https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8279

Nuthini alias Teresia Mulwa v Tata Africa Holdings (Kenya) Ltd (Civil Appeal E107 of 2024) [2026] KEHC 8279 (KLR) (5 June 2026) (Judgment) Neutral citation: [2026] KEHC 8279 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E107 of 2024 BM Musyoki, J June 5, 2026 Between Teresia Nuthini Alias Teresia Mulwa Appellant and Tata Africa Holdings (Kenya) Limited Respondent (An appeal from part of judgment and decree in the Chief Magistrate’s Court at Machakos (Hon. J. Omburah PM) civil suit number E372 of 2022 dated 11-03-2024) Judgment 1.This is an appeal against award of general damages for pain and suffering and loss of amenities and special damages in Machakos Chief Magistrate’s Court civil case number E372 of 2022 in which the appellant had sued the respondent for compensation for injuries sustained in road traffic accident that occurred on 6-01-2022 involving the respondent’s motor vehicle registration number KCU 479L. The trial court awarded a sum of Kshs 1,000,000.00 for pain and suffering and loss of amenities and Kshs 250,575.00 for special damages. 2.In a memorandum of appeal dated 9th April 2024, the appellant complains that the award was too low and sets the following grounds;1.That the learned Magistrate erred in fact and law in finding that the appellant was entitled to general damages of Kshs 1,000,000.00 and special damages of Kshs 250,575.00.2.That the learned Magistrate erred in fact and in law in finding that the appellant was entitled to general damages that were too low in view of the evidence tendered. The same was too low and not justified.3.That the learned Magistrate erred in fact and in law in failing to consider the appellant’s evidence and submissions.4.That the learned Magistrate erred in fact an in law in failing to consider the conventional awards in cases of similar nature. 3.This being an appeal on quantum of damages only, this court will only interfere with the trial court’s decision where it is demonstrated that the award was too low that, when compared to other judicial awards in cases of similar nature, it would amount to erroneous estimate. It is trite that damages are at large and are in the discretion of the trial court and unless it is shown that the discretion was exercised injudiciously or that the court took into consideration a factor which it should not have or failed to take into consideration a factor it should have or applied wrong or inappropriate principles in arriving at its decision, an appellate court cannot disturb its award. 4.In Kenfreight (E.A) Limited v Benson K. Nguti [2016] KECA 409 (KLR, it was held that;“From the above extract it’s discernable that the court upheld the decision of the trial court on the premise that it had not exercised his discretion judiciously. The principles upon which an appellate court can interfere with the discretion of the trial are well known and settled. See Mbogo & Another v Shah [1968] EA 93 at page 95.The Court in CMC case could only interfere with the exercise of the lower court’s discretion where there was proof that the lower court was clearly wrong because of misdirection or for failing to take into account matters that should have been taken into account or for taking into account matters that should not have been taken into account. [See also Matiba v Moi & 2 Others, [2008] 1 KLR 670]." 5.And in Nyambati Nyaswabu Erick v Toyota Kenya Limited & 2 others [2019] KEHC 9928 (KLR), Honourable Justice D.S. Majanja held that;“As this an appeal against an award of damages, the general principle applicable is that the appellate court should be slow to interfere with the discretion of the trial court to award damages except where the trial court acted on wrong principles of the law, that is to say, it took into account an irrelevant factor or failed to take into account a relevant factor, or due to the above reasons or other reason, the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages (see Butt v Khan [1982-88]1KAR 1 and Mariga v Musila [1982-88] 1 KAR 507)." 6.In this matter, it was pleaded that the appellant sustained blunt injury to the left side of the head, facial bone fracture, blunt injury to the chest, bruises on the right hand and bruises on both legs. At the time of her testimony which was on 4-10-2023, the appellant claimed that she had not completely healed as she felt pain in the head and hands. The appellant produced a medical report by Dr. John Mutunga which showed that the she was admitted in Kenyatta National Hospital on 26-06-2022 after she developed complications. She had before been admitted at Machakos Level 5 Hospital between 7-01-2022 and 11-01-2022 and Makueni County Referral Hospital between 12-01-2022 and 28-01-2022. 7.At Kenyatta National Hospital, the appellant underwent surgery to evacuate accumulated haematoma which had caused weakness on the left side of the body. At the time of exanimation which was on 13-05-2022, about a year and five months after the accident, she complained of weakness of the left side of the body, headache and chest pain. At the time of her testimony, she complained of pain on the head and hands and claimed that her right hand and right leg were paralysed. She however did nor produce evidence of the paralysis especially noting that at the time she was examined by the doctor, the complaint of the weakness was on the left side of the body and not right. 