https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10979

REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT BUNGOMA CIVIL APPEAL NO.E044 OF 2025 NANCY NASAMBU WANYONYI WABWENI …………….....APPELLANT * V E R S U S – ANTONY WASIKE…..………………………………………...RESPONDENT **JUDGMENT** # Introduction 1. This is an appeal by Nancy Nasambu Wanyonyi Wabweni (hereinafter “ the Appellant”) against the decision of the Senior Resident Magistrate Hon. J.O. Manasses at the Principle Magistrate’s Court at Sirisia, dated 28th February, 2025 in Civil Suit No E.076 of 2024. The learned Magistrate held, after the parties consented on apportioning of liability, that Antony Wasike (hereinafter “the Respondent”) was entitled to general damages of Kshs. 900,000 and special damages of Kshs. 7,230. # Background 1. On 8th January 2024 at about 1200 hours, the Respondent was a riding Motor Cycle Registration Number KMFM 754 along Sirisia-Chwele Road. 2. At the same time the Appellant’s Motor Vehicle Registration Number KCZ 207Q (hereinafter “Motor Vehicle”) of the make Toyota Sienta was being driven by one Judith Wanyoyi Mukoya on the same road. 3. The Appellant’s Motor Vehicle hit the Respondent causing him injuries. 4. By a Plaint dated 6th March 2024, the Respondent instituted a suit against the Appellant alleging that her Motor Vehicle was driven negligently, carelessly and recklessly causing it to lose control and hit the Respondent thereby causing him injuries namely: 5. Head injury with loss of consciousness; 6. Bruises on the face; 7. Blunt injury to scalp; 8. Blunt injury to the neck. 9. Fracture of the right tibia. 10. The Appellant filed a Defence which denied the Respondent’s allegations entirely and attributed the accident to the Respondent’s negligence or alternatively an Act of God that was outside her control. 11. During the trial the parties agreed to settle the issue of liability. On 3rd October 2024 a consent was entered as an order of the court whereby judgement on liability was entered in the ratio of 90:10 in favour of the Respondent as against the Appellant. 12. What remained for the trial court to determine was the issue of quantum of damages. As such I shall proceed to the evidence filed by the parties in support of their contentions with respect thereto. **Evidence at the Trial Court** 1. **Respondent’s Witnesses** 2. In his List of Witnesses dated 6th March 2024 the Respondent listed himself, Ministry of Health Chwele Sub-county Hospital, Director of Benglad Family Care Clinic, Doctor Joseph C. Sokobe and Base Commander Chwele Police Station as his witnesses in the matter. 3. The Respondent filed a Witness Statement dated 6th March 2024 in which he stated that he sustained severe injuries for which he was treated at Benglad Family Care Clinic and Chwele Sub-County Hospital. 4. As per the proceedings, on 16th January 2025, the parties agreed that their Witness Statements be admitted as evidence in chief and their documents deemed produced as exhibits. Consequently, the Respondent’s documents were deemed produced as exhibits 1-10. 5. **Respondent’s Documents** 6. The Respondent availed the following documents in support of his claims at the trial court: 7. The Respondent’s National ID Card. 8. Out-patient card and Receipts from Chwele Sub-County Hospital. 9. Copies of treatment notes and receipts from Benglad Family Care Clinic. 10. A copy of Medical Report and a receipt from Dr. Joseph C. Sokobe dated 23rd January 2024. 11. A copy of the P3 Form. 12. Abstract From Police on Road Accident dated 9th January 2024. 13. X-ray films. 14. A copy of the Demand Letter and Whatsapp Screenshot. 15. A copy of the Statutory Notice and Certificate of Postage. 16. Motor Vehicle Copy of Records and Paid Invoice. 17. Certificate of Insurance. 18. These were the documents produced and their significance with regard to quantum will be analysed later. 19. **Appellants’ Witnesses** 20. From her List of Witnesses dated 30th August 2024, the Appellant presented herself and the driver of the Motor Vehicle at the material time, Judith Wanyoyi Mukoya, as her witnesses. 21. Judith Wanyonyi Mukoya filed her Witness Statement dated 8th January 2024. It confirms the occurrence of the accident and consequent injury that necessitated a hospital visit but does not go into the details of the injury. 