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Njoroge & another v Kariuki (Civil Appeal E237 of 2025) [2026] KEHC 7233 (KLR) (26 May 2026) (Judgment) Neutral citation: [2026] KEHC 7233 (KLR) Republic of Kenya In the High Court at Eldoret Civil Appeal E237 of 2025 RN Nyakundi, J May 26, 2026 Between Wanguiya Njoroge 1st Appellant Fred Kinyua Murage 2nd Appellant and Michael Kariuki Respondent Judgment 1.Before this Court is a Notice of Motion dated 8th December 2025, expressed to be brought under Section 1A, 1B, 3A of the Civil Procedure Act, Order 42 Rule 6 (1) & 6(2), Order 51 Rule 1 of the Civil Procedure Rules 2010. The Applicants seeks the following orders:a.That there be a stay of execution of the warrants of attachment issued on 19th November 2025, the proclamation Notice dated 20th November 2025, and the notification of sale dated 5th December 2025, pending the hearing and determination of pending the hearing and determination of this application inter-partes.b.That there be a stay of execution of the decree of Kshs. 288,108/- pending the hearing and determination of Eldoret HCCA NO. E237 OF 2025; Wanguiya Njoroge & Fred Kinyua Murage Vs Michael Kariuki subject to Order Number 4 herein.c.That this Honourable Court be pleased to allow the Appellants/Applicants to provide security by depositing the entire decretal sum of Kshs. 288,108/- in a joint interest-earning account in the names of both Counsel on record as security for the due prosecution of the appeal.d.That this Honourable Court do grant leave for the firm of KRK Advocates LLP to come on record for the Appellant herein in place of the firm of Kairu & McCourt Advocates.e.That the costs of this application be provided for in the cause. 2.Which application is premised on the grounds set out hereunder:a.That judgment was delivered herein on 17th September, 2025 in favor of the Respondent in the following terms;-a.Liability100%............................as against the Appellant/Applicantb.Pain and Suffering………………………………………..Kshs.150,000/-c.Net award……………………………………………………Kshs.150,000/-b.That following the delivery of the judgment in the lower Court matter, the Appellants duly lodged an appeal before this Honourable Court being Eldoret Civil Appeal No. E237 of 2025, which is currently pending determination, and unless stay of execution is granted, the appeal will be rendered nugatory.c.That the Appellants have an arguable appeal with high chances of success, as the learned trial Magistrate erred in law and in fact by proceeding to award general damages in a suit where the Respondent failed to plead and particularize the nature of the injuries allegedly sustained, contrary to the legal requirement that parties are indeed bound by their pleadings and one ought not to be awarded for that which is not pleaded. The award was therefore made without a proper legal foundation, rendering the impugned judgment wholly unsustainable.d.That the Respondent has already commenced execution against the Appellants, having obtained warrants of attachment on 19th November 2025, followed by a Proclamation Notice issued by Seventy-seven Auctioneers on 20th November 2025, and subsequently a Notification of Sale dated 5th December 2025 in respect of the Appellants' motor vehicle KCP 220B Toyota Hiace, thereby placing the property at imminent risk of auction.e.That the Respondent's financial ability is unknown and is therefore unlikely to refund the judgment sum if paid out to him to the detriment of the Appellants/Applicants.f.That the Appellants'/Applicants' insurer is ready and willing to provide security by depositing the entire decretal sum of Kshs. 288,108/- in a joint interest-earning account in the names of both Counsel or record as security for the due prosecution of the appeal.g.That this application is made in the interest of justice and in good time without undue delay. 3.In support of the application is the sworn affidavit of Wanguiya Njoroge who deponed as follows:a.That I am the 1st Appellant/Applicant and hence I am competent and duly authorized to swear this affidavit.b.That I am informed by my advocates on record which information I verily believe to be true that judgment was delivered on 17th September, 2025 and a decree obtained for Kshs. 288,108/-c.That being dissatisfied with the aforementioned judgment, I instructed my Advocates on record to lodge an appeal against the whole judgment.d.That the orders of stay in force have lapsed; the judgment having been delivered on 17th of September 2025 and the Respondent has already commenced execution against us, having obtained warrants of attachment on 19th November 2025, followed by a Proclamation Notice issued by Seventy-Seven Auctioneers on 20th November 2025, and subsequently a Notification of Sale dated 5th December 2025 in respect of my motor vehicle KCP 220B Toyota Hiace, thereby placing the property at imminent risk of auctione.That the Respondent's financial ability being unknown and the judgment amount being a substantial amount, the Respondent is therefore unlikely to refund the decretal sum if paid to him in the event the appeal succeeds and the I stand to suffer substantial loss and prejudice.f.That it is in the interest of justice that the orders of stay sought herein be granted so as to safeguard the interest of both parties herein as the Respondent's interests will be safeguarded by depositing the entire decretal sum of Kshs. 288,108/- in a joint interest-earning account in the names of both Counsel on record as security for the due prosecution of the appealg.That my insurer is ready and willing to provide security by depositing the decretal amount in a joint interest-earning account in the names of both Counsel on record as security for the due prosecution of the appeal.h.That this application has been made promptly without undue delay and in the interests of justice and the Respondent herein will not suffer any prejudice if the instant application is allowed. 