Macharia v Ndungu (Civil Appeal E022 of 2025) [2026] KEHC 11147 (KLR) (21 July 2026) (Judgment)

Macharia v Ndungu (Civil Appeal E022 of 2025) [2026] KEHC 11147 (KLR) (21 July 2026) (Judgment) Neutral citation: [2026] KEHC 11147 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E022 of 2025 S Mbungi, J July 21, 2026 Between Purity Wanjiru Macharia Appellant and Esther Wanjiku Ndungu Respondent (Being an appeal from the judgment and decree of Hon. M.N. Mwangi, Senior Principal Magistrate, delivered on 15th January 2024 in Kigumo SPMCC No. 87 of 2022) Judgment Background. 1.The Appellant, Purity Wanjiru Macharia, instituted Civil Suit No. E072 of 2022 in the Senior Principal Magistrate's Court at Kandara against the Respondent, Esther Wanjiku Ndungu, seeking compensation for injuries sustained in a road traffic accident that occurred on or about 20th November 2020 along Thika-Gatanga Road at Jogoo Kimakia. The Appellant pleaded that she was a lawful pedestrian conducting her business when the Respondent, through her servant or agent, negligently drove, controlled and/or managed motor vehicle registration number KCK 379 A S. Wagon/Toyota Vitz, thereby causing it to lose control and knock her down from behind, occasioning her serious bodily injuries. 2.The particulars of negligence pleaded against the Respondent included: driving at excessive speed; failing to keep proper lookout or have sufficient regard for other road users; failing to give adequate warning of approach; failing to take special care at the point of the accident; and failing to stop, slow down, swerve or otherwise manage the vehicle so as to avoid the accident. 3.The Appellant pleaded that she sustained the following injuries as a result of the accident:a.Open fracture lower 1/3 left femur;b.Fracture mid 1/3 right femur;c.Necessitating installation of metal plates which would require removal after one year at an estimated cost of Kshs. 60,000/=. 4.The Appellant further pleaded special damages in the sum of Kshs. 387,931/=, broken down asfollows: medical report fees Kshs. 3,500/=; treatment fees Kshs. 323,881/=; cost of metal plates removal Kshs. 60,000/=; and copy of records Kshs. 550/=. The Appellant also claimed future medical expenses of Kshs. 60,000/= for the removal of the metal plates. 5.The Respondent filed a statement of defence denying the particulars of negligence and theinjuries sustained by the Appellant as pleaded. The Respondent attributed the accident to the sole negligence of the Appellant. The parties subsequently recorded a consent on liability on the ratio of 80:20 in favour of the Appellant against the Respondent, leaving only the issue of quantum for determination by the trial court. 6.The trial court heard the parties on quantum and delivered its judgment on 5th February 2025,awarding the Appellant general damages for pain and suffering in the sum of Kshs. 650,000/= and special damages of Kshs. 327,931/=. The trial court did not make any specific award for future medical expenses. 7.Aggrieved by the trial court's award on quantum, the Appellant filed this appeal vide a Memorandum of Appeal dated 20th February 2025, challenging the award as being inordinately low. The appeal is founded on the following grounds:a.That the learned trial magistrate erred in law and in fact in failing to understand, appreciate and apply the law on quantum by awarding Kshs. 650,000/= on injuries suffered on an open fracture lower 1/3 left femur and a fracture mid 1/3 right femur which was inordinately too low in the circumstances thereby arriving at a wrong decision;b.That the learned trial magistrate failed to consider the evidence that proved that the Appellant had suffered two serious injuries on both the left and right femur but went ahead to make an award that is too low similar to an award of a fracture of one femur thereby arriving at a wrong decision;c.That the learned trial magistrate erred in law and fact by failing to appreciate the submissions and authorities filed by the Appellant herein which were contrary to her impugned judgment hence failed to appreciate superior courts' judgments on similar injuries sustained by the Appellant hence arriving at a gravely wrong decision; andd.That the learned trial magistrate erred in law and in fact by giving too much weight on the Respondent's evidence and ignoring the Appellant's submissions thereby arriving at a wrong decision. 8.The Appellant prays that the judgment on quantum be set aside and substituted by a favourable award commensurate with the injuries sustained by the Appellant, together with costs of the suit and of this appeal. The appeal was canvassed by way of written submissions which I have duly considered. Appellant's Submissions 9.The Appellant contends that the Learned Trial Magistrate erred in law and fact by failing to consider and appreciate the applicable principles in the assessment of damages, thereby arriving at an inordinately low and unjustified award of Kshs. 500,000 for general damages. The Appellant argues that this amount is not commensurate with the serious injuries sustained, which included multiple fractures and a permanent disability assessment of 50%. 