22. **Appellants’ Documents** 23. As per the proceedings, on 5th September 2024, Miss Oriko holding brief for the Respondent’s advocate, Mr. Okara, informed the court of the agreement with the Appellant’s advocate to have the Respondent undergo a second medical examination. The Court acquiesced to the parties’ request and directed the Respondent to be examined and a report to be issued. The Respondent was examined on 11th November 2024 by Doctor Oketch Protas Were who issued a report of even date. This report was adopted as part of the record as the Appellant’s sole evidence. The contents and significance thereof will be examined later. **Submissions by the Parties at Trial** 1. **Submissions by the Respondent dated 16th January 2025** 2. As the Plaintiff at the trial court, the Respondent submitted on the issue of quantum by restating that he suffered five injuries namely: a) Head injury with loss of consciousness; b) Bruises on the face; c) Blunt injury to scalp; d) Blunt injury to the neck. e) Fracture of the right tibia (proximal). 1. The Respondent cited the case of **Easy Coach Limited vs Emily Nyangasi [2017] eKLR** in which the High Court upheld an award of Kshs. 700,000 for chest injury, injury to the back, injury to the right hand with cut wound, and injury to the right leg with cut wound. 2. The Respondent further relied on **Francis Ochieng and another vs Alice Kajimba [2015] eKLR** where the Honourable Justice Majanja awarded Kshs. 350,000 for multiple soft tissue injuries without fractures, in addition to head injuries which aggravated the injuries. 3. The Respondent also cited **Isaac Katambani Iminyi vs Firestone East Africa (1969) Ltd [2015]** where the court increased an award to Kshs. 350,000 for general damages on account of multiple soft tissue injuries without fractures also aggravated by head injuries. 4. The final case cited by the Respondent was the case of **Clement Gitau vs GKK [2016]eKLR** where the court awarded Kshs. 600,000 as general damages for a fracture to the left tibia and minor bruises. 5. With respect to special damages, the Respondent submitted that it had produce receipts show amount totalling Kshs. 7,310 and asked the court for the same. 6. Finally, the Respondent prayed for costs of the suit and interest. 7. **Submissions by the Appellant dated 20th January 2025** 8. The Appellant in his submission on quantum stated that the Respondent suffered a fracture of the right tibial bone, transient loss of consciousness, bruises to the face and blunt injury to the neck. The Appellant averred that as per Dr. J.C. Sokobe’s report made on 23rd January 2024, 15 days after the accident, the Respondent was recovering well. The Appellant added that Dr. Oketch Protus Were who re-examined the Respondent on 11th November 2024 concluded that he had completely healed from the aforementioned injuries with no permanent incapacitation. 9. The Appellant proposed that court award damages of Kshs. 350,000 at full liability as the Respondent had fully healed from the injuries. The Appellant relied on **Harun Muyoma Boge vs Danie Otieno Agulo Migori HCCA No. 7 of 2015** where the high court revised an award of general damages to Kshs. 300,000 for fracture of the right tibia fibula, blunt injuries to the chest, a cut wound to the right foot and soft tissue injuries despite arising complications of post-traumatic arthritis (stiffness) of the right knee and osteomyelitis. 10. The Appellant also relied on the case of **Cost Bus (MSA) Ltd vs Joseph Odhiambo Makambora Kisumu HCCA No. 88 of 2016** where the high court revised an award for general damages on account of fracture of the right mid-shaft tibia bone, neck sprain and multiple bruises on the neck, right leg and right eye from Kshs. 600,000 to Kshs. 300,000. 11. As concerns Special damages, the Appellant submitted that only Kshs. 6,385 consisting of Kshs. 385 paid at Chwele Sub-County Hospital and Kshs. 6,000 paid to Dr. J.C. Sokobe, had been proved and should be awarded. **Judgement by the Trial Court** 1. The learned Margistrate reiterated that the parties had already settled liability in the ration 90% to 10% in favour of the Respondent via a consent which was adopted as an order of the court on 16th January 2025. 2. The learned Magistrate therefore proceeded to the issue of quantum and awarded general damages of Kshs. 1,000,000 based on the aforementioned injuries. The total award was subjected to the agreed liability ratio resulting in award of Kshs. 900,000. As regards special damages, the trial court awarded Kshs. 7,230. 