4.This application was canvassed by way of written submissions, in which learned Counsel of the Appellant submitted that the Learned Magistrate erred in law by awarding damages despite the glaring effect in the plaint on particulars of injuries allegedly sustained by the Respondent. Similarly, it was learned Counsel contention that the Respondent did not discharge the standard and burden of proof on standard of probabilities as stipulated under Section 107, 108, 109 of the Evidence Act. In support of this line of legal thought learned Counsel placed reliance in the following authorities: Anthony Francis Wareham t/a AF Warehem & 2 Others v Kenya Post Office savings Bank [2004] eKLR, Adetoun Oladeji (NIG) Ltd v Nigeria Breweries PLC (SC 91/2002) and IEBC & Another v Stephen Mutinda Mule & 3 Others [2014] eKLR. 5.In this respect learned Counsel argued and submitted that the appeal should be allowed and thereafter proceed to set aside the judgment of the Lower Court with costs. 6.Whereas the learned Counsel for the Respondent relied entirely on her written submission dated 20th February 2026 in which she contended that pursuant to the case of Butt v Khan (1978) KLR, the Appellant has not met the threshold for this Court to interfere with the judgment to the trial Court. Decision 7.The grounds of appeal and the submissions filed by both learned Counsel for each of the litigants form the basis upon which this appeal should be determined. The issue on liability and quantum seems to be contested by the Appellant with regard to the impugned judgment. 8.It is settled law that proving negligence in a Road Traffic Accident requires demonstrating on a balance of probabilities that a duty of care existed, was breached, and directly resulted in the sustained injuries or damages. Claimants typically rely on the particulars of negligence e.g. speeding, improper lookout and official documentation like police abstracts to discharge the burden. 9.Jurisdiction of this Court is well stated in the case of Selle & Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123:“…this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this Court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence.” 10.It is a very hard thing for an appellate Court to interfere with the findings of fact by a trial Judge particularly if such findings are based on the demeanor of witnesses as observed by the Judge and his general appreciation of the evidence in the case. But if a trial Judge has failed to appreciate the weight or bearing of circumstances admitted or proved, then an appellate Court is entitled to interfere even with his findings of fact. See Peters v Sunday Post Limited [1958] EA 423. 11.From the memorandum of appeal, the Appellant is aggrieved with the judgment of the trial Court which ruled as follows:a.Having considered the pleadings, evidence and submissions on record, I find no reason to doubt the Plaintiff who was the passenger in the vehicle, who clearly narrated how the, driver of the vehicle threw caution in the air as he drove the vehicle by tossing the passengers up and down. The Plaintiff's injuries, no doubt were caused by the negligence of the driver and find him wholly liable for the accident the Plaintiff suffered.b.As per the police abstract, the motor vehicle owned by the 1st Defendant at the time of accident. In the absence of evidence to the contrary, I find and hold the 1st Defendant vicariously liable for the negligence of the 2nd Defendant driver.c.As for the injuries, the Plaintiff suffered soft tissue injuries from which he has recovered as per the medical report dated 22nd June, 2020 by Dr. Joseph Sokobe. The injuries were blunt object injury to the head, neck and left knee.d.In 2018, the Court in Ndungu Dennis v Ann Wangari Ndirangu & Eddah Mwihaki Civil Appeal 54 of 2016) [2018] ·KEHC 8799 (KLR) (1 February2018) (Judgment) awarded Kshs. 100,000/= for blunt object injuries and other soft injuries. Taking into account the effect of inflation about seven years down the line, I am satisfied that Kshs. 150,000/= suffices for pain and suffering, which I hereby award the Plaintiff.e.I did not find a single receipt in respect of the special damages pleaded in the plaint. The claim fails.f.In the final analysis, I enter judgment for the Plaintiff against the Defendants, jointly and severally, for:a.Liability…………………………………………… 100%b.General damages for pain and suffering…… Kshs.150,000/=c.Special damages……………………………….. nild.Interest at 14% per annum on the amount at (b), above, from the date of this Judgment until payment in full.e.Costs of the suit. 12.It is from this decision, the Appellant moved this