Gladys Mbithe v Johnson Mutisya Mutuku

4. Liability was by consent of the parties recorded and adopted on 17/05/2023 in the ration of 10%: 90% in favour of the Respondent’. 5. Upon considering the pleadings and the evidence placed before court, the trial Magistrate entered judgment on 21st December 2023 as follows:a. Liability: 10%: 90% in favour of the Respondent. b. General damages for pain and suffering Kshs.2,500,000/= less 10% making the net award of Kshs.2,250,000/= with interest at court rates from the date of the judgment until payment in full. c. Special damages of Kshs.95,435/= with interest at court rates from the date of the filing the suit until payment in full. d. Future medical expenses in the sum of Kshs.300,000/= with interest at court rates from the date of the judgment until payment in full. e. Costs of the suit with interest at court rates from the date of the judgment until payment in full 6. The Appellant being aggrieved by the said award lodged a draft Memorandum of appeal dated 12/03/2024 raising 5 grounds of appeal which basically challenge the judgment of the trial court on award of damages which it considers to be manifestly excessive as to be erroneous in the circumstances having regard to the nature and extent of the injuries. 7. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to reevaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & Another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) EA 123, (1958) EA page 424. 8. In the case of Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa) (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022), the court held that: A first appellate court has jurisdiction to reverse or affirm the findings of the trial court. A first appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court, must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. 9. A first appellate court is the final court of fact ordinarily and therefore a litigant is entitled to a full, fair, and independent consideration of the evidence at the appellate stage. Anything less is unjust. The first appeal has to be decided on facts as well as on law. In the first appeal parties have the right to be heard on both questions of law as also on facts and the first appellate court is required to address itself to all issues and decide the case by giving reasons. While considering the scope of Section 78 of Civil Procedure Act, a court of first appeal can appreciate the entire evidence and come to a different conclusion. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14304/eng@2025-07-09 2

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10. I have keenly and carefully considered the grounds of appeal, the pleadings and evidence of the Respondent in the trial court, the medical report adduced on the injuries before the trial court, the written submissions filed by respective counsels and the authorities cited as well as the trial court’s judgment. 11. For an Appellant 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 the wrong principle of law was applied. 12. In the case of Maraga V Musila (1984) 1 KLR 251, where the Court of Appeal when addressing its mind to this issue expressed itself thus; “ The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”. 13. The approach taken by courts in the assessment of damages is that comparable injuries should as far as possible be compensated by comparable awards although the court should bear in mind that no two cases are exactly the same. The court will also consider factors such as the state of the economy and the rate of inflation in its assessment of damages. (See Stanley Maore v Geoffrey Mwenda [2004] eKLR and Ugenya Bus Service v Gachoki [1982] eKLR). 14. The Respondent sustained the following injuries:Blunt head injury;Mild traumatic brain injury;Cut wound on the scalp;Cut wound right eye and nose;Blunt chest injury and bruises;Bruises both hands;Degloving injury left leg;Deep cut right leg:Fracture left leg Tibia/FibuIaFracture left distal femur 15. The Appellant submitted that the trial Magistrate in making the award on quantum relied on the cases of Njagi Karimi v Gideon Ndungu Nguribu & Another. Nairobi HCCC No. 889 of 2024; Anne Muriithi & 5 others v the Headmistress Machakos Girls and 2 Others, Machakos HCCC No. 169 of 2000; and Joseph Gichuhi Thomas V K.G. Kiambu HCCA No. 32 of 2017 in which the injuries were not similar to those sustained by the Appellant. 16. The Appellant submitted that in the case of Magi Karimi v Gideon Ndungu Nguribu & Another, Nairobi HCCC No. 889 of 2004 the Plaintiff suffered a fracture of the Humerus, fracture of the radius and ulna with displacement, fracture of the tibia and fibular and segmental facture of the femur with marked displacement. In addition, the Plaintiff suffered: multiple bruises on the face, bruises, swelling and tenderness of the right arm and forearm and deformity and swelling in the right forearm. The court awarded Kshs.2,000,000/= for general damages. That the injuries sustained by the Plaintiff in this case are more severe than those suffered by the Respondent in the instant case. 17. In Anne Muriithi 5 Others v The Headmistress Machakos Girls and 2 others, Machakos HCCC No. 169 of 2000 where various cases were consolidated, the court failed to specify which Plaintiff’s award it relied on in making the award for general damages. 18. In Joseph Gichuhi Thomas V KG. Kiambu HCCA No. 32 of 2017 the Plaintiff suffered a head injury with multiple cuts and bruises on the head, face, chest and lower limbs. Mental disability was assessed https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14304/eng@2025-07-09 3

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at 45% and the court awarded Kshs.300,000/=, the Respondent in the instant suit did not suffer any mental disability due to the head injury unlike the Plaintiff in the case relied on by the trial court. 19. It is the Appellant’s submission that the trial Magistrate overestimated misapprehended and misunderstood the extent of injuries therein so as to reach an overly high and unreasonable award in general damages. 20. The Appellant urged the court to award Kshs.300,000.00 as general damages placing reliance upon Damaris Ombati vs Moses Mogoko Levis & Another (2019) eKLR; Naomi Momanyi vs G4S Security Services Kenya Limited (2018) eKLR; and Gogni Construction Company Limited vs Francis Ojuok Olewe (2015) eKLR. 21. On the other hand, the Respondent supports the judgment of the trial court and urge the court to retain the award given by the trial court terming it commensurate in terms of the injuries suffered and comparable to awards in cases composed of similar injuries. 22 Having given due consideration to the injuries sustained by the Respondent and the authorities cited by the Parties and the analysis of the trial court on the issue of quantum and being guided by a fairly old decision in Geoffrey Mwaniki Mwinzi v Ibero (K) Ltd & Another [2014] eKLR where the plaintiff sustained extensive fractures of the left tibia and fibula, soft tissue injuries on the left leg and fracture of the collar bone and was awarded Kshs.2,500,000.00 in general damages. I find that the trial Magistrate did not take into consideration an irrelevant fact or the sum awarded is inordinately too high that it must be a wholly erroneous estimate of the damage, or that he applied wrong principle of law. 23. In the premises, there is no sufficient cause, in my view, for disturbing the award made by the lower court under the quantum head on general damages, Future medical expenses. 24. The award on special damages will not be disturbed save that at it will not be subjected to apportionment of liability as was correctly calculated by the trial Magistrate. 25. In the end the Appeal herein is dismissed with costs and the trial court’s judgement delivered on 21st December 2023 is affirmed. It is so ordered. JUDGMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 9TH JULY 2025 NOEL.I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 9TH JULY 2025 In the presence of :........................................................ for Appellant/Applicant ....................................................... for Respondent ....................................................... Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/14304/eng@2025-07-09 4

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