https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8868

Macharia v Usayo (Civil Appeal E021 of 2025) [2026] KEHC 8868 (KLR) (24 June 2026) (Judgment) Neutral citation: [2026] KEHC 8868 (KLR) Republic of Kenya In the High Court at Vihiga Civil Appeal E021 of 2025 RN Nyakundi, J June 24, 2026 Between Samuel Waithaka Macharia Appellant and Josphat Kisanya Usayo Respondent (Being an appeal from the Judgment and Decree of Hon J. A. Agonda (SPM) delivered at Vihiga in the Magistrate’s Court Civil Case No E050 of 2023 on 27th February 2025) Judgment Introduction 1.In her decision of 27th February 2025, the Learned Trial Magistrate, Hon J. A. Agonda, Senior Principal Magistrate, entered Judgment in favour of the Respondent as against the Appellant in the following terms:-General damages Kshs 1,200,000/=Special damages Kshs 2,550/=Total Kshs 1,202,550/=Plus costs of the suit and interest thereon at court rates from the date of the Judgment until payment in full. 2.Being aggrieved by the said decision, on 20th March 2025, the Appellant herein filed a Memorandum of Appeal dated 14th March 2025. He relied on three (3) grounds of appeal challenging the Trial Court’s award on quantum. 3.As at the time of writing this Judgment, the Appellant had not filed his Written Submissions. The Respondents Written Submissions were dated 25th February 2026 and filed on 26th February 2026. Legal Analysis 4.It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 5.This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co Ltd & Others [1968] EA 123 where the court therein held that the appellate court was not bound by the findings of fact of the trial court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 6.Having looked at the Grounds of Appeal and the Respondent’s Written Submissions, it appeared to this court that all the grounds of appeal were related and the only issue that had been placed before it for determination was whether or not the quantum that was awarded was excessive in the circumstances warranting interference by this court. 7.The Respondent placed reliance on the cases of Butt vs Khan [1981] KLR 349 and Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini vs A.M.M Lubia & Another (1982-88) 1 KAR 777 where the common thread was that in deciding whether it was justified in disturbing the quantum of damages awarded by a trial judge, the court 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 was so inordinately low or so inordinately high that it must have been a wholly erroneous estimate of the damage. 8.He further cited the case of Harun Muyoma Boge vs Daniel Otieno Agulo [2015]eKLR where it was held that the assessment of general damages was 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. 9.He pointed out that the Trial Court relied on the case of Joseph Kimathi Nzau vs Johnson Macharia[2019]eKLR where the gravity of the injuries sustained were similar to that of this case and further took into account the current inflation rates. He added that he sustained extensive injuries that shall not only change the quality of his life but also make him dependent on medical sustenance all his life and an anticipated disability to deal with. 10.He was emphatic that the general damages awarded by the Trial Court were not erroneously awarded as implied by the Appellant in this appeal and that no wrong principles were applied while reaching such awards. 11.It is well settled in law that an appellate court will not disturb an award of general damages unless the same was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of Margaret T. Nyaga vs Victoria Wambua Kioko [ 2004] eKLR. 12.It must be understood that money can never really compensate a person who had sustained any injuries. No amount of money could remove the pain that a person went through no matter how small an injury appeared to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person had sustained. It was merely an assessment of what a court would find to be reasonable in the circumstances to assuage a person who had suffered an injury. 13.However, this assessment was not without limits. A court had to ascertain to itself the sum of general damages that courts and especially appellate courts would ordinarily award in respect of a particular injury. A court therefore had to be guided by precedents. 14.Indeed, in the case of Kigaraari vs Aya(1982-88) 1 KAR 768, it was stated that damages had to be within the limits set out by decided cases and also within the limits the Kenyan economy could afford. This was because high awards would lead to higher insurance premiums which would in turn affect the members of the public. 15.This court also had due regard to the case of Lim vs Camden HA [1980] AC 174 where it was held that even in assessing compensatory damages, the law sought to indemnify the victim for the loss suffered and not to punish the tortfeasor for the injury that he had caused. 16.Similar injuries ought to attract comparable awards. However, in the quest for consistency, courts also had to recognize that no case was exactly the same as the other. It must be noted that cases cannot contain exact injuries and they are merely for comparison purposes. Each case therefore had to be decided according to its own peculiar circumstances but keeping in mind that any monies awarded had to be sustainable. 