https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9718

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEAL NO. E988 OF 2023** **CIVIL APPELLATE DIVISION** **(Consolidated with Civil Appeal No. E 1286 of 2023)** **NEEMA BARIRI GWARO……………………………………. APPELLANT** **VERSUS** **QAISAR MOTORS LIMITED……………………….….1ST RESPONDENT** **ELIAS NYAGA……………………………………….….2ND RESPONDENT** **{(Being an Appeal against the Decree of the Chief Magistrate’s Court at Milimani, Nairobi ( Hon.Edward Too-SPM) arising from Judgment delivered on 6/9/2023 in CMCC NO. E4857of 2020.)}** **JUDGMENT** **Grounds of Appeal** 1. This Appeal challenges the said Honourable Magistrate’s Judgment by which he apportioned liability for the claim before that court in the ratio of 70% to 30% in favour of the Appellant and awarded her Ksh. 8OO,000 in general damages. The Appellant is dissatisfied with the court’s Judgment on both liability and quantum of damages and lodged this Appeal *vide* Memorandum of Appeal dated 25/9/2023 predicated upon 5 grounds that the court has condensed into 2 broad grounds as hereunder: * 1. That the learned magistrate erred in law and fact by reaching findings on both liability and quantum of general damages against the weight of evidence in the circumstances. 2. The learned magistrate erred by misapplying the law and wrongly exercising discretion in determining liability and quantum of damages. 2. The Appellant wants the Appeal to be allowed; the trial magistrate’s Judgment on liability and quantum of general damages set aside and substituted with this court’s Judgment thereon. The Appellant also prays that the costs of the Appeal be provided for. **Brief Background to the Appeal** 1. The Appellant *vide* an amended plaint sued the Respondents in the lower court for general damages, special damages, future medical costs for replacement of a tooth, costs and interest following her in a road traffic accident involving the Respondents’ motor vehicle registration number KCV 436 B. It is claimed that the vehicle was carelessly or negligently driven by the 2nd Respondent as a result of which it knocked down and injured the Appellant who was a pillion passenger on a motorcycle. 2. The Appellant’s oral evidence reiterates the averments in the suit. She accuses the 2nd Respondent of driving the vehicle with excessive speed and caused the accident. The vehicle allegedly lost control and collided with the motorcycle which was hit at the rear. The Appellant lamented that she had a baby which she lost as a consequence of the accident. 3. The Appellant’s medical evidence as per her medical examination report dated 9/6/2020 is that she suffered blunt abdominal injury that resulted in an incomplete abortion as she was pregnant; hairline fracture of C1 ; haematoma in the scalp; fractures of teeth No. 41 and 42 ; swollen lip and loss of a tooth. Permanent incapacity of the C11 cervical spine was assessed at 5%. It was further opined that Ksh. 10, 000 would be expended to replace the lost tooth with prosthesis. The Respondent also experienced recurrent abdominal pains. 4. Rather strangely, there is another medical report on the record by the same doctor purportedly prepared on the same date. The second report refers to less severe injuries *to wit;* a blunt abdominal injury resulting in incomplete abortion as the Appellant was pregnant. Her abdomen was normal at the time of examination, according to this report. 5. The 2nd Respondent testified for the defence in the lower court. He told the court *inter alia* that he was the owner and driver of the accident motor vehicle at the material time. According to him, the motorcycle had suddenly entered a dual carriage way he was driving on and took the opposite direction on the wrong side. The motorcycle then blocked the vehicle’s path, forcing him to step on emergency brakes. It was, however, too late as the rider was speeding. A lady pillion passenger was injured after she and the motorcycle rider fell in front of the vehicle. The 2nd Respondent added that traffic police officers arrived at the scene. 6. The 2nd Respondent therefore blames the motorcycle rider for the collision, further claiming that he was not wearing a helmet and safety jacket. The motorcycle was not also insured against third party risks. 7. The Respondents offered no medical evidence in rebuttal of the plaintiff’s. 8. While apportioning liability in the ratio of 70% to 30% in favour of the Appellant, the learned trial Magistrate noted the undisputed fact that the Appellant was injured in the accident The court further observed that it is the word of the Appellant against that of the 2nd Respondent as to who was to blame for the mishap. Based on the Appellant’s and 2nd Respondent’s demeanour as observed by the trial court, the Appellant impressed the court as more credible. The court also stated that the Appellant was herself not in a position to prevent the accident and that the police also found the 2nd Respondent responsible and charged him with an appropriate traffic offence. 