Caleb Alpayo Oranga v George Antony Mumia

c. 2. 2. a substantial error or defect in the procedure provided by this Act or by any other law for the time being in force, which may possibly have produced error or defect in the decision of the case upon the merits. An appeal may lie under this section from an appellate decree passed ex parte.” This Court in the case of Charles Kipkoech Leting vs. Express (K) Ltd & Another [2018] eKLR expressed itself thus on this mandate: “ This is a second appeal. Our mandate is as has been enunciated in a long line of cases decided by the Court. See Maina versus Mugiria [1983] KLR 78, Kenya Breweries Ltd versus Godfrey Odongo, Civil Appeal No. 127 of 2007, and Stanley N. Muriithi & Another versus Bernard Munene Ithiga [2016] eKLR, for the holdings inter alia that, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the Courts below considered matters they should not have considered or failed to consider matters they should have considered or looking at the entire decision, it is perverse. See also the English case of Martin versus Glywed Distributors Ltd (t/a MBS Fastenings) 1983 ICR 511 where in, it was held inter alia that, where a right of appeal is confined to questions of law only, an appellate court has loyalty to accept the findings of fact of the lower court (s) and resist the temptation to treat findings of fact and law, and, it should not interfere with the decisions of the trial or first appellate court unless it is apparent that, on the evidence, no reasonable tribunal could have reached that conclusion, which would be the same as holding the decision is bad in law." 3. After the accident that occurred on 7th June, 2014 along Meru – Nanyuki road involving a collision between a motor cycle KMCY 029K and motor vehicle KAT 879 T liability was recorded at 50:50 before the Chief Magistrate on 19th September, 2017. The only medical report produced at the hearing showed that the appellant suffered a compound fracture of the right wrist, open wounds on the right tibia aspect and open wounds on the right knee. Counsel for the appellant submitted before the magistrate for an award of Kshs.1,500,000 general damages and cited the High Court case of Michael Maina__ Gitonga__ vs.__ Serah__ Njuguna__ (Nakuru HCCC No.242 of 2009) where the plaintiff had sustained multiple pelvic injuries, fractures to the acetabulum, tibia fibula and tibia plateau, a hip dislocation and multiple soft tissue injuries. 4. The respondent submitted for an award of Kshs.80,000 citing the case of Samwel Mburu N. Ngaari & 4 Others vs. Wangiki Wangare & Another [2014] eKLR where Kshs.120,000 was awarded for 3 compound fractures and muscle injury. 5. The magistrate stated in the judgment that the injuries suffered by the appellant were not as serious as those suffered in Michael Maina Gitonga (supra) and in the end made the following findings: i. Liability 100% against the defendant ii. General damages –Kshs.200,000 iii. Proven special damages –Kshs. 8 300 Kshs.280,300 https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2119/eng@2025-11-28 2

