Kithome v Muteti (Civil Appeal E019 of 2026) [2026] KEHC 13110 (KLR) (29 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL APPEAL NO. E019 OF 2026** **D.K. RONO, J** **29 JUNE 2026** **BETWEEN** **PETER SIKUKU KITHOME……………………………. APPELLANT** **AND** **MARTIN MUEMA MUTETI………..…………………. RESPONDENT** *(Being an appeal from the whole judgement delivered by Honourable F C Ngetich (RM) on 16 May 2025 in Makueni CMCC No. E066 of 2024)* **JUDGEMENT** **Background** 1. This Appeal arises from the Judgment delivered in Makueni CMCC No. E066 of 2024, in which **Peter Sikuku Kithome** (“the Appellant”) herein was the Defendant while **Martin Muema Muteti** (“the Respondent”) was the Plaintiff. By a plaint dated 9 May 2024, the Respondent instituted a suit against the Appellant seeking general damages for pain, suffering and loss of amenities, special damages in the sum of Kshs 10 550, together with costs of the suit and interest on the general damages, special damages and costs. 2. The genesis of the dispute between the parties is set out in paragraph 4 of the Respondent’s plaint, wherein it was pleaded that on 8 December 2023, the Respondent was lawfully travelling as a passenger aboard motorcycle registration no. KMDT 666R from Matiliku Sub-County Hospital when motor vehicle registration number KAE 392V, allegedly driven by the Appellant, his servant and/or duly authorised agent, negligently collided with the said motorcycle, thereby occasioning an accident as a result of which the Respondent sustained bodily injuries. 3. The Respondent maintained that the accident was caused by the sole negligence of the defendant or his duly authorized driver, servant and/or his employee who was at the time driving the motor vehicle registration number KAE 392V belonging to the Appellant. 4. The Respondent stated that due to the accident he sustained severe injuries to wit: 5. Blunt injuries to the head with bruises on the scalp; 6. Deep cut wound on the face; 7. Bruises on the anterior chest wall; 8. Multiple lacerations on the upper limbs; 9. Blunt injuries to the right ankle with swelling. 10. The Appellant through its statement of defence dated 22 June 2024 denied in toto the occurrence of the accident and that if the accident indeed occurred as alleged by the respondent, then the same was solely and/or substantially contributed to by the Respondent and prayed that the suit against him be dismissed. 11. The trial court conducted hearing of the suit culminating in a judgment dated 16 May 2025 where the trial court held the appellant to be 100 percent liable and awarded the respondent Kshs 300 000 as general damages, Kshs 5 550 as special damages. **The Appeal** 1. The Appellant being aggrieved by the decision rendered by the trial court preferred an appeal against the whole decision through a memorandum of appeal dated 27 February 2026 and stated that: 2. That the learned trial magistrate erred in fact and law and misdirected herself in finding that the Respondent is entitled to general damages of Kshs 300 000 and special damages of Kshs 5 500 with costs and interest; 3. That the learned magistrate erred in law and in fact and misdirected herself when she failed to consider the appellant’s submissions on both points of law and facts; 4. That the learned trial magistrate misdirected herself in ignoring the principles applicable in awarding quantum of damages and relevant authorities on quantum cited in the written submissions; 5. That the learned trial magistrate proceeded on wrong principles when assessing the damages to be awarded to the Respondent; 6. That the learned trial magistrate failed to apply herself judicially and adequately evaluate evidence and exhibits tendered on quantum thereby arriving at a decision unsustainable in law; 7. That the learned trial magistrate erred in law and fact in arriving at the said decision; 8. That the learned trial magistrate’s decision was unjust, against the weight of evidence based on misguided points of facts and wrong principles of law and has occasioned miscarriage of justice; 9. That the learned trial magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature. 10. TheAppellant prayed that the appeal be allowed, the judgement in Makueni CMCC No. E066 OF 2024 on quantum be set aside the same be assessed afresh, the costs of the appeal be awarded to the appellant. 11. In spite of the appellant listing a total of eight grounds of appeal, the gist of the present appeal is with respect to the quantum of damages awarded by the trial court, it is on this basis that this court will make a determination noting that the appellant does not in any way challenge the finding by the trial court on the question of liability as between the parties *(See paragraph a-h of the memorandum of appeal.* **Analysis and Determination** 1. This being a first appeal, this court is under a duty pursuant to s 78 of the Civil Procedure Act to re-evaluate, reassess and re-analyse the evidence tendered before the trial court and arrive at its own independent conclusions while bearing in mind that it neither saw nor heard the witnesses testify. The principles governing a first appellate court were well settled in *Selle v Associated Motor Boat Co. Ltd & Anor* [1968] 1EA 123where Sir Clement De Lestang stated as follows: *‘This court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect. However, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had 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.’