https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10257

Wafula v Sakwa (Civil Appeal E076 of 2025) [2026] KEHC 10257 (KLR) (30 June 2026) (Judgment) Neutral citation: [2026] KEHC 10257 (KLR) Republic of Kenya In the High Court at Bungoma Civil Appeal E076 of 2025 RK Ondieki, J June 30, 2026 Between Oscar Wafula Appellant and Joel Makokha Sakwa Respondent (Being an Appeal against the Judgment by Hon. Tobias O. Omono in Bungoma MCC No. E021of 2025, Delivered on 22nd April, 2025) Judgment 1.Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing. Lord Simon’s speech in Watt Vs. Thomas [1947] AC, 484 at p. 485 is recorded that appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies, is entitled to great weight. Lord Simon further said, that apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. 2.In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. 3.In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123, it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the 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 demeanour of a witness is inconsistent with the evidence in the case generally. 4.In Bundi Marube Vs Joseph Onkoba Nyamuro[1982-88]IKAR, Hancok J A, said that a court of appeal will not normally interfere with a finding of fact by the trial court unless, it is based on no evidence, or on a representation of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching he findings he did. 5.Oscar Wafula sichangi(PW1) adopted his witness statement dated 9th January, 2025 as his evidence inn chief and his documents were adopted as exhibits. The Appellant closed his case and filed submissions and consequently a judgement was delivered on 22nd April, 2025. 6.The Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;a.That the learned Trial Magistrate erred in law and fact in finding that the Appellant’s plaint, and medical Report dated 9th January, 2025 contained more serious injuries than the ones set out in the appellant’s P3 Form and treatment notes produced before the honourable court.b.That the learned Trial Magistrate erred by law and fact IN contradicting with the findings of an expert witness, in the absence of any contradictory evidence whatsoever.c.That the learned Trial Magistrate erred in law and fact by in placing reliance and accepting to be bound by dated and or unrelated judicial precedents, in determining the quantum of general damages without pay due attention to the trite principles.d.That the learned Trial Magistrate erred in law and fact in in determining the quantum of general damages thereby arriving at an inordinately low quantum of general damages.e.That the learned Trial Magistrate erred in law and fact by awarding general damages that were inordinately low in view of the injuries sustained.f.That the learned Trial Magistrate erred in law and fact in failing to consider comparable precedents where higher awards were granted for similar injuries.g.That the learned Trial Magistrate erred in law and fact in rendering a judgement on the basis of conjecture and or unwarranted speculation.1.The Appellants filed written submissions and relied on them in the determination of this Appeal. Analysis and Determination: 7.Cursory perusal of the primary court file, I note that interlocutory judgement was entered. On liability, the law is clear when interlocutory judgement is entered. In Clearer-Humus v British Tutorial College, (1975) E.A. 323 it was held that the failure to file a defence operates as an admission of all allegations of fact in the Plaint except as to damages. See also the judgment of Nyarangi, J.A in Mahala Mailu Mwende v Nyali Golf & Country, Civil appeal No.16 of 1969 where he said that where a judgment which is entered in default of appearance the issue of liability becomes already settled in favour of the Plaintiff and what is left for the court to do is only to assess damages which should be paid to that Plaintiff. 8.I have, with singleness of my mind, looked at the six lamentations by the Appellant and to my understanding, they can be collapsed into one issue for determination; Whether or not, the Court awarded so low damages in the circumstances. Additionally, many are the decisions of superior courts in respect to damages awarded in personal injury claims and whereas I may not be able to sample all of them here, I shall set out a copious of superior court decisions hereunder, which will act as my anchorage even as I dive into the factual and legal matrix, and when I come to the surface, I do not lose my footing. 9.This famous passage from Lord Morris’ speech in H West & Son Vs Shephard, [1964] AC 326 at page 353, reads; “The difficult task of awarding money compensation in a case of this kind is essential a matter of opinion of judgment and of 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 an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that this sphere there are inevitably 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…Money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it must still be that amounts which are awarded are to be to a considerable extent conventional.” 10.The Court of Appel observed in Simon Taveta Vs Mercy Mutitu Njeru [2014] KECA 755 [KLR] that: “The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.” 11.In the case of Arrow Car Limited Vs Elijah Shamalla Bimomo & 2 others [2004] KECA 136 [KLR], it was stated that: “…It is our view that in assessment of damages the general method of approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” 12.In respect to the issue of quantum, I have already displayed bounties of superior court precedents. I must register my deep respect to the jurists, who have set the law, as it ought to be. I will forever be grateful to them till, the end of age. What is more, these decisions can be heard in the corridors of our courts, in every corner of the year. It sets continuity of the law. Departing from it, I, in doubt becomes, a prodigal son. Economics has been challenging in every single day that we wake up. Consequently, Learned Magistrates must keep very close to their hearts, that inflation, keeps rising and whatever consideration that may be, prices of fuel must be the center-piece for quantification of damages in every personal injury claim. I note from the catalogue of injuries suffered by the Appellant, the case laws, comparable awards and the proposal on quantum, demonstrate the true method of approach of the injuries sustained by the Appellant. 13.Putting all these together, I make the following orders;a.On quantum, the Award by Trial Magistrate is hereby set aside and replaced with a figure of Kenya shillings Six Hundred (Kshs600,000/) as general damages.b.Costs of this appeal to the appellant. DELIVERED VIRTUALLY THIS 30TH JUNE, 2026.In the presence of theAppellant, the Respondentand Brian- Court Assistant.HON. R.K. ONDIEKI.JUDGE.