Lydia Kemunto Mageto v Joash Ondari

him and filed his P3 form which he produced (Pexh 4). Both doctors agreed that they expected the injuries to heal. PW1 confirmed this in his testimony. 4. The injuries sustained by the respondent are not disputed. The learned trial magistrate awarded general damages in the sum of Kshs. 500,000/= which is the basis of this appeal. 5. This is a first appellate court whose duty is to re-evaluate the entire evidence of record and come to its own conclusions considering that it neither saw not heard the witnesses during their testimony as was held in the case of Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR. 6. On the grounds on which an appellate court can disturb an award of damages of a trial court. The appellant cited the case of Denshire Muteti Wambua Kenya Power & Lighting Co. Ltd [2013] EKLR Nairobi CA Civil Appeal No.60 of 2004, the Court of appeal held that: “ This Court has in the past propounded on the principles to be applied while considering whether to interfere with damages awarded by the trial Court. In KEMFRO Africa Limited t/a Meru Express Service Gathogo Kanini v. A.M.M Lubia and Another [1982-8811 KAR 777 at p.730, Kneller, J. A. held: "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 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.” 7. Also, the case of Arrow Car Limited-vs-Rimomo & 2 Others (2004) 2 KLR 101 this Court cited and applied the KEMFRO Africa Ltd case (supra) and held: “ In deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge, an appellate court must be satisfied 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 a wholly erroneous estimate of the damages.in Simon Taveta v Mercy Mutitu Njeru [2014] eKLR, Court Of Appeal Civil Appeal No. 26 of 2013, the Court stated as follows: “ 17. In Denshire Muteti Wambua - Kenya Power & Lighting Co, Ltd. Civil Appeal No. 60 of 2004, this Court differently constituted (G.B.M. Kariuki, Kuage and Murgor [] A) reiterated the principles under which this Court would interfere with the award of damages as stated and applied in the Kemfro Africa Limited t/a Meru Express Service Gathogo Kanini-v-A.MM. Lubia & Another, (1982-88)1 KAR 777. In the case of Arrow Car Limited -- Bimomo & 2 Others, (2004) 2 KLR 101, it was stated that comparable injuries should as far as possible be compensated by comparable awards. In Denshire Muteti Wambua-v-Kenya Power & Lighting Co, Ltd. Civil Appeal No. 60 of 2004, it was stated that awards have to make sense and have to luce regard to the context in which they are made; they have to strike a chord of furness. As ons stated by Lord Dening in Kim Pho Choo-v-Camden & Islingtom Area Health Authority, (1979) 1 All ER 332, in assessing damages, the injured person is only entitled https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19138/eng@2025-11-14 2

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to what is in the circumstances, a fair compensation for both the plaintiff and the defendant 18. 8. In the instant case, the context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past. Also, the case of Power Lighting Company limited & another -versus-Zakayo Saitoti Naingola & another (2008) eKLR cited in the case Jennifer Mathenge v Patrick Muriuki Mama [2020] eKLR the court held. On quantum the court in determining whether to interfere with the same or not, the court has to bear in mind the following principles on assessment of damages, a. Damages should not be inordinately too high or too low b. They are meant to compensate a party, for the loss suffered but not to enrich a party, and as such they should be commensurate to the injuries suffered. c. Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts. d. Where past awards are taken into consideration as guides an element of inflation should be taken into account as well as the purchasing power of the Kenyan Shillings, then at the time of the judgment....’’ On the award of general damages, the appellant urged the court to reduce the award to Kshs. 100,000/ = and cited the following cases; a) HB (Minor suing through mother & next friend DKM) Jasper Nchonga Magari & another [2021] eKLR the claimant sustained blunt object injury to the head and neck, thorax, abdomen and limbs. On routine examination Dr. Adede opined that the injuries suffered were soft tissue in terms of gravity. The lower court awarded Kshs. 60,000.00. The same was upheld on appeal to the High Court. b) Eva Karemi & 5 others u Koskei Kieng & another [2020] eKLR the 1st appellant was awarded Kshs. 70,000/-. She sustained injuries to her right thigh and bruises on her lower and upper limbs. The 2nd appellant was awarded. Kshs. 40,000/- for injuries on the right shoulder pain and cut wound on her mouth. The 3rd appellant was awarded Kshs. 45,000/- for injuries on and pain on her back and right shoulder pain. The 4th appellant was awarded Kshs. 40,000/- for cuts on the chin and right shoulder tenderness. The 5th appellant was awarded Kshs. 60,000/ for injuries sustained; 2cm cut on the forehead, cut wound on the right elbow and right limb (leg and ankle joint). The 6th appellant was awarded Kshs. 65,000/- for injuries sustained being bruising on the forehead, hip and left ankle. c.) In James Kwanya Rege vs LA (minor suing through her father and next friend GOA) (2021) e KLR where the Claimant had suffered bruises on the right hand, blunt trauma to the right hand and chest contusion, an award of Kshs. 400,000/ to Kshs 80,000/= on appeal. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19138/eng@2025-11-14 3