3. Finally, the trial court awarded costs to the Respondent together with interest on the general and special damages and costs at court rates. # Appeal 1. The Appellants dissatisfied with the decision of the learned Magistrate lodged this appeal via a Memorandum of Appeal dated 12th March 2025, raising two grounds of appeal as follows: 1. That the learned trial Magistrate erred in law and or fact in making an award of general damages for pain, suffering and loss of amenities of Kshs. 1,000,000 to the Respondent which award was too high, excessive, unmerited and unjustified, regard being had to the injuries suffered by the respondent and the fact he had fully healed. 2. That the learned trial Magistrate erred in law by failing to consider the Appellant’s submissions and the relevant factors and he erred by considering irrelevant factors in determining quantum and he further erred by ignoring or failing to apply the correct principles in making his award which led him into error and his award was excessive, erroneous, flawed and indefensible and has resulted in a miscarriage of justice. 2. The Appellants prays for the following orders: 3. that the appeal be allowed with costs; 4. that the judgement and or award on general damages for pain, suffering and loss of amenities be revised and or set aside and vacated and the same be substituted with a reasonable and lawful award; and 5. any other or further relief deemed just and expedient. # Submissions 1. This appeal was disposed of by way of written submissions. The Appellant filed written submissions dated 15th July 2025 while the Respondent’s written submissions are dated 11th November 2025. # Submissions by the Appellant 1. The Appellant asserts that the Respondent suffered a fracture of the right tibial bone, transient loss of consciousness, bruises to the face and blunt injury to the neck. The Appellant reiterates that Dr. J.C. Sokobe who examined the Respondent on 23rd January 2024, fifteen days after the accident, reported that he was recovering well. The Appellant further points to the report by Dr. Oketch Protus Were upon the Respondents re-examination which indicated that he had completely healed from the above injuries with no permanent incapacitation. 2. The Appellant proposes that general damages of Kshs. 350,000 would have sufficed as the Respondent has recovered from the injuries fully. 3. The Appellants relies on the cases that it presented before the trial court namely **Harun Muyoma Boge vs Danie Otieno Agulo Migori HCCA No. 7 of 2015** and **Cost Bus (MSA) Ltd vs Joseph Odhiambo Makambora Kisumu HCCA No. 88 of 2016** to buttress its position on quantum. 4. The Appellant faults the learned trial Magistrate for failing to analyse the injuries, failing to give basis for the reward of general damages of Ksh. 1,000,000 and failing to correctly apply the principles for award of damages thereby awarding damages that were excessive and unmerited. 5. The Appellant urges this court to set aside the trial court’s award on general damages and substitute it with the proposed award of Kshs. 350,000. The Appellant also asks for costs. # Submissions by the Respondent 1. The Respondent maintains that he sustained five injuries to wit head injury with loss of consciousness, bruises on the face, blunt injury to the scalp, blunt injury to the neck and fracture of the right tibia. 2. The Respondent cited the cases of **Jeremiah & Brothers Contractor & Another v Francis Egusangu Kaguli [2020] eKLR**, **Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR**, **Savanna Saw Mills Ltd v Gorge Mwale Mudomo [2005] eKLR** and **Loise Waniiku. Kagunda v Julius Gachau Mwangi CA 142/2003** to assert that assessment and award of damages is an exercise of judicial discretion that an appellate court ought not to interfere with unless the trial court acted on wrong principles that the award is so excessive or so low that no reasonable tribunal would have awarded or the trial court misapprehended facts or took into consideration matters that it ought not to have or ignored matters which it ought to have considered. 