Court on appeal based on the memorandum of appeal dated 17th September 2025 grounded as follows:a.That the learned trial Magistrate erred in law by proceeding to give an award under the head of general damages in a suit where the Respondent herein failed to particularize and plead the injuries alleged to be suffered.b.That the learned trial Magistrate misdirected himself when he failed to apply the right legal principals and precedents in determining whether the Respondent herein is entitled to any award under the head of general damages.c.That the learned trial Magistrate erred in law and in facts by failing to consider the Appellant’s written submissions and legal authorities and/or precedents on quantum thereby arriving at a decision which is wholly erroneous in law.d.Reasons wherefore the Appellants herein prayed;a.That the Appeal be allowed.b.That the judgment delivered on 17th September, 2025 in favor of the Respondent as against the Appellant be set aside in its entirety and this honorable Court be pleased to find that the Respondent herein is not entitled to any award under the head of general damages.c.That the Appellant be awarded the costs of the Appeal. 13.It is within this basic structure an Appeals Court finds an entry point in addressing the grievances on liability and quantum. 14.That the major attack by the Appellant on the findings of the learned Magistrate on liability was premised on the facts that the police abstract report, the Appellant was not blamed for causing the accident and the investigations were ongoing hence creating a gap on the blameworthiness of the Appellant. It was further the arguments by the Appellant that before the trial Court that there was no schedule claim produced to confirm pre and post-accident position of the motor vehicle KCP 220B. In a nutshell, the Appellant was of the view in this appeal, that liability based on the elements of negligence was never proved on a balance of probability. As a rejoinder to this argument, the Respondent to this appeal urged the Court to affirm the judgment of the Lower Court on both liability and quantum following the findings that the learned trial Magistrate based on the evidence which was never challenged by the Appellant. 15.It is trite law that there can be no liability for negligence, unless the wrong complained of can be attributed to the conduct of the Defendant, against the background of a duty to take care. Where liability depends upon proof of some act of the Defendant or a person for whom he is responsible, as distinct from liability arising from omission, the requirement of an act involves a bodily movement, resulting from an operation of the will. Where the harm of which the claimant complains was caused by the act of a stranger the Defendant may not be liable, save where the stranger’s act was one he ought to have had in contemplation and guarded against. So an occupier was not liable for the escape of a dangerous thing under the rule of Rylands v Fletcher, either when the escape was caused by the act of a stranger or when he had not consented to the presence of the dangerous thing on his land. See CharlesWorth & Percy on negligence page 142. 16.Everyday proof of collision is held to be sufficient to call on the Defendants for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the Court would unhesitantly hold that both are to blame. They would not escape simply because the Court had nothing by which to draw any distinction between them. See Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472 at 1476. 17.From the facts of this case which are very clear by the reading of the proceedings there was an accident which occurred involving motor vehicle registration No. KCP 220B registered on the name of Wanguya Njoroge. According to the Plaintiff Michael Kariuki who sued as the Claimant or Plaintiff further avers that on or about 10th day of May 2020, he was a lawful passenger board motor vehicle registration No. KCP 220B travelling along the Nairobi-Eldoret road, when the driver, recklessly drove, managed and/or controlled motor vehicle registration. No. KCP 220B thereby making the Plaintiff to incur injuries and that the subject accident primarily occurred due to the negligence on the part of the Defendants, his servant’s and/or employees and therefore holds the Defendant directly and/or vicariously liable in negligence. 18.During the trial before the learned trial Magistrate, the Plaintiff who was a passenger in the subject motor vehicle on the material day when the accident occurred gave evidence on the chronology of events which resulted in the accident which eventually occasioned personal injuries. He produced before the trial Court the police abstract dated 13th May 2020, a copy of motor vehicle records from NTSA indicative of Wanguyi Njoroge as the registered owner. The Plaintiff further presented before the trial Court a medical report by Dr. Joseph Sokobe with accompanying treatment notes which made the following positive findings: injuries suffered; blunt injury to the head, neck and the left knee. In his opinion on prognosis, the doctor stated that the Respondent to this appeal sustained soft tissue injuries but he has now recovered fully. 