10.The Appellant submitted that the trial court failed to properly consider the evidence on record regarding the extent of the injuries and did not give due weight to the Appellant's submissions and the judicial authorities she relied upon. The Appellant seeks to have the trial court's decision on quantum set aside and for this court to substitute it with its own, more appropriate assessment. 11.To support the claim that the award should be substantially higher, the Appellant relied on several authorities where higher sums were awarded for comparable or more severe injuries. These include:a. Gabriel Mwashuma v Mohammed Sajjad & Anor. [2015] eKLR, where the plaintiff was awarded Kshs. 3,000,000 for injuries that included segmental left femur fracture, compound fractures, and other multiple fractures. The Appellant noted that the injuries in this case were far more serious than in her own case.b.Alex Wachira Njagua v Gathuthi Tea Factory & Anor (2010) eKLR, where the court awarded Kshs. 3,000,000 for injuries including blunt head injury with contusion, fractures of the left tibia and right fibula, and other injuries that resulted in the plaintiff becoming 100% incapacitated. The Appellant submitted these injuries were more severe than hers.c.Lucy Waruguru Gatundu v Miriam Nyambura Mwangi (2017) eKLR, where the plaintiff was awarded Kshs. 2,000,000. The plaintiff in that case had suffered a right mid-shaft femur fracture, a comminuted compound tibia/fibula fracture, and a 10cm cut wound, among other injuries, and was hospitalized for 5 months. 12.The Appellant argued that based on these authorities, an award in the region of Kshs. 3.5 million would have been a more commensurate compensation for the injuries she sustained. She also argued that the trial court erred by not considering the special damages of Kshs. 331,992 which she claims were introduced through an amendment. Respondent's Submissions 13.The Respondent filed written submissions dated 21st February 2025 through the firm of Kitonga & Co. Advocates. The Respondent submitted that the trial magistrate rightfully considered the injuries suffered by the Appellant and correctly rendered her judgment on quantum. The Respondent contended that an award of Kshs. 650,000/= is an appropriate compensation for the Appellant's injuries. 14.. On the principles governing appellate interference with quantum, the Respondent relied on the Court of Appeal decision in Kemfro Africa Ltd t/a Meru Express Services v A.M. Lubia & Another [1985] KLR 30, where it was held that an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent a wholly erroneous estimate. It was submitted that the trial court applied the correct principles and comparable awards in arriving at the impugned decision. 15.The Respondent cited Orina v Dorothy & another (Civil Appeal E011 of 2023) [2024] KEHC 6498 (KLR), where the High Court at Nyamira upheld an award of Kshs. 500,000/= for injuries consisting of right femur fracture, left femur fracture, blunt trauma to the back, chest contusion, and bruises on both upper limbs, with permanent disability assessed at 50%. The Respondent argued that the award of Kshs. 650,000/= in the instant case is higher than the award upheld in Orina, and therefore cannot be said to be inordinately low. 16.. The Respondent further cited DKM v Samuel Kyalo Mwangangi (Civil Appeal 65 of 2021) [2023] KEHC 18105 (KLR), where the High Court at Kitui dismissed an appeal and upheld an award of Kshs. 500,000/= for injuries comprising fracture of the left femur and fracture of the right lateral malleolus. 17.The Respondent also cited David Mutembei v Maurice Ochieng Odoyo [2019] eKLR, where the High Court reduced an award of Kshs. 1,600,000/= to Kshs. 800,000/= for a fracture of the right femur and proximal fracture of the left tibia. 17.The Respondent submitted that an appellate court is not expected to interfere with the assessment of damages by the trial court which saw and heard the witnesses testify, unless the award is inordinately too low or high. It was urged that this Court should dismiss the appeal as the trial court properly exercised its discretion in assessing damages. Duty of the First Appellate Court 20.Before delving into the substantive issues, it is important to restate the well-settled principles governing first appeals. This being a first appeal, this Court is enjoined to re-evaluate, re-assess 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 and therefore must give due allowance for that. 21.In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the Court of Appeal held:“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 that 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..." 22.Similarly, in Catholic Diocese of Kisumu v Sophia Achieng Tete, Kisumu Civil Appeal No. 284 of 2001 [2004] eKLR, the Court of Appeal stated:“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 a different figure if it had tried the case at first instance. The appellate 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... or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate." Analysis and Determination 23.This Court has carefully reviewed the record of appeal, the submissions of both parties, and the authorities cited. I have also considered the medical reports and other documentary evidence on record. The appeal raises issues relating solely to quantum. The following issues fall for determination:a.Whether the award of Kshs. 650,000/= as general damages for pain and suffering was inordinately low in the circumstances;b.Whether the trial court erred in failing to award future medical expenses for the removal of metal plates. Issue (a): Whether the award of Kshs. 650,000/= was inordinately low 23.The principles governing the interference by an appellate court with an award of damages made by a trial court are well settled. In Butt v Khan [1981] KLR 349, the Court of Appeal 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." 