https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11764

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KIAMBU COUNTY COURT NAME: THIKA HIGH COURT CASE NUMBER: HCCA/E214/2024 SAMUEL KYALO MWANGANGI. VS KISINGU MUSYOK JUDGMENT ***(Being an Appeal from the Judgment and Decree of the Hon. D. Milimu (SRM) delivered on 13th February, 2023, in Civil Case No. 303 of 2019)*** # INTRODUCTION * 1. This Appeal arises from the judgment delivered by the Hon. Hon. D. Milimu, learned magistrate, on 13th February,2023, in Civil Case No. 303 of 2019. 2. The Respondent, who was the Plaintiff before the trial court, instituted a claim for damages arising from a road traffic accident. In the Plaint, the Respondent averred that on or about 29th January 2019 at approximately 2.00 p.m. along the Thika–Matuu Road, the Appellant’s driver and/or agent negligently, recklessly and/or carelessly drove, managed and controlled motor vehicle registration number KCD 893N, a mitsubishi bus, thereby causing it to lose control, veer off the road and overturn. As a result of the accident, the Respondent, who was lawfully travelling in the said motor vehicle as a fare-paying passenger, sustained serious bodily injuries. * 1. The Appellant filed a Statement of Defence dated 4th September 2019, denying the allegations contained in the Plaint and attributing the occurrence of the accident to the Respondent’s own negligence. The matter subsequently proceeded to full hearing, during which the Respondent testified and called the evidence of a medical doctor and a police officer, all of whom produced documentary exhibits in support of the claim. The Appellant, however, closed his case without calling any witnesses. * 1. Upon considering and evaluating the pleadings, evidence and submissions placed before it, the learned trial magistrate rendered judgment on liability, quantum of damages and costs. The trial court found in favour of the Respondent and awarded general damages in the sum of Kshs. 900,000/=, special damages of Kshs. 56,950/=, together with costs of the suit and interest thereon. 2. The Defendant (Appellant herein), being aggrieved by the judgment of the trial court, filed a Memorandum of Appeal dated 9th March 2023, raising 8 grounds on Appeal. # SUBMISSIONS BY PARTIES ## Appellant’s Submissions 1. On the issue of quantum, the Appellant submitted that the assessment of general damages is a discretionary exercise of the trial court, which discretion must be exercised judiciously and in accordance with established legal principles. The Appellant contended that an appellate court is entitled to interfere with an award of damages where it is demonstrated that the trial court took into account irrelevant factors, failed to consider relevant factors, or where the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages payable. 2. The Appellant further submitted that the Respondent had substantially recovered from the injuries sustained, particularly the fracture, and that reliance on the Respondent’s medical report without due regard to the extent of recovery would not present a true reflection of the Respondent’s condition for purposes of assessing damages. 3. In support of the foregoing position, the Appellant relied on the case of ***Denshire Muteti Wambua v Kenya Power & Lighting Co. Ltd* [2013] eKLR**, wherein the court emphasized the need for consistency and uniformity in awards of damages, holding that comparable injuries should, as far as possible, attract comparable awards. 1. The Appellant further relied on ***Odinga Jackson Ouma v Maureen Achieng Odera [2016] eKLR, Kisumu HCCA No. 1 of 2014***, where the court awarded Kshs. 180,000/= for injuries comprising fractures of the 1st, 2nd and 3rd ribs, a fracture of the left metatarsal bone, a dislocation of the left shoulder, loss of consciousness, and multiple soft tissue injuries to the upper limb and neck. Based on the foregoing authority, the Appellant contended that the award made by the trial court was excessive and disproportionate to the injuries sustained by the Respondent. ## Respondents Submissions 1. The Respondent, in his submissions contended that the award of Kshs. 900,000/= was not excessive in the circumstances, putting in mind the severity of the injuries sustained by the Respondent and in fact the award given was far less than what was submitted by the Plaintiff/ Respondent. The Respondent went to list the injuries sustained by the Respondent. 2. While comparing the injuries sustained by the Respondent and those of determined precedents, the Respondent relied on the cases of ***Edward Muiruri Gatete Mburu vs. Susan Kitheka Civil Appeal No. 161 of 2013 Mombasa P.J.O Otieno J, Peter Mulanda Wanje Vs. Capture Transport Limited and 2 Others, Civil Appeal No. 89 of 2020 and also in the case of Collins Omondi Muganda vs Ocianic Oil Ltd vs Oceanic Oil and Anor Civil Appeal No. 31 of 2016.*** 3. The Respondent submitted that contrary to the grounds raised by the Appellant that the learned trial magistrate failed to consider the evidence and the exhibits on record, the Respondent submits that the magistrate fully considered the evidence, the exhibit on record plus the defendant’s written submissions and also the relevant laws governing awarding of general damages. 