https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8699

Soi & 2 others v Katile (Civil Appeal E185 of 2024) [2026] KEHC 8699 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8699 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E185 of 2024 BM Musyoki, J June 19, 2026 Between Angellinah Ndunge Soi 1st Appellant Saul Edwin Likuyi alias Saul Likuyi Edwin 2nd Appellant Patrick Musembi 3rd Appellant and Mary Nthambi Katile Respondent (An appeal from judgment and decree in the Senior Principal Magistrate’s Court at Kithimani (Hon. P. Wechuli PM) civil case E181 of 2021 dated 13- 06-2024) Judgment 1.This appeal is against quantum of damages awarded to the respondent as compensation for injuries she sustained in a road traffic accident that occurred on 5-05-2021 involving motor vehicle registration number KCJ 987T. The plaintiff was travelling as a passenger in the said motor vehicle which was claimed to have been owned by the 2nd appellant but registered to the 1st appellant and driven by the 3rd appellant. 2.It was pleaded that the plaintiff sustained fracture of the distal fibular bone, diffuse and generalized scalp skin tenderness, mild haematoma formation and tenderness of severe degree over the forehead scalp skin, very tender right shoulder, limited shoulder joint movements restriction, very left tender thigh and oedematous soft tissues and very tender bruise wounds and oedematous soft tissue giving rise to right ankle joint movements restrictions. For these pleaded injuries, the respondent was in a judgement delivered on 13-06-2024 awarded Kshs 800,000.00 for pain and suffering and Kshs 8,550.00 for special damages. 3.The appellant has asked this court to reduce the award on general damages through memorandum of appeal dated 11th July 2024 which bears the following grounds which I quite verbatim;1.That the learned trial Magistrate erred in law and fact in finding the defendants/appellants 100% liable for the accident.2.That the learned trial Magistrate erred in fact and law in finding that the respondent was entitled to general damages of Ksh. 800,000/=, special damages of Ksh. 8,550/= plus costs and interest of the suit for the injuries suffered which award is exorbitantly high based on the injuries sustained.3.That the learned trial Magistrate erred and misdirected himself as to the exact nature of the respondent’s injuries and therefore erred in law in her assessment of damages specifically quantum awardable to the respondent which was manifestly excessive.4.That the learned trial Magistrate grossly misdirected herself in treating the evidence presented before her on quantum and consequently coming to a wrong conclusion on the same.5.That the learned trial Magistrate erred in awarding a sum in respect of future medical expenses which was inordinately high in the circumstances was excessive in the circumstances occasioning miscarriage of justice.6.That the learned Magistrate failed to adequately evaluate the evidence provided both on quantum thereby arrived at a decision unsustainable in law. 4.I find the memorandum of appeal as a produce of poor drafting and perhaps lack of attention. In addition to poor flow of the words especially in ground five, the memorandum shows the 1st appellants as the 2nd respondents as well as the glaring use of the wrong pronouns in reference to the Honourable trial Magistrate. Although in the 1st ground the appellant raised an issue with the trial court’s finding on liability, they seem to have abandoned that when it came to their submissions. In paragraph 3 of the introductory part of their submissions, the appellants have indicated that their appeal is on quantum only which I would interpret to mean that they have abandoned the 1st ground of appeal. Further, ground 5 of the memorandum is misplaced. The trial court did not award any damages for future medical expences neither have the appellants made submissions on the same. 5.This being an appeal on quantum, the only evidence I need to re-evaluate is that touching on the injuries sustained by the respondent and the extent of their effect on her life. The respondent told the court vide her statement dated 6th September 2021 that she sustained injuries as indicated in her treatment notes and medical report prepared by Dr. Muli. She alleged that she had not healed and could not perform numerous economic and social activities due to the said injuries and claimed that she was still undergoing treatment. 6.The treatment notes which she produced as exhibit 4 and 5 showed that she had what is referred to as dry backslap in place with distal fractures and joint space was normal. The receipts she produced as exhibit 6 are dated 7-07-2021 and 17-05-2021. The P3 which was exhibit 7 indicates that she sustained tenderness in the forehead, tenderness on both shoulder joints, fracture of the right ankle joint, tender left thigh, mild pain and swelling of right ankle and swollen right ankle joint with bruises. 