Mg Auto Trading & 1 other v Lmt (minor Suing Through His Father and Next Friend) Ekm)

6. a. Fracture of the left femur. b. Blunt trauma to the right upper limb. c. Chest Contusion. d. Bruises on the face. 5. The injuries are supported by the treatment notes, P3 form and Dr Morebu (Pw2) who made the medical report. In the case of Kenya Power Lighting Company limited & another -versus- Zakayo Saitoti Naingola & another (2008) eKLR. Where court held that “the court has to bear in mind the following principles on assessment of damages; 1. Damages should not be inordinately too high or too low 2. 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. 3. Where past decisions are taken into consideration, they should be taken as mere guides and each case depends on its own facts. 4. 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’’. 7. The respondent submitted in the lower court that general damages of Ksh. 1,500,000/= would suffice and relied on the case of Fred Mohinga Kipkigiya versus David Aggrey Zimbiru (2011) eKLR where an award of Ksh. 650,000/= was made where the respondent sustained fractures of the right femur and distal femur in addition to soft tissue injuries. Also, Densire Muteti Wambua versus Kenya Power and lightning company (2013) eKLR where court of appellant awarded Ksh. 1.5 million for multiple fractures involving the right femur, left femur and scaphoid bones, dislocation of the left elbow, fracture of the radial head, dislocation of the left lunate bone and bruises on the parietal scalp. 8. The appellant relied on their submissions in the lower court and cited Reamic Investment Limited versus Joaz Amenya Samuel (2020) eKLR where Kshs 350,000/= was awarded for a fracture of left femur and soft tissue injuries. 9. The Trial magistrate relied on the case of Damaris Ombati versus Moses Mogoko Levis & Another (2019) eKLR where the respondent sustained fracture of the right patella, soft tissue injuries an award of general damages in the sum of Ksh. 800,000/= was reduced to Ksh. 350,000/=., and the case of Pestomy Limited & Another versus Samuel Itonye Kagoko (2022) eKLR, where the respondent had sustained a fracture of the left femur (mid -shaft) and swollen left tender thigh and the fracture had healed. 10. I have also seen the case of Adhola v Peter (Civil Appeal 129 of 2021)[2023] KEHC 24811 (KLR) (31 October 2023) (Judgment) where appellant sustained (a) the Left femur fracture (b) Left knee dislocation (c) Pelvic fracture (d) Deep cut wounds on the scalp, (e) Deep cut wounds on the right hand (f) Blunt trauma on the abdomen, (g) Blunt trauma on the perineal region and was awarded general damages in the sum of Ksh. 1,000,000/=. 11. On whether this court should disturb the award on general damages, in the case of Kemfro Africa Limited T/A Meru Express Services, Gathongo Kanini versus A.M. Lubia and Olive Lubia, decided https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19740/eng@2025-06-03 2

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by the Court of Appeal on 27th day of February 1985. The Court of Appeal held inter alia that; “the principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are 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 high that it must be a wholly erroneous estimate of the damages”. 12. I have carefully considered the injuries sustained by the respondent, the cases cited by both parties, the current trend of awards for similar injuries the inflation factor and all the necessary factor. The injuries in the Reamic case cited by the appellant are comparable to the ones sustained by the respondent herein. The injuries in the Mohinga and Danshire cases cited by the respondent were more serious than the ones sustained by the respondent herein as in the instant case respondent sustained one fracture while in the Mohinga case they were two and in the Denshire case they were several. In the Damaris and Pestony cases relied on by the trial court Ksh. 800,000/= was awarded for comparable injuries in the years 2019 and 2022 respectively. The appellant in the Adhola case also sustained 2 fractures and multiple soft tissue injuries. In this case, I find that the award of general damages in the sum of Ksh. 750,000/=awarded by the trial magistrate was excessive and I proceed to substitute the same with Ksh. 500,000/=. 13. In the upshot, I proceed to enter Judgment for the respondent against the appellant as follows: a. General damages Kshs 500,000/= b. Special damages Ksh. 16,410/= c. Costs of the lower court case to the respondent d. Costs of this appeal in the sum of Ksh. 30,000/=to the appellant. e. Interest on (a) and (b) and (C) above from the date of the judgment of the lower court. f. It is so ordered. T.A ODERA JUDGE 3.6.25 Delivered Virtually Via Teams Platform in the presence of; Court Assistant - Kipchirchir Atisi for Respondent N/A for Respondent https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19740/eng@2025-06-03 3

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