https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11400

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT THIKA** **CIVIL APPEAL NO. E231 OF 2024** **PETER KAEKA T/A** **DAAM TOURS & SAFARIS…....................................... APPELLANT** **VERSUS** **ANNE MUENI FELIX MALINDA…………..….....…...…RESPONDENT** **(Being an Appeal from the Judgment and Decree of Hon. P. Mutua (CM) delivered on 31st July 2024 in Thika CMCC No. 531 of 2020)** **JUDGMENT** **Introduction** 1. This appeal arises from the judgment of Thika Chief Magistrate in CMCC No. 531 of 2020 in which the trial court apportioned liability at 100% against the appellant. 2. The respondent was awarded general damages for pain and suffering at Kshs. 350,000/- and special damages at Kshs. 42,980/- 3. Dissatisfied with the court’s decision, the appellant filed this appeal raising 8 grounds of appeal which can be condensed as follows: - 4. The learned trial magistrate erred in law and in fact in awarding general damages for pain and suffering at Kshs. 350,000/- and special damages of Kshs. 42,980/- without taking into consideration the prevailing range of comparable awards. 5. The learned trial magistrate proceeded on wrong principles when assessing the damages to be awarded to the respondent. 6. Directions were issued that the appeal be canvassed by way of written submissions and from the record only the respondent complied by filing her submissions on 21st April 2026. The appellant on the other hand had not filed his submissions by the time of writing this judgment. **The Respondent’s Submissions** 1. The respondent submits that she sustained the following injuries as pleaded in the plaint: *severe pain and tenderness on the lumbo-sacral region of the posterior body trunk; numbness on the lower limbs and muscle spasm.* 2. The respondent relied on the following cases where the injuries sustained were similar as hers. In **Mumias Sugar Company Limited vs Eshiuchi Apolo HCCA No. 62 of 2016 Kakamega** where the court awarded a sum of Kshs. 380,000/- for pain, suffering and loss of amenities where the plaintiff sustained injuries on the trunk and the left lower limb. Further in **Shem Shituyi vs Rexon Shiyonga HCCA No. 108 of 2012 Kakamega** the plaintiff sustained serious oft tissue injuries on the back with the chances of developing post traumatic osteoarthritis of the lumber spine. The court awarded general damages for pain, suffering and loss of amenities assessed at Kshs. 400,000/-. 3. The respondent submitted that the trial magistrate put into consideration her injuries, the evidence tendered and all the documents presented in court plus the pleadings, submissions and judicial authorities cited before arriving at the award on quantum of damages. She further submitted that the appellant never filed any submissions in the lower court despite being granted several adjournments to file the same. **Analysis and Determination** 1. The issues for determination are: - 2. ***Whether the award on general damages of Kshs. 350,000 was manifestly excessive, having regard to the nature, extent, and consequences of the injuries sustained by the respondent as well as comparable awards in relevant judicial precedents.*** 3. ***Whether the award on special damages amounting to Kshs. 42,980 was specifically pleaded in the Plaint and adequately established by evidence on a balance of probabilities.*** 4. The principle that governs first appeals is well settled. In a first appeal, the Appellate Court is freely allowed to re-evaluate the entire body of evidence on record together with the legal principles applicable to the case before it and come up with its own independent conclusions. However, it must always be conscious that, unlike the trial court, it did not have the opportunity of actually seeing or hearing the witnesses testify. Consequently, where the credibility of a witness is in issue, appellate court will generally defer to the trial court’s evaluation since it had the advantage of listening to and seeing the witness testify hence directly observing the demeanour of the witness. That deference is however, not absolute. The appellate court may depart if it is clear the findings are not supported by any evidence and are thus plainly arbitrary or glaringly unsatisfactory. 5. The above principle that the first appellate court is empowered to re-evaluate the evidence was articulated in **Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123**, as follows: **“…..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.”** 1. In **Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR** the Court of Appeal stated that:- **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.** 1. From the above cases, the appropriate standard of review to be established can be stated in three complementary principles:- 2. That on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions; 3. That 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 it; and 4. That 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. **Whether the award on general damages is manifestly excessive.