Absal & Sons Enterprises Limited & another v Mwangangi & 2 others

was the driver of motor vehicle registration number KBH 189M as a third party to their suits, claiming indemnity and contribution. 3. After hearing the parties, the trial Court, in its judgment, apportioned liability between the appellants and the third party at 90:10, the greater liability being borne by the appellants and the lesser by the third party. The trial Court, in addition, awarded the 1st respondent general damages of Kshs 500,000/ = and special damages of Kshs 2,000/=, while awarding the 2nd respondent general damages of Kshs 1,500,000/= and special damages of Kshs 2,000/=. The appellants lodged their rst appeal to the High Court and challenged the award to the respondents for pain, suering and loss of amenities, which they argued was arbitrary, inordinately high and erroneous, and sought reduction. In its judgment, the High Court found that the general damages awarded by the trial Court to the 1st respondent was manifestly excessive and revised it downward to Kshs 300,000/= due to contentions surrounding a reported forearm fracture, but upheld the damages awarded to the 2nd respondent. 4. It is in the context of this background that the appellants lodged their second appeal in this Court, in which they have raised four (4) grounds in their Memorandum of Appeal dated 26th September 2022 challenging the award by the High Court of general damages for pain, suering and loss of amenities for being excessive and inordinate in the circumstances; for failing to apply the principle of stare decisis; and for failing to evaluate case law on comparable injuries, and hence arrived at a wrong estimation of damages. It is notable that this appeal is only on the issue of the quantum of damages, and the ndings on liability has not been challenged by the appellants. 5. We heard the appeal on this Court’s virtual platform on 9th April 2025. Learned counsel Mr. Ken Kioko appeared for the appellants, while learned counsel Ms. Munene appeared for the respondents. Counsel highlighted their respective submissions dated 4th May 2023 and 29th September 2023. In commencing the determination of this appeal, we are mindful of the duty of this Court as a second appellate court, as was reiterated and set out in the decision of Kenya Breweries Ltd vs Godfrey Odoyo [2010] KECA 498 (KLR). We will accordingly conne ourselves to matters of law raised in the appeal, unless it is shown that the two 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. In addition, we shall resist the temptation of delving into matters of facts. In addition, as this is mainly an appeal against the quantum of damages, we are also alive to the principles pronounced by this Court in Kemfro Africa Limited t/a “Meru Express Services (1976)” & Another vs Lubia & Another (No 2) [1985] KECA 137 (KLR) as follows: The principles to be observed by an appellate Court in deciding whether it is justied in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satised that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages”. 6. Counsel for the appellant in this respect submitted that the reason the learned Judge of the High Court interfered with the award of general damages awarded to the 1st respondent was on account of the injuries she sustained, and held that he would determine whether the award was consistent with comparable awards made in cases of similar soft tissue injuries. However, in making the award of Kshs. 300,000/=, the learned Judge did not consider and failed to analyse and distinguish the previous decisions on soft tissue injuries that had been cited to him by the parties, fell into error, and made an award that was arbitrary and inordinately high. Counsel relied on the decisions in LNK (a minor suing through CNK as Next friend) & 2 others vs Simon Gatuni Njukia [2022] eKLR; Edward Mutevu https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2106/eng@2026-09-25 2