8.The appellant’s doctor’s opinion was that the severe skeletal and soft tissue injuries would completely heal though gradually. The doctor put her degree of incapacity at 15 per cent and opined that the appellant was prone to developing post trauma epilepsy. No evidence was produced to show that the appellant had been attending hospital for treatment or had further complications. 9.The appellant has asked this court to award general damages to the tune of Kshs 3,500,000.00 citing the authorities of Terry Kanyua Marangu v Wells Fargo Limited [2023] eKLR, Stephen Gikonyo Njau v Attorney General [2016] eKLR and Kenya Power & Lighting Co. Ltd v Nathan Karanja Gachoka & another [2016] eKLR. She argued that in these three authorities which she claims to be comparable to her case, the courts awarded a sum of Kshs 3,500,000.00 for general damages for pain and suffering and loss of amenities. 10.On the other hand, the respondent has submitted that the award was too high and should be reduced to Kshs 750,000.00 citing authorities of Specialised Aluminium Renovators Limited & another v Stephen Mutuku Musyoka [2021] eKLR, Peter Gakere Ndiangui v Sarah Wangari Maina [2021] eKLR and Muindu v Kinyanjui & another [2024] KEHC 3157 (KLR). The respondent submits that in these authorities, the awards were Kshs 800,000.00, Kshs 500,000.00 and Kshs 750,000.00 respectively. 11.I find the authorities cited by the appellant not comparable to her case. The appellant has not supplied the court with copies of the cited authorities and due to the distinguishable nature of the cited authorities and the appellant’s case, I am tempted to think that she either did not do her homework well or she was out to mislead the court. 12.In the Terry case whose correct citation is Terry Kanyua Marangu v Wells Fargo Limited [2014] KEHC 2290 (KLR) and not as cited by the appellant, the plaintiff had sustained serious injuries with severe head injury which comprised of a compound commuted frontal depressed skull fracture, facial cuts and maxillary injuries with severe brain trauma. She underwent toilet and elevation of the depressed skull fracture at Kenyatta National Hospital as a life-saving procedure. She was subsequently admitted to the Nairobi West Hospital where further post-operational care was done and at the time of the hearing, she had frontal skull’s defect due to head trauma which made her brain susceptible to injury. She also sufferred from memory lapses, visual impairment, and recurrent tearing and eye irritation. She was also experiencing severe psychological trauma due to facial deformity, as well as recurrent headaches, and maxillary pain from fractured teeth. She needed surgery to correct the deformity as well as follow-ups. I have not been able to sight the judgment in the Stephen case. 13.Like in the Terry case, the appellant has not supplied a copy of judgment in Kenya Power case for this court’s benefits. I have however looked at the copy supplied by the respondent in its list of authorities which shows that the case involved fatal injuries and not pain and suffering as the appellants has submitted and in fact the awards therein were not as claimed by the appellant. 14.The injuries suffered by the appellant in this case are nowhere near what Terry suffered. The most severe injury in this matter was fracture of the facial bone which was treated and healed. The haematoma which the appellant seeks to amplify as very severe healed without any post-surgery complications as in the cited authorities. 15.In assessing damages, the court does not only look at the nature of injuries but also the effects of the same to the life of the victim. The appellant may have suffered fracture of the facial bone which obviously is an injury involving the head like in the appellant’s cited authorities but its after-effects were not as severe or life-threatening. 16.About the respondent’s submission that the court should reduce the award, I do not think that this is an issue which is alive for my determination. I have not seen a cross-appeal and this line of submissions is untenable. This court has no jurisdiction to engage in resolving issues that have not been appealed. An appeal cannot be commenced by way of submissions. 17.Despite having claimed in the first ground of appeal that the court erred in awarding special damages of Kshs 250,575.00, the appellant has not demonstrated where the court went wrong. The only thing she says on special damages is urging the court to award Kshs 250,935.00 which is what was pleaded. The trial court found that she had proved Kshs 250,575.00 and she has not pointed out to me why it should have allowed the difference of Kshs 360.00. 18.In view of the above, I find no merits in this appeal and the same is hereby dismissed with costs to the respondent. DATED SIGNED AND DELIVERED AT NAIROBI THIS 5TH DAY OF JUNE 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence of Mr. Wekesa holding brief for Mr. Nthiwa for the appellant and Mr. Njiru for the respondent.