19.The Plaintiff/Respondent presented before Court prima facie evidence on occurrence of the accident while he was on board as a passenger in motor vehicle registration KCP 220B. The facts of the Plaintiff/Respondent being a passenger in the subject motor vehicle and subsequently the motor vehicle being involved in an accident has not been challenged by the Appellant/Defendant to this appeal. Prima facie evidence is at first sight proof that is legally sufficient to establish a fact or a case unless rebutted or contradicted by opposing evidence. It requires presenting enough credible evidence to satisfy all the required legal elements of the facts in issue. This is how the Courts have gone about to define and apply prima facie evidence: Dato' Mokhtar bin Hashim v. Public Prosecutor (Malaysia): Established that to prove a prima facie case, the prosecution must present credible evidence on each ingredient of the offense which, if left unrebutted, would warrant a conviction. R v. Galoob [1997]: Highlighted that prima facie evidence establishes the burden of production, shifting the burden of explanation to the defense. Bramwell v. State (US Case Law): Clarified that prima facie evidence means there is enough evidence for a reasonable jury to find every element satisfied 20.The Appellant to this appeal in his memorandum of appeal avers that the learned trial Magistrate erred in law without first admitting that the trial was based on a prima facie case with no affirmative defence to controvert it. A prima facie case whether or not the standard and burden of proof when determining a matter in a civil claim rests in its entirely on evidence which has all the elements of the dispute which remained uncontroverted. I usually refer to it as half time stage of the proceedings. Essentially, a party carries the day by securing judgment in absence of a rebuttal so long as all the ingredients of the claim have been proved at that prima facie stage. In the case of re R v Jacobson & Levy 1931 AD 466 478, it was held that:“If the party on whom lies the burden of proof, goes as far as he reasonably can in producing evidence and that evidence “calls for an answer” then, in such case, he has produced prima facie proof, and in the absence of an answer from the other side, it becomes conclusive proof…” 21.In the absence of evidence to the contrary from the Defendants now Appellants, the prima facie evidence in this case from PW1 became conclusive evidence of the facts contained therein. The Court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him. Since the terms proved, disproved and not approved are statutory definitions contained in the Evidence Act (Cap 97 1997 Rev Ed) (EA), the term proof, wherever it appears in the EA and unless the context otherwise suggests, means the burden to satisfy the Court of the existence or non-existence of some fact, that is the legal burden of proof. See SS103 and 105 of the EA. 22.The law is very clear on the standard and burden of proof, this is especially so when is open to the Judge or Magistrate to say simply that the evidence leaves him in doubt whether the event occurred or not, and that the Plaintiff on whom the burden of proving that the event occurred lies has therefore failed to discharge such burden. In a case involving a total negligence as are the facts of this case, the elements of proof must be weighed within the scope of Miller v Minister of Pensions [1947] 2All ER 372 at 374 as per Denning J as he then was:If at the end of the case the evidence turns the scale definitely one way or the other, the tribunal must decide accordingly, but if the evidence is so evenly balanced that the tribunal is unable to come to a determinate conclusion one way or the other, then the man must be given the benefit of doubt. This means that the case must be decided in favour of the man unless the evidence against him reaches the same degree of cogency as is required to discharge a burden in civil case. 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 the tribunal can say, ‘we think it more probably than not’, the burden is discharged, but, if the probabilities are equal, it is not. 23.In the context of this case, the learned trial Magistrate was right in making a finding that the Appellant breached the duty of care and the doctrine of vicarious liability to render a verdict of apportioning liability at 100% as against the Appellant jointly and severally. As such the Plaintiff/Respondent to this appeal being a passenger in the subject motor vehicle did not contribute to the cause of the accident. 24.It is trite as observed by the Court in Grant v Sun Shipping Co Ltd [1948] All ER 238 remarked:Anyone driving on a major road is entitled to go on that road in a proper position and is entitled to keep his proper place on that road and to do so in reliance on side road traffic behaving himself as the rules of the road desires until it may be at the very last moment some observations of a gross-infringement by other calls for special attempt to deal with it. The driver on a major road as the Plaintiff is not expected, say, to slow down to a pace of 15 miles an hour in broad daylight, when approaching a side road or otherwise share the blame for any collision, which may occur. But here the Plaintiff omitted to take due care for the safety of the Defendant and as a prudent driver, she ought to have guarded against possible negligence of drivers on the minor road, Defendant included, as experience shows negligence to be common. 