https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11304

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS COUNTY COURT NAME: MACHAKOS HIGH COURT CASE NUMBER: HCCA/E149/2022 SNOW MBULA ELIUD VS MARY NZULA NGUKU JUDGMENT BACKGROUND 1. This is a first appeal arising from the judgment of the Principal Magistrate’s Court at Machakos delivered on 27th October 2022 in Machakos CMCC No. E021 of 2021. 2. By a plaint dated 13th January 2021, the Respondent sued the Appellant for general damages for pain, suffering and loss of amenities, special damages, costs and interest. The Respondent pleaded that on 16th October 2020 at about 6.00 p.m. along the Machakos–Nairobi Road near Red Cross area, she was a fare-paying passenger in motor vehicle registration number KBW 028X when the said vehicle, through negligent driving, hit another vehicle KCC 565U and she sustained injuries. 3. The Appellant filed a statement of defence dated 16th March 2021 denying the Respondent’s claim. 4. The matter proceeded to hearing. The Respondent testified and called other witnesses, including a police officer who produced a police abstract, and a doctor who produced a medical report. The Appellant did not call any witness. 5. In the judgment of 27th October 2022, the trial court entered judgment for the Respondent, held the Appellant 100% liable, awarded general damages of Kshs 300,000 and special damages of Kshs 7,150= together with costs and interest. 1. The Appellant, being dissatisfied, lodged this appeal. The Appellant’s written submissions are dated 20th February 2026 while the Respondent’s written submissions are dated 27th April 2026. ISSUES FOR DETERMINATION 1. Having considered the memorandum of appeal, the record and the parties’ submissions, the issues that arise for determination are;- 2. whether the trial court erred in apportioning liability at 100% against the Appellant; 3. whether the award of Kshs 300,000 as general damages is excessive so as to warrant interference; and 4. whether the award on special damages is sustainable ANALYSIS 1. This being a first appeal, this court is obliged to re-evaluate the evidence and arrive at its own independent conclusions, while bearing in mind that it did not see or hear the witnesses testify. This duty is reinforced by the statutory mandate of an appellate court under Section 78 of the Civil Procedure Act (Cap. 21) and further held in SELLE V. ASSOCIATED. MOTOR BOAT CO. (1968) EA 123, 126: “An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v. Ali Mohamed Shalom (1955), 22, E.A.C.A. 270). Liability 1. The Respondent’s evidence was that on 16th October 2020 she was travelling to Nairobi in motor vehicle KBW 028X and that the driver, who she said was speeding despite warnings, hit a vehicle ahead. The Respondent narrated that she was assisted by good Samaritans and taken by ambulance to Machakos Level 5 Hospital for treatment. The Respondent’s narrative on occurrence and immediate treatment coheres with the treatment notes from Machakos Level 5 Hospital dated 16th October 2020 which were produced in evidence. 1. The Respondent also produced a P3 form and later called a doctor who testified and produced a medical report during the hearing of 19th January 2022. The doctor’s evidence confirmed a soft tissue injury pattern and was consistent with the contemporaneous treatment notes. 2. Further, a police abstract dated 22nd October 2020 was produced through the police witness. While the witness stated that investigations were pending and did not confirm whether criminal charges were instituted, the abstract attributed blame to motor vehicle KBW 028X. In addition, the Respondent produced a copy of records and a receipt for search demonstrating the registered ownership details relied upon in the plaint. 3. The Appellant filed a defence but did not call evidence to controvert the Respondent’s account of the accident, the manner in which it occurred, or the documentary trail flowing from the occurrence. I agree that uncontroverted evidence is not accepted blindly merely because it is unchallenged as the Respondent still bore the burden to prove her case on a balance of probabilities. However, the Respondent’s testimony was not internally inconsistent, it was supported by contemporaneous medical documentation dated 16th October 2020 and a medical evaluation confirmed on 19th January 2022, and the factual occurrence details of the accident were further supported by the police abstract dated 22nd October 2020. 