Richard Mutitu & 1 other v Manuel Oundo Wanyama

4. The Plaintiff pleaded Special Damages as well as General Damages. The appeal is on General Damages only. The injuries were pleaded as follows: a. Hairline fracture/ periosteum striping right proximal tibia bone b. Blunt trauma to the right knee c. Bruises on the left elbow d. Bruises and abrasions of the right leg 5. The Appellant entered appearance and filed a Statement of Defence dated 01/12/2021 denying the particulars of negligence and injuries pleaded in the Plaint. 6. The Trial Court heard the parties and proceeded to render judgement on 05/10/2023. In the Judgement, the Court entered judgment in favour of the Appellant against the Respondent as hereunder; a. 100% liability against the Defendant. b. Kshs. 800,000/- in General Damages c. Kshs. 6,050/= as Special Damages d. Costs of the suit and interest 7. Aggrieved by the finding of the Trial Court, the Appellant lodged the Memorandum of Appeal hence this Appeal. 8. It was directed that the appeal be canvassed by way of writes submissions. Both parties complied with the directions. The Appellants submitted that an award of Kshs. 800,000/= in General Damages was inordinately high considering the injuries sustained by the Respondent. 9. The Appellant prayed that the General Damages be assessed. Relying on the authorities cited in the submissions, it was submitted that an award of Kshs. 400,000/- would be appropriate compensation for the injuries suffered by the Appellant. It was prayed that the appeal b allowed. 10. On the other hand, the Respondent submitted that the trial court was reasonable in arriving at its findings. The award of Kshs. 800,000/= was well within the acceptable parameters and does not warrant appellate interference at all. It was payed that the appeal be dismissed for lack of merit. Analysis 11. This being a first Appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a Trial Court, unlike the Appellate Court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. 12. In the cases of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows: “ It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19480/eng@2025-12-05 2

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to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…” 13. It is thus settled that for the Appellate court, to interfere with the award it is not enough to show that the award is high or had if I handled the case in the subordinate court, I would have awarded a different figure. 14. Where damages are found to be at large I will interfere. They must be commensurate with similar injuries. 15. Fact finding is primarily the duty of the trial court and once evidence is presented before it on the basis of which it could arrive at a finding one way or the other, as was held in Job Obanda vs. Stage Coach International Services Limited & Another Civil Appeal No. 6 of 2001, it is not for the appellate court to set aside the trial court’s exercise of discretion and substitute its own simply because if it had been the trial court it would have exercised the discretion differently. 16. Furthermore, in Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that: “ It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995. There the Court said with regard to the evidence of experts:“ The evidence of PW1 and the report of Munga were, we agree, entitled to proper and careful consideration, the evidence being that of experts but as has been repeatedly held the evidence of experts must be considered along with all other available evidence and it is still the duty of the trial court to decide whether or not it believes the expert and give reasons for its decision. A court cannot simply say:"Because this is the evidence of an expert, I believe it." 17. There is no dispute that the Appellant suffered injuries as per paragraph 4 above. The Appellant developed 35% disability. In assessing injuries arising from a road traffic accident, consistency in the award of damages is necessary for judicial predictability and certainty. This is achieved through awarding similar injuries with similar or relatively similar damages. The Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards” 18. The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; 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 mere guide but each case be treated on its own facts. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19480/eng@2025-12-05 3

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4. Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account. 5. The awards should not be inordinately low or high. 19. I now analyze similar fact cases on quantum. In Ali Malik Brothers Motor (K) Limited and Another v Emmanuel Oduor Onyango Nrb HCCA No. 252 of 2016 [2018] eKLR, the plaintiff sustained a fracture of the pelvic sprain hymen and cuts of the right knee and was awarded Kshs. 700,000/- which was affirmed by the High Court. 20. In Joseph Njeru Luke & 3 others v Stellah Muki Kioko [2020] eKLR, the Plaintiff sustained pelvic fractures and soft tissue injuries, the High Court reduced the Lower Court’s award of Kshs. 1,700,000/ = to Kshs. 750,000/=. 21. From the authorities cited as above, the Plaintiff/ Respondent suffered less severe injuries in comparison to the Plaintiffs therein. I find that the award of Kshs. 800,000 was slightly higher, though not inordinately high, considering the injuries sustained. 22. Considering the lapse of time and inflation, an award of Kshs. 600,000/= for the Plaintiff herein is adequate compensation for General Damages. I therefore interfere with the award by the Trial Court to this extent. 23. The rest of the awards remains undisturbed. 24. The appeal being partially successful, each party is to bear its own costs. Determination 25. In the upshot, the appeal is partially successful. I make the following orders: i. Judgement of the Lower Court on General Damages is set aside and substituted with an Award of Kshs. 600,000/= ii. The award of Special Damages remains undisturbed. iii. Each party to bear its own costs. DELIVERED, DATED AND SIGNED AT MOMBASA ON THIS 5TH DAY OF DECEMBER, 2025. ......................... F. WANGARI JUDGE In the presence of; N/A by the Appellant. N/A by the Respondent. Ms. Salwa, Court Assistant. NB: Judgment released to the registry for uploading to the CTS. Parties be notified. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19480/eng@2025-12-05 4

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