David Mutinda Mwololo v Richard Mutitu

have contributed to the negligence. The failure to award the future medical expenses of Kshs. 49,000/ = was also faulted as the same had been pleaded. He prayed that the appeal be allowed. 5. The appeal was canvassed by way of written submissions. Both parties complied by filing their rival submissions in support of their positions. Submissions 6. The Appellant filed submissions dated 01/08/2024 submitted that the trial court’s award of Kshs. 150,000 as General Damages was inordinately low and should be enhanced to Kshs. 800,000. It was further submitted that the Respondent should be held 100% liable for the incidence, and with costs to the Appellant. She cited authorities in support of the claim of Kshs. 800,000 as General Damages. 7. In respect to further medical expenses, it was submitted that the Appellant pleaded the same. the Medical Report by Dr. Kiema indicated future medical expenses at Kshs. 3,000/= per month for painkillers for one year and 20 sessions of physiotherapy at Kshs. 650/= per session all amounting to Kshs. 49,000/=. The claim having not been opposed, the same ought to be awarded. 8. The Respondent in the submissions dated 25/11/2024 stated that the Appellant contributed to the accident as he also owed a duty of care to other road users, and further, he ought to have taken reasonable care of his own safety. The judgment on liability ought not to be interfered with. 9. On quantum, the Respondent submitted that Kshs. 150,000/= was adequate compensation for the injuries sustained. The Respondent relied on the cited cases in support of the award proposed. On future medical expenses, it was submitted that since it was expected that the Appellant would still be under painkillers and undergoing physiotherapy as the case proceeded in court, the said expenses ought to have been part of special damaged claimed. The same was not proved. 10. The Respondent prayed that the appeal be dismissed with costs. Analysis 11. This being a first Appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a Trial Court, unlike the Appellate Court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. (see Peters v Sunday Post Limited [1958] EA 424 and Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123) Liability 12. The trial court apportioned liability on 30:70 basis as against the Respondent. From the evidence on record, the Appellant stated that he was walking along the pedestrian lane pushing a handcart when the Respondent’s driver negligently drove his vehicle veering off the road thus causing the vehicle to knock down the Appellant. 13. Though the Respondent in the list of witnesses dated 25/10/2023 gave a list of 3 witnesses, none of them recorded witness statement. the same were said ‘to be availed’, but none was availed. The matter having proceeded by way of document, I find no evidence contradicting that of the Appellant. This is a basis to interfere with the finding of the trial magistrate on apportionment on liability. The judgment on liability is hereby set aside and substituted with judgment on liability against the Respondent at 100%. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12066/eng@2025-06-16 2

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Quantum 14. The Appellant submitted that an award of Kshs. 150,000 was too low for general damages for pain and suffering as commensurate compensation in the circumstances of this case. On the other hand, the Respondent averred that the judgment on quantum should not be interfered with. 15. The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd v Meru Express Service v A.M Lubia & Another 1957 KLR 27 as follows: “ The principles to be observed by an appellate Court in deciding whether it is justified 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 satisfied 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.” 16. It is thus settled that for the Appellate court, to interfere with the award it is not enough to show that the award is high or had if I handled the case in the subordinate court, I would have awarded a different figure. Damages are said to be at large. They must be commensurate with similar injuries. 17. Fact finding is primarily the duty of the trial court and once evidence is presented before it on the basis of which it could arrive at a finding one way or the other, as was held in Job Obanda v Stage Coach International Services Limited & Another Civil Appeal No. 6 of 2001, it is not for the appellate court to set aside the trial court’s exercise of discretion and substitute its own simply because if it had been the trial court it would have exercised the discretion differently. 18. There is no dispute that the Respondent suffered the injuries as pleaded. In assessing injuries, consistency in the award of damages is necessary for judicial predictability and certainty. This is achieved through awarding similar injuries with similar or relatively similar damages. 19. The Court of Appeal in Odinga Jacktone Ouma v Maureen Achieng Odera [2016] eKLR stated that “ comparable injuries should attract comparable awards” 20. 21. The principle on the award of damages is settled. In Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; 1) An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained. 2) The award should be commensurable with the injuries sustained. 3) Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts. 4) Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account. 5) The awards should not be inordinately low or high. The Appellant suffered the following injuries; a. Fracture of the left distal radius/ ulna https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12066/eng@2025-06-16 3

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b. Sprain and strain of the left wrist c. Blunt trauma to the chest d. 7% disability due to post traumatic arthritis and stiffness of the left wrist. 22. In the case of Joseph Njuguna Gachie v Jacinta Kavuu Kyengo, Civil Appeal No. 31 of 2017 where an award of Kshs. 600,000 was granted as general damages for similar injuries. In Mombasa HCCA No. 224 of 2022, Kavinya Kilanga v Breakthrough Chapel International, this court upheld a proposed award of Kshs. 500,000/= where the Appellant had suffered a fracture of the radius and blunt injuries. I find that an award of Kshs. 500,000/= would be commensurate to the injuries suffered. Judgment of Kshs. 150,000/= as General Damages is set aside. 23. In respect to the Future Medical Expenses, I have perused through the Statement of Claim. The same was not pleaded nor proved. I do agree with the trial court and decline to award the same. 24. The issue of costs, the award is discretionary. The appeal being partially successful, each party to bear its own costs. Determination 25. In the upshot, I make the following orders: a. b. The Appeal has got merits and is allowed on the following terms; i. Judgment on liability is hereby set aside and substitute with judgment on liability at 100% against the Respondent. ii. Judgment on General Damages is hereby set aside and substituted with Judgement on General Damages at Kshs. 500,000/=. iii. Appeal on future medical expenses is dismissed. Each party to bear its own costs. It is so ordered. DATED, SIGNED AND DELIVERED AT MOMBASA ON 16TH DAY OF JUNE, 2025. ............................... F. WANGARI JUDGE In the presence of; N/A by the Appellant N/A by the Respondent Ms. Getrude, Court Assistant NB: Judgment released to the registry. Parties be notified. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/12066/eng@2025-06-16 4

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