4. In those circumstances, I am not persuaded that the trial court erred in concluding that the driver of KBW 028X was negligent and that the Appellant being the owner, was liable. I find no basis on the record to interfere with the apportionment of liability at 100% against the Appellant. Quantum (general damages) 1. The appeal is substantially directed at the award of general damages. The Appellant contends that Kshs 300,000/= was excessive for soft tissue injuries and urges this court to interfere. The Respondent maintains that the award was fair in light of the injuries and inflationary trends and submits that the appellate threshold for interference has not been met. 2. The legal position is that assessment of damages is discretionary, and an appellate court will not interfere unless the trial court acted on wrong principles, took into account irrelevant factors, failed to take into account relevant factors, misapprehended the evidence, or the award is so inordinately high or low as to amount to an erroneous estimate. This standard was recently restated by the Court of Appeal in Imbezi v Fairmile School Limited & another [2024] KECA 486 (KLR) 1. Turning to the injuries, the plaint pleaded blunt head injury, blunt chest injury, and blunt injuries to the hip joints and knee. The treatment notes dated 16th October 2020 and the doctor’s testimony of 19th January 2022, when read together, disclose multiple-site soft tissue injuries, treated conservatively, with healing anticipated. The evidence does not establish fractures, surgical intervention, permanent incapacity, or documented long-term sequelae. 2. I have also considered the parties’ submissions on comparable awards. The Appellant cited authorities for lower awards for soft tissue injuries. The Respondent urged the court to sustain the award on the basis of severity and inflation. In evaluating comparability, this court must avoid mechanistic arithmetic and instead identify a reasonable range for injuries of the type proved, while ensuring consistency and proportionality. 3. I find the following decisions materially helpful and sufficiently comparable in methodology and injury characterisation. For instance, in Arrow Car Limited v , Elijah Shamalla Bimomo & 2 others [2004] KECA 136 (KLR) The Court of Appeal found that the trial court erred by considering injuries not specifically pleaded in the plaint and by awarding general damages that were inordinately high compared to comparable cases involving soft tissue injuries. The court held ;- “What about the injuries sustained by the respondents in this appeal? We have indicated that taking into account the fact that comparable injuries should be compensated by comparable awards and as the 1st and 3rd respondents herein suffered what the doctors describes as soft tissue injuries the awards of Shs 350,000/- for such injuries as made by the superior court are, in our view, inordinately high as to warrant our interference… We must now consider what we think ought to have been awarded in respect to each respondent. Taking into account other decided cases on soft tissue injuries we think that the first respondent’s injuries should have attracted an award of Shs 150,000. 00/- as general damages for pain and suffering and loss of amenities.” 1. Further, in Mary Wairimu Njuguna v Kenya Power & Lighting Company Limited [2018] KECA 770 (KLR) the Court of Appeal upheld the High Court’s interference with a trial court award on the basis that the credible contemporaneous medical evidence, including the P3 and treatment notes, showed the claimant had sustained soft tissue injuries only, with no proven long-term damage, and that a later medical report suggesting more serious injury was not adequately linked to the accident. 2. In Arrow Car Limited v Elijah Shamalla Bimomo & 2 others [2004] KECA 136 (KLR) the Court of Appeal reduced general damages after finding the trial court had taken into account injuries not pleaded and had made an award that was inordinately high compared to comparable cases, emphasizing that comparable injuries should attract comparable awards and that reliance on authorities involving more serious injuries leads to excess. 1. I have further looked at SALIM S. ZEIN t/a EASTERN BUS SERVICE & MUSANGO EUULE LELE v ROSE MULEE MUTUA [1997] KECA 94 (KLR) where the Court of Appeal interfered with quantum after finding the trial judge relied on medical material of doubtful credibility and made awards, including future-related heads, without evidential support; on the credible evidence the injuries were minor with full recovery, justifying a much lower general damages figure. This authority is important in the present appeal because it reinforces the point that where the trial court’s enhanced award is not supported by credible medical evidence demonstrating residual disability or complications, the appellate court may properly reduce it. 2. In Ogembo Tea Factory v George Biringi Oino [2019] KEHC 8975 (KLR) the High Court dealt with soft tissue injuries without fracture or residual disability and held that an award of Kshs 300,000 was excessive, substituting it with Kshs 200,000/-. 3. These authorities are important in the present appeal because they demonstrate that where the proved injuries are essentially soft tissue in nature and the trial court has not anchored a higher figure on demonstrable complications, Kshs 300,000 may properly be regarded as an over-estimate. 