* 1. From the memorandum of appeal and the submissions filed by the appellant, the gravamen of the appeal relates to the question of quantum, specifically whether the awards made under the heads of general and special damages were excessive, erroneous or unsupported by the evidence on record. 2. With regard to special damages, the law is settled that the same must not only be specifically pleaded but must also be strictly proved. This principle was reiterated in *Equity Bank Limited v Gerald Wang’ombe Thuni* [2015] KEHC 2474 (KLR). The Respondent pleaded Kshs 550 for copy of records, Kshs 10 000 for medical expenses and Kshs 5 000 for medical report charges. However, upon re-evaluation of the record, the receipts produced in evidence only proved Kshs 5 550 the learned trial magistrate cannot therefore be faulted for making the said award. 3. As regards general damages, the issue falling for determination is whether the award made by the learned trial magistrate was so inordinately high or excessive as to warrant interference by this court. 4. The evidence tendered before the trial court demonstrated that the Respondent sustained blunt injuries to the head with scalp swelling, blunt injuries to the left loin region with swelling, bruises to the lower back, blunt injuries to the left upper limb and blunt injuries to the left lower limb with swelling and for this the trial court awarded a sum of Kshs 300 000 for general damages for pain and suffering and Kshs 5 550 as special damages. 5. The principles upon which an appellate court may interfere with an award of damages are now well settled. In *Price & another v Bhamjee* (Civil Appeal 68 of 1982) [1984] KECA 29 (KLR) the court held: *‘The court will not interfere with the exercise of discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has acted on matters on which it should not have acted or because it has failed to take into consideration matters it should have taken into consideration and in doing so arrived at a wrong decision’* 1. Similarly, in *Gitobu Imanyara & 2 Others v Attorney General, (Civil Appeal 98 of 2014) [2016] KECA 557 (KLR)* the Court of Appeal observed that: *‘…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum.’* The court further stated that: *‘In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damages to which the plaintiff is entitled.’* 1. The foregoing principle was originally enunciated in *Rook v Rairrie* *[1941] 1 All ER 297* and was echoed with approval in *Butt v Khan [**1981] KLR 349,* where Law JA held that: *‘An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.’* 1. Equally instructive is the decision in *Mbogo & Another v Shah* [1968] EA*,* where the court held inter alia that: *‘An appellate court will interfere if the exercise of the discretion is clearly wrong because the judge has misdirected himself or acted on matters which he should not have acted upon or failed to take into consideration matters which it should be taken into consideration and in doing so arrived at a wrong conclusion. It is trite law that an appellate court should not interfere with the exercise of the discretion of a judge unless satisfied that the judge in exercising his discretion has misdirected himself and has been clearly wrong in the exercise of the discretion and that as a result there has been injustice.’* 1. Guided by the foregoing authorities and upon independently reviewing the evidence on record, I am not persuaded that the Appellant demonstrated any error in principle on the part of the learned trial magistrate. The Appellant merely contended that the award was excessive without demonstrating that the trial court took into account irrelevant matters, failed to consider relevant factors or misapprehended the evidence placed before it. 2. It is trite that in assessing damages, courts ought to strive for consistency so that comparable injuries attract comparable awards, while at the same time appreciating that each case must ultimately be determined on its own peculiar facts and circumstances. Having considered the nature of the injuries sustained by the Respondent, and the applicable principles governing interference with awards of damages, I am unable to conclude that the award made by the learned trial magistrate was so inordinately high as to amount to an erroneous estimate of damages. 3. In the premises, I find no basis upon which this court can interfere with the exercise of discretion by the trial court. The appeal therefore lacks merit and is hereby dismissed with costs to the Respondent. 4. I have reviewed the evidence presented before the trial court and I find no error of fact or law in the exercise of discretion in which the learned trial magistrate in awarding the Respondent a sum of Ksh 300 000 for pain and suffering arising out of a road accident which occurred on or about 8December 2023. The appeal therefore lacks merit and the same is dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED VIA CTS AT MERU THIS 29th DAY OF JUNE 2026 **DK RONO** **JUDGE**