page 2 of 5

6. This is an obvious error on the finding on liability (this had been agreed to be shared at 50:50) and the total sum which does not add up but this issue is not before us. 7. The appellant dissatisfied with those findings and in the Memorandum of Appeal filed at the High Court of Kenya at Meru the magistrate was faulted for making an award which was inordinately low as to amount to an erroneous estimate regard being had to the nature and extent of the injuries sustained by the appellant; that the magistrate misdirected herself on the aspect of liability as the same had been agreed upon at 50:50; that the judgment on quantum was against the weight of evidence. 8. In written submissions before the Judge on first appeal, it was submitted that apportionment of liability had been agreed at 50:50 and that the trial court should have apportioned liability accordingly; on quantum, it was submitted that considering the nature of injuries, the award of Kshs.200,000 was inordinately low as to amount to an erroneous estimate regard being had to the nature and extent of injuries sustained by the appellant. The Judge was asked: “ …to disturb this award and review it upwards…” but no cases were cited to assist the Judge to do that. Civil Appeal No. 22 of 2016 Benjamin Muriuki vs. John Wachira Gathagu & Another was cited for the proposition that a court on appeal is entitled to interfere with a quantum award if it is satisfied that the trial court in assessing damages took into account an irrelevant factor or left out of account a relevant one, or that short of that, the amount is so inordinately high or low that it must be a wholly erroneous estimate of damages. 9. Majanja, J. considered the appeal and finding that the cases cited by both sides before the trial magistrate were not helpful in assessing damages as they were either for much more serious injuries or less serious injuries had this to say at paragraphs 8 and 9 of the judgment: 8. In order to assist the court assess damages, the duty of the advocates is to cite appropriate cases from which the court can make a decision. In this case, the appellant cited a case which reflected more serious injuries and was an outlier in terms of the damages awarded. On the other hand, the respondent’s cases were quite dated and on the lower side. The trial magistrate doing the best and applying her mind to the issues, awarded Kshs.200,000/-. 9. This is a case where the decisions cited were not particularly helpful and counsel must take the blame for failing to assist the court to arrive at a fair decision by citing more recent and relevant cases. I therefore cannot detect any error on the part of the trial magistrate that would warrant interference and the trial court’s discretion cannot be remedied by citing other cases which were not brought to the attention of the trial court.” 10. The appeal was dismissed. 11. There are 3 grounds of appeal raised in the Memorandum of Appeal drawn for the appellant by his lawyers M/s Muia Mwanzia & Company Advocates. The Judge is faulted for erring in law and proceeding on wrong principles; misapprehending the evidence on record and therefore arriving at a wrong finding; that the Judge erred in law in the manner he evaluated the evidence and therefore arrived at a wrong decision; that the Judge erred in law by dismissing an appeal which was merited. 12. When the appeal came up for hearing before us on 26th May, 2025 learned counsel Mr. Muia Mwanzia appeared for the appellant, while learned counsel Mr. Chengedia held brief for Mr. Mahugo for the respondent. Both sides had filed written submissions, which they fully relied on. 13. It is submitted for the appellant that it had been demonstrated to the Judge on first appeal that the trial magistrate had erred in principle when she gave an award which was inordinately low as to be https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2119/eng@2025-11-28 3

page 3 of 5

a miscarriage of justice to the appellant and the case of Benjamin Muriuki (supra) is cited for the proposition that an appeal court can interfere with an award of damages. It is submitted that the Judge should have interfered with the award on general damages by finding that the award was too low for the injuries suffered by the appellant. Again, no cases are cited to assist the court in making what the appellant would consider an appropriate award. 14. It is submitted for the respondent that the High Court on first appeal did not err as it did not take into account an irrelevant factor or failed to consider a relevant one; that the award was adequate in the circumstances. 15. The medical report by Dr. Nicholas Koome which was unchallenged as the respondent did not produce a medical report showed that the appellant suffered a compound fracture on right wrist (distal radius), open wounds on right tibia aspect and open wounds on the right knee. The injuries suffered by the plaintiff in Michael Maina Gitonga (supra) were more serious, which involved multiple pelvic injuries, fractures to the acetabulum, tibia fibula and tibia plateau; hip dislocation and multiple soft tissue injuries. Those injuries were much more serious, and the magistrate was right to disregard that case in assessing general damages. 16. The appellant did not assist the Judge at all on the first appeal, as no cases were cited to assist the Judge to re-assess the case and reach a reasonable award. No cases were cited in written submissions apart from Benjamin Muriuki (supra), which is on the mandate of an appellate court which may interfere with an award of damages. 17. The Judge on first appeal recognized his mandate by stating at paragraph 6 of the judgment: “ 6. 18. For an appellate court to interfere with an award of damages, it must be shown that the trial court, in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that a wrong principle of law was applied (see Butt v Khan [1981] KLR 349).” There was neither any proof nor any cases cited to show that the trial magistrate had misapprehended the injuries suffered by the appellant and in awarding Kshs.200,000 general damages, we cannot find any fault therefore in the way the Judge dealt with the issues raised before him on first appeal. We agree with the findings by the Judge and find no merit in this appeal which we dismiss with costs to the respondent. DATED AND DELIVERED IN NYERI THIS 28TH DAY OF NOVEMBER, 2025. S. ole KANTAI ……………………………… JUDGE OF APPEAL J. LESIIT ……………………………… JUDGE OF APPEAL ALI-ARONI ……………………………… JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2119/eng@2025-11-28 4

page 4 of 5

I certify that this is a true copy of the original Signed DEPUTY REGISTRAR https://new.kenyalaw.org/akn/ke/judgment/keca/2025/2119/eng@2025-11-28 5

page 5 of 5