Ryce East Africa Limited v Kisulu Nzilimani

4. 5. The appellant was dissatisfied with the Judgment of the learned Magistrate and filed this appeal vide a memorandum of Appeal dated 29/1/2024 based on the following grounds: 1. The learned Magistrate erred in fact and in law in awarding the respondent judgment as against the respondent in the sum of Kshs. 1,500,000/= General Damages for pain and suffering and loss of amenities and Kshs. 5,550.00 being special damages and thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the damages in the circumstances of the case. 2. The learned Magistrate erred and misdirected himself in law, principle and facts when he misapprehended and misunderstood the applicable principles and law in assessing general damages thereby arriving at an award that is so manifestly and misunderstood the applicable principles and law in assessing general damages thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the general damages in the circumstances of the case. 3. The learned Magistrate erred in law and in fact in failing to pay regard to submissions and decisions filed by the defendant/appellant that were guiding in the amounts of quantum that is appropriate and applicable on similar injuries as the case he was deciding. 4. The learned Magistrate erred and misdirected herself in law, principle and facts when he misapprehended and misunderstood the applicable principles and the law in assessing quantum thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the damages in the circumstances of the case. 5. The award of general damages awarded to the respondent was manifestly and inordinately excessive in the circumstance. 6. The learned Trial Court erred by failing to consider with a fair measure the submissions of the defendants in writing the judgment. 7. That the learned trial Magistrate erred in the evaluation of evidence before it and disregarded important elements of the evidence, principles and practice thus reaching an award on quantum so inordinately high in the circumstances. The appellant prays that appeal be allowed. The lower courts judgment on quantum be set aside. That the award of the lower court on general damages be revised to commensurate levels as per the evidence on record. That it be awarded costs in the lower court and for this appeal. The appeal was canvassed by way of written submission. Appellants Submissions 6. The appellant submits that the learned Magistrate erred by awarding damages which were so manifestly and in ordinately high as to constitute an entirely erroneous estimate of he damages in the circumstances. It is also contended that the learned Magistrate misdirected himself in law, principle and facts when he misapprehended and misunderstood the applicable principles and the law in assessing the quantum of damages. She submits that the courts have held that damages should not be too large to the extent of crippling the economy. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19571/eng@2025-12-17 2

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7. She relies on Jackline Symbua v BOG Ekalala Secondary School Embu HCCC No. 1 18/2006 (UR) where the court stated in part that: “ … awarding damages, it is not to bay as it were for the loss or injury the plaintiff has suffered. Damages only assuage the pain or loss suffered by the plaintiff because no amount of money can replace the lost limb.” 8. She also relies on Kigaraari v Aya (1982 – 88) 1 KAR 768 where it was held that: “ Damages must be within the limits the Kenyan Economy can afford. Large awards are inevitably passed on to the members of the Public the vast majority of whom cannot afford the burden in the increases in insurance premiums and increased fees.” 9. The accused submitted that an award of Kshs. 500,000/= would be adequate and cited two cases: 1. Warana -vs- Wagacha Civil Appeal No. (16/2019) (2023) KEHC where the court set aside an award of Kshs. 700,000/= and substituted it with Kshs. 500,000/=. 2. Njenga & Another -vs- Kinyanjui (Civil Appeal E117/2021) (2024) KEHC 3810 KLR (1214/2024) Judgment where an appeal against general damages of Kshs. 400,000/= was dismissed. 3. Justine Nyamwaya Ochoki & Another -vs- Francis Ndunya Thoya & Another (2020) eKLR where Kshs. 500,000/= was awarded. She urged the court to find that Kshs. 500,000/= was adequate. Respondents Submissions 10. It is submitted that the learned Magistrate relied on two authorities which they had cited to come to the award of Kshs. 1,500,000/= which they submit was reasonable. He submits that it has not been shown that the assessment was on wrong facts or was too high to warrant interference. That the leanred Magistrate employed the correct principles of law and available facts. He relies on Peter Namu Njeru -vs- Philemon Mwangi (2016) eKLR where the court stated that: “ In order to interfere with the discretion by the trial court in assessing damages it must be demonstrated that the award was inordinately too high or too low as to present an entirely erroneous estimate of compensation to which the respondent was entitled or that the court took into account irrelevant factors or failed to take into account relevant factors and that the exercise of discretion was wholly injudicious not expected of a reasonable adjudicator.” He submits that the appeal is devoid of merits and should be dismissed. Analysis and Determination 11. I have considered the appeal, the grounds of appeal, submissions and the Judgment of the learned Magistrate. The issue for determination is whether this court should interfere with the award of general damages by the learned Magistrate. This is a first appeal and the duty of this court is to analyze the evidence before the trial court, evaluate it and come up with its own independent finding. The court should however bear in mind that it did not see, nor hear the witnesses when they testified in order to assess their demeanor and leave room for that. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19571/eng@2025-12-17 3