3. The Respondent also cited **Simon Taveta v Mercy Mutitu [20141 eKLR** in which the Court of Appeal held that compensation is made with due regard to the nature and extent of the injuries and comparable awards made in the past. 4. To support the amounts awarded, the Respondent cited the cases of **Joash M. Nyabicha v Kenya Tea Development Authority & 2 Others [2013] eKLR** where Kshs. 1,000,000 was awarded for fracture of right leg, **JTK v Bonaya Godana [2021] eKLR** where Kshs. 450,000 was awarded for fracture of toe and heel, **Samwel v Richard Nyangau Orechi [2018] eKLR** where the court awarded Kshs. 500,000 for fracture of right fifth metatarsal and **Easy Coach Limited vs Emily Nyangasi [2017] eKLR** in which the High Court upheld an award of Kshs. 700,000 for chest injury, injury to the back, injury to the right hand with cut wound, and injury to the right leg with cut wound. 5. The Respondent concludes from the above cases that the award of the trial court was not excessive and the appeal lacks merit and should be dismissed with costs to him. # Determination 1. I have considered the appeal, submissions and decisions relied on by parties. This appeal raises one issue for determination, namely; whether this appeal presents circumstances which justify interfering with trial court’s finding on quantum. 2. Given that the factual aspects of the case are not in contention as regards liability and as regards the nature of injuries from the accident I shall proceed swiftly to analyse the legal underpinnings, if any, of the trial court’s decision on quantum. This is the only point of difference between the parties. # Whether this Appeal Presents Circumstances Which Justify Interfering with Trial Court’s Finding on Quantum 1. My mandate with regards to the issue of quantum as the first appellate forum was laid down in the classical case of **Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR)** where the Court of Appeal stated as follows: **The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage**. 1. The question therefore is whether the Appellant has satisfied this court that the case falls under the broad guiding categories provided by the Court of Appeal. 2. The trial court’s finding on quantum of general dames as shown on page 62 of the Record of Appeal reads as follows: *QUANTUM* *PAIN AND SUFFERING AND LOSS OF AMENITIES* *I award Kshs. 1,000,000/= only under this head, based majorly on the injuries sustained, as enumerated.* 1. This is the impugned decision on quantum. It is indeed brief. One of the Appellant’s misgivings found at the second page of her Submissions, is that the trial court does not give basis for the award. I disagree with this, but rather reluctantly. The trial court states that the award is based “majorly on the injuries sustained” as enumerated on the third page of the Judgment found at page page 60 of the Record of Appeal. The reasoning is given, although one might say it is inadequate, and I will state why. But for the moment, I am of the opinion the decision survives, even if only slightly, the brutal test laid down in **Joseph Karisa Baya v Cefis Giorgio & another [2020] KEHC 7264 (KLR)** and **Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) (24 January 2022) (Judgment)** which held that failure to give reasons for an award of damages renders such a decision arbitrary and undefendable in law warranting appellate intervention. 2. The Appellant also raises, in its second ground of appeal, the contention that the trial court failed to consider its submissions. I would think that this allegation of failure to consider submissions extends to, if not founded upon, failure to consider the authorities raised in the said submissions. On this point, I would totally agree with the Appellant as I have not seen the trial court in the judgement discuss its analysis of the cases cited by the parties. 3. The Court of Appeal made an unequivocal pronouncement on this aspect of assessing general damages in **Ram Gopal Gupta v Nairobi Tea Packers Limited & 2 others [2017] KECA 575 (KLR)** as follows: **A perusal of the judgment written by the trial Judge shows that although the learned Judge set out the cases referred by counsel on either side nonetheless she did not make any comment on the cases at all; nor did she say whether they were relevant to the matter before her; or even compare the injuries in the previous cases to the case before her. She did not distinguish them. All she satisfied herself with, was to state cases referred to and proceeded to make the award we have referred to without reference to any past decided case. We think that the learned Judge erred by failing to make reference to past decided cases and make an award without laying any basis for it. This was, with respect, an improper use of her discretion and this is a case where we must interfere with that wrong use of discretion and correct the error that the learned Judge made** **[emphasis supplied].