Ngue v Ketnno Transport and Courier Services Ltd & another (Civil Appeal E152 of 2024) [2026] KEHC 11590 (KLR) (27 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. E152 OF 2024** **FESTUS MUTETI NGUE..................................................................................APPELLANT** **VERSUS** **KETNNO TRANSPORT AND COURIER SERVICES LIMITE…1ST RESPONDENT** **JOSEPH MUGENDI.............................................................................2ND RESPONDENT** **(Being an appeal from the judgment and decree of Hon. B. S. Khapoya, Senior Principal Magistrate, delivered at Kithimani on 15th May 2024 in Kithimani PMCC No. E039 of 2020)** **BETWEEN** **FESTUS MUTETI NGUE.............................................................................PLAINTIFF** **AND** **KETNNO TRANSPORT AND COURIER SERVICES LIMITED.....1ST DEFENDANT** **JOSEPH MUGENDI………………….....................................................2ND DEFENDANT** **JUDGMENT** **A. BACKGROUND** 1. This is a first appeal arising from the judgment of the Senior Principal Magistrate’s Court at Kithimani delivered on 15th May 2024 in Kithimani PMCC No. E039 of 2020. The appeal is not against liability. It is confined to the award of general damages for pain, suffering and loss of amenities. 2. The Appellant, Festus Muteti Ngue, commenced the primary suit by a plaint dated 16th November 2020. He pleaded that on 6th August 2020 at about 7.45 p.m., he was lawfully travelling as a fare-paying passenger in motor vehicle registration number KBX 880R along Embu–Kanyonyo Road at Kaewa area when the vehicle was so negligently driven, managed or controlled that it lost control and violently rammed into an ox-cart. He claimed that, as a consequence, he sustained bodily injuries and suffered loss and damage. 3. The plaint was accompanied by the Appellant’s verifying affidavit, witness statement, list of witnesses and list of documents, all dated 16th November 2020. The documents produced in support of the claim included the demand letter, certificate of postage, treatment receipt, P3 form, police abstract, medical report by Dr. Muli, receipt for the medical report, copy of records, receipt for the copy of records and the duplicate certificate of insurance. 4. The 2nd Respondent entered appearance through a memorandum of appearance dated 25th March 2021 and filed a statement of defence of the same date. The Respondents denied negligence, ownership and the pleaded injuries, and in the alternative pleaded contributory negligence against the Appellant. The Appellant filed a reply to defence dated 29th April 2021. He also filed a statement of issues and a pre-trial questionnaire both dated 31st May 2021. 5. The matter proceeded to hearing before the trial court. The Appellant testified, adopted his witness statement dated 16th November 2020 and produced the documents in his list of documents. The Respondents did not call evidence. The Appellant’s written submissions before the trial court were dated 2nd October 2023, while the Respondents’ submissions were dated 11th January 2024. 6. In the judgment delivered on 15th May 2024, the learned trial magistrate found the Respondents 100% liable and awarded the Appellant Kshs. 70,000 as general damages for pain, suffering and loss of amenities and Kshs. 6,550 as special damages. The Appellant was also awarded costs and interest. The finding on liability and the award of special damages have not been challenged. 7. By the Memorandum of Appeal dated 15th May 2024, the Appellant complains that the award of Kshs. 70,000 was manifestly and inordinately low; that the learned magistrate failed to appreciate the Appellant’s submissions and authorities; that the learned magistrate failed to consider awards made in comparable cases; and that the learned magistrate failed to apply the principle that comparable injuries should, as far as possible, attract comparable awards, taking into account the peculiar circumstances of each case, inflation and the sequelae of the injuries. 8. Directions on the appeal were taken on 26th June 2025, when the Court directed that the appeal be disposed of by written submissions. The Appellant filed written submissions in 2025. No separate issue arises on liability because the Respondents did not cross-appeal against the finding of 100% liability. **B. DUTY OF THIS COURT** 9. As a first appellate court, this Court is required to reconsider and re-evaluate the evidence placed before the trial court and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. That duty was stated in***Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123,***where the Court of Appeal held that a first appeal is by way of retrial and that the appellate court must reconsider the evidence, evaluate it and draw its own conclusions, making due allowance for the fact that it did not see or hear the witnesses. 