24.Similarly, in Kemfro Africa Ltd t/a Meru Express Services v A.M. Lubia & Another [1985] KLR 30, Kneller JA stated that:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal for East Africa to be that it must be satisfied that either the Judge in assessing damages took into account an irrelevant factor, or left out of account a relevant one, or that short of this the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage." 25.In Njoroge v Gakere & another (Civil Appeal E028 of 2024) [2025] KEHC 4048, the High Court reiterated that it is settled law that the duty of the first appellate court is to re-evaluate the evidence which was adduced in the subordinate court, both on points of law and fact, and come up with its own findings and conclusions. The assessment of damages is a discretionary exercise, and an appellate court will not interfere unless it is shown that the trial court acted on wrong principles or the award is inordinately high or low. 26.The cardinal principle in the assessment of general damages is that comparable injuries should,as far as possible, be compensated by comparable awards. In Stanley Maore v Geoffrey Mwenda, Nakuru CA Civil Appeal No. 147 of 2002 [2004] eKLR, the Court of Appeal observed that "in assessment of damages, the general 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." This principle was also emphasized in Simon Taveta v Mercy Mutitu Njeru, CA Civil Appeal No. 26 of 2013 [2014] eKLR. 27.Turning to the nature of injuries sustained by the Appellant, the medical evidence on record confirms that she sustained an open fracture of the lower 1/3 left femur and a fracture of the mid 1/3 right femur. The Appellant underwent surgical intervention involving the installation of metal plates to both femurs. An open fracture is particularly serious given the risk of infection and the more complex surgical management required. The Appellant bears surgical scars and requires a further surgical procedure for removal of the metal implants. 28.I have considered the authorities cited by both parties and have undertaken my own research on comparable awards for similar injuries. The following decisions are instructive: 29.In Orina v Dorothy & another (Civil Appeal E011 of 2023) [2024] KEHC 6498 (KLR), the High Court at Nyamira upheld an award of Kshs. 500,000/= where the respondent had sustained a right femur fracture, left femur fracture, blunt trauma to the back, chest contusion, and bruises on both upper limbs, with permanent disability assessed at 50%. The court found that comparable awards for similar injuries ranged between Kshs. 450,000/= and Kshs. 800,000/=, and that the trial court had properly exercised its discretion. 30.In Jackson Mbaluka Mwangangi v Onesmus Nzioka & another [2021] eKLR, the High Court at Machakos (Odunga J.) set aside an award of Kshs. 350,000/= and substituted it with an award of Kshs. 600,000/= where the appellant had sustained blunt injury to the right shoulder and fracture of the left femur. The court noted that the femur is the longest, heaviest, and strongest bone in the human body, and that a fracture thereof is a serious injury warranting substantial compensation. 31.. In Pestony Limited & another v Samuel Itonye Kagoko [2022] eKLR, the High Court awarded Kshs. 800,000/= for a fracture of the left femur mid-shaft with 4% permanent incapacity. In Litembekho v Namasaka (Civil Appeal E156 of 2023) [2025] KEHC 773, the High Court at Bungoma reduced an award of Kshs. 1,600,000/= to Kshs. 650,000/= for a closed fracture of the left femur, considering recent comparable awards. 32.. In David Mutembei v Maurice Ochieng Odoyo [2019] eKLR, the High Court at Kakamega reduced an award of Kshs. 1,600,000/= to Kshs. 800,000/= where the respondent had sustained a fracture of the right femur and a proximal fracture of the left tibia, with shortening of one leg. The court considered more recent decisions with closer comparable injuries in making the reduction. 33.. In Njuguna v Adayo (Civil Appeal E338 of 2021) [2023] KEHC 1203 (KLR), the High Court upheld an award of Kshs. 800,000/= where the respondent had sustained a fracture of the femur and soft tissue injuries. The court considered that the trial court had properly applied the principles in assessing quantum. 34.From the foregoing authorities, it is evident that awards for femur fractures range from approximately Kshs. 500,000/= to Kshs. 800,000/=, depending on the severity of the injuries, whether there are multiple fractures, the presence of permanent disability, and the effect of inflation. The Appellant herein sustained two femur fractures - an open fracture of the left femur and a closed fracture of the right femur which is undoubtedly a serious combination of injuries. However, no permanent disability was assessed by the medical practitioners who examined her, and the medical evidence indicates that she had substantially recovered, save for the surgical scars and the pending removal of metal plates. 