9. Concerning the issue of general damages, the learned trial magistrate referred to case law he thought to be comparable to the case before him and granted the Appellant a sum of Ksh. 800,000. **Guiding Principles** 1. It is trite that the appellate court has the duty of re-assessing the evidence and reaching its own conclusions on matters of fact and law. The court will only interfere with the trial court’s findings if relevant factors were not taken into account or irrelevant factors were considered or the trial court otherwise misdirected itself. (see case law in **Selle vs. Associated Boat Company [1968] EA 123** and **Ocean Freight Shipping Co. Ltd vs. Oakdale Commodities Ltd (1997) eKLR**. The Court of Appeal for East Africa in **Peters –vs- Sunday Post Limited [1958] EA 424** underscored the same principles delivering itself thus:” 2. ***First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;*** 3. ***In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and*** 4. ***It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.*** **Analysis and Determination** 1. Learned Counsel for the parties filed written submissions which I have perused together with the Record of Appeal. **Appellant’s Submissions** 2. Learned counsel for the Appellant submit that as the motor cycle rider was not joined not to suit as a third party if he was the one to blame as claimed by the Respondents, the Respondents ought to have been 100% liable for the claim. 3. Regarding general damages, Counsel submit for Kshs. 3,500,000 general damages as also prayed in the lower court. Reference is made to the following decided cases. 4. **In Akamba Public Road Services vs Maureen Akinyi Abok (2016) eKLR** **Civil Case Number 94 of 2014,** for degloving scalp injury, fracture of the CI vertebra and right temporal wound Kshs. 3,000,000/= general damages were awarded to the Claimant. 5. **In David Maina Njoroge vs Gingalili Farm Limited (2011) eKLR** Kshs. 2,000,000/= general damages were assessed for fracture of lumber vertebra LA with bone fragment and soft tissue injuries. 6. In Reuben **Wekesa Kituyi & Another vs Asmin Teresa Osundwa (2021) eKLR** , **Civil Appeal Number 118 of 2016** also cited by Counsel, for blunt trauma to the abdomen resulting in termination of pregnancy, Kshs. 1,000,000/= general damages. 7. The Appellant’s Advocates therefore opine that the Kshs. 800,000/= awarded by the lower court is a very low award in the circumstances. 8. The court is told that future medical costs of Kshs. 10,000/= ought to have been granted too. **Respondents’ Submissions** 1. The Respondents counter that in the circumstances of the case, the parties ought to have been adjudged equally liable. 2. Regarding the quantum of damages, the Respondents think that the Appellant exaggerated her injuries. It is also pointed out that medical records purported to originate from Mama Lucy Hospital – Embakasi refer to one Josephine Bariri, and not the Appellant. 3. The Respondents allude to the following judicial determinations as providing guidance to the court in assessing appropriate damages. In **Getange vs Waridi Limited (Civil Appeal 156/2015) [2022] KED 9900 KLR) (14 July 2022 (Judgement)** Kshs. 300,000 were assessed and awarded for compressed C3 – C4 cervical spine fracture . In **Mogaka Sydney vs Faith Ndunge Nyundo** **HCCA No. 20 of 2017,** compression of the spine at L2 – a similar sum of Kshs. 300,000/= was allowed for compression of the spine at L2, while in **Silas Muthuri Muraga & Another vs Margaret Mwenga Munene (2015) eKLR,** Kshs. 650,000/= were determined as adequate general damages for a fracture of the C6. 4. The Respondents submit that Kshs. 500,000/= would sufficiently compensate the Appellant. 5. The **English House of Lords decision in Re H (minors) sexual abuse; standard of prof ( 1996) AC 563 and 505 for the Home Department V. Rehman (2003) 1 AC 153** reiterates the standard of proof in civil cases as the preponderance of probability or the balance of probability as it is commonly known ‘’…….which means that the court must be satisfied that the event in question is more likely than not to have occurred. The balance of probability standard is a flexible standard. This means that when assessing this probability, the court will assume that some things are inherently more likely than others…..’’. 1. The legal position is further underscored in **Palace Investment Limited vs Geoffrey Kariuki Mwenda & Another (2015) eKLR** where the Court of Appeal observed as follows regarding the standard of proof in civil cases; - **“…. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say; we think it more probable than not, the burden is discharged.”** 1. The Appellant was only a pillion passenger on a motorcycle and, as correctly observed by the trial court, she had no control over steering of the motorcycle. There is no act or omission on her part showing that she contributed to occurrence of the accident. This court opines in the circumstances that the Appellant ought not have been adjudged as having contributed to causation of the accident in any manner or to any extent. 2. Whether or not the motorcycle rider was culpable to any degree is neither here nor there as he was not joined into the proceedings as allowed by the Civil Procedure Rules 2010 so that he could be heard too. 3. I would in the result find on the material on record that the 2nd Respondent was wholly liable for the collision between his vehicle and the motorcycle that resulted in the Appellant’s injury. The 1st Respondent is in law jointly and severally liable for the claim with the 2nd Respondent. 