https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9737

Wachira v Oguta (Civil Appeal E085 of 2025) [2026] KEHC 9737 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9737 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E085 of 2025 RK Koech, J June 18, 2026 It is as if the trial court lifted this figure from the blues, the brief judgment offers no rationale for the award. In the circumstances I do proceed to set aside the award on special damages and substitute it with an award of Kshs. 27,820/= in special damages as pleaded and proved. I similarly set aside the award of kshs. 350,000/= for future medical expenses which is not borne out of any evidence. This brings the total awards under both headings of special and general damages to Kshs. 427,820/=. Applying the agreed liability ratio of 70:30 percentage, the respondent is awarded net damages of Kshs.299, 474/= (in words, Kenya shillings two hundred ninety-nine thousand, four hundred seventy-four only). The appeal succeeds to the above extent; the appellant shall have the costs of the appeal. Between Peter Wachira Appellant and Erick Ogaso Oguta Respondent (Being an appeal from the judgment and decree of the Honourable Nyariki J. , Senior Resident Magistrate in Kisii CMCC No. E474 of 2022, delivered on 22nd May, 2025) Judgment 1.The appellant was the defendant in Kisii Chief Magistrate’s Court Civil Case No. E 474 of 2022 while the respondent was the plaintiff. The cause of action between the parties arose because of a road traffic accident that occurred on 17th January, 2022 involving the plaintiff who was riding a motorcycle Registration. No. KMER 522 Y and the defendant’s motor vehicle Registration No. KBF 948 B along Christamarian Hospital-Nyanchwa Road. 2.On 19th November, 2024 the parties recorded a consent on liability in which liability was apportioned at the ratio of 70:30 % in favour of the plaintiff as against the defendant. In a judgment delivered on 22nd May, 2025 the learned trial magistrate assessed the quantum of damages payable to the plaintiff at Kshs. 957,850/= subject to the agreed liability ratios. The plaintiff was awarded net damages of Ksh. 670,495/= comprising general and special damages and costs for future medication. The plaintiff was also given the costs of the suit and interests. 3.In a memorandum of appeal dated 10th June, 2025 the appellant is seeking orders to have the judgment of the trial court and the ensuing decree set aside and or varied. The appellant is also seeking orders that this appellate court re-evaluates the assessment of damages with a view of reducing the same to be commensurate with the circumstances of the case and that the appellant be awarded costs of the suit both on appeal and before the subordinate court. The grounds in support of the appeal are as summarized hereunder;1.That the learned trial magistrate erred in law and fact by awarding the respondent inordinately high and manifestly excessive general damages unsupported by law, which amounts to an erroneous award in the circumstances.2.That the learned trial magistrate erred in law and fact by failing to give regard to the defence mounted by the appellant and failing to evaluate the evidence on record as regards the nature of injuries suffered by the respondent which were largely soft tissue in nature with fractures that had healed leaving no permanent disability, and3.That the learned trial magistrate erred in law and fact by awarding future medical expenses and special damages that had not been specifically pleaded by respondent and proved and by further taking into consideration irrelevant facts while awarding damages and overly relying on the respondent’s submissions. 4.The parties agreed to dispose of the appeal by way of written submissions with the appellant filing submissions dated 6th February, 2026 and the respondent filing submissions dated 10th February, 2026. The appellant has challenged the trial court’s assessment of damages saying that they are excessive in the circumstances. According to the appellant, the trial court awarded excessive damages, which are not comparable to similar awards for comparable injuries. The appellant faults the trial court for awarding damages for future medical treatment when the respondent gave no evidence of such necessity for treatment. 5.Citing the case of Jitan Nagra v Abidnego Nyandusi Oigo (2018) eKLR , the appellant submits that comparable injuries should attract comparable awards. The appellant also cited the case of Reamic Investment Ltd. v Joaz Amenya Samuel (2021) eKLR in support of his proposition that the respondent ought to have been awarded at most Kshs. 350,000/= in general damages for the injuries suffered as a result of the material accident. The appellant submits that there was no basis for the award of Kshs. 350,000/= for future medical treatment which had not been pleaded by the respondent. Similar submissions have been made as regards the award of Kshs.107, 850/= in special damages. 6.The appellant has cited the case of Jackson Wanyoike v Kenya Bus Services & Another, Nairobi (Milimani) HCCC No. 297 of 2002 and the case of Zacharia Waweru Thumbi v Samuel Njoroge Thuku (2006) KEHC 2976 (KLR) in support of his assertion that special damages must be specifically pleaded and proved. In the latter case it was held; and I quote, “…..special damages are reimbursements to the plaintiff/victim of the tort, for what he has actually spent as a consequence of the tortious act(s) complained of…..the claimant of special damages must not only plead the claim, but also go further and strictly proof…”. In the circumstances the appellant is urging this court to reduce, the award for general damages from Kshs. 500,000/= to Kshs. 350,000/=. The appellant is also asking this appellate court to set aside the award for future medical treatment or reduce the same to Kshs. 100,000/=. 7.The respondent submits that the lower court judgment is sound in law and fact and does not warrant any interference by this court. According to the respondent, the trial court appreciated the injuries suffered by the respondent before making the awards in damages. The respondent has countered the submissions by the appellant that his injuries were not proved. He submits that the respondent’s medical report authored by Dr. Nyameino, was adduced in evidence, in which the respondent’s injuries were classified as grievous harm. 8.The respondent submits that the award of Kshs. 500,000/= in general damages was reasonable and commensurate with the injuries suffered by the respondent. Citing the case of Jitan Nagra (supra), which was relied on by the appellant, the respondent submits that an award of Kshs. 450,000/= was awarded for similar injuries comparable to those suffered by the respondent. It is the submission of the respondent that future medical costs were pleaded as general damages. The respondent cited the case of Wilfrida Nyakundi v Board of Management, Friends Mukuyu Secondary School and the case of Civicon Ltd. v Richard Njomo Omwancha & 2 Others (2019) eKLR among other cases in support of the awards made by the trial court. I have considered the authorities cited by the respondent on assessment of damages even though some are distinguishable in terms of the severity of injuries that were being considered. 