Simon Gaitho Kiarie & 1 other v Ann Nduta Njoroge

3. The Plaintiff/Respondent blamed the said accident on the negligence of the driver of the said Motor Vehicle Registration No.KCK 662G (hereinafter referred to as the 2nd Defendant in the subject suit) particulars thereof being as set out at Paragraph 6 of the Plaint. She also blamed the driver of Motor Vehicle Registration No.KCD 181R (the 4th Defendant in the original suit) particulars thereof being as set out at Paragraph 6 of the same Plaint. She further held the 1st and 3rd Defendants for being vicariously liable for the negligent acts of the 2nd and 4th Defendants respectively. 4. As a result of the said accident, the Plaintiff/Respondent claimed that she sustained injuries as particularised under Paragraph 5 of the Plaint. 5. The Defendant entered appearance and filed a joint amended statement of defence in which they denied contents of the Plaint while averring that if at all there was such occurrence, then the same was solely caused or substantially contributed to by the negligence of the Plaintiff/Respondent, particulars of her negligence being as set out at Paragraph 6 of the Defence. 6. After hearing the parties in the full trial and considering the submissions filed by either of them through their respective counsel, the trial Court found the Defendants/Appellants wholly liable for the accident, entered Judgment in favour of the Plaintiff/Respondent and awarded her general damages of Kshs. 2,000,000/= and special damages of Kshs. 251,547/=. However, the trial court declined to grant an award on loss of income and future medical expenses on the basis that they were not proven. 7. Aggrieved by the findings and Judgment of the trial Court, the Defendants/ Appellants lodged the present appeal through the Memorandum of Appeal dated 8th May, 2024 wherein the following grounds have been cited:a. The Learned Magistrate erred in fact and in law in making an inordinate award of Kshs. 2,000,000/- as general damages which was excessively high. b. The Learned Magistrate erred and misdirected herself in law when she failed to consider the Applicant’s written submissions. c. The Learned Magistrate’s decision was unjust, against the weight of evidence and was based on misguided points of facts and strong principles of law and has occasioned miscarriage of justice. d. The Learned trial Magistrate erred in law and fact by failing to judiciously analyse the evidence on record and the Appellant’s submissions and authorities thereby arriving at a finding on quantum that was manifestly high, erroneous, untenable, unfair and unjust to the Appellants. e. The Learned Magistrate failed to consider conventional awards made in respect of similar injuries thereby arriving at an excessive award. f. The Learned Magistrate erred in fact and in law in failing to appreciate the nature of injuries sustained by the Respondent and in so doing arrived at an erroneous assessment of damages. 8. The appeal was admitted for hearing on 29th July, 2024 and on 14th May, 2025 directions issued on the disposal of the appeal, whereby parties were directed to file a Record of Appeal and canvass the appeal by way of written submissions. The Appellant did not file her submissions by the time of writing this ruling. However, the Respondents’ submissions are dated 5th May, 2025. 9. In her submissions dated 5th May, 2025, the Respondent maintained that the award of the trial court was fair and reasonable as the same was comparable to the injuries sustained. She relied on the cases of:- https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19311/eng@2025-12-05 2