10. The same principle has been restated in numerous decisions, including ***Kiruga v Kiruga & Another [1988] KLR 348*** and ***Raphael N. Kiburi v Hussein Adendere [2013] eKLR.*** However, where the appeal concerns quantum of damages, the Court’s jurisdiction to interfere is limited. It is not enough that the appellate court would have awarded a different amount. 11. The governing principle was stated in ***Kemfro Africa Ltd t/a Meru Express Service, Gathogo Kanini v A. M. Lubia & Olive Lubia [1982–88] 1 KAR 727****,* where the Court of Appeal held that an appellate court may interfere with an award of damages only if the trial court took into account an irrelevant factor, left out of account a relevant factor, or where the amount awarded is so inordinately high or so inordinately low that it must be a wholly erroneous estimate of damages. 12. In ***Catholic Diocese of Kisumu v Sophia Achieng Tete, Civil Appeal No. 284 of 2001***, the Court of Appeal restated that assessment of general damages is a matter of discretion and that an appellate court is not justified in substituting its own figure merely because it would have awarded a different amount. Interference is justified only where the trial court applied wrong principles, misapprehended the evidence, considered irrelevant matters, omitted relevant matters, or arrived at a figure so inordinately high or low as to represent an erroneous estimate. 13. In ***Kitavi v Coast Bottlers Ltd [1985] KLR 470,*** the Court of Appeal further stated that damages must be assessed with moderation and in conformity with the general method of approach taken by local courts, while appreciating that guidelines and brackets are only aids to consistency and not rigid classifications. In ***Simon Taveta v Mercy Mutitu Njeru [2014] eKLR,*** the Court of Appeal also affirmed that comparable injuries should, as far as possible, be compensated by comparable awards, though each case must be determined on its own facts. **C. ISSUE FOR DETERMINATION** 14. The only issue for determination in this appeal is; ***i) Whether the award of Kshs. 70,000 as general damages for pain, suffering and loss of amenities was so inordinately low, or founded on wrong principles, as to justify interference by this Court.*** **D. ANALYSIS AND DETERMINATION** 15. The injuries pleaded in the plaint dated 16th November 2020 were a very tender haematoma formation over the forehead, a very tender haematoma formation over the nasal bridge, oedematous and severe tenderness over the lips and gum, tooth number 11 being loosely attached to the gum, severe tenderness involving the back and posterior body trunk, severe tenderness over the chest and severe tenderness over the abdomen. The Appellant also pleaded continuing complaints of backache and chest pains. 16. The Appellant’s witness statement dated 16th November 2020 stated that he was treated at Matuu Level 4 Hospital on 7th August 2020 and later obtained a P3 form and police abstract from Matuu Police Station. The record shows that Dr. Muli examined the Appellant on 21st August 2020. The Appellant’s submissions before the trial court referred to the medical report and the P3 form as confirming the pleaded injuries. To the extent that one part of the submissions refers to the report as dated 21st June 2020, that date is plainly inconsistent with the pleaded accident date of 6th August 2020 and appears to be a typographical error. The material point is that the report records an examination after the accident and confirms the injuries. 17. The medical evidence established that the Appellant sustained multiple soft tissue injuries involving the head and face, lips and gum, back, chest and abdomen. The injury to tooth number 11 was not pleaded or proved as tooth loss. It was pleaded and proved as a loose tooth. There was no evidence of dental extraction, permanent loss of tooth, dental replacement, fracture of the mandible, fracture of any other bone, hospital admission, surgery, neurological injury, permanent disability or future medical expenses. 18. The trial court correctly found liability at 100% against the Respondents. For present purposes, however, the relevant question is the extent of injury and the proper compensatory award. In assessing damages, the learned magistrate stated that he had carefully considered the pleadings, submissions, authorities, nature of injuries, evidence on record, circumstances of the case, inflation and the fact that no amount of money could adequately compensate the Appellant. The learned magistrate then awarded Kshs. 70,000. 19. Although the learned magistrate was not required to write a lengthy judgment, the assessment of damages required a comparative evaluation of the authorities cited by both sides. The Appellant had cited authorities involving much higher awards. The Respondents had cited authorities involving a lower range. The judgment does not show why the court considered one range more appropriate than the other, especially where the injuries included facial and oral trauma in addition to other soft tissue injuries. 