https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8497

Salat v Yuda & another (Civil Appeal E051 of 2023) [2026] KEHC 8497 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 8497 (KLR) Republic of Kenya In the High Court at Garsen Civil Appeal E051 of 2023 JN Njagi, J June 4, 2026 Between Satima Fardosa Salat Appellant and Milka Hadida Yuda 1st Respondent Tipu Automobile Limited 2nd Respondent (Being an Appeal from the judgment and decree of Hon. E. Too, Senior Principal Magistrate, in Hola SPM`s PMCC No. E035 of 2021 delivered on 11/4/ 2023) Judgment 1.The 1st Respondent herein brought suit against the appellant wherein she was seeking general and special damages after she was injured in a road traffic accident while travelling in a motor vehicle owned by the Appellant. She blamed the Appellant for being liable for 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 award filed the instant appeal vide the Memorandum of Appeal dated 19th April, 2023 whose grounds are that:1.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.2.That the learned trial magistrate erred in his application of the evidence tendered before him with respect to general damages.3.That the learned trial magistrate erred in his assessment of general damages which was manifestly excessive and or inordinately high.4.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.5.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. 3.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 4.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 principles, or so manifestly excessive or inadequate as to infer error of principle, as held in Kigaragari v Agripiana Mary Aya (1982-88) KAR 768. Counsel submitted that a re-evaluation of the quantum was necessary as the injuries sustained were not severe. That the award of Kshs. 300,000/- was neither founded on a proper evaluation of the evidence nor supported by law and precedent. 5.Counsel for the Appellant also submitted that the 1st Respondent sustained blunt injuries to the neck, head, and back. That Dr. Udayan R. Sheth’s examination on 19th August 2022 confirmed 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. That the same exceeded the prevailing trend (2019–2022) for similar fully recovered soft tissue injuries. Counsel urged the court to interfere and set aside the judgment. 6.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. 7.Counsel further submitted that the appellant has failed to demonstrate that the trial Court misapprehended the evidence or applied the wrong law. 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. Counsel supported the award by the trial magistrate. Analysis and determination 8.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 [2016] eKLR. 9.I have considered the grounds of appeal and the submissions by the respective counsels for the parties. The issues for determination are whether the award of general damages of Ksh.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. 10.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.” 11.It is also a principle of law in awarding general damages that comparable injuries should attract comparable awards, See Odinga Jacktone Ouma V Moureen Achieng Odera [2016]. 12.The Medical report by Doctor Ajoni Adede dated 5th October, 2020 was to the effect that the 1st Respondent suffered a blunt object injury to the neck and a blunt object injury to the head and back. The doctor assessed the injuries as soft tissue injuries. 13.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 authorities where awards of between Ksh. 60,000/= and 95,000/= were made:(a)Losagi Insurance Brokers Limited &another v Josephat Achesa Chumbali [2022] eKLR an award of Ksh.300,000/- as general damages for cut wounds that had healed was reduced Ksh.95,000/- on appeal in 2022.(b)HB (minor suing through mother & next friend DKM) V Jasper Nchonga Magari & another [2021] eKLR where a lower court award of Ksh. 60,000/= for blunt injury to the head, neck, thorax, abdomen and limbs was upheld on appeal in 2021.(c)Nyota Tissue Products V Lawrence Lawi Kuboka & 4 others [2020] eKLR where a lower court award of Ksh.70,000/= as general damages was affirmed on appeal for severe soft injury of the right leg and blunt injury to the chest in 2020.(d)Nyambati Nyaswabu Erick Vs Toyota Kenya Limited & 2 others [2019] eKLR where Ksh.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. 14.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.80,000/=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 Ksh.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 Ksh.120,000/- for soft tissue injuries to the head, back, chest, shoulders, elbow joints and knees. 15.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 Michael Odwour Obonyo V Clarice Odera Ogunde [2021] КЕНС 4677 (KLR) where the High Court on appeal found that an award of Kshs 200,000/= was reasonable where the Respondent sustained blunt injury to the head, neck, chest, upper limbs, lower limbs, ribs and back. Counsel also relied on the case of Channan Agricultural Contractors LTD V Fred Barasa Mutsyi [2013] КЕНС 1478 (KLR) where the High Court on appeal found that an award of Ksh. 150,000/= was reasonable where the Respondent sustained blunt injury to the chest and head, and cut wound to the left leg. 16.I have considered the authorities cited by both sides vis a vis the injuries suffered by the Respondent. According to Dr. Adedeh the 1st, Respondent herein suffered soft tissue injuries with no permanent disability. The appellant’s doctor who examined the 1st Respondent most recently noted that she had fully recovered, that there was no deformity and no permanent incapacity. 17.In view of the fact that the 1st respondent in this matter suffered blunt injury to the neck, head and back, I am of the view an award of Ksh,300,000/= was on the higher side. However, an award of between Ksh.65,000/= and 95,000/= as proposed by counsel for the Appellant wound be on the lower side. I consider the injuries in the authorities cited by counsel for the Respondent to be closer to the injuries sustained by the Respondent in this matter. Consequently, I consider an award of Ksh.150,000/= to be appropriate for the injuries sustained by the Respondent. 18.The upshot is that the award of the trial court is set aside and replaced with an award of Ksh.150,000/=. 19.In view of the fact that the appeal has partially succeeded, I order each party to bear its own costs to the appeal.Orders accordingly. DELIVERED, DATED AND SIGNED AT GARSEN THIS 4TH DAY JUNE 2026.J. N. NJAGIJUDGEIn the presence of:Miss Wambui HB for Mr. Onyango for AppellantMiss Nkocho for 1st RespondentCourt Assistant - Rahma