https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7279

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COUNTY COURT NAME: MILIMANI HIGH COURT CASE NUMBER: HCCA/E234/2024 SIMON KARANJA 1st Appellant - Versus - FLORENCE WACHUKA MAINA 1st Respondent JUDGMENT *(Being an appeal from the judgment/decree of the Honourable H.A Okello delivered on 31.01.2024 in Milimani CMCC No. E6279 of 2022)* # JUDGMENT 1. This appeal arises from the judgment of the Honourable Okello delivered on 31st January 2024 in Milimani CMCC No. E6279 of 2022. The background facts are largely uncontested. 2. On 12th February 2022, the Respondent, Florence Wachuka Maina, was a fare-paying passenger aboard motor vehicle registration number **KBV 423K**, which was involved in a collision with motor vehicle **KBR 244Y** along Dr. Griffins Road, Nairobi. The Appellants were found to be liable for the accident, a finding that is not challenged in these proceedings. 1. As a result of the accident, the Respondent sustained a swollen, painful and tender pelvis on the right side, and a swollen, painful and tender right shoulder. The P3 form and the medical report compiled by Dr. G.K. Mwaura both recorded the same injuries, classifying them as soft tissue in nature with no permanent disability. The trial court awarded Kshs. 5,550.00 as special damages and Kshs. 250,000.00 as general damages for pain, suffering and loss of amenities. 2. Dissatisfied with the award of general damages, the Appellants instituted this appeal by way of a Memorandum of Appeal dated 12th February 2024, setting out six grounds of appeal which, properly understood, converge upon the single question of whether the sum of Kshs. 250,000.00 awarded as general damages was justified. 3. Liability is not in issue. This appeal has been disposed of entirely on the basis of written submissions filed and exchanged by both parties. I have considered the record of the subordinate court, the grounds of appeal, the rival submissions and the relevant authorities. # APPELLANTS’ SUBMISSIONS 1. The Appellants, through the firm of Kairu & McCourt Advocates, submit that the general damages award of Kshs. 250,000.00 is inordinately high and wholly disproportionate to the injuries sustained. 2. It is their case that the injuries, soft tissue injuries to the pelvis and shoulder with no permanent disability, represent the mildest category of personal injury, and that the trial court failed to properly calibrate the award to the injuries proved. 3. The Appellants invoke the general principles governing quantum as articulated in ***Power Lighting Company Limited & Another v Zakayo Saitoti Naingola & Another [2008] eKLR*** that damages must compensate and not enrich, that they must be commensurate to the injuries suffered, and that past awards serve merely as guides with appropriate adjustment for inflation. 4. In support of the proposed range of Kshs. 50,000.00 to Kshs.100,000.00, the Appellants rely principally on **Civil Appeal No. 54 of 2016, *Ndungu Dennis v Ann Wangari Ndirangu & Another [2018] eKLR*** where the High Court at Kiambu reduced a general damages award from Kshs. 300,000.00 to Kshs.100,000.00 for soft tissue injuries to the lower right leg and back. 1. They also cite ***Eva Karemi & 5 Others v Koskei Kieng & Another [2020] eKLR*** where individual awards for various soft tissue injuries and bruising ranged from Kshs. 40,000.00 to Kshs.70,000.00. The Appellants urge that the trial court’s award cannot withstand scrutiny against these benchmarks and pray that it be set aside and substituted with a sum within the range they propose. 2. The Appellants further pray for costs of this appeal. # RESPONDENT’S SUBMISSIONS 1. The Respondent, through Waiganjo Wachira & Company Advocates, opposes the appeal and urges this Court to dismiss it with costs. The Respondent begins by reminding the Court of the well-settled principle that the jurisdiction of an appellate court to interfere with a trial court’s award of damages is narrow and carefully circumscribed. The test is not whether the award was excessive, but whether it was *manifestly* excessive. 2. The Respondent relies on ***Nyambati Nyaswabu Erick v Toyota Kenya Limited & 2 Others [2019] eKLR*** for the proposition that past awards must be considered in light of their age, the rate of inflation, and the strength of the Kenya Shilling at the time they were made. The Respondent further submits that while comparable cases provide useful guidance, each case must ultimately be assessed on its own facts and peculiar circumstances. 3. The Respondent places particular reliance on two recent appellate decisions. In ***Anthony Nyamwaya v Jackline Moraa Nyandemo [2022] eKLR***, an award of Kshs. 250,000.00 was upheld on appeal for comparable injuries. In ***Michael Okello v Priscilla Atieno [2021] eKLR***, an appellate court itself assessed and awarded Kshs. 250,000.00 for comparable soft tissue injuries. The Respondent urges that the trial court’s award squarely falls within the range sanctioned by these decisions and is therefore neither excessive nor unreasonable. 