Anthony Mutua Kalei & 1 other v Andrew Kakayon Mooke & 1 other

4. I have looked at the record and the submissions in the lower court, and the submissions before me. 5. The issue before me is whether the appeal is merited: was the 1st respondent entitled to the award of Ksh 400,000 as general damages for pain and suffering? Is the award too high to warrant this court’s interference? 6. The appellants submit that no amount of money can compensate for the injuries that a person sustains in an accident. The appellant relies on Kigaraari vs Aya (1982-88) 1 KAR 768, where it was held that: Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford. Large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees. 7. It is submitted that the 1st respondent was examined by two doctors and the reports submitted to court. That Dr, Ndeti prepared the 1st respondent’s medical report, did not indicate, whether the 1st respondent had required any specialized care . That the 2nd Medical report by Dr.Kahuthu indicated that the 1st respondent was sent to a specialist, Dr.Imalingat, re-examined the x-rays and did not see any dislocation. In that event the 1st respondent had sustained only soft tissue injuries. 8. It is now submitted by the appellants that an award of Kshs. 50,000/= would be adequate compensation as general damages on the following cases. 9. HB (Minor suing through mother & next friend DKM) v Jasper Nchonga Magari & another [2021] eKLR; Kshs.60,000/ awarded by the trial court, for blunt object injury to the head and neck, thorax, abdomen and limbs upheld by the High Court. 10. Eastern Produce Ltd Vs Mamboleo Khamadi [2015] eKLR; Kshs. 120,000 awarded by the lower court for cut wound on the right middle finger and severe pains incurred during and after the injury; reduced to 50,000/= by the High Court. 11. Buds and Bloom Ltd Vs Lawrence Emusugut Obwa [2016] eKLR Kshs. 70,000 awarded /=by the lower court for a deep cut wound and soft tissue injuries on the leg, reduced to Kshs. 50,000/= by the High court. 12. Kipkere Limited Vs Peterson Ondieki Tai [2016] eKLR Kshs. 100,000 awarded /= by the trial court for deep cut wound on the left leg, chest contusion and bruises on the left shoulder, reduced to Kshs. 30,000/-by the High Court 13. For the 1st respondent it is submitted that this is a first appeal and the court is bound to reevaluate and scrutinize the totality of the evidence as is settled by SELLE versus Associated Motor Boat Company Limited 1968 EA 123 where the court had this to say; An appeal from the High Court is by way of a re-trial and theCourt of Appeal is not bound to follow the trial judge’sfindings of fact if it appears either that he failed to takeaccount of particular circumstances or probabilities or if theimpression of the demeanour of a witness is inconsistentwith the evidence generally.” 14. On whether the first respondent established his case it is submitted that he was a passenger in motor vehicle registration number KBZ 964 Q And the driver of the motor vehicle owed him a duty of care. For this proposition the 1st responded relies on Samuel Muriuki Mugo and another versus David Kariuki Migua [2022] eKLR https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4259/eng@2026-02-09 2

page 2 of 5

15. The 1st respondent reiterates the injuries as set out in the plaint dated 17 September 2020 and makes reference to the medical reports and the P-3 and his oral testimony. It is highlighted that he testified that following the accident he had to use two crutches as he was unable to walk on his right leg. 16. It is submitted that in deciding whether to disturb the quantum damages awarded by the trial court this court ought to be guided by the principles set out in Kemfro Africa Limited trading as Meru Express service Gathogo Kanini vs A.M.M Lubia and another (1982 - 1988) 1 KAR 777 as cited in Simon Taveta versus Mercy Mutitu Njeri [2014] eKLR. It was held that; … the court 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 low or so inordinately high that it must be wholly erroneous estimate of the damage 17. It is submitted that it is upon the appellant to demonstrate to this court that the trial court’s judgment fell squarely into the description given in the above case to warrant its disturbance. 18. It is also submitted that the court would need to see whether the award of general damages is comparable with awards similar cases. The court is referred to Morris Mugambi and another vs Isaiah Gituru Nairobi CoA CA no.138 of 2012 where it was held that comparable injuries should as far as possible be compensated by comparable awards keeping in mind the level of awards in similar cases. The court is referred to: 19. Caroline Indiasi Monyonyo versus Kenya bus service limited [2012]KEHC 3907 KLR ;An award of Ksh 350,000 was made in the case where their appellant sustained both soft tissue injuries and a dislocation of the right knee 20. Thuo and another vs Nanzala [2024] KEHC 2978 (KLR) Where the son of Ksh 400,000 was awarded as general damages for dislocation of the right elbow joint and blunt injury to the anterior chest wall. 21. It is submitted that the lower court did not make any error and this court is urged to uphold the award of Ksh 400 000 general damages. The issue is whether this appeal has any merit? 22. To arrive at the answer, I am guided by Selle herein above on the duty of this court as a first appellate court and the requirement to reevaluate the evidence and draw my own conclusions aware that I never heard or saw the witness testify , and Kemfro, on the applicable principles in deciding whether or not to interfere with the award. 23. In the submissions in the lower court the plaintiff submitted for the sum of Kenya shillings 500,000 as 24. general damages while relying on Veronica Mkanjala Mnyapara vs Charles Kinanga Babu [2020]eKLR 25. That the defendants submitted for an award of Kenya Shillings 80,000 for general damages and relied on Ephraim Wagura Muthui & Others vs Toyota Kenya Limited & 2 others[2019]eKLR 26. In Ephraim case the court had awarded the sum of 100,000 shillings to an appellant who had sustained a cut wound on the parietal area of the head, contusion on the neck, blunt trauma to the chest ,cut wound on the left leg and blunt trauma to the back. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4259/eng@2026-02-09 3

