Samuel Mwangi Irungu & 1 other v Emmanuel Sikuku Fwamba

iii. The Learned Trial Magistrate erred in awarding excessive general damages of Kshs. 1,000,000 without regard to the Appellants’ submissions and prevailing court trends. iv. The Learned Trial Magistrate erred in awarding Kshs. 142,500 for future medical expenses contrary to the medical estimate of Dr. P.M. Wambugu. v. The Learned Trial Magistrate failed to consider the Appellants’ pleadings, evidence, and submissions. vi. The Learned Trial Magistrate reached conclusions contrary to the evidence, law, and submissions presented. 3. Based on the above grounds, the Appellants consequently sought that the judgment on both liability and quantum be set aside or varied and substituted with the Court’s own assessment, and that costs in both courts be awarded to them. 4. The appeal was supported by a record of appeal dated 24th March 2025 and written submissions dated 10th June 2025. The substance of the Appellants’ case is that the learned trial magistrate erred in both law and fact in finding them wholly liable for the accident and in awarding excessive damages. 5. On liability, the Appellants contended that the Respondent did not prove his case to the standards set under Section 107(1) of the Evidence Act. The Appellants maintained that from the point of impact, being the rear of the Appellants’ vehicle, the only reasonable inference was that the Respondent had failed to maintain a reasonable distance, and was therefore the author of his own misfortune. 6. It was further the Appellant’s submissions that the trial court erred in failing to appreciate that the two police abstracts produced at trial, the one dated 16th June 2022 and the other dated 29th July 2022, were not clear on who between the two was to blame for the accident. The Appellants pointed out that although the trial court noted inconsistencies in the abstracts, it nonetheless proceeded to find them wholly liable, which they considered a misdirection. 7. On this basis, they urged the Court to set aside the finding of 100% liability against them. 8. Regarding Quantum, the Appellant contended that the award of Kshs. 1,000,000/- for pain and suffering was inordinately excessive. They argued that both medical reports on record agreed that the Respondent had sustained a single fracture of the left femur; the only variance lay in the degree of incapacity assessed, that is, the 40% assessed by Dr. Okere, and 4% assessed by Dr. P.M. Wambugu. 9. The Appellants submitted that given the nature of the injuries, a sum of between Kshs. 350,000/and Kshs. 500,000/- would have been adequate. Referring to Reamic Investment Ltd v Joaz Amenya Samuel [2021] eKLR, the Appellants submitted that there was no justification for the trial court, when factoring in inflation, to increase the damages to Kshs. 1,000,000/- in the manner that it did. 10. They distinguished Michael Njagi Karimi v Gideon Ndungu Nguribu & Another [2013] eKLR, which had been relied upon by the Respondent at trial, on the basis that it involved multiple fractures and far more severe injuries. 11. Finally, the Appellants also took issue with the trial court’s award of Kshs. 142,500/- for future medical expenses. They observed that while Dr. Okere had estimated Kshs. 200,000/-, whereas Dr. Wambugu assessed that Kshs. 85,000/- as a reasonable cost for implant removal in a medium-cost hospital. According to the Appellant, given the fact that the Respondent had sought treatment in such a medium-cost facility (Eagle Health Clinic), they contended that the trial court’s award was excessive https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16520/eng@2025-10-09 2

