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Mogo Kenya Limited & 1 other v Simon Mule Muthui

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Mogo Kenya Limited & another v Muthui (Civil Appeal E001 of 2024) [2026] KEHC 4243 (KLR) (5 February 2026) (Judgment) Neutral citation: [2026] KEHC 4243 (KLR) REPUBLIC OF KENYA IN THE HIGH COURT AT KITUI CIVIL APPEAL E001 OF 2024 LW GITARI, J FEBRUARY 5, 2026 BETWEEN MOGO KENYA LIMITED ................................................................ 1ST APPELLANT ARICHA BERNARD OKARI ......................................................... 2ND APPELLANT AND SIMON MULE MUTHUI .................................................................... RESPONDENT JUDGMENT 1. The Appeal arises from the Judgment and decree in the Chief Magistrate Court at Mwingi Civil Case No. E033/2021. The Appeal is grounded on a Memorandum of Appeal dated 11/1/2024. The grounds are as follows: 1. That the Honourable court erred in fact ad law in failing to consider the Defendant’s submissions on quantum. 2. That the learned trial Magistrate erred in law by weighing the respondent’s case in isolation from the appellant’s case and precluded herself from assessing the magnitude of damages impartially. 3. That the learned magistrate erred in law and in fact by failing to apply the relevant and pertinent judicial principles, precedents and trends regarding the awards of quantum and therefore arriving at an amount that was excessively high. 4. That the learned magistrate erred in fact and law, in failing to accord the appellant’s evidence and submissions due consideration. 5. That the learned magistrate’s findings on quantum of damages are not supported by facts or law hence irregular. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4243/eng@2026-02-05 1

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6. That the learned trial magistrate erred in law and in fact in misapprehending and misapplying the inflation rate and awarded general damages that were manifestly excessive. 7. That the learned magistrate erred in law and in fact in assessing damages and filed to apply the principles applicable in award of damages of comparable awards made for analogous injuries and failed to consider the authorities cited by the appellant on the issue of damages. 2. The appellant prays that the Judgment of the trial court dated 14/12/2023 be set aside and the court make an appropriate assessment of the awardable damages in tandem with the pleadings, evidence, law and decided authorities. Thus, the appeal is on quantum of damages. 3. The background in this matter is that the respondent had filed an amended plaint dated 24/1/2023 seeking general and special damages arising from a road traffic accident that occurred on 12/09/2020. The respondent averred that he was travelling as a passenger on board motor vehicle KCK 642P along Mwingi-Garissa Road when the accident occurred. 4. The respondent contended that as a result of the accident he sustained injuries involving fractures of the right lateral malleolus and a out wound on the head. Vide a medical report filled by Doctor Achieng, no major complications were expected as a result of the injuries. the plaintiff was examined by Doctor Maina Ruga on 16/02/2022 and the doctor observed that the respondent had no complaints. He further noted that the fracture was at the foot, around the ankle joint. 5. The parties recorded a consent on liability in the ration of 85:15 in favour of the respondent as against the appellants. The learned magistrate in her considered Judgment held that an award of Kshs. 700,000/= in general damages is adequate. He awarded special damages of Kshs. 9,050/= less the respondent’s contribution the total award due to the respondent was Kshs. 602,693.00. the appellants were dissatisfied with the Judgment and preferred this appeal. The appeal was canvassed by way of written submission. I have considered the submissions by the parties. Analysis and Determination 6. I have considered the grounds of appeal and the submissions. The appellant is aggrieved by the award of general damages. The issue for determination is whether this court should interfere with the award of damages by the learned magistrate. 7. The principles upon which an appellate court will interfere with an award of general damages have been well articulated and settled by a line of authorities from this court and the Court of Appeal and in particular as it relates to this court whether it should interfere with exercise of discretion by the learned magistrate. 8. The appellant has urged the court to set aside the quantum of damages by the learned magistrate for being manifestly high. In the case of Butt Bashir Ahamed But -vs- Uwais Ahamed Khan (1982-88) KAR the Court of Appeal set out the parameters under which an appellate court will interfere with an award of general damages and held as follows: “ Appellate court will not disturb an award of general 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/2026/4243/eng@2026-02-05 2

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9. On the trial court’s exercise of discretion in Southern Engineering Company Limited -vs- Musungi Mutia (1985) KLR 730 the court held that: “ It is trite law that the measurement of the quantum of damages is a matter of the discretion of the individual Judge or Magistrate which of course has to be exercised judicially and with regard to the general conditions preventing in the Country generally and prior decisions which are relevant to the case.” 10. This is buttressed in the case of Catholic Diocese of Kisumu -vs- Sophia Achieng Tete, Court of Appeal Kisumu C.A No. 284/2001 while reiterating the holding in Kemfro -vs- Lubia (1982 – 88) KLR that: “ It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that amended by the court below simply because it would have awarded a different figure if it had tried the case at the first instance.” 11. It has further been held that general damages are damages and injuries that directly result from an action or the failure to take action by the defendant are awarded in respect of such damages as the presumes to result from infringement of legal right or failure to take the duty of care, see Joqoo Kimathia Buss Services Ltd -v-s Electrocom International Ltd, Court of Appeal (1992) KLR. The other Principles which the court has to consider are that an award of damages should be commensurate with the injuries sustained, must be within the limits set by decided cases and within the limits that Kenyans can afford, “Large awards are inevitably passed to members of the public, a vast majority of whom cannot afford the burden in form of increased premiums of insurance cover or increased fees, See Cecilia W. Mwangi & Another -vs- Ruth W. Mwangi Court of Appeal, 1997 KLR. 12. In awarding the general damages, the learned magistrate relied on Timothy Wafula -vs- Sietco Development Africa Ltd and Joseph Ndumia Murage HCC CC Nakuru 102 196 where Kshs. 800,000/= and 500,000/= were award for multiple ribs fractures and chest injuries. He also relied on Joseph Poko Ochieng -vs- Kenya PMS Services Mombasa (Mombasa HCCCC where the plaintiff was in ICU for three days and had multiple fractures of both femurs. It goes without saying that these awards were not comparable. As a result of relying on hem he arrived at an award which was manifestly excessive. The appellants had cited Alumasa -vs- Mutiso & Another (Civil Appeal E24/2020 (2022) KEHC 3085 KLR (4 May 2022) (Judgment) where an award of Kshs. 300,000/= was upheld by the High Court where the plaintiff had sustained soft tissue injuries on right ankle joint, fractured right malleolus soft tissue injuries on the right foot and occasional pains on the injured sites of the body. This authority was relevant, a recent decision and the injuries were nearly comparable to those sustained by the respondent. 13. The authorities cited by the respondent were not comparable and can be termed as inordinately high. I find that based on the authorities cited by the parties, I come to the conclusion that the awards by the learned magistrate was inordinately high and I should interfere with the exercise of discretion. Disposition 14. I set aside the award of Kshs. 700,000/= and substitute it with an award of Kshs. 500,000/=. The special damages were specifically pleaded and proved. Costs of the appeal to the appellant. The award of Kshs. 500,000/= general damages shall be less 15% with a total award of Kshs. 432,699.00 due to the respondent. DATED, SIGNED AND DELIVERED AT KITUI THIS 5TH DAY OF FEBRUARY 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4243/eng@2026-02-05 3

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HON. LADY JUSTICE L. GITARI JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4243/eng@2026-02-05 4

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