https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10255

Amento v Dreamland & Mission Hospital (Civil Appeal E025 of 2025) [2026] KEHC 10255 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 10255 (KLR) Republic of Kenya In the High Court at Bungoma Civil Appeal E025 of 2025 RK Ondieki, J June 18, 2026 Between Rose O Amento Appellant and Dreamland & Mission Hospital Respondent (Being an Appeal against the Judgment by Hon. W.J.Gichumu (CM) in Bungoma CMCC No. E343 of 2019, Delivered on 14th January, 2025) Judgment 1.Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing. Lord Simon’s speech in Watt Vs. Thomas [1947] AC, 484 at p. 485 is recorded that an aappellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies, is entitled to great weight. Lord Simon further said, that apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. 2.In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. 3.In Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123, it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they are that the 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 this 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 or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally. 4.In Bundi Marube Vs Joseph Omkoba Nyamuro[1982-88]IKAR, Hancok J A, said that a court of appeal will not normally interfere with a finding of fact by the trial court unless, it is based on no evidence, or on a representation of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching he findings he did. 5.In the case of Rahma Tayab & another Vs Anna Mary Kinamu [1982-88]1KAR 90 Law JA stated that an appellate court will be shown to interfere with a judge’s findings of fact based on his assessment of the credibility and demeanour of witnesses who have given evidence before him. 6.On 11th October, 2018, the appellant was involved in a road traffic accident along Kimilili-Bokoli Road when a motor vehicle registration number KAA 469M knocked a motor cycle registration number KMDZ 930X and as a result bodily injury. The Respondent filed a defence denying and instead blamed the Appellant for the accident. 7.Rose Olekete Amento(PW1) told court that she is a business woman and adopted her witness statement dated 24th April, 2019. She also adopted the list of exhibits from 1 to 9 as exhibits, respectively. She prayed for the expenses she spent for treatment in the sum of Kshs570,127.80. The witness sustained a fracture of the right leg and has a metal implant. Under cross examination, the witness said that indeed, she was involved in an accident but cannot recall the number plate of the accident motor vehicle. 8.Parties recorded a consent on liability at 80:20 as against the Respondent and the Appellant and closed their respective cases. They filed written submissions. 9.In the Judgement delivered by the Learned Magistrate on 14th January, 2025, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;a.That the learned Trial Magistrate erred in law and fact by failing to apply the principle of compensation in respect of injuries suffered by the appellant.b.That the learned Trial Magistrate erred by law and fact in awarding very low as compared to the injuries suffered by the appellant.c.That the learned Trial Magistrate erred in law and fact by subjecting the award of special damages of Kshs381,050 to apportioned liability when it is an express incurred.d.That the learned Trial Magistrate erred in law and fact by failing to consider the submissions before him.e.That the learned Trial Magistrate erred in law and fact by failing to consider the facts and evidence before him and arrived at a wrong decision hence a miscarriage of justice1.The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal. Analysis and Determination: 10.I have with singleness of mind looked at the five lamentations by the Appellant and to my understanding, they can be collapsed into two issues for determination.(1)Whether or not, the Court awarded so low damages and(2)apportionment of special damages to contributory liability. Additionally, many are the decisions of superior courts in respect to damages awarded in personal injury claims and whereas I may not be able to sample all of them here, I shall seek reliance on a few which will act as my anchorage even as I dive into the factual matrix and when I come to the surface, I do not lose my footing. 11.This famous passage from Lord Morris’ speech in H West & Son Vs Shephard, [1964] AC 326 at page 353, reads; “The difficult task of awarding money compensation in a case of this kind is essential a matter of opinion of judgment and of experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment. 12.In Harun Muyoma Boge Vs Daniel Otieno Agulo MGR HCCA No. 7 of 2015 [2015] eKLR, D.S Majanja J. expressed himself thus: - “The assessment of general damages is not an exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politic is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.”. 