page 2 of 7

Maithya & another vs Edwin Nyamweya [2022] eKLR; Manase & another vs Ochieng (Civil Appeal E038 of 2020) [2022] KEHC 10487 (KLR); HB (Minor suing through mother & next friend DKM) vs Jasper Nchonga Magari & another [2021] eKLR; and OMN (minor suing through next friend EMW) v Jasper Nchonga Magari & another [2021] eKLR involving comparable soft tissue injuries where awards ranged from Kshs. 60,000/= to Kshs. 150,000/= to submit that Kshs. 100,000/= was an adequate and reasonable compensation for the 1st respondent. 7. As regards the 2nd respondent, who suered a fractured tibia and bula on one leg, counsel submitted that the trial magistrate improperly relied on a medical report by a Dr. Adede that was never formally produced as an exhibit or veried, and the High Court judge overlooked this error on rst appeal. Counsel placed reliance on the case of Kenneth Nyaga Mwige vs Austin Kiguta & 2 other [2015] eKLR where it was held that, once a document has been marked for identication, it must be proved, and submitted that that the only evidence on injuries suered was the 2nd respondent’s oral evidence. 8. Furthermore, the authorities that were supplied by the 2nd respondent and relied upon by the trial Court and High Court were of more severe injuries and not comparable with the ones in issue. Counsel singled out the injuries suered by the victims in James Gathirwa Ngungi vs Multiple Hauliers (EA) Limited & Another HCCA No.658 OF 2009; and Frankline Chilibasi Spii v Kirangi Liston [2017] KEHC 675 (KLR). Counsel also cited several cases, namely Maselus Eric Atieno vs United Services Limited [2017] eKLR; Sabatia Jackson Asembo vs Peter Nyamwange & another [2019] eKLR; Daniel Otieno Owino vs Elizabeth Atieno Owuor [2020] eKLR; DG (Minor suing through her next friend MOR) vs Richard Otieno Onyisi [2021] eKLR; Mohammed Younis Quereshi & Another vs Christ Maina Mathu [2020] eKLR; Damaris Ombati v Moses Mogoko Levis & another [2019] eKLR; Civicon Limited vs Richard Njomo Omwancha & 2 others [2019] eKLR; Joseph Karisa Baya vs Ces Giorgio and Toki Hilau HCCA No 39 of 2019; Tirus Mburu Chege & another vs JKN (Minor suing through the next friend and mother DWN) & another [2018] eKLR; and Daniel Otieno Owino & another vs Elizabeth Atieno Owuor (2020) eKLR, wherein he submitted that victims with similar or more severe leg fractures (some with permanent disabilities) were awarded general damages between Kshs. 250,000/= and Kshs. 500,000/=. He accordingly urged this Court to reduce the award from Kshs. 1.5 million to Kshs. 400,000/=. Counsel invoked the legal principles that courts must endeavour to secure uniformity so that comparable injuries receive comparable awards. 9. The respondents’ counsel on his part argued that the appellate court must accept the ndings of fact from the lower courts unless it is demonstrated that those decisions were entirely perverse or bad in law. Counsel submitted that the main issue to be considered by this Court is whether the award of Kshs 300,000/- for the injuries sustained by the 1st Respondent is so bad in law to warrant reassessment, and cited the decisions in Kamau vs Kimani & another (Civil Appeal 159 of 2019) [2023] KECA 187 (KLR); and Poa Link Service Co. Ltd & another vs Sidani Boaz Bonzemo [2021] eKLR, where awards of Kshs 350,000/- for general damages for soft tissue injuries were upheld; and that, therefore, the award made by the High Court is comparable to the above-mentioned cases and is not inordinately high. 10. On the reliance by the High Court on the 2nd respondent’s medical report, counsel submitted that the 2nd respondent produced medical notes from Aga Khan Hospital, which were not disputed by the appellants, and which conrmed that the 2nd respondent sustained comminuted fracture of the tibia and bula of the leg bones. Further, that the 2nd respondent gave evidence that he was using a single crutch on the left foot; that he had 2 fractures of the left leg slight above the ankle; and had been admitted to hospital and operated on 13 times, which evidence remained uncontroverted. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2106/eng@2026-09-25 3