25.From the evidence adduced, the Appellants motor vehicle Registration No. KCP 220B was the one to wholly blame for the accident. There is no iota of evidence from the Defendant/Appellant to controvert both direct and documentary evidence to rebut the case of the Plaintiff/Claimant or Respondent to this appeal. I therefore concur with the Learned Trial Magistrate with the findings he made on the breach of duty of care and the key characteristics of the thought of negligence. 26.The second allegation in the memorandum of appeal is in terms of assessing damages as carried out by the learned Magistrate and finally reflected in the judgment. It is settled law that assessment of damages rest with the discretion of the trial Court. This judicial discretion is underpinned by past awards, documentary evidence on special damages, and also medical-legal reports by the Medical Officer who came into contact with the Plaintiff/Claimant soon after the injuries his/her diagnostic prognosis as it has been observed by other cases in the High Court that general damages for personal injuries for are difficult to assess accurately so as to give satisfaction to both parties. There are so many incalculables. The imponderables vary enormously. It is a very heavy task and one cannot aim for precision. 27.This is what the Court stated in Southern Engineering Co. Ltd v Musingi Mutia [1985] KLR 730; Thus:It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated. The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion, judgment and experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of the appellate tribunal to pose for himself the question as to award he himself would have made. Having done so, and remembering that in this sphere there are invariably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment. (See H West and Son v Shephard [1964] AC 326 at 353). 28.The appellate Courts will interfere if the Trial Judge made a material error in evaluating the fact, applied the wrong legal principles, or awarded damages that are so inordinately high or low that they are deemed an erroneous estimate. However, the appellate Courts do not interfere lightly; they only do so if the Judge was “plainly wrong or” if there is a glaring disparity in the quantum. (See Kevron Turner & Another v Johnica & 2Others [2024] JMCA Civ 26). 29.The Respondent in the Medical Report dated 22nd June 2020 suffered blunt injury on the head, neck and knee. In the opinion of the doctor there was no permanent prognosis. The learned trial Magistrate in his judgment assessed general damages of suffering at 150,000. The Appellants were aggrieved with this decision on assessment on quantum and in the memorandum of appeal they stated that the learned trial Magistrate misdirected himself when he failed to apply the right legal principles and precedents in determining whether the Respondent herein is entitled to any award under the head of general damages. The view taken by the learned Counsel for the Appellants was that the Respondent did not deserve any award of damages. 30.In this branch of law various decisions have been made in which the Plaintiff who suffered multiple injuries often involving soft tissue damages, multiple bruises and abrasions without permanent disability or fractures are typically awarded general damages ranging from Kshs 100,000 to 300,000 depending on the severity and recovery timeline. 31.It is clear from the following authorities that the High Court has set out guidelines on multiple injuries suffered by Plaintiffs or claimants with no permanent disability as hereunder demonstrated: Too v. Kamau (Civil Appeal E004 of 2020) [2024] KEHC 14302: The High Court upheld an award of Kshs. 300,000 in general damages for a Plaintiff who sustained multiple blunt injuries to the head, neck, and chest. Michael Okello v. Priscilla Atieno (2020): An award of Kshs. 250,000 was cited and deemed appropriate by the High Court for multiple injuries affecting the legs, chest, and back. Daniel Gatana Ndungu & Another v. Harrison Angore Katana [2020] eKLR: The High Court substituted a trial Court's award, settling on Kshs. 140,000 for a mix of a cut on the head, multiple bruises on the limbs, and blunt injuries to the knee 32.The learned Counsel for the Appellant argued that the trial Magistrate had directed himself for not relying on the legal authorities which were shared during the trial to make informed decisions on assessment of damages. This Court has revisited the submission and authorities on quantum which included the following: Makami v Obong’o Civil Appeal E062 of 2021 [2023] KEHC 922 KLR, Nairobi HCCA 527 of 2019 Losagi Insurance Ltd & Anr vs Josephat Achesa (2022) eKLR and in Nyahururu HCCA no. 16 & 17 of 2017 LNK & Others vs Simon Gatuni Njukia (2022) eKLR. 33.As stated elsewhere in this judgment, the two cases cited by the Appellant relate to the proceedings initiated between 2017 and 2019 and the decision seems to have been made in the year 2022 and 2023. In deciding this appeal three cardinal principles have to be borne in mind:a.That the law as to the factors which must be weighed and taken into account in assessing damages is in general the same as the law