** 1. This is why I said the reasoning, although given, was inadequate. The nature and extent of injuries should have been considered in the context of past decided cases including those presented by the parties. 2. In the light of the of the foregoing I will reexamine the parties’ contentions on quantum and give a decision thereon. For ease of reference, the Medical Report by Dr. Joseph C. Sokobe dated 23rd January 2024 listed the Respondent’s injuries as follows: a) Head injury with loss of consciousness; b) Bruises on the face; c) Blunt injury to scalp; d) Blunt injury to the neck. e) Fracture of the right tibia (proximal). 1. The Medical Report by Dr. Oketch Protas Were dated 11th November 2024 substantially confirmed the injuries as follows: 2. Head injury with transient loss of consciousness; 3. Bruises on the face; 4. Blunt injury to the neck; and 5. Fracture of the bones of the right leg. 6. Both of these reports were adopted into evidence unchallenged. The only two differences between the reports are that Dr. Oketch’s report specifies that the loss of consciousness was transient and omits mention of the blunt injury to the scalp. I do not think these variances make a material difference as to findings on general damages. The former merely specifies the duration of loss of consciousness, while the latter does not contradict the finding of head injury. 7. I have analysed the two cases presented by the Appellant in proposing that this court award general damages of Kshs. 350,000. In the case of **Cost Bus (MSA) Ltd vs Joseph Odhiambo Makambora Kisumu HCCA No. 88 of 2016** the injuries involved were a simple U-shaped hairline fracture of one right midshaft tibia bone, sprain in the neck and multiple bruises to the neck, right leg and angle of left eye. The High Court revised the award of the trial court from Kshs. 600,000 to Kshs. 300,000. I would distinguish this case with the one before me in at least two aspects. The first is that this this cited case involved a simple U-shaped hairline fracture. In the case before me, the fracture is a complex one as it is a comminuted fracture; in the case cited it was a fine incomplete crack or a sever bruise on the tibia while in the current case the bone was broken into several pieces. I rely on the definition by Raju, K., Smith, T. O., Hing, C. B., Solan, M. C., & Nielsen, D. M. in their 2018 paper titled *Surgical versus conservative interventions for treating tibial shaft fractures in adults* accessible at The Cochrane Database of Systematic Reviews, 2018 Volume 4. Even intuitively a complex fracture being multifragmentary would present challenges that a simple U-shaped hairline fracture would not in terms of recovery and treatment. The second aspect involves other injuries involved. In the cited case there was neck sprain but no head injury unlike in the present case where there is both blunt injury to the neck and the head. 8. The second case cited by the Respondent was the case of **Harun Muyoma Boge vs Danie Otieno Agulo Migori HCCA No. 7 of 2015** where the High Court revised an award upward from Kshs. 150,000 to Kshs. 300,000. In this case the injury was a compound fracture whose effects were permanent. This was one of the instances in which a litigant let himself down by providing the court with authorities whose facts wildly differed from his circumstances. The Appellant cited an authority in which there were three fractures and other bodily injuries and another case in which the injuries included fracture, head injury and a spinal code injury that caused paraplegia. These two authorities could not assist the litigant in the cited case in its claim for damages of Kshs. 1,500,000. As such the court in the cited case, in view of the injury and despite the litigant’s errors revised the award upwards. This case was also decided in 2015, more than ten years ago and as such inflation trends must be taken into account. 