page 3 of 7

11. Counsel cited the cases of James Gathirwa Ngungi vs Multiple Hauliers (EA) limited & another [2015] eKLR; and Tea Warehouse Limited & another vs Kalyan Karsan Krai [2020] eKLR where awards of Kshs 1,500,000/- were made to plaintis who had sustained compound comminuted fractures of the right tibia and bula, which injuries were similar to those suered by the 2nd respondent. Accordingly, counsel submitted that the awards made to the respondents were not excessive in the circumstances; and that the cases cited by the appellants were less serious and not comparable to the respondents’ injuries. 12. We have considered the arguments made by counsel for the appellants and for the respondents. The main issue in this appeal is whether the awards made to the 1st respondent and 2nd respondents of Kshs 300,000/= and Kshs 1,500,000/= respectively as general damages for pain and suering were excessive having regard to the injuries they sustained. The High Court in this regard made the following ndings of fact as regards the injuries suered by the 1st respondent: For the 2nd Respondent I nd no misapprehension of the facts in the legal principles made by the learned trial magistrate made reference to the relevant evidence on record. For the 1st Respondent however, there is a gap that could not be lled by the learned trial magistrate and should have been lled by the party who had a duty to avail the same to court. The issue of whether or not the 1st Respondent had suered a fracture as concluded by the trial court is still in contention. The 1st Respondent' s treatmen.t notes indeed have no mention of a fracture and further there was no Xray or Xray report indicated that she had indeed suered a fracture as a result of the accident. I concur with the submissions of Learned Counsel for the Appellants on this issue. Consequently, I nd that this Court will have to interfere with the Learned Trial Magistrate’s Award on account of the injuries sustained by the 1st Respondent. 13. The trial Court had noted as follows as regards the injuries suered by the 1st respondent: “ 21 22. From the plainti's testimony, treatment notes and medical report by Doctor Ajoni Adede, the injuries were: i. Fracture of the right radius forearm bone ii. Cut on the right lower·limb iii. Blunt object injury to the neck and right elbow The fracture was not noted in the initial treatment notes at Mariakani Sub County Hospital and in the P3 form. Dr. Ajoni Adede told the court that he had seen the requests for the x-rays. The defendant on its part did not produce a second medical report to counter that which was prepared by Dr. Ajoni Adede. This being a civil case, the court nds that the plainti proved on a balance of probability that she suered the injuries as stated in the medical report prepared by Dr. Ajoni Adede.” 14. Therefore, after the High Court discounted that the 1st respondent had suered a fracture on the right radius forearm bone, the remaining injuries that were not contested were a cut on the right lower limb and a blunt object injury to the neck and right elbow. As regards the 2nd respondent, the trial Court found that, from his testimony, treatment notes and medical report by Doctor Adede, the injuries he suered were comminuted fractures of the left tibia and left bula leg bones. https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2106/eng@2026-09-25 4

page 4 of 7

15. We have perused the judgment of the High Court and note that the learned Judge did not indicate the comparable cases relied upon to revise the award of general damages to the 1st respondent downwards from Kshs 500,000/= to Kshs 300,000/=. In this regard, we have examined the comparable cases relied upon by the appellants, and do nd that a number of those cited have comparable injuries as determined both in the High Court and in this Court. In particular, the appellants had cited the decision in Ndungu Dennis vs Ann Wangari Ndirangu & Another (2018) eKLR in the trial Court, where the Court assessed the general damages for pain and suering for bruises on the back and tenderness on the right leg suered by the plainti therein at Kshs, 100,000/=. 16. In their submissions in support of the appeal herein, the appellants have cited the awards of general damages for pain and suering made in the decisions in HB (Minor suing through mother & next friend DKM) vs Jasper Nchonga Magari & another (supra) where an award of Kshs 60,000/= was made for blunt object injury to the head and neck, thorax, abdomen and limbs; in OMN (minor suing through next friend EMW) vs Jasper Nchonga Magari & another (supra) where an award of Kshs. 70,000/= was made for a cut on the head, multiple abrasions and bruises on the right upper limb; in LNK (a minor suing through CNK as Next friend) & 2 others vs Simon Gatuni Njukia (supra) where the award was of Kshs. 80,000/= for soft tissue injuries on the parietal region, right shoulder joint, chest and lower limbs; and in Edward Mutevu Maithya & another vs Edwin Nyamweya (supra) in which the award made was Kshs. 100,000/= for cut wounds on the scalp, bruises the back, right upper limb and left lower limb. It is notable that the award in Kamau vs Kimani & another (supra) relied upon by the respondents where an award of general damages of Kshs 350,000/= was made for several blunt injuries on the head, chest, left hand right shoulder and the right clavicle joint, was for slightly more extensive soft tissue injuries. 17. As regards the award of general damages of Kshs 1,500,000/= made to the 2nd respondent, the trial Court considered the cases of James Gathirwa Ngugi vs Multiple Hauliers (EA) Ltd & Another (supra); and Frankline Chilibasi Spii vs Kirangi Liston (2017) eKLR, where general damages of Kshs 1,500,000 /= and Kshs 1,800,000/= were respectively awarded to the plaintis therein, who had sustained comminuted fractures of the right tibia and bula bones. These decisions were similarly relied upon by the respondents’ counsel in his submissions in this appeal. 18. On their part, the appellants had suggested an award of Kshs. 300,000/- relying on the case of Harun Muyoma Boge vs Dr. Daniel Otieno Agulo (2015) eKLR where the court had awarded Kshs.300,000/to a plainti who had suered less severe injuries of a fracture on the right leg below the knee, a deep cut on the right foot and a small cut on the right hand. They had also cited Maselus Eric Atieno vs United Services Limited (supra) and Sabatia Jackson Asembo vs Peter Nyamwange & another (supra), where awards of general damages for pain and suering of Kshs 250,000/= and Kshs 300,000/= were made for fractures of the tibia and bia bones of one leg. 19. The appellants’ counsel has cited additional cases in this appeal, in which awards of general damages ranging from Kshs 300,000/= to Kshs 450,000/= were made for fractures or compound fractures to one leg or both legs. In this regard, we take note of the fact that there is a dierence between simple fractures, compound fractures and comminuted fractures, with the latter requiring surgery and reconstruction of the aected bone, and therefore longer period of treatment and healing. None of the decisions relied upon by the appellants’ counsel involved comminuted fractures, and were therefore not comparable. On the other hand, the decisions cited by the respondent were on awards where the appellants had suered comminuted fractures, and we therefore nd them to be more comparable. 20. This nding notwithstanding, we note that there were additional injuries suered by the plaintis, which did not present themselves in the 2nd respondent’s case. For example, in James Gathirwa Ngugi https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2106/eng@2026-09-25 5