17.Towards this end, an appellate court ought not to interfere with the discretion of a trial court merely because it could have awarded a lower or higher sum than that which was awarded by the trial court. It could only interfere where the award of general damages was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial court had proceeded on the wrong principles or misapprehended as was held in the case of Margaret T. Nyaga vs Victoria Wambua Kioko (Supra). 18.In his Plaint dated 17th February 2023 and filed on 15th March 2023, the Respondent pleaded that as a result of the accident he suffered acromio clavicular joint disclocation, loss of right shoulder contour and limitation of function of right upper limb. He produced a P3 form, Discharge Summary and treatment notes from Aga Khana Hospital, Kisumu and a Medical Report as exhibits in court. 19.He further testified that he was still in pain as his right hand had been operated and was under restriction. He pointed out that he could not use the said hand to write on the board as a teacher. He stated that he still went for routine medical check-ups. 20.Dr Calvin Amayi Asilaba and Dr Neema Mbaruku, testified as PW 3 and PW 4 confirming that the Respondent sustained the aforesaid injuries and how he was treated. The Appellant did not call any witness but produced by consent a Medical Report by Dr Stephen Ochieng as exhibit in court. 21.The Medical Report of Dr Calvin Amayi Esilaba dated 6th February 2023 showed that the Respondent suffered similar injuries as pleaded on the Plaint. At the time of the medical examination, the Doctor concluded that the Respondent sustained severe soft tissue and major hard tissue injuries. He asserted that he had a broken clavicle bone which is the major bone suspending the shoulder from the body axis. He opined that the injuries amounted to grievous harm due to partial weakening of the shoulder and impaired movement of the right arm. 22.He added that there were metal plates and screws-in situ that were fixed on his shoulders which would be of great discomfort in time of extreme temperatures such as heat and cold and that being the major bone of the shoulder, bone healing would be delayed and the same was prone to bone infections. He pointed out that the Respondent would be exposed for further medical expenses with frequent hospital visits for wound cleaning and dressing, physiotherapy reviews when the bone starts to unite, surgical reviews and that that would include plate and screws removal in future. 23.He was categorical that being that the Respondent’s right arm was suspended with the arm sling and shoulder dislocation, his daily activities would be interfered with since he uses the arm in performance of his duties as a teacher. He concluded that from the assessment of the injuries, the Respondent has suffered 10% permanent disability. 24.Remaining faithful to the doctrine of stare decisis and taking the inflationary trends into consideration, it was the considered view of this court that general damages in the sum of Kshs 1,200,000/= that was awarded by the Trial Court was not unreasonable considering that the Respondent had suffered a percentage of permanent disability. 25.In arriving at the said conclusion, this court had due regard to the following cases:-i.In Joseph Kimanthi Nzau vs Johnson Macharia [2019] eKLR, the Respondent sustained head injuries, chest injuries and lower limb injuries. He had a hematoma of the scalp and severe tenderness in the same region while the x-ray showed fracture of the skull bone at the surgical suture region. He further had tenderness of severe degree in the right chest anteriorly with haematoma formation in the same region while x-ray showed fractures of the 1st and 2nd ribs and fracture of the clavicle bone. He also had tenderness of severe degree in the right hip. The court of appeal reduced the award by the trial court from Kshs. 1,000,000/- to Kshs. 800,000/-.ii.In H. Young & Company E. A Limited vs Edward Yumatsi [2013] eKLR, the High Court on appeal upheld an award of Kshs. 500,000/- as general damages where the claimant sustained inter alia deep cut wound on the head and fracture of the right clavicle bone.iii.Judy Ngochi vs Kamakia Ele Selelo Ledamoi [2019] eKLR, the Respondents sustained lacerations of little finger, blunt injury to right arm, fracture right humerus, blunt injury left shoulder, fracture left clavicle and chip fracture of right acromio. The appellate court awarded Kshs 1,000,000/= as general damages. 26.As the issue of special damages was pleaded and proved, this court found it prudent not to belabor as there was no reason to disturb the same. 27.In the premises foregoing, Grounds of Appeal Nos (1), (2) and (3) were not merited and the same be and are hereby dismissed. Disposition 28.For the foregoing reasons, the upshot of this court’s decision was that the Appellant’s Appeal that was dated 14th March 2025 and lodged on 20th March 2025 was not merited. 29.As the Appellant was not successful in his Appeal herein, he will bear the costs of the Appeal herein. 30.Orders accordingly. DATED AND DELIVERED AT VIHIGA VIA CTS AND EMAIL THIS 24TH DAY OF JUNE 2026………………………………..R. NYAKUNDIJUDGE