in England.b.That the principles governing and defining the approach of an appellate Court that is invited to hold that damages should be increased or reduced are the same as those of the law of England.c.That to the extent to which regard should be had to the range of awards in other cases which are comparable such cases should as a rule be those which have been determined in the same jurisdiction or in a neighboring locality where similar social, economic and indud.strial conditions exist. See the principles in Shabani v City Council of Nairobi [1984] LLR 208 (CAK) and Juma v Kenya Glass Works Ltd [1980] LLR 1271(CAK) 34.The law in Kenya’s Civil system is kind of very much settled when it comes to assessments to personal injuries cases. The Courts have mandated the assessment of just and reasonable conversations bifurcated into pecuniary and non-pecuniary losses. The question of compensating the Claimant or Plaintiff who has been injured in a road traffic accident is to ensure that there is fair and proportionate compensation. It is not a mathematical function by the Courts. This is what the supreme Court in India observed in the case of Phillips v. Western Railway Co. (1874) 4 QBD 406, emphasizing that damages must be full and adequate, held thus:“You cannot put the Plaintiff back again into his original position, but you must bring your reasonable common sense to bear, and must always recollect that this is the only occasion in which compensation can be given. The Plaintiff can never sue again for it. You have, therefore now to give him compensation once and for all. He has done no wrong, he has suffered a wrong at the hands of the Defendants and you must take care to give him full compensation for that which he has suffered.” Besides the tribunal “should always remember that the measures of damages in all these cases should be such as to enable even a tortfeasor to say that he had amply atoned for his misadventure.”In addition, the case of Mediana [1900] AC 113 held that:Of course, the whole region of inquiry into damages is one of extreme difficulty. You very often cannot lay down any principles upon which you can give damages; nevertheless, it is remitted to the jury, or those who stand in place of the jury, to consider what compensation in money shall be given for what is a wrongful act. Take in money shall be given for what is a wrongful act. Take the most familiar an ordinary case: how is anybody to measure pain and suffering in moneys counted? Nobody can suggest that you can by any arithmetical calculation establish what is the exact amount of money which would represent such a thing as the pain and suffering which a person has undergone by reason of an accident. In truth, I think it would be very arguable to say that a person would be entitled to no damages for such a thing. What manly mind cares about pain and suffering that is past? But, nevertheless, the law recognizes that as a topic upon which damages may be given. 35.From the outset, if one samples the decision by various Courts it strikes one with extreme difficulty in fixing the amount of damages which are amenable to either the claimant, Plaintiff or the Defendant for that matter. Today although the basic principles in which damage awards are made and defined constitute application of comparable precedents but still that alone remains the most difficult discretion exercise to fathom to achieve uniformity and consistency. In my experience as both an adjudicator before the Subordinate Court and now on appeal, whether the claims arises out of personal injury or death general damage assessment is one of the most difficult tasks which a Judge or Magistrate has to perform because the elements which must be considered in any given case or scenario, or claim vary so infinitely from both cases that they cannot be fixed and unalterable standard from assessing the amounts applying those particular elements. 36.In exercise of judicial discretion even with the aspect of judicial precedents and other factors of significance sometimes assessment of general damages with its respective various limbs like future earnings, under the Fatal Accident Act or law reform the result is that there must be always an element of the arbitrary in any award and such an award in part in the impugned judgment may be to me a matter of estimate and even speculation or conjecture. 37.In this appeal this Court has not been told that the damages awarded for such a loss for pain and suffering are not the natural and probable result of the injuries complained of by the Claimant, Plaintiff or victim as canvassed before the trial Court and subsequently apportionment of the general damages. 38.In my own evaluation of the evidence and the entire record of the trial Court and soon after the appeal itself with submissions from both learned Counsel professionally in conduct of this matter, I find no new compelling evidence or misapprehension of the facts and the law to interfere with the judgment of the trial Court insofar as liability and quantum is concerned. The appeal stands dismissed for want of merit with costs to the Respondent. DATED AND DELIVERED AT ELDORET THIS 26TH DAY OF MAY 2026..............................................R. NYAKUNDIJUDGERepresentation:KRK Advocates LLPNjiru Kibaru & Co. Advocates