9.The only issue for determination by this court is whether the trial court properly assessed damages payable to the respondent for injuries suffered because of the road traffic accident involving the appellant’s motor vehicle, which occurred on 17th January, 2022 the parties having settled the issue of liability by consent. Vide a plaint dated 30th June, 2022 the respondent sued the appellant claiming both special and general damages. The respondent also sought the costs of the suit and interests. The special damages were particularized as hereunder;1.Police abstract report………………….Kshs. 200/=2.Medical report………………………….Kshs. 6,500/=3.Search of owner of motor vehicle……..Kshs. 500/=4.Treatment expenses……………………...Kshs. 21,320/=5.Future treatment expenses… (to be adduced at the hearing hereto). 10.The total sum of the itemized special damages is Kshs. 28,520/=. The record shows that it is only the respondent who testified before the trial court and adopted his witness statement dated 30th June, 2022 as his evidence in chief. He produced all the documents in his list of documents without calling the makers, where applicable. Of relevance is Dr. Nyameino.s medical report dated 26th January, 2022. He lists the injuries suffered by the respondent as follows;A.Scalp contusion and bruising,B.Chest contusion,C.Back contusion.D.Left shoulder joint dislocation, andE.Left tibia and fibula fractures. 11.The doctor enumerates the treatment received by the respondent. Among the complaints that he had at the time of examination were; headache and occasional dizziness, chest pains, left shoulder joint pains and left leg fracture site pains. The doctor opined that the respondent suffered the above listed fractures, left shoulder joint dislocation and multiple soft tissue injuries. He was of the view that the respondent was likely to develop posttraumatic left shoulder joint arthritis or habitual dislocations later in life. He noted that other injuries were likely to heal well. He classified the injuries as “grievous harm”. There is no mention by Dr. Nyameino that the respondent required future treatment. The receipts for specials produced totaled Kshs. 27,820/=. 12.Based on the submissions of the parties, the trail court awarded the respondent the above-mentioned general and special damages for the injuries suffered. Assessment of damages is a matter for the trial court’s discretion. 13.In the case of Mariga v Musila (1984) KLR 251, it was held; and I quote;The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court finding on the question of the amount of damages unless it is satisfied that the Judge acted on a wrong principle of law or has for these or other reasons made wholly erroneous estimate of damage suffered. The question is not what the appellate court would award but whether the lower court Judge acted on the wrong principles.” 14.It is trite law, as severally held in many decisions that a first appellate court is like a trial court and must re-evaluate the evidence on record to see if the decision of the trial court is factually and legally sound. In the case of Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123, it was held ; and I quote;Being a first appeal, this court is enjoined to re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it did not see or hear witnesses testify.” 15.Guided by the above principles appellate courts are hesitant to interfere with the findings of fact by the trial court that had the benefit of hearing witnesses and assessing the credibility of their testimonies. 16.The above position was reiterated in the case of Kemfro Africa Ltd. t/a Meru Express Services v Lubia & Another (1982-88) 1 KLR 727 where it was held, “The principles guiding an appellate court on interference with an award of damages are well settled. An appellate court will not disturb an award of damages unless it is demonstrated that the trial court acted on a wrong principle, misapprehended the evidence, took into account irrelevant facts, failed to take into account relevant factors or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages.” 17.In the Jetan Nagra case, (supra) which both the appellant and the respondents have cited in their submissions, the respondent had suffered the following injuries; lacerations on the occipital area, deep cut wound on the back, right knee and lateral lane. The respondent had also suffered bruises at the back extending to the right side of the lumber region, blunt trauma to the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, and segmental distal fracture of the right femur. At the time of examination, the respondent was complaining of severe headache, severe chest pains and pains on the back, right hand and right leg. 18.The trail court awarded the respondent Kshs. 1,000,000/= in general damages for the injuries which was reduced on appeal to Kshs. 450,000/=. The above-cited injuries were far more serious compared to those suffered by the respondent in the instant case. However, I do note that this is a 2018 decision. Considering the injuries suffered by the respondent in this case, I do agree with the appellant that the award of Kshs. 500,000/= in general damages is excessive in the circumstances. I do set aside the award and substitute it with an award of kshs. 400,000/= which I consider to be adequate in the circumstances. The award of Kshs. 107,850/= in special damages which was neither pleaded nor proved is completely erroneous. 19.It is as if the trial court lifted this figure from the blues, the brief judgment offers no rationale for the award. In the circumstances I do proceed to set aside the award on special damages and substitute it with an award of Kshs. 27,820/= in special damages as pleaded and proved. I similarly set aside the award of kshs. 350,000/= for future medical expenses which is not borne out of any evidence. This brings the total awards under both headings of special and general damages to Kshs. 427,820/=. Applying the agreed liability ratio of 70:30 percentage, the respondent is awarded net damages of Kshs.299, 474/= (in words, Kenya shillings two hundred ninety-nine thousand, four hundred seventy-four only). The appeal succeeds to the above extent; the appellant shall have the costs of the appeal.It is hereby ordered. JUDGMENT READ, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE, 2026HON. RICHARD K. KOECHJUDGEIn the presence of:Ms. Musundi appearing virtually for the AppellantMr. Karori appearing virtually for the RespondentMr. Brian Onkundi,Court Assistant, appearing virtually.Right of appeal within 30 days