4. The Respondent further draws the Court’s attention to the fact that the medical evidence tendered at the trial court was not controverted and that the injuries are not in dispute in this appeal. The Respondent accordingly implores the Court to find no basis for interference and to dismiss the appeal with costs. # ISSUE FOR DETERMINATION 1. The sole issue arising for determination in this appeal is: ## *Whether the learned trial magistrate erred in awarding the* Respondent general damages of Kshs. 250,000.00 for the injuries sustained, such that this Court is justified in interfering with that award. **ANALYSIS AND DETERMINATION** 1. The starting point in any first appeal on quantum must be a clear-eyed recognition of the boundaries of this Court’s jurisdiction. An appellate court does not sit as a fresh tribunal tasked with assessing damages afresh simply because it might have arrived at a different figure. 2. The jurisdiction to interfere is triggered only where the aggrieved party demonstrates one of two things: that the trial court took into account irrelevant considerations or ignored relevant ones in its assessment; or that the award is so inordinately high or low as to represent a wholly erroneous estimate. # The Court of Appeal in Kaikai v Chacha & 2 others (Civil Appeal E028 of 2020) [2025] KECA 1278 (KLR) (11 July 2025) (Judgment) Neutral citation: [2025] KECA 1278 (KLR) had this to say: ## *“It is trite that each case must be determined on its circumstances as injuries suffered cannot be 100% identical. The* award of general damages is not a mathematical exercise in which a court takes a calculator to add or subtract from previous awards. Each case depends on its own facts, and the award of damages is just an estimate that should be as close as possible for similar injuries. This means that unless an award is inordinately low or high, an appellate court should be slow to interfere with an award of damages by the trial court. This is because, unlike an appellate court that only relies on what is written on paper, the trial Judge has the advantage of seeing the victim of the accident assess the impact of the injuries, even as they consider the medical reports.” 1. This is a deliberate allocation of institutional responsibility, recognizing that the trial court had the advantage of seeing and hearing the victim and forming its own appreciation of the impact of the injuries on her life. 2. These principles derive from the celebrated dictum in ***Butt v Khan [1977] KAR 1***. The Appellants must therefore do more than demonstrate that a different award was possible; they must show that the award made was wrong in principle or was a wholly erroneous estimate. 3. In addressing the trial court’s duty in assessment of damages, the Court of Appeal in the case of **Kimatu Mbuvi t/a Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko (2006) KECA 130** held: ## *“It is generally accepted by courts that the assessment of* damages in personal injury cases is a daunting task as it involves many imponderables and competing interests for which a delicate balance must be found. Ultimately the awards will very much depend on the facts and circumstances of each case. As Lord Morris stated in H. West & Son Ltd v Shephard [1964] AC 326 at page 353. ***‘The difficult task of awarding money compensation in a case of this kind is essentially 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 of 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 in 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.’ ”*** 1. The injuries in this case, soft tissue injuries to the right pelvis and right shoulder, with no recorded permanent disability, are not in dispute. The P3 form and Dr. Mwaura’s medical reports are consistent with this score. No contradicting medical evidence was placed before the trial court. 2. This matter is therefore in two respects. First, it means that the Respondent’s account of her injuries and their effect upon her stood uncontradicted on the record. Second, it means that this Court must assess quantum on the same evidential foundation as the trial court, without the benefit of any expert opinion that might qualify or diminish the picture painted by the Respondent’s medical evidence. 3. The Appellants’ primary anchor is ***Ndungu Dennis v Ann Wangari Ndirangu & Another [2018] eKLR*** where the quantum on soft tissue injuries was reduced to Kshs. 100,000.00. However, the High Court at Kiambu was moved to interfere in that case on two concurrent grounds: first, the trial magistrate had failed to make proper findings on the actual injuries suffered on assumption that the parties had agreed on the injuries suffered; and second, the trial magistrate had placed undue reliance on a medical report that was found to be less reliable than the contemporaneous treatment notes, the discharge card, and the P3 form. 4. In the instant case, neither of those deficiencies is present. The Appellants have not identified any error in the way the trial court received or weighed the medical evidence, nor have they shown that the trial court failed to properly establish what injuries were suffered. The above decision is therefore distinguishable on its facts and cannot be applied in the mechanical way the Appellants suggest. 5. The Appellants also rely on ***Eva Karemi & 5 Others v Koskei Kieng & Another [2020] eKLR*** where individual claimants received awards ranging from Kshs. 40,000.00 to Kshs. 70,000.00. The difficulty with this authority is that it involved six distinct claimants, each with their own individual injuries, some of which were plainly minor, including cuts on the chin and bruises on the forehead. 