page 3 of 5

27. The defendants had also cited David Kabesa & and another versus Harriet Kemunto Mokua [2020] eKLR where the court confirmed an award of Kenya ceilings 160,000 as general damages for injuries to the chest, back ,left eye ,and two loose lower molar teeth 28. The medical reports that were filed indicated that the plaintiff had sustained soft tissue injuries In his testimony in court the plaintiff told the court: I got injured on my right leg and chest, my life has changed from the date of the accident because I depended on my right leg as my left leg had suffered from polio .now I use cutches support for both legs. 29. On cross examination he said that he had tried to walk on the right leg without crutch but was unable to do so due to pain. 30. The P-3 indicated that he had tenderness of the chest with no obvious fracture, the left thumb had tenderness with no reduced range of movement, the right ankle joint tenderness and the x ray was done This P-3 was filled on 13th August 2020 31. The medical report by Dr. Titus NDETI Nzina was done on the second of September 2020 . The Dr. said that an x -ray was done and it showed the dislocation of the right ankle joint . At the time of examination, he formed the opinion and prognosis that the first respondent had suffered maim and sustained severe soft tissue injuries which caused him pain and suffering and that he was still undergoing treatment 32. The second Medical Report was dated 14th October 2022. There was healing with no scars. The doctor noted that no dislocation was seen on the initial X Ray vide a report done by Dr Imalingat, a radiologist on 8th June 2022.There was a report dated 8th June 2022 stating that the radiologist had viewed X ray no X-011/2022 and commented that ‘there is no fracture or dislocation seen’. On the basis of this report Dr. Kahuthu drew the conclusion that the 1st respondent only sustained soft tissue injuries. 33. It appears to me from the submissions by the parties that the appeal turns on whether the trial court took into account the two apparently contradicting medical reports. One indicating merely soft tissue injuries, the other, severe soft tissue injuries. 34. On the issue of the dislocation, it is evident that was an issue for the medical reports. With conflicting reports, the court had to rely on the evidence before it and in this case the oral evidence of the 1st respondent who was cross examined by the defence, the challenge with the medical reports placed before the trial court as they are leave room for the court to consider them and then draw its own conclusions 35. I have perused the Judgment of the learned trial court and it is clear that the trial court analysed the 36. medical evidence noting that one doctor stated that the 1st respondent sustained soft tissue injuries while the other stated that the 1st respondent sustained maim; Severe soft tissue injuries. The trial court drew the conclusion that the 1st respondent had suffered injuries which appeared to have caused him complications, pain and suffering. 37. While the medical reports do not indicate that the 1st respondent had suffered any residual complications and the last report indicated that he had healed without scars, this is the point where I must remind myself that I neither saw nor heard the 1st respondent testify. 38. It is noteworthy that the appellant had subjected the 1st respondent to two medical examinations and had arranged for a 3rd one at the time of the hearing which was objected to by counsel on the ground https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4259/eng@2026-02-09 4

page 4 of 5

that the 1st respondent is a person living with disability who required an assistant for movement. That taking into consideration the distance- from Mashuru to Nairobi it was too much for him. 39. It is my view that from the evidence and the medical reports, the 1st respondent sustained injuries that were severe soft tissue injuries. At the time of the accident, he had a disability caused by polio in the left leg and had to depend on the right leg. This is the leg that suffered injury and he had to walk with an additional crutch. This cannot be ignored even as the court considers the final medical report. 40. If we consider only the final report that he healed without any scars we would have left out a period of time when he truly suffered from the injuries he had sustained when they were fresh, when he limped in pain and when he had to have an additional crutch to sustain his mobility. This is what this court can only deduct from the record as the court did not get to see or hear him testify. The trial court upon hearing the 1st respondent and observing him formed the view that the injuries though not severe had caused him some complications. 41. It is my view that the trial court took into account all the relevant factors including observing the 1st respondent in court during the hearing. The general damages are given for pain and suffering caused by the injuries. In the circumstances of this case the 1st respondent may have suffered soft tissue injuries but it is clear that the pain and suffering he went through deserved the general damages awarded. 42. This accident happened in August 2020. Other than one authority the ones relied on by the appellant in this appeal are for the years 2015, 2016- 4 to 5 years before the accident. The appellant wants the court to lower the award to Ksh 50,000 without a cross appeal yet their initial submission was for Ksh 80,000. Clearly that is unacceptable. I find no basis to lower the award to the amount submitted by the appellant. Is there any reason to disturb the award by the trial court? 43. Having re looked at and reevaluated the evidence, the submissions and the Judgment of the subordinate court it is my view that the trial court was able to resolve the conflict in the reports , observe and assess the impact of the injuries on the 1st respondent to warrant the award of damages in this case. 44. The appellant has not demonstrated that in those peculiar circumstances of this case the award was too high to warrant a review. 45. I find that no sufficient ground has been laid to warrant any disturbance of the award. The appeal is dismissed with costs to the 1st respondent. DATED SIGNED AND DELIVERED VIA CTS WITH THE CONSENT OF COUNSEL THIS 9TH FEBRUARY 2026 MUMBUA T MATHEKA JUDGE CA Mwiw’a/Daniel SIGNED BY/FOR: LADY JUSTICE MATHEKA, TERESIA MUMBUA THE JUDICIARY OF KENYA. MAKUENI HIGH COURT HIGH COURT DIV DATE: 2026-02-09 11:58:02 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4259/eng@2026-02-09 5

page 5 of 5