https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9625

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI CIVIL DIVISION** **CIVIL APPEAL NO.E1286 OF 2023** **CONSOLIDATED WITH CIVIL APPEAL NO. E988 OF 2023 BETWEEN QAISAR MOTORS LIMITED AND ELIAS NYAGA (APPELLANTS) AND NEEMA BARIRI GWARO ( RESPONDENT)** **QAISAR MOTORS LIMITED .…………………..………….1ST APPELLANT ELIAS NYAGA……………………………………………….2ND APPELLANT.** **VERSUS** **NEEMA BARIRI GWARO………………………….RESPONDENT** **{( Being an Appeal from the Decree of the Chief Magistrate’s Court at Milimani , Milimani Commercial Courts, ( Hon. Edward Too (SPM) arising from Judgment delivered on 6/9/2023 in CMCC NO.E4857 of 2020 }** **JUDGMENT** **Grounds of Appeal and reliefs sought.** 1. This Appeal was consolidated with the above stated **Civil Appeal No. E 988 of 2023** . The Appeals arise from the same impugned decision of the trial court by which liability for the claim filed before the trial court was apportioned in the ratio of 70%: 30% in favour of the Respondent who is the Appellant in **Civil Appeal No. 988 of 2023** . The court below then assessed general damages for the Respondent in the sum of Ksh. 800,000 , subject to the determined ratio of liability. By a Memorandum of Appeal dated 15/11/2023, the Appellants fault the trial court’s Judgment in respect of the quantum of general damages only, on grounds that may be summarized into one as hereunder: 2. The learned trial magistrate misdirected himself in law and in the discretion, thus arriving at an excessive award of general damages against the weight of evidence adduced. 3. The Appellants therefore seeks the following orders: 4. That the Appeal be allowed with costs. 5. That the Judgment and Decree of the magistrate’s court in respect of the quantum of damages be set aside and/or vacated. 6. That this court does substitute the trial court’s Judgement on quantum of damages with its own. **Analysis and determination.** 1. Learned Counsel for the parties filed submissions which I have perused together 2. with the trial court’s record. In the impugned Judgment, the trial magistrate awarded the Appellant Ksh. 800,000 in general damages for pain and suffering. **4.** Learned Counsel for the Appellants insist that the trial court rightly assessed general damages in the sum of Ksh. 800,000. The court is told that their evidence in support of both liabilty and the quantum of damages was not rebutted and that the lower court applied the correct principles in arriving at the decision. **Guiding Principles** 1. It is trite that the appellate court has the duty of re-assessing the evidence and reaching its own conclusions on matters of fact and law. The court will only interfere with the trial court’s findings if relevant factors were not taken into account or irrelevant factors were considered or the trial court otherwise misdirected itself. (see case law in **Selle vs. Associated Boat Company [1968] EA 123** and **Ocean Freight Shipping Co. Ltd vs. Oakdale Commodities Ltd (1997) eKLR**. The Court of Appeal for East Africa in **Peters –vs- Sunday Post Limited [1958] EA 424** underscored the same principles delivering itself thus:” ***First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;*** 1. ***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*** 2. ***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.”*** **The parties’ evidence in the lower court** 1. It is the Respondent’s pleadings and evidence in the lower court that she was a pillion passenger on a motorcycle when the 1st Appellant’s motor vehicle registration number KCV 436 B was recklessly steered by the 2nd Appellant by overspeeding thereby causing it to lose control and knocking down the Respondent from behind occasioning her bodily injury. She suffered ‘’incomplete abortion’’ , blunt abdominal injury ; Hairline fracture of the CI; loss of a tooth;fractures of teeth Nos 41 and 42; haematoma in the scalp; swollen lip; recurrent abdominal pains; neck pains and tender neck movements according to a medico-legal report by Dr C.. Okere dated 9/6/2020. The degree of permanent disability was assessed at 5%. 2. The 2nd Appellant testified for the defence admitting that he was the vehicle driver at the material time. He, however, denied engaging excessive speed in the crcumstances, adding that he was driving at a moderate speed of 40 Km/hr . The road at the scene was clear of vehicular traffic. He was nevertheless charged with a traffic offence arising from the accident and released on cash bail. The 2nd Appellant nt attributed occurrence of the accident to the third party motorcycle. 3. The Respondent’s Advocates submitted in the lower court that the 2nd Appellant must have been careless or reckless in his driving, hence his failure to control the vehicle. Referrence was made the decision of my sister **( W. Okwany J)** in **James Gikonyo Mwangi V. DM** ( suing through his mother and next friend **IMO (2016) eKLR** in which her Ladyship faulted the respondents therein for failing to enjoin in the proceedings the said third motorcycle they blame for the accident. 4. Citing case law in **Akamba Public Road services V.Maureen Akinyi Abok (2016) eKLR** and **David Maina Njoroge V. Gingalili Farm Limited (2011)** before the lower court, learned Coounsel for the Respondent urged an award of Ksh. 3, 500,000 . In the former case the claimant suffered degloving scalp injury, a fracture of the CI , right temporal wound and was granted Ksh. 3,000,000. In the second case, Ksh. 2,000,000 was assessed for a fracture of the lumbar veterbra. L4 with bone fragment and soft tissue ijnuries . 5. I need not go further in analysing the parties’ submissions as they have been considered in the related **Civil Appeal No. E988 of 2023** in which Judgment on the quantum of damages applies to this Appeal. Suffice it to say that general damages are damages at large and no case is exactly the same as the other. The general method of approach in assessing general damages ought to 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 ( see the often cited case of **Kemro Africa Ltd & Another V. Lubia & Another (1982-88) KLR**). The trial court’s award of Ksh. 800,000 in general damages is on the higher side considering that the respondent’s injuries healed although the court has to consider the scars that must concern the respondent as a young lady. **Determination** 1. I will disturb the trial court’s award of Ksh. 800, 000 general damages for pain an suffering and substitute it with a sum of Ksh 400,000 as assessed and for reasons given in **Civil Appeal No. E988 of 2023** consolidated with this Appeal. 2. Appeal succeeds to the extent that the trial court’s Judgment on quantum of general damages in the said sum of Ksh. 800,000 is substituted with a sum of Ksh. 400,000. 3. The parties will bear their own costs of the Appeal. 4. Judgment accordingly. **JUDGMENT** delivered virtually this 29th day of June 2026 at **NAKURU** **J. M NANG’EA ,** **JUDGE** **In the presence of :** **The Appellants’ Advocate, Ms Kaveni.** **The Respondent’s advocate, Mr Mahugu for Mr. Chengecha.** **The Court Assistant, Jeniffer.**