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d.) 9. In James Kwanya Rege vs Loice Mbone Cweva, (2021) e KLR where the Claimant had suffered blunt trauma to the neck, chest and abdomen, an award of Kshs. 300,000/= was reduced to Ksh.80, 000/- on appeal. The respondents relied on various cases in their submissions, in the trial court on the issue of Quantum they relied on the cases of West (H) & Son Ltd v Shepherd [1964] AC. 328, 345 whore Lord Morris of Borth-y-Gest strongly states as follows: “ But money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be endeavor to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional.” 10. Also, the case of Penina Waithira Kaburu v LP NYR HCCA 59 of 2016 (2019) eKLR where it is aptly stated that; “ While no injuries occurring in different circumstances can be similar in every respect and hence the possibility of varied awards in general damages, the trial court must always make a comparative analysis of the injuries sustained and the extent of the awards made for similar injuries in previous decisions...the comparison is necessary for purposes of certainty and uniformity; the award must, as far as possible, be comparable to any other award made in a previous case where the injuries for which the award are relatively similar..." 11. The respondent further relied on the case of case of Naomi Momanyi v G4S Security Services Kenya Limited & another [2018] eKLR where Majanja J observes that "9. In addition, the current value of the shilling and the economy have to be taken ensure that awards make sense and result in fair compensation (see Ugenya Bus Into account and although astronomical awards must be avoided, the court must Service v Gachoki NKU CA Civil Appeal No. 66 of 1981 119821 KLR and Jabane v Olenja [1900] KLR 661)." 12. They also relied on Universal Engineering Works Vs Mohamedali Suleiman Essaji [1951] 2 LRK 99 where it was stated that; “ A successful party is entitled to costs unless there are good reasons for depriving him of the costs.” In the instant appeal the respondent made leading reference to the case of Peters v Sunday Post Lad (1958) EA 424 where the former Court of Appeal for Eastern Africa observes as follows at p 429: “ It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witness... But the jurisdiction (to review the evidence) should be exercised with caution: it is not enough that the appellate court might itself have come to a different conclusion." The respondent also cited Appeal in Butt vs. Khan [1977] I KLR held “An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous. 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 https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19138/eng@2025-11-14 4

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was either inordinately high or low,’’ and also Sheikh Mustaq Hassan vs Nathan Mwangi Kamau Transporters & 5 Others 1986 KLR 457 and Catholic Diocese of Kisumu vs. Sophia Achieng Tete (2004) e KLR 55, Jane Chelagat Bor vs. Andrew Otieno Ondun 1988-9212 KAR 288; [1990-1994) ΕΛ. 47, Southern Engineering Company Ltd v Mutia [1985] eKLR: 13. On general damages the respondent urged this court to uphold the award of Kshs. 500,000 and cited Pembe Flour Mills Limited v Ali Omar Swatch (2019) KEHC 9720 (KLR) (1.9.2019) the plaintiff sustained. Fracture of the right ring finger metacarpal hone, blunt trauma to the right wrist joint and hand, deep cut wound to the right middle finger lateral side, deep cut wound to the right ring finger and deep cut to the right small finger. The High Court upheld an award Ksh 359,000/- as general damages. Also, the case of Samwel Martin Njoroge Kamunyu v Mildred Okweva Barasa [2020] eKLR where the plaintiff sustained two deep cut wounds on the forehead horizontally, bruises and lacerations on the right cheek, blunt injury to the shoulder and chest, blunt injury to the pelvis, deep cut wounds on right and left legs. The High Court awarded of Ksh 300,000/- as general damages. He also cited Kenya Power & Lighting Co., Ltd v Mary Akinyi, H HCA No. 72 of 2007 Korir J upheld an award of Ksh. 350,000/- as general damages for the following injuries: deep cut wound on the calf muscles of the left leg, laceration on the right knee and right shoulder, contusion on the chest. 14. I have carefully re-evaluated the entire evidence on record, the appeal and the submissions. This court will only disturb the award of damages herein if the trial court erred by taking into account irrelevant factors or left out relevant factors or the award is too high or too low and thus arrived a t an erroneous as was held in the case the case of Kemfro Africa Limited T/A Meru Express Service Gathogo Kanini v. A.m.m Lubia and Another [1982-8811 KAR 777 at p.730, Kneller, J. A 15. I have considered the nature of the injuries sustained by the respondent, the cited cases, the recent comparable awards for similar injuries, the fact that the respondent healed without any resultant complications, the inflation and all the necessary factors. In the cases cited by the appellant the injuries were minor soft tissue and thus are no comparable to the ones sustained by the respondent herein. The injuries in the cases cited by the respondent are comparable to the ones sustained by him and awards of Kshs. 300, 000/= and 359,000/= were awarded in the year 2020. I find that general damages in the sum of Kshs. 400,000/= would be adequate in this case. 16. In the upshot, I find that the award by the trial court was excessive I proceed to award set aside the general damages in the sum of award of Kshs. 500,000/= by the lower court and I proceed to substitute it with Kshs 400,000/=. 17. I also award costs of the appeal to the appellant. T.A ODERA JUDGE 14.11.25 Delivered Virtually Via Teams Platform in the Presence of: N/A For Parties Court Assistant -Kipchirchir https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19138/eng@2025-11-14 5

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