https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8485

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT GARSEN** **CIVIL APPEAL NO. E050 OF 2023** **SATIMA FARDOSA SALAT…….….………………........APPELLANT** **-VERSUS-** **NYATHAN RALIA BUYOTO alias RALIA HASSAN** **TIPU AUTOMOBILE LIMITED..…..…..….…..…...RESPONDENTS** ***(Being an Appeal from the judgment and decree of Hon. E. Too, Senior Principal Magistrate, in Hola SPM`s Court Civil Case PMCC No. E032 of 2021 delivered on 11/4/2023)*** **JUDGEMENT** 1. The 1st Respondent herein brought suit against the Appellant wherein he was seeking general and special damages after he was injured in a road traffic accident while travelling in a motor vehicle owned by the Appellant. He blamed the Appellant’s driver for causing the accident. After the trial, the trial magistrate found the Appellant to have been wholly liable for the accident and awarded the 1st Respondent Ksh.300,000/= in general damages for the injuries suffered. 2. The Appellant being aggrieved by the judgment of the trial magistrate filed the instant appeal in which he set forth the following grounds of appeal dated 19th April, 2023; 3. **That the learned trial magistrate erred in law and fact by taking into account matters which he ought not to have taken into account and failing to take account matters he should have taken into account in making an award on general damages.** 4. **That the learned trial magistrate erred in his application of the evidence tendered before him with respect to general damages.** 5. **That the learned trial magistrate erred in his assessment of general damages which was manifestly excessive and or inordinately high.** 6. **That the learned trial magistrate erred in failing to appreciate the nature of injuries sustained, the confirmed extent of recovery, the trend of awards for comparable injuries and the authorities submitted in support of a lesser award.** 7. **That the learned trial magistrate erred in failing to consider and apply the relevant legal principles with respect to awards made under the Law Reforms Act and the Fatal Accidents Act.** 8. The appellant sought to have the appeal allowed and the judgment and decree of the trial magistrate be set aside and the award be re-assessed. **Submissions** 1. The appeal was canvassed by way of written submissions of the respective counsels appearing for the parties. The appellant submitted that an appellate court will not interfere with a trial court’s discretionary award of general damages unless the award is shown to be demonstrably wrong, founded on wrong principle, or so manifestly excessive or inadequate as to infer error of principle, citing the cases of **Kigaragari v Agripiana Mary Aya (1982-88) KAR 768**. 2. It was submitted that a re-evaluation of the quantum was necessary as the injuries sustained were not severe. According to counsel, the award of Kshs. 300,000/- was neither founded on a proper evaluation of the evidence nor supported by law and precedent. 3. Counsel submitted that the 1st Respondent sustained blunt injury to the neck. That Dr. Udayan R. Sheth’s examination on 19th August 2022 confirmed that these were soft tissue injuries that had fully healed. That with medical evidence from both doctors establishing fully healed soft tissue injuries, the award of Kshs. 300,000/= for general damages was extremely generous and inexplicable. Counsel urged the court to interfere with the award and set it aside. 4. The Respondent on the other hand submitted that an appellate court will not disturb an award of damages unless it is shown that the trial court acted on wrong principles of law or that the amount awarded is so inordinately high as to be a manifest miscarriage of justice. Counsel also submitted that the damages awarded were neither excessive nor manifestly high. That general damages are intended to offer comfort for the pain, suffering and loss of amenities. That the trial court applied the principle of comparability. Counsel relied on the case **of Municipal Council of Nakuru & another v David Mburu Gathiaya |1993| eKLR** where the Court of Appeal intimated that no two similar cases are exactly the same and that similar cases only serve as a guide for awarding general damages. 5. Counsel further submitted that the appellant has failed to demonstrate that the trial Court misapprehended the evidence or applied the wrong law. Therefore that the award of Kshs. 300,000 was a proper exercise of judicial discretion based on the medical evidence presented and similar awards for comparable injuries. He supported the award by the trial magistrate. **Analysis and determination** 1. It is the duty of this court, as the first appellate court, to examine matters of both law and facts and subject the whole of the evidence to a fresh and exhaustive scrutiny, drawing its own conclusions from that analysis and bearing in mind that the court did not have an opportunity to hear the witnesses first hand - see the Court of Appeal case of **[Gitobu Imanyara & 2 Others –vs- Attorney General](https://new.kenyalaw.org/akn/ke/judgment/keca/2016/557%22%20%5Ct%20%22_blank) [2016] eKLR.** 2. I have considered the grounds of appeal and the submissions of the respective counsels for the parties. The issues for determination are whether the award of general damages of Kshs. 300,000.00/= is inordinately high in light of the injuries suffered by the 1st Respondent as to warrant interference by this court and whether the trial court failed to apply the correct principles of law applicable in awarding damages. 