defence, leading to the entry of interlocutory judgment against them. 5. During the trial, the appellant’s next friend testified and adopted her witness statement, producing various documents as exhibits. 6. In the plaintiff’s submissions, counsel argued that the interlocutory judgment conclusively determined liability and referred the court to the case of **Felix Mathenge v Kenya Power & Lighting Co. Ltd (2008) eKLR** to support that proposition. 7. On quantum, the appellant sought Ksh. 300,000 for general damages, citing the cases of **Catherine Wanjiru King’ori v Gibson Theuri Gichubi (2005) eKLR,** where the court awarded Ksh. 350,000 for multiple soft tissue injuries, and **HCCC Meru Lucy Ntibuka v Benard Mutwiri (1983) eKLR**, in which Ksh. 500,000 was awarded for soft tissue injuries including head injuries and lacerations. 8. The trial court, after considering the pleadings, submissions, the nature of the appellant’s injuries, the authorities cited, the rate of inflation, and the circumstances of the case, entered judgment in favour of the appellant, apportioning liability at 100% against the respondents jointly and severally. 9. The trial court awarded Ksh. 50,000 as general damages for pain, suffering, and loss of amenities, and Ksh. 6,550 as special damages, making a total award of Ksh. 56,550. 10. The appellant was also awarded costs of the suit, with interest on special damages to run from the date of filing suit until payment in full, and interest on general damages from the date of judgment until payment in full, with a right of appeal within 30 days, 11. The appellant has appealed against that judgment on the following grounds; 12. That the learned magistrate erred in law and in fact in awarding general damages for pain and suffering of Kshs. 50,000/= which is manifestly and inordinately low bearing in mind the injuries sustained by the Appellant and the effect of the injuries. 13. That the learned magistrate misdirected himself in law and in fact by failing to appreciate the uncontroverted evidence by the appellant adduced during trial on 06.12.2023 in terms of quantum. 14. That the learned magistrate erred in law and in fact by failing to be guided by the general principle in assessing damages which is that similar injuries should attract similar award and also taking into consideration the peculiar nature of the injuries in each case, effect of inflation in the value of money and the sequel of the injuries. 15. The appellant, M M H, a minor suing through his next friend, submitted that he appeals the judgment of the Senior Principal Magistrate in Kithimani PMCC No. E050 of 2020. 16. The trial court found the respondents 100% liable for a road traffic accident that occurred on 2nd December 2019, but awarded only Kshs. 50,000 as general damages for pain, suffering, and loss of amenities, along with Kshs. 6,550 as special damages. 17. The appellant contends that the learned magistrate erred in failing to appreciate the nature and extent of the injuries sustained, and by not conducting a proper comparative analysis of comparable awards, thereby disregarding the principle that similar injuries should attract similar compensation. 18. The appellant relies on the principle enunciated in **Swiss Contact Ltd & Peter Munguti Kieti v Esther Another [2019] eKLR,** which emphasizes the necessity for trial courts to make a comparative analysis of injuries and previous awards for uniformity, while accounting for inflation. 19. Before the trial court, the appellant cited **Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi [2005] eKLR,** where the court awarded Kshs. 350,000 for multiple soft tissue injuries on 1st July 2005. 20. The appellant also cited **HCCC Meru , Lucy Ntibuka v Bernard Mutwiri & Others [1983] eKLR,** where the court awarded Kshs. 500,000 for soft tissue injuries on 8th February 2007. 21. The appellant submits that his injuries were more severe than those in the cited cases, and therefore the trial magistrate, had she properly considered those decisions, should have awarded a sum higher than Kshs. 50,000, which is manifestly and inordinately low. 22. The appellant argues that the appropriate award should be Kshs. 300,000, as originally submitted in the lower court, taking into account the severity of his injuries and inflation. 23. The appellant contends that the cited decisions provide a comparable yardstick, being less than six years old at the time of the lower court's decision. 24. Consequently, the appellant prays that the trial court's judgment on general damages be set aside and substituted with an award of Kshs. 300,000, and that he be awarded costs and interest in both the lower court and this appeal. 25. The case proceeded exparte since the respondent did not participate in the trial court. 26. *The sole issue arising for determination in this appeal is whether the trial court's award of general damages for pain, suffering, and loss of amenities of Kshs. 50,000 was manifestly and inordinately low so as to warrant appellate interference.* 27. In addressing this issue, it is a well-settled principle of appellate review that an appellate court will not disturb an award of damages unless it is satisfied that the trial court acted on a wrong principle of law, or that the amount awarded is so inordinately low or high as to represent a completely erroneous estimate of the loss suffered. 28. The appellant’s case before the trial court proceeded entirely without challenge, as the respondents did not enter appearance or file a defence, thereby leaving the evidence regarding the injuries uncontroverted. 29. The medical evidence demonstrated that the minor appellant sustained soft tissue injuries, specifically tenderness over the right forehead and the right chest wall, accompanied by persistent chest pains arising from a road traffic accident on 2nd December 2019. 30. In assessing general damages for such personal injuries, the primary guiding tenet is that while no amount of money can perfectly erase pain and suffering, compensation should be fair, reasonable, and broadly consistent with past awards for comparable injuries, a doctrine heavily emphasized in **Swiss Contact Ltd & Peter Munguti Kieti v Esther Another(supra),** which demands that courts evaluate similar historical injuries while adjusting for the modern erosive effects of inflation on currency value. 31. The trial magistrate, in granting a sum of Kshs. 50,000, failed to meaningfully engage with this comparative yardstick or appreciate the true weight of the uncontroverted testimony and medical reports. 32. A review of the precedents cited by the appellant reveals a stark disparity that exposes the trial court's award as a misdirection in law. In **Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi (supra)**, the court awarded Kshs. 350,000 for multiple soft tissue injuries, which underscores that even for non-permanent, soft tissue trauma, substantial compensation is warranted to match the gravity of human suffering. 33. Furthermore, in **Lucy Ntibuka v Bernard Mutwiri & Others(supra)**, an award of Kshs. 500,000 was sustained for soft tissue and head injuries, reflecting the court's willingness to grant a realistic sum where multiple sites of trauma and head impacts are involved. 34. By awarding a mere Kshs. 50,000, the trial court produced an assessment that is completely out of character with these authorities and failed to account for how inflation has vastly reduced the purchasing power of the Kenyan shilling since those comparative decisions were rendered. 35. Consequently, the trial magistrate erred fundamentally in principle by undervaluing the minor's injuries and ignoring persuasive, unchallenged legal precedents, rendering an award that is manifestly and inordinately low. 36. For these reasons, this appeal is allowed. The trial court's award of Kshs. 50,000 for general damages is hereby set aside and substituted with an award of Kshs. 300,000 as prayed by the appellant. 37. The award of Kshs. 6,550 for special damages remains undisturbed. The total sum awarded to the appellant is therefore Kshs. 306,550, with interest on special damages running from the date of filing the suit and interest on general damages running from the date of the lower court's judgment until payment in full. 38. The appellant shall also have the costs of this appeal and the costs of the suit in the lower court. 39. Orders to issue accordingly. Dated, Signed and Delivered online via Microsoft Teams at Nairobi this 25th day of June, 2026. 1. **N. ONGERI** **JUDGE** In the presence of: No appearance for the Appellant No appearance for the Respondent Chrispin – Court Assistant