20. **In *Swiss Contact Ltd & Peter Munguti Kieti v Esther Muthee [2019] eKLR,* Ngaah J.** emphasized that a trial court must make a comparative analysis of the injuries sustained and the awards made for relatively similar injuries in previous decisions. The purpose is to promote certainty and uniformity while allowing for inflation and the individual circumstances of each case. In that case, the High Court interfered with an excessive award for soft tissue injuries and substituted it with Kshs. 100,000. 21. Before the trial court, the Appellant relied on ***Silper Okoko & Margaret Awino v F. Radido & Ben Kabaka, Nairobi HCCC No. 3741 of 1987***, where judgment on quantum was delivered on 8th December 2000. The second plaintiff in that matter had suffered loss of teeth with bleeding tooth sockets, injury to the mouth leading to distortion of the mouth and injury to the face, resulting in facial disfigurement and psychological trauma. The court awarded Kshs. 700,000. That authority involved actual loss of teeth, facial disfigurement and psychological sequelae. It was therefore far more serious than the present case, where there was a loose tooth but no proved tooth loss or disfigurement. 22. The Appellant also relied before the trial court on ***Alphonse Mwatsuma Mwagamchi v Joseph Mwanzia Mwanzu & Another [2005] eKLR***, decided on 15th December 2005. In that case, the plaintiff suffered a fracture of the mandible, loss of seven lower teeth, severe back injury with spinal cord involvement, prolonged treatment and a claim for dental replacement. The court awarded Kshs. 1,200,000 as general damages, in addition to dental replacement costs and special damages. That decision was plainly distinguishable. The Appellant herein did not suffer a mandible fracture, spinal cord involvement, loss of seven teeth, prolonged admission or permanent incapacity. 23. In the appeal, the Appellant relied on ***Catherine Wanjiru Kingori & 3 Others v Gibson Theuri Gichubi [2005] eKLR,*** decided on 1st July 2005. In that case, the third plaintiff was awarded Kshs. 350,000 for multiple soft tissue injuries, injury on the left elbow joint and injuries on both ankles. The fourth plaintiff was awarded Kshs. 100,000 for injury to the neck and headache. While that case was relevant as a broad guide, the judgment was brief, the injuries were not analysed in great detail, and the awards were made in the context of the particular evidence before that court. The third plaintiff’s injuries appear to have included multiple limb injuries not present in the instant case, while the fourth plaintiff’s injuries were less extensive than those of the Appellant. 24. The Appellant further relied on ***Lucy Ntibuka v Bernard Mutwiri & Others, Meru HCCC No. 17 of 1988*,** decided on 8th February 2007, where the plaintiff was awarded Kshs. 500,000. The injuries in that case included soft tissue injuries, head injuries, lacerations near the right eye and lacerations and cut wounds on the left arm. That authority involved lacerations and cut wounds, and the award appears to have been influenced by the evidence and authorities placed before that court. It is a guide but not a close comparator for a case where the injuries were principally tenderness, haematoma and a loose tooth without lacerations, suturing, fracture or permanent incapacity. 25. The Respondents, in their submissions dated 11th January 2024 before the trial court, proposed an award of Kshs. 40,000. They relied on HB, a minor suing through mother and **next friend *DKM v Jasper Nchonga Magari [2021] eKLR****,* where an award of Kshs. 60,000 was upheld for blunt object injuries to the head and neck, thorax and limbs. They also relied on ***Kipkebe Ltd v Peterson Ondieki Tai [2016] eKLR,* where** an award was reduced to Kshs. 30,000 for a deep cut wound on the left leg, chest contusion and bruises on the left shoulder. Those authorities represented the lower end of awards for soft tissue injuries. They are also distinguishable because the Appellant’s injuries in the present matter were multiple, affected several regions of the body and included oral trauma with a loose tooth. 26. Other recent decisions provide useful guidance. In ***David Abdalla Tiego, Kisaka John Gedion t/a Prince Bus Services & National Industrial Credit Limited v Irene Tago Maranda [2018] KEHC 1620 (KLR),*** the High Court considered soft tissue injuries with permanent loss of one tooth. The trial court had awarded Kshs. 300,000. On appeal, the award was found inordinately high and was substituted with Kshs. 150,000. The case is useful because it involved soft tissue injuries together with a dental component. However, it involved actual loss of a tooth, which is more serious than a loose tooth where no permanent loss is proved. 