7.The medical report which was prepared on 13-07-2021 showed that the respondent suffered head injuries, upper limps injuries and lower limps injuries. The details of these injuries as shown in the report are what I reproduced earlier in this judgment as having been pleaded in the plaint. The report goes on to state that the respondent was attended at Matuu Level 4 hospital where plaster cast was applied and was to stay in situ for four weeks with other management being surgical toileting and dressing of the bruise wounds, anti-tetanus injections, antibiotics and some agents for external skin application. 8.I have read and considered the submissions of the appellants dated 25th November 2025 and those of the respondent dated 16th December 2025. The appellants have submitted that the award was inordinately too high and represented wrong estimate once compared with other judicial awards for similar injuries. They referred the court to the following cases;a.Barnabas v Ombati [2022[ KEHC 12136 (KLR) where a sum of Kshs 450,000.00 was upheld for head and chest contusions, bruises in the right hand and waist and fracture of the right femur, fracture of right humerus and fracture of the pelvis.b.Gladys Lyaka Mwombe v Francis Namatsi & others [2019] eKLR in which the appellant had sustained a cut wound on the anterior part of the scalp, a head injury, neck injury, fracture of the lower tibia and fibula and a cut wound on the face and an award of Kshs 300,000.00 was made.c.Jitan Nagra v Abidnego Nyandusi Oigo [2018] eKLR in which a sum of Kshs 450,000.00 was awarded to the respondent who had sustained lacerations of the occipital area, deep cut wound on the back, right knee and lateral lane, bruises at the back extending to the right side of the lumbar region, blunt trauma to the chest, bruises in the left elbow, compound fracture of the right tibia/fibula and segmental fracture of the right femur. 9.The appellants submit that the above authorities are fairly comparable to the respondent’s case but in a twist plead with this court to reduce the award of the lower court to Kshs 200,000.00. 10.On her part, the respondent defends the court’s award and pleads that the appeal be dismissed with costs. I find part of the respondent’s submissions to be off the mark. For instance, they suggest that the trial court awarded damages for diminished earning capacity which in my assessment and analysis were neither an issue nor did the court make any award on such. The only damages awarded by the trial court were for pain and suffering and special damages. 11.The respondent has maintained that she sustained injuries as pleaded in her plaint and adds that the medical documents she produced prove that fact. She accuses the appellant of cherry-picking the exhibits they rely on when they concentrate on initial treatment notes and ignore the other documents. She submits that in her testimony, she demonstrated that she sustained a fracture of the ulna which the appellant seems to give a wide berth. 12.The respondent has submitted that the case of Mt Longonot Medical Services Limited & Another v Andason Kitonyo Kinyenze [2017] eKLR which she claims the appellant relied on, supports her case in that the respondent who was said to have sustained double fractures of the tibia and fibula was awarded Kshs 1,000,000.00. She has relied on following authorities;a.Stephen Wanderi Kamau & Another v Wanjiku Kungu; Nairobi civil appeal number 81 of 2005 in which the respondent sustained compound fracture of the left tibia and fibula with permanent disability of 20 per cent and got awarded Kshs 600,000.00. The authority was not supplied to this court and I could not get it since it did not have full citation.b.Ahmed Mohammed v Abdulhafidh Mohamed Banragah, Mombasa HCC number 319 of 2001 where she claims the plaintiff who sustained fractures of the left tibia and fibula and fracture of the left femur was awarded Kshs 750,000.00 on 30-07-2004. Similarly, this authority was not supplied and I could not get it since its citation was not full.c.Alphonce Muli Nzuki v Brian Charles Ochuodho [2014] eKLR in which the respondent was awarded Kshs 800,000.00 for comminuted fracture of the right tibia and fibula and a degloving injury on the medial aspect of right leg and foot.d.Joseph Musee Mua v Julius Mbogo Muigi & 3 others [2013] eKLR where fractures of the right tibia and fibula, 2 broken upper jaw teeth and a chest injury which left the victim with permanent incapacity of 5 per cent attracted a sum of Kshs 1,300,000.00 on 21-11-2013.e.Mwaura Muiruri v Suera Flowers Limited & Another [2014] eKLR where a sum of Kshs 1,450,000.00 was awarded for compound fractures of the right tibia and fibula, comminuted fracture of the right humerus and soft tissue injuries. 13.It is trite that award of damages is at large and at the discretion of the trial court and an appellate court should not interfere with the same unless it is demonstrated that the trial court took into consideration an irrelevant factor or failed to consider a relevant factor or it applied a wrong principle. It is also an established principle of law that an appellate court should not interfere with discretion of the trial court simply because it would have reached a different decision. It was held in Ann Waithera Njenga v Cube Movers Limited [2021] KEHC 13465 (KLR) that;‘It is an established principle that an appellate court should not interfere with the assessment of damages by a trial court unless it can be shown that such an assessment is contrary to the well established guidelines.’ 