page 5 of 7

vs Multiple Hauliers (EA) Ltd & Another (supra), the plainti suered a fracture of the left proximal radius, fracture of left ulna and head injuries and lacerations in addition to the comminuted fractures of the tibia and bula bones of one leg, while the plainti in Frankline Chilibasi Spii vs Kirangi Liston (supra) suered additional injuries of a fracture of the distal right radius extending to the wrist joint, severe head injuries involving fracture of the left zygometic arch extending to the lateral wall of the left arbit, haemotoma on the right temporal scalp and soft tissue contusion on the left peri-arbital and front scalp and friction burns on the left forearm and a wound on the right leg and foot. To this extent, the award of Kshs 1,500,000/= was relatively high, bearing in mind the applicable principles of law that awards must be reasonable and, so far as possible, comparable injuries should be compensated by comparable awards. 21. We accordingly nd that the award by the High Court of general damages for pain and suering of Kshs 300,000/= for the soft tissue injuries suered by the 1st respondent was not supported by comparable awards, and there is therefore good ground to interfere with the exercise of discretion exercised by the learned Judge of the High Court. Likewise, given that the award of general damages for pain and suering of Kshs 1,500,000/- for the injuries suered by the 2nd respondent was based on decisions in which the plaintis had suered additional injuries, we shall also interfere with the learned Judge’s exercise of discretion in upholding the said award. 22. In this regard, and taking into account inationary trends, we are of the view that an award of Kshs 180,000/= as general damages for pain and suering arising from the soft tissue injuries suered by the 1st respondent, and an award of Kshs 1,000,000/= as general damages for the pain and suering arising from the comminuted fractures of the tibia and bula bones of one leg suered by the 2nd respondent would be reasonable. 23. We therefore allow this appeal, set aside the judgment delivered on 24th June 2022 by the High Court at Malindi (Nyakundi, J.) in Malindi HCCA No. 19 of 2020, and substitute therefor the following awards: 1. For the 1st respondent-Susan Mwikali Mwangangi General Damages for pain and suering Kshs. 180, 000.00/ = Special Damages Kshs. 2,000.00/ = Total Kshs. 182, 000.00/= 90% liability of the appellants: Kshs. 163,800.00 /= 10% liability of the 3rd respondent: Kshs. 18,200.00/= 2. For the 2nd respondent-Peter Erot Lokitel General Damages for pain and suering Kshs. 1,000,000/= Special Damages Kshs. 2,000.00 / = Total Kshs. 1,002,000/= 90% liability of the appellants: Kshs. 901,800/= 10% liability of the 3rd respondent: Kshs. 100,200/= 24. 3. Interest on each award shall be payable by the appellants and 3rd respondent at Court rates from the date of this judgment until payment in full. 4. Lastly, given that liability was not contested, the appellants shall meet 90% and the 3rd respondent 10% of the 1st and 2nd respondents’ costs in the trial Court, High Court and of this appeal according to the proportion of their liability. Orders accordingly. DATED AND DELIVERED AT MOMBASA THIS DAY OF, 2026 https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2106/eng@2026-09-25 6

page 6 of 7

P. NYAMWEYA ………………………… JUDGE OF APPEAL DR. K. I. LAIBUTA CArb FCIArb. ………………………… JUDGE OF APPEAL G. W. NGENYE-MACHARIA ………………………… JUDGE OF APPEAL https://new.kenyalaw.org/akn/ke/judgment/keca/2026/2106/eng@2026-09-25 7

page 7 of 7