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and lacked evidential support. They therefore urged the Court to substitute the figure with Kshs. 85,000/-, consistent with the evidence of Dr. Wambugu. The Respondent’s case 12. The Respondent opposed the appeal and urged the court to uphold the judgment of the trial court. He stated that he had filed suit following a road traffic accident on 15th June 2022 along the Southern Bypass involving motor vehicle KCX 503S, which was negligently driven by the 2nd Appellant. The trial court found the Appellants 100% liable and awarded him Kshs. 1,284,250. 13. On liability, the Respondent submitted that he was lawfully riding motor cycle KMFC 907T when the Appellants’ vehicle, driven negligently and at excessive speed, caused the accident. The 2nd Appellant admitted she was overtaking but failed to keep proper lookout and switched lanes without indicating. Although she sought to blame a truck, she neither enjoined the driver as a third party nor filed any proceedings against him. The police abstract dated 29/7/22 confirmed that the Appellants’ vehicle caused the accident. The Respondent argued that the duty of care owed by the 2nd Appellant was breached and maintained that the trial court’s finding of 100% liability was proper. 14. On quantum, the Respondent submitted that he suffered a fracture of the left femur, was treated with ORIF, and was assessed at 40% permanent incapacity. He urged an award of Kshs. 2,000,000 for general damages, citing Michael Njagi Karimi v Gideon Ndungu Nduribu [2013] eKLR where similar injuries attracted Kshs. 2,000,000. He faulted the trial court for awarding Kshs. 1,000,000. On loss of earnings, he testified that he worked as a security guard and boda boda operator earning Kshs. 30,000 per month, but was unable to continue working due to his injuries. He relied on Jacob Ayiga Maruja v Simeon Obayo [2005] eKLR and sought a global award of Kshs. 1,000,000 which had been declined by the trial court. On future medical expenses, he urged an award of Kshs. 200,000 as per the medical report, instead of the Kshs. 142,500 awarded. On special damages, he submitted that he specifically pleaded and proved Kshs. 100,950 but the court only awarded Kshs. 3,550. 15. The Respondent urged that appellate interference with damages is limited to cases of misdirection or where the award is inordinately high or low. He prayed that the appeal be dismissed, that liability as found by the trial court be upheld, and that this court enhance the awards to Kshs. 2,000,000 for general damages, Kshs. 1,000,000 for loss of earnings, Kshs. 200,000 for future medical expenses, and Kshs. 100,950 for special damages, with costs of the appeal to the Respondent. Analysis and determination 16. This being a first appeal, this Court is under a duty to re-evaluate, re-analyze, and re-assess the evidence on record and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. (See Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123). 17. The Court is also guided by the Court of Appeal decision in the case of Samuel Kalomit Murkomen v Telkom Kenya Limited [2017] eKLR, where the Court stated that: “ Our role as the first appellate court is to re-evaluate the evidence tendered before the trial court and reach our own conclusion. However, we are conscious of the fact that unlike the trial court, we did not have the benefit of observing the witnesses as they testified. Accordingly, we ought not to interfere lightly with findings of fact by the trial court. This much was appreciated by this Court in J. S. M. v E. N. B. [2015] eKLR https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16520/eng@2025-10-09 3

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We shall however bear in mind that this Court will not lightly differ with the trial court on findings of fact because that court had the distinct advantage of hearing and seeing the witnesses as they testified and was therefore in a better position to assess the extent to which their evidence was credible and believable. Should we however, be satisfied that the conclusions of the trial judge are based on no evidence or on a misapprehension of the evidence on record or that the learned judge demonstrably acted on wrong principles, we are enjoined to interfere with those conclusions.” 18. Having carefully considered the evidence adduced by the rival parties, their respective submissions, together with the pleadings, I find that the following issues arise for this Court’s determination: i. Whether the trial court erred in finding the Appellants 100% liable for the accident; ii. Whether the award of general damages was excessive; and iii. Whether the award for future medical expenses was justified. Liability 19. From the pleadings and evidence adduced by the parties, it was undisputed that the accident occurred on 15th June 2022 along the Southern Bypass. In her testimony before the trial Court, the 2nd Appellant admitted that she was overtaking a line of trucks when one of them allegedly swerved, prompting her to brake suddenly, resulting in the Respondent’s motorcycle colliding with her vehicle. 20. This admission by the 2nd Appellant, in my view, is evidence enough that she was solely to blame for the accident. A driver who elects to overtake bears a heightened duty of care. The 2nd Appellant was under an obligation to ensure that overtaking was safe and that no other road user would be endangered. Her abrupt braking demonstrates a lapse in judgment and failure to anticipate foreseeable risks. 21. Although the 2nd Appellant blamed the truck driver, she did not join him as a third party, nor did she tender independent evidence of his negligence. In any event, even enjoining a third party does not necessarily entirely absolve from blame, but may only be relevant for contribution purposes. 22. Consequently, I find no fault in the trial court’s conclusion that the Appellants were 100% liable; the same is hereby upheld. Quantum of General Damages 23. The appellate principles on interference with damages were restated in Said Sweilem Gheithan Saanum v Commissioner of Lands & 5 others [2015] eKLR, where the Court of Appeal held that interference is only justified where the trial court misdirected itself, misapprehended the facts, considered irrelevant matters, or arrived at an inordinately high or low award. The Court stated that: “ It is firmly settled that on appeal, this Court will not normally interfere with the exercise of discretion by a judge of the court below. These principles have been repeatedly stated but nonetheless bear repeating. In Mrao Ltd v First American Bank of Kenya Ltd & 2 others (2003) KLR 125, the court explained that: "The Court of Appeal may only interfere with the exercise of the court's judicial discretion if satisfied:- The Judge misdirected himself on law; or That he misapprehended the facts; or That he took into account or considerations of which he should not have taken account; or https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16520/eng@2025-10-09 4

