Michael Muli v Minor Suing Through Her Mother Jkm

d. Supplementary documents dated 23.1.2022 admitted as PEX 7. e. This is part of a series. Test suit was determined on 24.12.2023. Liability 100% against defendant. f. There be a mention on 3.4.2024 for filing submissions on quantum.” 4. After considering the submissions on quantum by both sides, the trial Magistrate assessed the quantum of damages as follows:-General damages Kshs. 400,000.00Costs of Reconstructive surgery Kshs. 60,000.00Special damages Kshs. 27,300.00 5. Aggrieved by the Judgment, the Appellant lodged this appeal. This court is urged to review the quantum of damages downwards and the Respondent be condemned to the costs of the Appeal. 6. The grounds of appeal are:- 7. “ a. The Honourable Learned Trial Magistrate erred in Law in entering judgment in favour of the Respondents whereas the same failed to prove his claim to the required standard. b. That the Honourable Learned Trial Magistrate erred in law and fact in the assessment of damages payable. c. That the Honourable Learned Trial Magistrate erred future in law and fact in granting medical expenses of Kshs. 60,000/= to the Respondent without them proving in evidence. d. That the Honourable Learned Trial Magistrate erred in fact and in law in awarding the Respondent Kshs. 400,000/= as general damages which award was too excessive in the circumstances. e. That the Honourable Learned Trial Magistrate erred in law and in fact in failing to accord due regard to the Appellant's submissions and authorities on quantum on applicable principles for assessment of damages in similar circumstances. f. That the Honourable Learned Trial Magistrate erred in law and facts in relying on extraneous evidence in arriving at the decision on quantum. g. That the Honourable Learned Trial Magistrate erred in law and in fact by failing to properly evaluate the evidence on record thus reaching to an erroneous decision.” The Appeal was canvassed by way of written submissions dated 22/04/2025 and submitted that based on the injuries sustained, an award of Kshs 100,000 would be sufficient. He relied on the case of HB (Minor Suing Through mother & Next Friend DKM) v Jasper Nchonga Magari & Another [2021] where the court awarded Ksh 60,000 for blunt object injury to the head, neck, thorax, abdomen and limbs, FM (Minor suing through Mother and next friend MWM) v JNM & Another [2020] eKLR where the court awarded Kshs 100,000 for blunt object injury to the head, blunt object injury to the neck, blunt object injury to the thorax, blunt object injury to the abdomen and blunt object injury to the limb, PF (Suing as next friend and father of SK (Minor) v Victor O Kamadi and Another (2018) eKLR where Kshs. 100,000/= for cut wound on the forehead, multiple abrasions to the face, blunt injury to the head leading toloss of consciousness for some time, abrasions to the back, abrasions https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16778/eng@2025-11-14 2

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wounds to the dorsum of the right hand and cut wound to the right leg and OMN (Minor suing through next friend EMW) v Jasper Nchonga Magari & Another (2021) eKLR where the Trial court award of Kshs. 70,000/= for cut wound to the multiple abrasions and bruises on the right upper limb. 8. As regards, special damages, it was submitted that the receipts produced amounted to Kshs 8,800 and that is what should be awarded. The court was urged not to grant doctors’ fees of Kshs 10,000 as it should be calculated under costs. In further support of this submissions, reliance was placed on the case of Masinga Ndonga Ndonge v Kualam Limited [2016] eKLR, Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR and Alphonce Odero Augo v Sinohydro Corporation Limited [2017] eKLR. 9. In submissions dated 30th April 2025, the Respondent asked the court to dismiss the appeal with costs. In support of its submissions, reliance was placed on the case of Lucy Ntimbuka v Benard Mutwiri and others (2007) eKLR where Kshs 500,000 wa awarded for head injuries, lacerations on the lateral side of the right eye, and lacerations and cuts on the left elbow, Charles Gichuki v Emily Kawira Mbuba and another (2018) eKLR where the court awarded Kshs 300,000 for blunt injury (tender) fact right side, blunt injury tender shoulders, blunt injury tender (chest) anteriorly and blunt injury (tender) right thigh and Butt v Khan (1978) KECA 24 (KLR). Analysis 10. As the first appellate court, the court had considered the rival submissions of the learned counsel for the parties, the cases cited and the law. The court is also guided by the holding of the Court of Appeal for East Africa in Peters v Sunday Post Limited [1958] EA 424. 11. This Appeal is on the quantum of Kshs 400,000 being general damages and Kshs 27,300 being special damages. The Appellant raised the issue of medical expenses in its memorandum of appeal but did not prosecute the same. 12. The principles for interference with an award of damages were discussed by the Court of Appeal in the case of Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR where the court rendered itself as follows; “ The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, 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 the damage. See Ilanga v Manyoka, [1961] EA 705, 709, 713 (CA-T); Lukenya Ranching and Farming Co-operative Society Ltd v Kavoloto, [1979] EA 414, 418, 419 (CA-K). This Court follows the same principle.” 13. Similarly, in Catholic Diocese of Kisumu v Tete [2004] eKLR the same Court held that: “ It is trite law that the assessment of general damages is at the discretion of the trial court and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a difference figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16778/eng@2025-11-14 3

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14. Comparable injuries should attract comparable awards. See Jacktone Ouma v Moureen Achieng (2016) eKLR. The Court of Appeal in Mohamed Mahmoud Jabane v Highstone Butty Tongoi Olenja [1986] eKLR, Kneller, JA (as he then was) stated as follows: “ The reported decisions of this court and its predecessors lay down the following points, among others, for the correct approach by his court to an award of damages by a trial judge. 1. Each case depends on its own facts; 2. Awards should not be excessive for the sake of those who have to pay insurance premiums, medical fees or taxes (the body politics); 3. Comparable injuries should attract comparable awards. 4. Inflation should be taken into account; and 5. Unless the award is based on the application of a wrong principle or misunderstanding of relevant evidence or so inordinately high or low as to be an entirely erroneous estimate for an appropriate award leave well alone.” 15. The injuries sustained in this case are not disputed. The same are corroborated by the medical report dated 28th September 2022. I have considered the authorities cited were and before the learned Magistrate and I find that there are no good reasons to interfere with the award. This is taking into account the nature of the injuries, similar cases, the principles that should guide this court and the passage of time. The award is reasonable and hence I shall not disturb it. 16. It is trite law that special damages must be specifically pleaded and strictly proved. In the amended plaint the specials pleaded were Kshs 27,300/- but at the hearing only receipts for Kshs. 17,250 were produced. The said receipts are as follows; a. Machakos Imaging Centre Kshs 7,500/- b. Medical report Kshs 3,000/- c. 5 receipts for various procedures Kshs 6650/- 17. The Respondent was entitled to the sum proved but not more, and for that reason the specials of Kshs 27,300/- are set aside and replaced with a sum of Kshs 17,250/-. 18. The Appeal succeeds only to the extent that the special damages are reduced to Kshs. 17,250/-. Parties shall bear their own costs of this appeal. JUDGMENT SIGNED, DATED AND DELIVERED VIRTUALLY ON THIS 14TH DAY OF NOVEMBER 2025. E N MAINA JUDGE In presence of: Ms Matuku for the Appellant Ms Muriithi for the Respondent C/A: Geoffrey https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/16778/eng@2025-11-14 4

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