14.On the other hand, an appellate court would be justified to interfere with an award of damages if the same is demonstrated to have been too high or too low such that it amounted to an erroneous estimate when compared with other judicial awards involving similar injuries. It should also be noted that when the court is comparing awards with the case before it, it should take into consideration the age of the precedents and factor in the incidence of inflation. This was restated in the case of Bwire v Wayo & Sailoki [2022] KEHC 7 (KLR) thus‘Award of damages is an exercise of discretion of the trial court but the same should be within limits set out in decided case law and must not be inordinately so low or so high as to reflect an erroneous figure. The award must also take into account the prevailing economic environment.’ 15.In this matter, the respondent sustained fracture of the distal fibular and very soft tissue injuries to the shoulders, thighs and head. The respondent had in paragraph 6 pleaded particular of injuries which appear to me as exaggerations and duplications designed as conditions or nature of the injuries. The court should not be swayed or misled by ingenuity of parties in the way they couch their pleadings. The guide in assessing damages should be the treatment documents and medical reports as well as the condition of the victim if the trial court is able to observe it. 16.As far as I am concerned, the injuries sustained by the appellant did not pose any risk of future complications neither were they permanent in nature. The evidence on record shows that nothing more was done beyond X-rays, plaster casting, prescription of pain killers, antibiotics and anti-tetanus injection. She was not admitted to hospital neither is there evidence to show that she had further treatment after 7-07-2021. 17.The accident occurred on 5-05-2021 and the first dated medical documents seen are receipts from Matuu Medical Imaging Center for X-ray dated 17-05-2021 and Trauma Orthopaedic Plaster Room dated 17-05-2021 for reduction of the fracture which means that it took 12 days for her to go for the procedures. There is also a receipt from Matuu District Hospital dated 7-07-2021 which does not indicate the services she received. There is no evidence of attending hospital after this date. 18.It is not explained where or how the respondent managed to live with the injuries for two weeks before she went for X-ray and reduction on 17-05-2021. This makes me believe that she could manage with the injury with manageable inconveniences and discomforts. It was the duty of the respondent to connect these dots and demonstrate that she suffered inconveniences and could not perform her duties as alleged in her submissions. All the above tells me that the injuries were not so serious as the respondent wanted the court to believe. 19.Based on the above, it is my view that the authorities cited by the respondent were not comparable to her case. They involved more serious and severe injuries resulting to complications. Those cited by the appellant are in my opinion fairly comparable to the respondent’s case. I have also had a look at the following which are no doubt nearer to the respondent’s case;a.DKM v Mwangangi [2023] KEHC 18105 (KLR). In this matter the appellant had sustained unconsciousness, wound on the right lateral part of both legs, fracture of the right femur and medial fibula fracture of the left leg which had healed and the lower court awarded Kshs 500,000.00 for pain and suffering and loss of amenities. On appeal, Honourable Justice R Limo upheld the award.b.Mubia & another v Okoko & 3 others [2022] KEHC 9828 (KLR). The High Court upheld an award of Kshs 700,000.00 where the respondent had sustained a fracture of the right femur, swelling in the knee with a patella fracture and fracture of the right fibula. 20.Having said the above, I reach the conclusion that the trial court’s award was too high and amounted to a wrong estimate. Doing all that I can, I do find an award of Kshs 500,000.00 to be commensurate compensation to the respondent. The upshot of the above is that this appeal succeeds and I proceed to make the following orders;1.The trial court’s award is hereby set aside and in place thereof the respondent is awarded Kshs 500,000.00 for pain and suffering and loss of amenities but the special damages shall remain as awarded by the trial court.2.The appellant shall have the costs of this appeal but the respondent retains the costs in the lower court.3.The general damages shall attract interest at court rates from the date of the judgment of the trial court while the special damages shall attract interest from the date of filing the suit in the lower court until payment in full. DATED SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence of Miss Rayani holding brief for Mr. Ouko for the appellant and Mr. Ndung’u for the respondent.