1. Having considered the Memorandum of Appeal, the Record of Appeal and the Submissions by the parties, and noting that the Appellant only canvassed the issue of quantum of damages in his submissions, this court is of the view that the sole issue falling for determination is: **Whether the award** **of Kshs. 900,000/= as general damages made by the trial court was so excessive as to warrant interference by this court.** # ANALYSIS AND DETERMINATION 1. This being a first appeal, this court is obligated to re-evaluate the evidence on record and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify. In ***Peters v Sunday Post Ltd (1958) EA 424***, the Court of Appeal held that: ### “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.” 1. The court has carefully considered the judgment of the trial court and the evidence tendered before it. The record shows that the Respondent testified, called a medical doctor and a police officer, and produced documentary evidence in support of his claim. The Appellant, on the other hand, closed his case without calling any witness to rebut the Respondent's evidence. 2. The learned trial magistrate properly evaluated the medical evidence and captured the injuries sustained by the Respondent as follows: *“Head and neck he had minimal hematoma formation and severe tenderness over the scalp skin at the occipital region of the head, Thorax and abdomen- he had severe tenderness over the right chest and* *upper back; posterior trunk, upper limbs-physical and clinical valuation within normal limits, lower limbs- had tenderness of severe degree over the right knee and also he had severe tenderness over the left hip; giving rise left hip joint movements limitation.”* 1. The Appellant has argued that the Respondent had substantially recovered and that the award was excessive. However, beyond making that assertion, the Appellant did not demonstrate which relevant factor was ignored by the trial court, which irrelevant factor was considered, or how the learned magistrate misapprehended the evidence. The Appellant merely invited this court to substitute its own assessment for that of the trial court. 2. The principles governing interference with an award of damages are well settled. In ***Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5*** the court 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” 1. Similarly, in ***Savanna Saw Mills Ltd v George Mwale Mudomo (2005) eKLR*** the Court stated that: ### “It is the law that the assessment of 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 simply because it would have awarded a different figure if it had tried the case at the first instance …” 1. This court is also alive to the principle that assessment of damages is not an exact science and that each case must be determined on its own peculiar facts and circumstances. While previous decisions serve as useful guides in promoting consistency and predictability, no two cases are exactly alike and courts must consider the nature and extent of the injuries sustained by the particular claimant. In **Arrow Car Limited v Bimomo & 2 Others [2004] 2** **KLR 101**, the court held that: ### “It is our view that in assessment of damages the general method of 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.” 1. Accordingly, although the Appellant relied on authorities involving different injuries and circumstances, this court is satisfied that the learned trial magistrate properly considered the injuries sustained by the Respondent, the medical evidence on record and the applicable legal principles before arriving at the award. The authorities cited by the Appellant relate to injuries that are entirely not identical to those sustained by the Respondent and therefore cannot be applied mechanically. Each case must ultimately turn on its own facts. 2. Having reviewed the record, this court finds that the learned magistrate considered the injuries sustained by the Respondent, the medical reports produced, the authorities cited by the parties and the applicable principles of law before arriving at the award of Kshs. 900,000/=. The Appellant has failed to demonstrate that the trial court acted on a wrong principle, misapprehended the evidence, or arrived at an award that was so inordinately high as to warrant interference by this court. 3. Accordingly, this court finds no basis upon which to disturb the exercise of discretion by the trial court. # DISPOSITION 1. Accordingly; 1. The Appeal lacks merit and is hereby dismissed in its entirety. 2. The Judgment and Decree of the Hon. D. Milimu (SRM) delivered on 13th February, 2023, in Civil Case No. 303 of 2019, is hereby upheld. 3. The Award of General Damages of Kshs. 900,000/=, Special Damages of Kshs. 56,950/=, together with costs and interest as awarded by the trial court, is hereby affirmed. 4. The Respondent shall have the costs of this Appeal. It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Thika High Court High Court Div Date: 2026-07-28 08:59:37