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That he failed to take, into account of considerations of which he should have taken account; or That his decision, albeit discretionary one, was plainly wrong..." 24. Again, in Gitobu Imanyara & 2 others v Attorney General [2016] KECA 557 (KLR) stated as follows on the role of an appellate court in reviewing damages awarded by the court below: “ Further, it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled. This is the principle enunciated in Rook v Rairrie [1941] 1 ALL E.R. 297. It was echoed with approval by this Court in Butt v. Khan [1981] KLR 349 when it held as per Law, J.A that: “An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” 25. In the present case, the Respondent sustained a fracture of the left femur (upper), as confirmed in the medical report of Dr. Okere dated 9th September 2022, which assessed 40% permanent incapacity. According to the medical report, the injuries were classified as grievous harm. The Appellant, on the other hand, placed reliance on the medical report prepared by Dr. P.M. Wambugu, who equally noted that the Respondent sustained a femur fracture however, the incapacity was given at 4%. 26. The trial, after considering the evidence, awarded a sum of Kshs. 1,000,000/- in general damages. The learned magistrate pointed out that in arriving at the quantum, he took into account, and adjusted for inflation, the award in the case of Reamic Investment Ltd v Joaz Amenyi Samwel 2021 eKLR, where a sum of Kshs. 350.000/- was awarded by the High Court for injuries which were substantially similar to the injuries in the instant case. 27. The Appellant argues that the award of Kshs. 1,000,000/- for pain and suffering is inordinately high. They argued that both medical reports on record agreed that the Respondent had sustained a single fracture of the left femur; the only variance lay in the degree of incapacity assessed, that is, the 40% assessed by Dr. Okere, and 4% assessed by Dr. P.M. Wambugu. They therefore propose an award of between Kshs. 350,000 to Kshs. 500,000/-. 28. The Appellants submitted that given the nature of the injuries, a sum of between Kshs. 350,000/and Kshs. 500,000/- would have been adequate. Referring to Reamic Investment Ltd v Joaz Amenya Samuel [2021] eKLR, the Appellants submitted that there was no justification for the trial court, when factoring in inflation, to increase the damages to Kshs. 1,000,000/- in the manner that it did. 29. The Appellants distinguished Michael Njagi Karimi v Gideon Ndungu Nguribu & Another [2013] eKLR, which had been relied upon by the Respondent at trial, on the basis that it involved multiple fractures and far more severe injuries. 30. Having duly injuries suffered by the Respondent and taking into account the authorities relied on by the Parties, I agree with the Appellant that the injuries in the case of Michael Njagi Karimi v Gideon Ndungu Nguribu & Another [2013] eKLR relied on by the Respondent involved more serious injuries https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16520/eng@2025-10-09 5

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as compared to the present case. However, in view of the fact that the Respondent suffered a fracture of the femur and has an implant which implant remains in situ, I find that the trial magistrate exercised his discretion judiciously in awarding the sum of Kshs. 1,000,000/- as general damages for pain and suffering. 31. Accordingly, I uphold the trial magistrate's award of Kshs. 1,000,000/- as general damages for pain and suffering. Whether the award for future medical expenses was justiffied 32. The two medical reports indicated that the Respondent’s implant remains in situ and would require removal. Dr. Okere, the Respondent’s doctor, proposed a figure of Kshs. 200,000.00 as the cost of future medical expenses for this purpose. On the other hand, Dr. Wambugu, who testified on behalf of the Appellant, proposed a sum of Kshs. 85,000/-. 33. The trial court, relying on the expert evidence, awarded Kshs. 142,500.00 under this head. 34. It is trite that the cost for future medication cannot be precisely proven and is only a logical estimate that can be ascertained. The claimant is therefore entitled to reasonable and justifiable estimates. In the case of H. West & Son Ltd -vs- Shepherd [1964] AC 326, it was held that future medical expenses may be awarded based on medical expert opinion and reasonable life expectancy. 35. Likewise, in Zablon Ayieko –vs- Uganda Railways Corporation [2003] e KLR; the court accepted an estimation of future medical expenses supported by a doctor’s report, noting that exact future costs could not be determined, but a logical estimate sufficed. 36. In this case, the trial court awarded Kshs 142,500 under this head by taking an average of the two estimates given by the parties’ respective doctors. In view of the fact that this award is essentially based on the opinion of doctors, I find nothing untoward in the trial court’s adoption of an average of the two medical reports. 37. The upshot of the foregoing deliberations is that I find no reason to interfere with the trial court’s findings, both on liability and on quantum. 38. The appeal, therefore, lacks merit and is dismissed in its entirety. The judgment of the lower court in CMCC No. E5249 of 2022 is hereby upheld. 39. The Appellants shall bear the costs of this appeal and of the proceedings in the subordinate court. 40. It is so ordered. SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS 9TH OCTOBER 2025 ADO MOSES JUDGE In the presence of: C/A – Moses .................. for the Appellant . for the Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16520/eng@2025-10-09 6

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