https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8110

Maina v Ngugi (Civil Appeal E461 of 2022) [2026] KEHC 8110 (KLR) (Appeals) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 8110 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Appeals Civil Appeal E461 of 2022 JM Nang'ea, J June 9, 2026 Between Philip Mesa Maina Appellant and John Mburu Ngugi Respondent (Being an Appeal from a Decree of the Chief Magistrate’s Court at Nairobi (Honourable S.A Opande - Principal Magistrate) arising from Judgement delivered on 7th June, 2022 in Nairobi CMCC No. E7651 of 2020) Judgment 1.This appeal arises from judgement and decree of the lower court entered in favour of the appellant in which liability was apportioned against the respondent, the defendant in the suit, and in favour of the appellant in the ratio of 70% to 30%. The trial court subsequently granted Kshs. 100,000/= and Kshs. 3,550/= in general and special damages respectively to the Appellant. The appellant was also awarded the costs of the suit and interest. 2.Aggrieved by the judgement on both liability and the quantum of general damages, the appellant relies on 15 grounds as per memorandum of appeal dated 17/6/2022. The court has condensed the grounds into as follows;1.That the honourable trial Magistrate erred in law and fact in failing to appreciate relevant principles and submissions filed thereby arriving at a wrong decision on liability and very low award of general damages.2.That the trial Magistrate erred in law and fact in reaching its decision against the weight of evidence. 3.The appellant therefore prays for ;a.Setting aside of the trial court’s judgement and re-assessment and enhancement of the quantum of damages based on the evidence and submissions on record;b.That the judgement on liability be set aside as well.c.The costs of the appeal be borne by the respondent. 4.A brief background to the appeal is that the appellant sued the respondent in the lower court for special damages of Kshs. 5,550/=, general damages as well as costs and interest. The cause of action arose from a road traffic accident in which the appellant suffered bodily injuries while he was a passenger in motor vehicle registration KAP 556N. The respondent allegedly carelessly or negligently drove another motor vehicle registration number KBF 905U as a result of which it hit the former vehicle thereby causing serious bodily injuries to the appellant. The appellant complained of sustaining facial and left upper limb as per the plaint. The doctor noted in a Medical-legal Report dated 11/12/2020 that the he actually sustained a deep cut wound to the right upper lip; blood loss; soft tissue injury and physical and psychological pains. A hyper pigmented scar resulted on the affected right upper lip. 5.The respondent entered appearance and filed defence. He traversed all the material particulars of the suit including negligence attributed to him and urged the court for the above reasons inter alia to dismiss the suit with costs. 6.Only the appellant testified in proof of his claim. In its judgement the trial court noted that occurrence of the accident was proven with production of the Police Abstract Report and that the appellant’s evidence as to the respondent’s culpability was not rebutted. The learned trial Magistrate then proceeded to determine liability in the ratio of 70:30 in favour of the appellant and assessed general damages in the sum of Kshs. 100,000/=. 7.I have perused the submissions against the record of appeal. I shall consider the two grounds of appeal above set out together. 8.This being a first appeal I am required to reconsider the evidence adduced, evaluate it and draw my own conclusions bearing in mind that I did not hear and see the witnesses who testified {(see Selle & Another vs Associated Motor Boat Company Ltd & Others [1968] EA 123}. The Court of Appeal for East Africa in Peters vs Sunday Post Limited [1958] EA 424 underscored the same principles delivering itself thus:“i.First, on first appeal, the court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;ii.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 her; andiii.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.” 9.The respondent did not adduce evidence controverting that of the appellant. No liability can attach to the appellant who was merely a passenger. I would find the respondent 100% liable in the circumstances. 10.In arriving at its judgement the trial court assessed general damages in favour of the appellant in the sum of Kshs. 100,000/=, stating that it considered relevant case law having regard to the injuries the appellant sustained. Learned counsel for the appellant submit citing some judicial determinations that Kshs. 400,000/= in general damages is appropriate compensation for their client’s injuries. The respondent has not put in submissions. 11.This court may only increase the damages award if the lower court’s award is so inordinately low as to represent an entirely erroneous estimate or the court proceeded on a wrong principle or misapprehended the evidence in some material respect, (see case law in Sheikh Mustaq Hassan vs Nathan Mwangi Kamau Transporters & 5 Others (1986) KLR 457. 12.The appellant suffered soft tissue injuries. In Lake Naivasha Flowers vs Muigai Thuku Naivasha Civil Appeal Number 36 of 2017, the claimant therein suffered soft tissue injuries to the left thigh and the left leg from which he recovered, and Kshs. 250,000/= general damages were awarded in the case. 13.In Lilian Anyango Otieno vs Philip Mugoya Ogila (2022) eKLR, Kshs. 150,000/= general damages were granted for head injury; dislocation of the cervical spine of the neck; chest injury with damage to the rib cage; blunt abdominal injury; soft tissue injuries to both upper limbs with dislocated wrist and elbow joint; dislocated pelvis frame involving both hip joints and damage to the right lower limb with dislocation of the ankle joint. 14.In Catherine Wanjiru King’ori & 3 Others vs Gibson theuri Gichubi (2005) the claimant was granted Kshs. 300,000 for soft tissue injuries to the left ankle, legs and chest. 15.In the case of Poa Link Services Co. Ltd & Another vs Sidhani Boaz Bonzemo [2021] eKLR the court assessed general damages in the sum of Kshs. 350,000/= for blunt injury to the chest as well bruises to the lower abdomen; the right hip joint, thigh and knee. These injuries are also soft tissue in nature as compared to the instant matter. 16.Guided by the stated case law, I would award the appellant Kshs. 300,000/= in general damages and find the trial court’s award of Kshs. 100,000/= to be on lower side. 17.Consequently, the appeal is allowed as follows;a.The trial court’s judgement on liability is set aside and substituted with this court’s judgement adjudging the respondent wholly liable for the claim.b.The lower court’s judgement on quantum of general damages is also set aside set aside and substituted with this court’s award of Kshs. 300,000/= (Kenya shillings three hundred thousand). 18.Because the appellant has substantially succeeded, he is granted the costs of the appeal. 19.Judgement accordingly. JUDGEMENT DELIVERED VIRTUALLY THIS 9TH DAY OF JUNE, 2026.J. M. NANG’EAJUDGEIn the presence of:Appellant’s Advocate, Ms Oganga for Mr Ongeri.Respondent’s, Mr Morara.Court Assistant (Jeniffer).