3. The principles that guide an appellate court on whether or not to interfere with the decision of the trial court are as was stated by the Court of Appeal in **Kemfro Africa Limited T/A “Meru Express Services 1976” & Gathogo Kanini v A. M. Lubia & Olive Lubia [1982 – 1988] 1 KAR 727**, where Kneller J. A. said: **“The principle 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 of Eastern Africa to be that it must be satisfied that either the Judge in assessing the damage 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.”** 1. The Medical report by Doctor Ajoni Adede dated 5th December, 2020 was to the effect that the 1st Respondent at the time of the accident suffered a blunt object injury to the neck (cervical region) and a bruise on the left leg. That an examination after 2 months showed that the left leg had a 2cm x 2cm scar. The doctor assessed the injuries as soft tissue injuries that had no permanent disability. 2. The Appellant submitted that the injuries suffered by the 1st Respondent were mild and did not warrant an award of Ksh.300,000/= in damages. They relied on the following cases where awards of between Ksh.60,000/= and 90,000/= were made: 3. **Losagi Insurance Brokers Limited &another v Josephat Achesa Chumbali [2022] eKLR** an award of Kshs. 300,000/- as general damages for cut wounds that had healed was reduced Kshs. 95,000/- on appeal in 2022 4. **HB (minor suing through mother & next friend DKM) V Jasper Nchonga Magari & another [2021] eKLR** where a lower court award of Kshs.60,000/= for blunt injury to the head, neck, thorax, abdomen and limbs was upheld on appeal in 2021. 5. **Nyota Tissue Products V Lawrence Lawi Kuboka & 4 others [2020] eKLR** where a lower court award of Kshs. 70,000/= as general damages was affirmed on appeal severe soft injury of the right leg and blunt injury to the chest in 2020. 6. **Nyambati Nyaswabu Erick Vs Toyota Kenya Limited & 2 others [2019] eKLR** where Kshs.90,000/= was awarded on appeal for a deep cut on the scalp extending to the maxillary area, blunt injury to the left side of the chest, contusion on the back and contusion on both legs in 2019. 7. I note that these are the same authorities that the Appellant relied on at the lower court. In this appeal they further cited other cases where awards ranging between Ksh.100,000/=and Ksh.155,000/= were made which included: * **Daniel Gatana Ndungu & another v Harrison Angore Katana (2020) eKLR** where the court found a sum of Kshs. 140,000/- sufficient for multiple soft tissue injuries which included cut on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee. * **Adembesa & another v Gweno (Civil Appeal E192 of 2023) (2024) KEHC 5379 (KLR)** where the court awarded Kshs. 120,000/- for soft tissue injuries to the head, back, chest, shoulders, elbow joints and knees. 1. The Respondent on the other hand submitted that the trial court did not err in awarding the sum of Ksh.300,000=. They relied on the case of **Otieno & Another v Mwanga (2023) KEHC 26648 (KLR)** where the High Court upheld an award of Kshs. 300,000/- as general damages where the Respondent sustained inter alia blunt injuries to the head, chest, abdomen, left wrist and right ankle and bruises on the left wrist joint. They also relied on the case of **Nairobi City County V Mugenya [2022] КЕНС 16258 (KLR)** where the High Court on appeal found that an award of Kshs 300,000/= was reasonable where the Respondent sustained blunt injury (tender)- occipital region and blunt injury (tender)- lower back. 2. The trial court in awarding the sum of Ksh.300,000/= relied on the case of **Michael Odiwuor Obonyo v Clarice Odera Ogunde (2021) eKLR** that was cited by counsel for the Respondent where Ksh.200,000/= was awarded for blunt injuries to neck, head, chest, upper and lower limbs. 3. It is trite law that comparable injuries should be compensated by comparable awards. It is however to be noted that injuries in one person will never be fully comparable to injuries in another person. What a court has to ensure is that as far as possible comparable injuries are compensated by comparable awards while taking into account the after effect of the injuries on the claimant, see **Odinga Jacktone Ouma V Moureen Achieng Odera [2016] eKLR**. In **Simon Taveta v Mercy Mutitu Njeru CA Civil Appeal No. 26 of 2013 [2014] eKLR**, the Court of Appeal observed that: **“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”** 1. I have considered the authorities cited by both sides vis a vis the injuries suffered by the 1st Respondent. According to the report of Dr. Adede, the 1st Respondent suffered soft tissue injuries with no permanent disability. The 1st Respondent was on the 19/8/2022 examined by Dr. Udayan Sheth for the Appellant who noted that he had fully recovered with no deformity or permanent incapacity and that there was no visible scar over the left leg. 2. In view of the fact that the 1st respondent suffered blunt injury to the neck (cervical region) and a bruise on the left leg with a 2cm and 2cm scar, I a m of the view that the award of Ksh.300,000/= was inordinately high. I am persuaded that the authorities cited by counsel for the Appellant and more particularly the cases of **Daniel Gatana Ndungu & another v Harrison Angore Katana** (supra)and **Adembesa & another v Gweno** (supra) where awards of between Kshs. 120,000/- and Ksh140,000/ were made involved comparable injuries as those sustained by the 1st Respondent in the matter herein. I am in the premises of the view that an award of Ksh.150,000/= is adequate compensation for the injuries suffered by the 1st Respondent. 3. The upshot is therefore that the award of the trial court is set aside and substituted with an award of Ksh.150,000/=. As the appeal has partially succeeded, I order each party to bear its own costs to the appeal. **Delivered, dated and signed at GARSEN this 18th day June 2026.** **J. N. NJAGI** **JUDGE** **In the presence of:** **No appearance for Appellant** **No appearance for 1st Respondent** Court Assistant - Rahma