4. In Munyes v Hussein [2023] KEHC 18557 (KLR) the High Court reduced general damages from Kshs 400,000 to Kshs 200,000 for soft tissue injuries with no permanent disability, after observing that comparable awards commonly fell in the band of Kshs 140,000 to Kshs 180,000 and that the trial court had not justified the higher figure. 5. I have further looked at Gerald Wachira Kimothi & John Mugo Waithaka v David Wachira Wambugu [2018] KEHC 6083 (KLR) where the High Court reduced an award of Kshs 300,000 to Kshs 150,000 for soft tissue injuries that had healed without permanent disability, the court noting that the trial court had not given adequate reasoning for the higher award and had not properly aligned itself with comparable authorities. 6. These decisions show that for uncomplicated soft tissue injuries, the courts have generally treated the reasonable range as falling below Kshs 300,000, with adjustments depending on multiplicity of injuries, the period of symptoms, and contemporaneous evidential support for continuing pain or complications. 7. In the case before me, I agree that the Respondent suffered multiple soft tissue injuries affecting several parts of the body. That multiplicity is a relevant aggravating factor, and it justifies an award above the lowest end of the soft tissue range. However, the evidential record does not show fractures, surgical treatment, and hospitalization beyond the immediate attendance, permanent disability, or documented continuing treatment. The Respondent’s testimony during cross-examination that she was still on treatment was not supported by post-accident treatment documentation. 8. When I place the injuries proved against the range in the comparable decisions cited above, and taking into account that the accident occurred in October 2020 and judgment in the subordinate court was delivered in October 2022, I am satisfied that the award of Kshs 300,000/= was on the upper edge and was not sufficiently justified on the proved medical picture. I therefore find that the award was an erroneous estimate warranting interference on appeal. 1. Therefore, guided by the comparable awards and the records before this court, I substitute the award of general damages with Kshs 160,000. This figure, in my view, reflects a fair uplift within the soft tissue band to account for the multiple sites of injury, while remaining proportionate to the absence of proven complications or residual disability. Special damages 2. Special damages must be specifically pleaded and strictly proved. The Respondent pleaded Kshs 9,950/=. The trial court awarded Kshs 7,150/= on the basis that the receipts produced proved that amount and not the full pleaded sum. 3. On my re-evaluation of the record, I see no legal or evidential basis to disturb the trial court’s approach. The award of special damages at Kshs 7,150 is upheld. Costs and interest 1. On costs, the general principle is that costs follow the event unless for good reason the court orders otherwise under Section 27 of the Civil Procedure Act (Cap. 21). The Appellant has succeeded only partially, on reduction of general damages. The Respondent has succeeded on liability and on special damages, and remains the overall successful litigant. 2. In the circumstances, I consider it just that each party bears its own costs of the appeal, while the costs in the subordinate court remain as awarded, given that the Respondent’s claim substantially succeeded. 3. As regards interest, the conventional approach is that general damages attract interest from the date of judgment, while special damages attract interest from the date of filing suit, because they are out-of-pocket expenses capable of exact ascertainment at the time of filing. I will therefore so order. DETERMINATION 1. The appeal on liability fails and the finding of 100% liability against the Appellant is upheld. 2. The appeal on quantum succeeds to the limited extent that the award of general damages is reduced from Kshs 300,000 to Kshs 160,000. 3. The award of special damages at Kshs 7,150 is upheld. ORDERS 1. The appeal is allowed in part. 2. The judgment of the subordinate court delivered on 27th October 2022 in Machakos CMCC No. E021 of 2021 is varied only to the extent that the award of general damages is set aside and substituted with an award of Kshs 160,000/=. 3. The award of special damages at Kshs 7,150 is affirmed. 4. Interest on general damages at court rates from 27th October 2022 until payment in full; and interest on special damages at court rates from 13th January 2021 until payment in full. 5. Each party shall bear its own costs of the appeal. The costs awarded in the subordinate court shall remain in favour of the Respondent. DATED, SIGNED AND DELIVERED THIS 8TH DAY OFJULY 2026 IN THE PRESENCE OF: NO APPEARANCE BY EITHER PARTY BEFORE HON. JOYCE MKAMBE GANDANI, JUDGE Court Assistant: BEN SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. LADY JUSTICE JOYCE MKAMBE GANDANI** Machakos High Court High Court Div Date: 2026-07-08 13:37:58