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This was held in Selle & Another -vs- Associated Motor Boat Company Ltd & Others (1968) EA where the court held that: “ An appeal to this court from a trial by the High Court is by way of retrial and the principle upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions through it should always bears in mind that it has neither seen nor heard the witnesses and should always make due allowance in that regards. In particular this court is not bound necessarily to follow the trial Judges finding of fact if it appears either that he has clearly piled on some point to take into account the particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. (Abdul Hameed Saif -vs- Ali Mohamed Sholan (1955) 270.” 12. The appeal is against the award of damages by the learned Magistrate. It is well established that the assessment of quantum of damages in a claim for general damages is a matter of exercise of discretion which must be exercised judicially having regards to the facts of the case within the context of existing legal principles. 13. The appellate court will not normally interfere with the exercise of discretion unless it demonstrated that the court did not adhere to those principles. The discretion in assessing the amount of general damages payable will be disturbed if the trial court took into account an irrelevant factor or failed to take into account a relevant factor or that the award is in ordinately low or so inordinately high that it must be a wholly erroneous estimate of damages. 14. These principles were laid down in the case of Kanga v Manyoka (1961) EA 705, Butt v Khan (1981) KLR 349 and Kemfro Africa t/a Meru Express and another (1982 – 86) 1 KAR 72. The assessment of general damages is not an exact science, but is where the court takes into account the nature and the extent of injuries in relation to awards made by the court in similar facts in similar cases. The court ensures that the award is not excessively high but is adequate and reasonable to compensate the claimant for the injuries suffered. They should not be so low as that would amount to an erroneous estimate. 15. The respondent had pleaded that particulars of injuries as follows: a. Right lower leg tibia bone fracture distally b. Left ulna linear fracture at the ulnar carpal joint c. Left upper limb laceration d. Left uliac crest laceration e. Right lower limb pain 16. A Medical Report by Ar. Calvin M. Achieng dated 1/7/2021 confirmed the above injuries and his prognosis and conclusion he stated that, the injuries healed with no major complication. The degree of injury was assessed as grievous harm. The respondent had cited two authorities which I find were not relevant as the claimants therein had suffered more serious injuries. 17. The appellant had relied on authorities where the claimants were awarded Kshs. 350,000/= for injuries involving fractures and soft tissue injuries. to mention one which I find is relevant, in Goni Construction Company Limited -vs- Francis Ojuok Olewe (2015) eKLR the claimant was awarded Kshs. 350,000/ = as general damages for having sustained a fracture of the left distal radius and ulna and dislocation https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19571/eng@2025-12-17 4

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of the left elbow and was hospitalized for six weeks. The leaned Magistrate relied on the authorities submitted and awarded Kshs. 2,200,000/= Million in general damages. The injuries were serious. 18. The injuries sustained by the claimant were soft tissue and fractures. I find that the damages awarded were excessive and inordinately high calling for this court to interfere with the award. The learned Magistrate disregarded the principal that awards should not be inordinately so high as to present a wholly erroneous estimate of damages. I have reason to interfere with the award of damages. I find that an award of Kshs. 450,000/= is adequate to compensate the respondent. Conclusion 19. For the reasons stated in this Judgment, I order that the appeal has merits and is allowed. I order that: 1. The Judgment of the learned Magistrate is set aside. 2. It is substituted with an award of Kshs. 450,000/= less 10% respondent’s contribution. 3. I award the appellants the costs of the appeal. DATED, SIGNED AND DELIVERED AT KITUI THIS 17TH DAY OF DECEMBER, 2025. HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19571/eng@2025-12-17 5

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