13.Lord Morris in Jag Singh v Toong Fong Omnibus Co Ltd [1964] 1 WLR 1382, at page 1385, says: - “It need hardly be emphasised that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before any comparison between the awards in the respective cases can fairly or profitably be made. If, however, it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardised or that there should be any attempt to rigid classification. It is but to recognise that since in a court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.” 14.In the case of Bhogal Vs Burbidge [1975] EA, 285, it was said: “The learned Judge in the present case made no mention of inflation. Whether or not he had it in mind there is no doubt that, had the case been heard today, “(i.e January, 1981)” the Court could have awarded Mr. Burbidge a very much higher figure.” 15.Even more definite regarding the upward trend was the statement made by Madan JA in Ugenya Bus Services Vs Gachoki Civil Appeal 66 of 1981, where there was a hand injury but also the amputation of the right leg, as follows: - “I also know that the days of small and stingy awards are gone. They were decidedly miserly in any event, like Kshs.20,000.00 for the loss of a forearm or Kshs.50,000.00 for the loss of an eye. Even without the curse of inflation, they were niggardly. I remember but ignore them. We have inflation with us. We all have to live with the exorbitance which inflation has brought into our lives.” 16.In the words of Sachs LJ in the 4th Edition of Kemp & Kemp on Damages, Volume I, he said in Dimmock v Miles [1969] CA No 436: “the notional scales applied by judges when assessing damages in personal injury cases are nowadays apt to change with ever-increasing rapidity. One, but only one, of the causes of such changes is the ever-decreasing worth of monetary units.” 17.Madan J A said in Mohamed Juma Vs Kenya Glass Works Ltd Civil Appeal 1 of 1980, at page 3 of his judgment: - “I treat with respect the awards of general damages for injuries made in other jurisdictions as helpful indicators. Those awards are made taking into account the socioeconomic conditions in their own country which are usually not close enough to the conditions in Kenya to be reasonably comparable. We are mature. We have to reach our own measures of damages for different types of injuries and compensations for personal loss such as will fit in with the demanded, the conditions, the exigencies, the circumstances and our peculiarities so that they will groove in realistically with the pattern of life in Kenya.” 18.This being an appeal on quantum, the court will be guided by the principles enunciated by the Court of Appeal in the case of Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini Vs A.M Lubia and Olive Lubia (1987) KLR 30, where it was held as follows: “The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it must be satisfied that either the judge, in assessing the 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 damages.” 19.In Gicheru Vs Morton and Another (2005) 2 KLR 333 this Court stated: “In order to justify reversing the trial judge on the question of the amount of damages it was generally necessary that the Court of Appeal 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 small as to make it, in the judgment of the Court, an entirely erroneous estimate of the damage to which the Appellant was entitled.” 20.The list is not exhaustive. 21.In respect to the issue of quantum, I note that the current thought on damages of injuries sustained by the appellant, and the fact we have too much money facing few goods in the market, is evidence enough that inflation is here with us. The precedents cited do not reflect, the economic situation in Kenya today. I opine that taking que from the expansive reasoning of analysis in the aforementioned precedents, are to the effect that a trial magistrate is obligated to consider, the current awards in respect to similar injuries. This reasoning is not captured in the Judgement of the learned Magistrate. For that reason alone, I find that the quantum was low. 22.In respect to special damages subjected to contributory negligence, it is the holding of many superior courts that, special damages cannot be subjected to contributory negligence. In Bangue Indosuez Vs DJ Lowe and Company Ltd [2006] 2KLR 208 the Court held inter alia; “It was trite that special damages must not only be claimed specially but proved strictly for they are not the direct natural or probable consequences of the act complained of and may not be inferred from the act. The degree of certainty and probability of proof required depends on the circumstances and the nature of the acts themselves.”emphasis supplied. 23.Putting all these together, I make the following orders;a.The quantum awarded by trial magistrate is hereby set aside and replaced with a figure of Kenya shillings One Million Six Hundred Thousand (Kshs1,600,000/).b.The order of contribution of 20% on special damages is set aside.c.Special damages pleaded and proved is Kshs381,050/=d.Costs of this appeal to the appellant. DELIVERED VIRTUALLY THIS 18TH JUNE, 2026 IN THE PRESENCE OF THE APPELLANT, THE RESPONDENT AND BRIAN- COURT ASSISTANT.HON. R.K. ONDIEKI.JUDGE.orders accordingly.DELIVERED VIRTUALLY THIS 18TH JUNE, 2026 IN THE PRESENCE OF;Brian-Court AssistantMr Juma holding brief for Counsel for the Respondent.Ms Kemuma for the Appellant.