4. Turning to the appeal on quantum of damages awarded by the Trial Court, the Appellant contends that the same is inordinately low in the circumstances as to invite interference by this Court. 5. It is trite law that an Appellate Court will only interfere with the decision of a Trial Court if it was based on wrong principles, or on no evidence or that there was been misapprehension of the evidence as held in ***Butt v Khan* [1982-88] KAR 1 a**nd in many other subsequent decisions of superior courts of record. For instance, the Court of Appeal in **Southern Engineering Company Limited V. Musinga Mutia (1985) KLR 730** observed that assessment of damages is a matter of discretion which is exercised judiciously according to the peculiar circumstances of each case guided by among other factors, the range of awards in comparable cases and the incidence of inflation. 6. The Respondents did not present medical evidence to counter the medical report tendered by the Appellant. The Appellant’s evidence, however, appears exaggerated as submitted by the Respondents. It is inexplicable that two markedly different medical reports were prepared by the same doctor after examining the Appellant on the same date. As also pointed out in the Respondents’ submissions, discharge records dated 6/4/2020 purporting to originate from Mama Lucy Kibaki Hospital – Embakasi seem to refer to a different patient named Josphine Bariri. It is unclear if this information was stated in error. The Respondents’ contention as to exaggeration of the Appellant’s injuries is not therefore misplaced. 7. This Court draws guidance from case law in ***Inyangala & another v Otieno* [2025] KEHC 13789 (KLR)** where the Respondent was awarded Kshs. 350,000 for head injury with brief loss of consciousness, multiple facial lacerations, blunt injury to the chest(anterior), and a cut wound on the right iliac fossa (anterior abdomen). 8. To sample further comparable cases, in **Duncan Mwenda & 2 Others V. Silas Kinyua Kithela (2018) eKLR**, the Claimant sustained severe head injury with intracerebral haematoma; damage to the exterior tendon of the left middle figure and soft tissue injuries on the chest wall. He was admitted in hospital for 5 months in an unconscious state. He complained of recurrent headache, chest pain, inability to extend the left middle finger and inability to hold tightly with the left hand. Like in the instant case the injuries, however, healed well without permanent disability. This court assessed and awarded general damages of Ksh. 350,000 in that case in which the injuries sustained are even more severe relative to the instant case. 9. In **Catherine Wanjiru King’ori & 3 Others V. Gibson theuri Gichubi ( 2005) the** Claimant was granted Ksh. 300,000 for soft tissue injuries to the left ankle, legs and chest. 10. In the case of ***Poa Link Services Co. Ltd & another vs Sidhani Boaz Bonzemo* [2021] eKLR** the court assessed general damages in the sum of Kshs 350,000 for blunt injury to the chest as well bruises to the lower abdomen; the right hip joint, thigh and knee. These injuries are also soft tissue in nature as compared to the instant matter. 11. For more or less similar injuries, the Claimant in **Embu HCCA No. 71 of 2016 (Bonface Mugendi & Another V. Emilio Murimi Njue)** was awarded a similar sum of Ksh. 350,000 general damages. **Determination** 1. Assessment of damages is a matter of judicial discretion, guided not by exactitude but by comparable cases. No two injuries are ever identical, and each case must be determined on its own facts and circumstances. As is trite, the guiding principle is that awards should not be too high as to amount to unjust enrichment, nor too low as to trivialize a party’s suffering. Rather, they must fall within a reasonable range consistent with awards in similar cases, while allowing for unique aspects of the claimant’s injuries. 2. Owing to the apparent exaggeration of the Appellant’s injury, the Ksh. 800, 000 award in general damages is on the higher side. I would instead grant the Appellant Ksh. 400,000 on this head. 3. The learned trial Magistrate does not appear to have considered the Appellant’s prayer for future medical costs. Because of the Appellant’s lack of *bonafides ,* however, it is doubtful if she suffered injuries requiring further medical attention and related expenses. I decline to assess and/or allow the claim for future medical costs and the other claim for compensation for pain and emotional anguish pleaded in the amended plaint. 4. In the end, this Appeal partly succeeds and it is ordered as follows; 5. The trial court’s Judgment on liability is set aside and substituted with this court’s Judgement finding and holding the Respondents 100% liable, jointly and severally. 6. The lower court’s Judgement of Ksh. 800,000 in general damages is set aside and substituted with a sum of Ksh. 400,000. 7. The Parties shall bear their own costs of the consolidated Appeals. 8. This Judgement applies to Civil Appeal No. E1286 of 2023 consolidated with this Appeal as regards the quantum of damages. **JUDGMENT** delivered virtually this 29th Day of June 2026 at **NAKURU** **J.M NANG’EA, JUDGE**. **In the presence of ;** **The Appellant’s advocate, Mr Mahugu for Mr. Chengecha.** **The Respondents’ advocate, Ms Kaveni.** **The Court Assistant- Jeniffer.** .