35.The trial court considered the authorities cited by both parties and assessed the Appellant's injuries against comparable awards before arriving at the sum of Kshs. 650,000/=. Having regard to the range of comparable awards for similar injuries, I am satisfied that the trial court's award falls well within the acceptable range. The award of Kshs. 650,000/= cannot, by any stretch of imagination, be said to be so inordinately low as to represent an entirely erroneous estimate of the damages. The trial court properly exercised its discretion and applied the correct principles in assessing quantum. 36.I am not persuaded that the trial court misdirected itself in any manner or failed to appreciate the evidence adduced before it. The trial court considered that the Appellant had two,femur fractures assessed the comparable awards, and arrived at a figure that is neither manifestly low nor excessive. I find no reason to interfere with the trial court's assessment of general damages. Issue (b): Whether the trial court erred in failing to award future medical expenses 34.The Appellant's second ground of appeal relates to the trial court's failure to award future medical expenses for the removal of metal plates. The Appellant pleaded in paragraph 5 of the plaint that "metal plates installed due to the fractures will require removal after one year at an estimated cost of Kshs. 60,000/=." This was specifically pleaded both as a special damage item and as a separate head of claim for future medical expenses in the prayers. 35.The law regarding future medical expenses is well settled. In Tracom Limited & another v Hassan Mohamed Adan [2016] KECA 150 (KLR), the Court of Appeal stated:“We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court stated: And as regards future medication, the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, the need for future medical care is itself in the nature of special damages and is a fact that must be pleaded if evidence thereof is to be led and the court is to make an award in respect thereof." 34.In Mupa v Chilson & another (Civil Appeal E045 of 2023) [2026] KECA 751 (KLR), the Court of Appeal reiterated this position, holding that future medical expenses must be specifically pleaded. The court noted that although the exact amount may depend on several factors such as where treatment is undertaken and the turn the injury takes, what is necessary to plead is the approximate sum that the future medical expenses will require. 35.In the present case, the Appellant specifically pleaded the need for future medical expenses in the approximate sum of Kshs. 60,000/= for removal of the metal plates. This is not a discretionary relief that the court may grant at large; it is a claim that must be specifically pleaded and proved. The Appellant's medical report supported the need for this procedure, and the estimated cost was pleaded with reasonable particularity. 36.I have carefully reviewed the trial court's judgment and note that while the court awarded special damages of Kshs. 327,931/= (which comprised the medical report fees, treatment fees, and copy of records, but excluded the Kshs. 60,000/= for metal plate removal), the court made no specific finding on the claim for future medical expenses. The Kshs. 60,000/= had been claimed both as a special damage and as a separate head of future medical expenses. The exclusion of this sum from the special damages award appears to have been based on the understanding that it was a future expense rather than one already incurred. 37.However, the trial court failed to thereafter make a specific award for future medical expenses under the appropriate rubric. The medical evidence on record supports the need for removal of the metal implants, and the estimated cost of Kshs. 60,000/= was pleaded and not seriously controverted by the Respondent. In the circumstances, I find that the trial court erred in failing to make an award for future medical expenses, and I proceed to award the sum of Kshs. 60,000/= under this head. Conclusion and Orders 34.In the final analysis, the appeal partially succeeds only to the extent that the trial court failed to award future medical expenses. The appeal against the award of general damages is devoid of merit and is hereby dismissed. The trial court's award of Kshs. 650,000/= as general damages for pain and suffering is hereby upheld. The award of special damages of Kshs. 327,931/= is also upheld. 35.The final computation of the award is as follows:(a)General damages for pain and suffering- Kshs. 650,000/=(b)Special damages- Kshs. 327,931/=(c)Future medical expenses- Kshs. 60,000/=Sub-total- Kshs. 1,037,931/=Less 20% contribution by Appellant-(Kshs. 207,586.20/=)Total Award-Kshs. 830,344.80/= 34.The right of appeal is explained to the parties. A stay of execution for 30 days is granted to facilitate any intended appeal. 35.It is so ordered. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 21st DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angog’a/Velma