6. The exercise of comparing those awards to the Respondent’s injuries, which affected two anatomically significant regions, the pelvis and the shoulder, without more, is superficial. The pelvis is central to weight-bearing, mobility and basic daily functioning. A swollen, painful and tender pelvis is not a trivial complaint, and it would be an error to equate it with a cut wound or superficial bruising for purposes of compensation. 7. Equally important is the question of time. It is settled that past awards are not immutable benchmarks; they are guides, and they must be adjusted to account for the passage of time, the rate of inflation and the changing purchasing power of the Kenya Shilling. This Court takes judicial notice of the significant inflationary pressures that have affected Kenya’s economy in the years. 8. To propose that a victim in 2024 should receive the same nominal compensation as a victim in 2018 or 2020 is to award substantially less in real terms. That outcome is neither principled nor just. An award calibrated to the economic realities of 2018 cannot be imported wholesale into a judgment delivered in January 2024 without accounting for what has happened to the value of money in the intervening period. 1. The Respondent relies on ***Anthony Nyamwaya v Jackline Moraa Nyandemo [2022] eKLR***, where an appellate court found Kshs. 250,000.00 to be the appropriate award for comparable injuries and upheld it. 2. In ***Michael Okello v Priscilla Atieno [2021] eKLR***, an appellate court itself, not the trial court, assessed and awarded Kshs. 250,000.00 for comparable soft tissue injuries. These decisions are not only more recent but also carry significant weight because they represent considered appellate determinations on quantum, not merely the exercise of first-instance discretion. 3. This Court has also carefully considered whether the trial court applied any wrong principle of law in arriving at its award. The Appellants have not specifically identified any such wrong principle. They have not argued, for instance, that the trial court double-counted any head of damage, or that it awarded damages for an injury that was not proved, or that it failed to apply the correct legal test. 4. The Appellants’ grievance is essentially that the figure is too high, not that the reasoning is infected by legal error. That is a materially different complaint, and it is one that demands a higher showing than the Appellants have managed to make. Disagreement with quantum, without more, does not meet the threshold for appellate interference. 5. Consideration must also be given to the nature of the Respondent’s experience. She was a fare-paying passenger who placed herself in the hands of the Appellants’ driver and was injured as a consequence of their negligence. The injuries to the pelvis and shoulder, while soft tissue in nature, would have caused real and significant pain and inconvenience during the period of recovery. 6. The law does not require a claimant to suffer a fracture or a permanent disability before her pain and suffering are taken seriously. Soft tissue injuries can be acutely debilitating during the period in which they manifest, and courts have consistently recognized this reality. An award of Kshs. 250,000.00 for two soft tissue injuries affecting mobility-critical areas of the body is not, in this Court’s judgment, beyond the pale of reasonable compensation. 7. The Appellants have urged this Court to substitute the award with a sum between Kshs. 50,000.00 and Kshs. 100,000.00. With respect, even if this Court were inclined to interfere, which it is not, such a dramatic reduction would be disproportionate. To slash the award by more than half, in a case where the trial court committed no identifiable error of principle and where recent appellate decisions support the figure awarded, would itself be an erroneous exercise of judicial discretion. This Court must be as cautious about under- compensating a respondent as it is about over-compensating one. 1. Standing back and considering the matter in its totality, this Court is satisfied that the learned trial magistrate brought the correct principles to bear on the assessment, considered the injuries proved and the relevant comparable awards, and arrived at a figure that is within the range of reasonable compensation as affirmed by recent appellate authority. 2. The award of Kshs. 250,000.00 is neither inordinately high nor a wholly erroneous estimate. The Appellants have not discharged the burden of demonstrating that the trial court proceeded on wrong principles or misapprehended any material aspect of the evidence. 3. There is accordingly no proper basis for this Court to interfere. # ORDERS 1. In the result, this Court makes the following orders: 2. The Appeal is hereby dismissed in its entirety. 3. The judgment and decree of the Honourable Okello delivered on 31st January 2024 in Milimani CMCC No. E6279 of 2022, including the award of Kshs. 250,000.00 as general damages and Kshs. 5,550.00 as special damages, is hereby upheld 4. The Appellants shall bear the costs of this appeal. # Dated and delivered at Nairobi this 28th day of May 2026 **BENARD WAFULA MURUNGA JUDGE** *In the presence of:* *N/A for Appellants* *Ms Maina for Respondent Abdirazak Abdi - Court Assistant* SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE BENARD WAFULA MURUNGA** Milimani High Court High Court Civil Appellate Division Date: 2026-05-28 10:34:44