** 1. The Court of Appeal in **Catholic Diocese of** **Kisumu vs Sophia Achieng Tele Civil Appeal No. 284 of 2001 [2004] 2 KLR 55** set out the circumstances under which an Appellate court can interfere with an award of damages in the following terms:- **“It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded different figure if it had tried the case at first instance. The appellant court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”** 1. Similarly in **Sheikh Mustaq Hassan vs Nathan** **Mwangi Kamau Transporters & 5 Others [1986] KLR 457** that:- **“The appellate court is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the Judge proceeded on a wrong principle or misapprehended the evidence in some material respect….A member of an appellate court when naturally and reasonably says to himself “what figure would I have made” and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own.”** 1. According to the plaint filed on 7th October 2020, the respondent sustained the following injuries: - 2. *Severe pain and tenderness on the lumbo sacral region of the posterior body trunk.* 3. *Numbness on the lower limbs.* 4. *Muscle spasm.* 5. The trial magistrate awarded a sum **of Kshs. 350,000/-** for general damages for pain and suffering. The appellant submits that the said award is manifestly excessive and is not justifiable in comparison to the injuries sustained by the respondent. The respondent submits that the award is justifiable and comparable to the injuries she sustained. 6. On perusal of the record, the injuries sustained by the respondent as pleaded in the plaint were confirmed by Dr. Muli Simeon Kioko in his medical report dated 24/4/2019. The doctor assessed the respondent’s injuries and classified the degree of **injury as harm** and further classified the injuries **as severe soft tissue injuries**. The appellant did not controvert the nature of injuries the respondent sustained and neither did he file the second medical examination report despite the respondent visiting the appellant’s doctors. 7. The appellant did not file submissions in the lower court or in this court stating what amount they thought the respondent ought to be awarded. The respondent relied on the cases of **Mumias Sugar Company Ltd vs Eshiuchi Apolo HCCA No. 62 of 2016 Kakamega and Shem Shituyi vs Rexon Shitonga HCCA No. 108 of 2012** and argued that the amount awarded by the court of Kshs. 350,000/- was reasonable considering the seriousness of the injuries she sustained. Looking at the authorities cited by the respondents the injuries she sustained are comparable to those sustained by the plaintiffs in the cited authorities. 8. The learned magistrate when arriving at the award of Kshs. 350,000/- took into consideration the nature of the injuries suffered by the respondent, the written submissions and the past authorities. 9. Taking into consideration the severity of the respondent’s injuries and her present complaints in the light of the injuries she sustained following the road accident, it is my considered view that the trial magistrate properly applied the applicable principles in judicial decisions in **awarding the sum of Kshs. 350,000/-** in general damages which I affirm was reasonable compensation as general damages for pain, suffering and loss of amenities. **Whether the award on special damages was specifically pleaded and proved** 1. The established principle of law is that special damages must be specifically pleaded and proved by evidence on a balance of probabilities. This position was restated by the Court of Appeal in **Hahn V. Singh Civil Appeal No. 42 of 1983 [1985] KLR 716** where the court held s follows: **Special damages must not only be specifically claimed (pleaded) but also strictly proved……for they are not direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and nature of the acts themselves.** 1. The respondent pleaded a sum of Kshs. 42,980/- in her plaint dated 1st October 2020 which consisted of medical report for the sum of Kshs. 5,000/-, treatment expenses at Kshs. 37,230/-, copy of records at Kshs. 550/- and postage at Kshs. 200/-. 2. Upon careful perusal of the record, I found that the respondent produced receipts for Kshs. 12,750/-, did not establish the entire claim of special damages. I thus reduce the amount of special damages from Kshs. 42,980/- to **Kshs. 12,750/-.** 3. This appeal thus partly succeeds. The award of special damages of Ksh.42,980/= is hereby set aside and substituted with Kshs. **12,750/=.** 4. As the Appeal has partly succeeded, I shall not make any orders as to costs. ***Dated, signed and delivered at Thika this 23rd July, 2026.*** **..............................................** **L. N. MUGAMBI** **JUDGE**