https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12148

***REPUBLIC OF KENYA*** ***IN THE HIGH COURT OF KENYA AT THIKA*** ***CIVIL APPEAL NO. E142 OF 2025*** ***NAOMI WAITHERA NJOROGE …………………….....…APPELLANT*** ***-VERSUS-*** ***EMMANUEL MBATHA MUTISO…………………..1ST RESPONDENT*** ***MICHAEL NJUGUNA NYOKABI …………………2ND RESPONDENT*** ***(Being an Appeal from the Judgment/ Decree by Hon. D. Musyoka delivered on the 7th May, 2025 in Gatundu CMCC E090 of 2024)*** ***REPUBLIC OF KENYA*** ***IN THE CHIEF MAGISTRATE’S COURT*** ***AT GATUNDU*** ***MCCC CASE NO. E090 OF 2024*** ***NAOMI WAITHERA NJOROGE ……………..……………………….…..PLAINTIFF*** ***-VERSUS-*** ***EMMANUEL MBATHA MUTISO…………………………….…….1ST DEFENDANT*** ***MICHAEL NJUGUNA NYOKABI………………………………..…2ND DEFENDANT*** ***JUDGMENT*** **Introduction** 1. This is an Appeal from the Judgement of Hon. Musyoka, delivered in ***CMCC No. E090 of 2024***. The primary suit was by the Appellant against the Respondents herein and claimed General and Special Damages for injuries sustained in an accident that took place on the 11th July, 2022, involving the 1st Respondent’s Motor Vehicle Registration Number KCF 017Q. 2. The trial Court rendered its Judgement on 7th May, 2025 and found that the Respondents were wholly culpable for the accident and assessed General Damages at Kshs.650,000/-. It allowed the Appellant’s claim for Special Damages as pleaded. It awarded the Appellant costs of the suit and interest. 1. The Appellant, dissatisfied in the trial courts assessment to of damages has filed the instant Appeal, seeking a re-assessment of general damages. The grounds of Appeal are set out in the Memorandum of Appeal dated 29th May, 2025 and basically state that the trial court erred in fact and law while considering the medical evidence that he gave a disproportionately low award in the assessment of General Damages. **Trial Court Evidence** 1. At the trial court, the Appellant had testified and adopted her witness statement as evidence. At Paragraph 5 of the Statement, the Appellant states that she sustained a fracture of the socket of her right hip joint [acetabulum], an open book dislocation of the midline of her pelvis and Multiple cuts. 2. She underwent surgical reduction and fixation of the fractures using implants fitted into her pelvis and hip. The examining doctor awarded here 18% permanent disability. **Appellant’s Submissions** 1. The Appellant submitted that the award of General damages that was Kshs.650,000/- was too low compared to the injuries suffered and the comparable awards. Counsel for the Appellant submitted that this court has the powers to enhance the award and that an award of Kshs.1,200,000/- in general damages is reasonable for the injuries suffered by the Appellant. 2. The Respondent did not file any submissions on the Appeal. # **Analysis & Determination** 1. The court has considered the Record of Appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in **Selle v Associated Motor Boat Co. [1968] EA 123** in the following terms:- ***“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.*** ***An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that 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 account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case******generally.”*** 1. I have considered the Record of Appeal filed herein and the submissions by the Appellant. An Appellate court may only interfere with an award by the trial court in limited circumstances. This was set out in the case of**Butt vs *Khan* [1981] KLR 349** where the court set the principle that:- “***For an appellate court to interfere with an award of damages, it must be shown that the* *trial court, in awarding damages, took into consideration an irrelevant fact or the sum* *awarded is inordinately low or too high that it must be a wholly erroneous estimate of the* *damage, or it should be established that a wrong principle of law was applied."*** 1. The Appellant’s contention is that the trial Magistrate awarded damages that were in ordinately low, which the Appellant submits must be an error. I have considered the injuries suffered by the Appellant and comparable authorities. The Appellant sustained a fracture of the socket of her right hip joint [acetabulum], an open book dislocation of the midline of her pelvis and multiple cuts. 2. In **Machakos HCCA No E020 of 2022; Odongo Ibrahim Ngoya –vs– John Mutisya Maingi** **(2023) KEHC 17323 (KLR),** the Respondent in that Case sustained an open book fracture of the pelvis and the Appellate court reviewed General Damages to Kshs.900,000.00/=. In ***Kiambu HCCA No E038 of 2021; Ezekiel Morara Nyatogo –vs– Mini Bakeries Limited, (2023) KEHC 1593 (KLR)****,* the Appellant in that Case sustained a fracture to his right hip joint and the Court assessed General Damages for pain and suffering at Kshs.1,000,000/=. 3. In view of the above comparable authorities, I find that the award of Kshs.650,000/- given by the court for the fracture of the hip joint [acetabulum], an open book dislocation of the midline of pelvis and multiple cuts was inordinately low. In the circumstances, this Court is justified in interfering with the quantum of damages awarded by the trial Court. 4. I will allow the Appeal and set aside the award and in its place award the Appellant Kshs.1,000,000/- (One Million shillings only) in general damages of pain and suffering. The Appellant is also awarded the costs of the Appeal. **DELIVERED** Dated and signed Electronically at **Nairobi** On this **31st** day of **July, 2026.** **…………………………..………………** **L. M. WACHIRA** **JUDGE** **In the presence of:** *Leadys -* Court Assistant. N/A for the Appellant. N/A for the Respondent.