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a. Lucy Waruguru Gatundu v Miriam Nyambura Mwangi [2017] eKLR, where the court awarded Kshs. 2,000,000/= as general damages to Plaintiff who sustained left shoulder dislocation and fractures of the right tibia fibula and left radius ulna. b. Mwaura Muiruri v Suera Flowers Limited & Another [2014] eKLR, where the court awarded Kshs. 1,750,000/= for sustaining multiple lacerations on face, soft tissue injuries on chest cage, communited fractures of the right humerus upper and lower thirds of tibia and compound double fractures of the right upper and lower 1/3 tibia fibula. c. James Gathirwa Ngugi vs Multiple Hauliers (EA) Limited & Another [2015] eKLR, where the court awarded Kshs. 1,500,000/= for compound communited fracture of the right tibia, compound fracture of the right tibia , fracture of the left proximal radius, fracture of the left ulna, head injury, deep cut wounds of the pariental region about 4 cm, soft tissue injury and bruises of both hands, multiple facial cuts, lacerations and pathological fracturing of the right leg. d. W. -vs- Peter Muriithi Ngari [2017] eKLR, where the High Court of Kenya sitting at Embu substituted an award of Kshs. 600,000/= with an award of Kshs. 1,600,000/= where the Plaintiff/Appellant had sustained a fracture left femur, fractures of the left fibula and tibia and blunt injuries to the pelvis. e. Christine Mwigina Akonya v Samuel Kairu Chege [2017] eKLR, where the court awarded Kshs. 4,000,000/= for fracture of the right femur, fracture of the ribs (3-6) pain in the right side of the chest and the right thigh, persistent pain in the right knee. Analysis and Determination 10. In determining this appeal, this court is reminded of the duty of the first appellate court which was explained in the case of Abok James Odera T/A A. J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, wherein it was stated that:“ This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way” 11. Having read through the Grounds of Appeal, this Court finds that the same can be summarized to one main ground for determination being whether the quantum of Kshs. 2,000,000/= awarded for the Respondent was inordinately high. 12. On general damages, it is trite law that this is based on a court’s discretion and this Court can only interfere with such discretion only if it is established that the same was based on wrong principles of law or is inordinately high or low. This principle was adopted with approval by this Court in the case of Butt –vs- Khan [1981] KLR 349, where it was held by Law, JA 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...” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19311/eng@2025-12-05 3

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13. It is also trite that the court should award damages that are commensurate to the injuries that a party demonstrates to have sustained. The Court of Appeal in the case of Charles Oriwo Odeyo –vs- Appollo Justus Andabwa & Another [2017] eKLR, went further to set out other principles that ought to be considered in award of general damages by stating that :“ The assessment of damages in personal injury case by a court is guided by the following principles: 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 a mere guide but each case be treated on its own facts. 4) Previous awards to be taken into account to maintain the stability of awards but factors such as inflation should be taken into account. 5) The awards should not be inordinately low or high” 14. A consideration of the evidence of PW3 Dr. George Museve, demonstrated by the medical report dated 23rd June, 2020, it will be noted that after examining the Respondent, he formed an opinion that she had sustained fractures of the right tibia and fibular shafts, left bimalleolar fracture and right 5th metatarsal fracture in the incident, tibia and estimated that she had suffered a permanent disability of 10%. 15. Given the injuries the Respondent was found to have sustained, this Court has considered the cited authorities, and more particularly has relied on the cases of Dorcas Wangaithi Nderi –vs- Samuel Kiburu Mwaura & Another [2015] eKLR an award of Kshs. 2,000,000/= was upheld on appeal for injuries such as multiple soft tissue injuries, blunt injury to the head, failure fracture to the radius/ulna (left), compound fracture to the right tibia/fibula and compound fracture to the left tibia/fibula 16. And in the case of China Road and Bridge Corporation(Kenya) –vs- Job Mburu Ndungu [2021] KEHC 8928 (KLR) the Appellate court upheld an award of Kshs. 2,000,000/= as general damages for injuries such as fracture of the left radium, fracture of the left ulna, fracture of the right tibia and fracture of the right fibula could not attract the amount awarded and permanent incapacity was assessed at 15% . 17. In view of the above-cited authorities, this Court finds that the trial court’s award of Kshs.2,000,000/ = was commensurate to the injuries that were sustained by the Respondent, hence the decision was not erroneous to warrant any interference by this Court. 18. In the circumstances, the appeal herein is found lacking in merit and is thus dismissed with costs to the Respondents. It is so ordered. JUDGMENT DELIVERED VIRTUALLY, DATED AND SIGNED AT KIAMBU THIS 5TH DAY OF DECEMBER , 2025. D. O. CHEPKWONY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19311/eng@2025-12-05 4

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