27. In ***Robert Cheserek v Jackline Jepkoech Jimmy [2019] KEHC 8103 (KLR),*** the High Court declined to interfere with an award of Kshs. 200,000 for soft tissue injuries together with loss of one tooth. Again, actual tooth loss was a material factor, which makes that case somewhat more serious than the present appeal. 28. In ***Adembesa & Another v Gweno [2024] KEHC 5379 (KLR),*** the High Court substituted an excessive award with Kshs. 120,000 for soft tissue injuries where the record did not support the higher award. In ***Ogembo Tea Factory v Joel Albert Momanyi [2018] KEHC 3206 (KLR),*** an award of Kshs. 120,000 was found reasonable for soft tissue injuries from which the claimant had recovered. In ***Ras Holdings Limited & Another v Ombisi [2022] KEHC 14298 (KLR),*** the High Court substituted an award of Kshs. 350,000 with Kshs. 120,000 where the only proved injuries were soft tissue injuries and bruises. 29. In ***Mash East Africa & Another v Kyalo [2022] KEHC 15065 (KLR),*** an award of Kshs. 180,000 was reduced to Kshs. 100,000 for minor soft tissue injuries. While in ***Margaret Wanjiku Njoki v Broadways Bakery Limited [2020] KEHC 7747 (KLR),*** an award of Kshs. 50,000 was enhanced to Kshs. 150,000 for soft tissue injuries, the court finding the initial award inordinately low when measured against comparable awards. In ***Ochola v Owuor [2024] KEHC 7689 (KLR),*** the High Court reduced an award of Kshs. 250,000 to Kshs. 150,000 for soft tissue injuries which had healed without residual effects. **E. CONCLUSION** 30. From these authorities, the broad contemporary range for uncomplicated soft tissue injuries tends to fall between Kshs. 80,000 and Kshs. 150,000, depending on multiplicity, affected body parts, residual complaints, scarring and the date of judgment. Where there is actual tooth loss, courts have tended to move above the ordinary minor soft tissue range, with awards of about Kshs. 150,000 to Kshs. 200,000 in the cited recent authorities. The present case lies between these categories. It is not a mere minor bruise case, but neither is it a dental loss, fracture or permanent incapacity case. 31. The Appellant asked this Court to substitute the award with Kshs. 300,000. I am not persuaded that such an award is justified by the evidence. An award in that region would be more appropriate for injuries involving fractures, actual dental loss, significant lacerations, prolonged treatment, permanent sequelae or more serious residual disability. The authorities relied upon by the Appellant, especially Silper Okoko and Alphonse Mwatsuma Mwagamchi, involved injuries materially more serious than those suffered by the Appellant. 32. On the other hand, I am satisfied that the award of Kshs. 70,000 was on the lower side and constituted an erroneous estimate of damages in the circumstances of this case. The learned magistrate appears to have treated the injuries as ordinary minor soft tissue injuries without sufficiently accounting for their multiplicity, the involvement of the head and face, the oedematous and tender lips and gum, the loose tooth, the back, chest and abdominal tenderness, and the fact that judgment was delivered in May 2024. 33. The assessment must be compensatory and moderate. It must not enrich the claimant, but it must also not trivialise proved injuries. Bearing in mind the comparable decisions, the date of the accident, the date of the trial court judgment, inflation, the absence of permanent disability and the oral/facial component of the injuries, I find that an award of Kshs. 150,000 is fair and reasonable compensation for pain, suffering and loss of amenities. 34. The appeal therefore succeeds to that extent. The award of Kshs. 70,000 made by the learned trial magistrate as general damages for pain, suffering and loss of amenities is set aside and substituted with an award of Kshs. 150,000. 35. The award of special damages of Kshs. 6,550 is not challenged and remains undisturbed. The final award is therefore Kshs. 150,000 as general damages and Kshs. 6,550 as special damages, making a total of Kshs. 156,550. 36. The finding on liability at 100% against the Respondents jointly and severally remains undisturbed. 37. Interest on special damages shall run at court rates from the date of filing suit in the lower court until payment in full. Interest on general damages shall run at court rates from 15th May 2024, being the date of judgment in the lower court, until payment in full. 38. On costs, the Appellant has succeeded on the only issue raised in the appeal, although not to the full extent of the award proposed. In the circumstances, the Appellant shall have the costs of the suit in the lower court as awarded by the trial court and one half of the costs of this appeal. **DATED, SIGNED AND DELIVERED THIS 27TH DAY OF JULY 2026 IN THE PRESENCE OF:** **BEFORE HON JOYCE MKAMBE GANDANI** **JUDGE HIGH COURT.** **COURT ASSISTANT: BEN**