9. I have also analysed the cases that the Respondent has cited to support the award of the trial court. The first is the case of **Joash M. Nyabicha v Kenya Tea Development Authority & 2 Others [2013] eKLR**, where Court of Appeal upheld an award of Kshs. 1,000,000 for fracture of the right leg. I find that the injury in this cited case was more severe compared to the injury in the present case. In the cited case, the injury was so severe that the Appellant was transferred from Kaplong Mission Hospital to Aga-Khan Hospital in Kisumu where he was admitted for 9 days, underwent surgery and thereafter went for two checkups and had to undergo another surgery at St. Leonard Hospital in Kericho. Even after this second surgery, the Appellant had not healed and had to undergo another surgery at Agah-Khan in Nairobi whereafter he improved slightly but could not walk for a long time. The seriousness of the injury necessitated three operations. In the present case, the evidence indicates the Respondent’s injury was not that severe as to require operation. At page 10 of the Record of Appel, the Treatment Note from Benglad Family care clinic indicates that angulation of the fracture was 2° which was why a non-operative treatment namely plaster of paris was recommended. This angulation is within the range of accepted alignment for closed reduction or non-operative procedures as discussed by Johnathan H. Thompson; Petros Koutsogiannis; Alex Jahangir in *Tibia Fractures Overview* and Eric Swart, Chad Lasceski, Luke Latario , Jacob Jo , Uyen-Sa D T Nguyen in their article *Modern treatment of tibial shaft fractures: Is there a role today for closed treatment?*. Both doctors’ reports in this case were also positive with regards to the Respondent’s healing process with Dr. J.C. Sokobe indicating that the Respondent was recovering well despite some pain in the right leg and Dr. Oketch Protas Were indicating that the fracture had clinically united and healed and the rest of the body was globally normal. 10. I have also analysed the case of **JTK v Bonaya Godana [2021] eKLR** where court awarded Kshs. 480,000 for comminuted fracture of the base of the metatarsal and a chip fracture of the anterior portion of the right calcaneal bone. I find that it provides a good guideline on what foot fractures attract as compensation. The same applies to **Samwel v Richard Nyangau Orechi [2018] eKLR** where an award of Kshs. 500,000 was upheld for fracture of right fifth metatarsal bone and **Clement Gitau vs GKK [2016] eKLR** where an award of Kshs. 600,000 was upheld for fracture of the left tibia, bruises on the neck, bloodloss, physical and psychological pain**.** I have also looked at the case of **Easy Coach Limited vs Emily Nyangasi [2017] eKLR** where an award of Kshs. 700,000 for soft tissue injuries and severe degloving injuries which necessitated grafting and hospitalisation for two months was upheld. This case does not match the facts in our case which is that of fracture, blunt injury and bruises. 11. I have also analysed the cases presented by the Respondent for soft tissue injuries. In the case **Francis Ochieng and another vs Alice Kajimba [2015] eKLR** the High Court revised an award from Kshs. 500,000 to 350,000. In this cited case the head injury was more severe than in our present case as it resulted in bleeding from the left ear, bilateral temporoparietal scalp haematoma, subconjunctival haemorrhage and periorbital ecchymosis in both eyes. In the case of **Isaac Katambani Iminyi vs Firestone East Africa (1969) Ltd [2015],** although the Respondent submitted this case at the trial court to argue that it supports award of Kshs. 350,000 for multiple soft injuries and head injury, I have seen that the case solely involved fracture of the fifth metacarpal and the court awarded Kshs. 250,000. As such it may help guide with the issue of fractures but not soft tissue injuries. 12. From my analysis of the Respondent’s injury and in the light of the foregoing cases I consider the award made by the trial court to have been inordinately high and I reduce the same from Kshs. 1,000,000 to Kshs. 700,000 subject to the agreed apportionment of liability. 13. Consequently, this appeal is allowed to the extent that the award of general damages is set aside and substituted with an award of Kshs. 700,000. The Appellant shall have costs of the appeal. **Judgement delivered at Kericho virtually this 9th July 2026.** **CHELANGAT MUTAI** **JUDGE** **9/7/2026** **In the presence of** **Oriko h/b for Okowa for the Respondent** **Akwala for the Appellant**