High Court 7058 of 2026

Respondent and without a shred of negligence on the part of the Appellants. 3. By consent dated 23/9/2023of the P and adopted by the trial court, the Parties agreed to have liability entered in the ratio of 80:20 in favour of the Respondent and against the Appellants. 4. The case then was set down for assessment of damages. The Respondent produced in evidence treatment notes from Kitengela Sub-county hospital, the discharge summary from Machakos Level 5 hospital and the medical report by Dr. Jacks Nthanga dated 23/02/2023 which showed that the Respondent sustained the following injuries: i. Blunt injury to the head ii. Blunt injury to the neck iii. Blunt injuries both shoulders with bruises iv. Blunt injury right lower limb/leg v. Fracture right tibia bone vi. Fracture right fibula bone vii. Bruises on the head viii. Wounds right lower limb/leg a displaced fracture of the right limb tibia and fracture of the right limb fibular bone and multiple soft tissue injuries. 5. Dr. Nthaga’s report opined that slow gradual recovery was anticipated. The Respondent underwent exofit at a cost of Kshs.40,000/= and removal of the same at a cost of Kshs.30,000/=. Future open reduction and internal fixation was also anticipated at a cost of Kshs.50,000/= and removal at costs of between Kshs.100,000/= and Kshs.150,000/= depending on the hospital. 6. The injuries were not controverted by the evidence tendered by the Appellants. The medical report dated 20/11/2023 by Dr. W.M. Wokabi and filed by the Appellants 2

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confirmed that the Respondent sustained compound open fractures of the right tibia and right fibular, he was operated on and the fracture fixed with a K nail with the fractures expected to unite between 12 and 15 months but with a possible 5% permanent disability. He stated that the Respondent would requireKshs.80,000/= to remove the implant in a medium cost hospital. 7. Upon considering the evidence on the assessment of damages and the Parties’ counsel submissions on quantum, the trial magistrate in a judgement delivered on 19/03/2024 made the following awards: a) Liability at 80% :20% b) General damages ................Kshs.1,600,000/= c) General damages for loss of earnings ........NIL d) Cost of future medical expenses .....Kshs.120,000/= e) Special damages ...................Kshs.49,420/= TOTAL AWARD ......................Kshs.1,769,420/= Less 20% contribution .................Kshs. 353,884 NET AWARD............................Kshs.1,415,536/= 8. The Respondent was also awarded the costs of the suit, interest on the general damages from the date of judgement and on special damages form the date of filing suit. 9. Being aggrieved with the above trial court’s judgement, the Appellants lodged a Memorandum of Appeal dated 9/4/2024 which raises five grounds of appeal as follows:a) THAT the learned trail magistrate erred in law and fact in failing to take into account the submissions 3

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filed on behalf of the Appellants while considering her judgment. b) THAT the learned trial magistrate erred in law and fact by totalling disregarding the submissions of the Appellants and thereby arriving at a wrong and/or exorbitant general damage. c) THAT the learned trial magistrate erred in law and in fact and misdirected herself in awarding an exorbitant quantum of damages of Kshs.1,600,000/= as general damages by failing to appreciate and be guided by the prevailing range of comparable awards granted for injuries similar to those sustained by the Respondent. d) THAT the learned trial magistrate erred in law and in fact in making such a high award. e) THAT the learned trial Magistrate's award on general damages was so high as to be entirely erroneous. 10. The Appellants pray that: a) This Appeal be allowed. b) That the award on general damages be set aside and substituted to a reasonable award which is not manifestly excessive in the circumstances of the case. c) The costs of this appeal be awarded to the Appellants. 11. The Appeal was canvassed through written submissions. The Appellants submissions are dated 20/5/2025 whilst the Respondent’s submissions are dated 20/10/2025. Appellants’ submissions 4

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12. The Appellants cited the following cases:fi In Harun Muyoma Boge v Daniel Otieno Agulo (2015) eKLR where the plaintiff sustained multiple injuries and fracture of the tibia and fibula. On appeal the award of Kshs.1,500,000/= substituted and reduced to Kshs.300,000/=. fi In Daniel Otieno Owino & Another v Elizabeth Atieno Owuor [2020] eKLR, where the respondent sustained compound fracture of tibia and fibula bones of the right leg, deep cut wound and tissue damage of the right leg, head injury with cut wound on the nose, blunt chest injuries, and soft tissue injury on the lower left leg, the court substituted an award of Kshs.600,000/= with one of Kshs.400,000/=. fi In Tirus Mburu Chege & Another v JKN & Another (2018) eKLR where the respondent suffered fractures on the tibia and fibula on both legs, blunt injury on the forehead, broken upper right second front tooth, nose bleeding and consistent loss of consciousness the court lowered the award for general damages from Kshs.800,000 to Kshs.500,000/=. fi In Ndwiga & another v Mukimba (Civil Appeal E006 of 2022) [2022] KЕНC 11793 (KLR), where Njuguna J. reduced an award of Kshs.1,200,000/= to Kshs.500,000/= where the Respondent had sustained tenderness and swelling of the left leg and fracture of tibia and fibula left leg. fi In Pauline Gesare Onami v Samuel Changamure & Another (2017) eKLR where the 5

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plaintiff suffered fracture of the right tibia and fibula bone, fracture of left tibia and fibula bone, Laceration on the neck area, blunt trauma to the chest and deep cut wound on both legs mid shaft and the court upheld the trial court's award of Kshs.600,000/=. fi In Sammy Mugo Kinyanjui & Another v Kairo Thuo (2017) eKLR where the respondent had slight tenderness in the forehead, neck, chest, abdomen, right knee and both legs; fracture of the right tibia; fracture of the left tibia and fibula. His conclusion was that the injuries were very severe but had healed the court lowered the award of general damages from Kshs.1,000,000 to Kshs.600,000/=. fi In Alex Wanjala v Pwani Oil Products Limited & Another (2019) eKLR where the appellant sustained a closed head injury leading to loss of consciousness for several weeks, closed fracture of the right humerus and closed fracture of the right femur with the court awarding Kshs.600,000/= for general damages. fi In Nahson Nyabaro Nyandega vs Peter Nyakweba Omboga [2021] eKLR the court reduced the award of Kshs.900,000 by the trial court to Kshs.650,000/= where the injured suffered bruises on the face, compound fracture of the right tibia bone and cut wound on the right leg fi In Joseph Mwangi Thuita v Joyce Mwole (2018) eKLR the plaintiff suffered injuries of fractured right femur, compound fracture (rt) tibia and fibula, shortening right led and episodic pain (r) thigh with inability to walk without support and the court awarded Kshs.700,000/= as general damages. 6

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13. The Appellant submitted that in light of the above cited cases, the award given by the trial court on general damages is inordinately too high and that the same is not within the prevailing range of comparable awards. That therefore the appeal herein meets the parameters under which an appellate court may interfere with the award of damages made by a lower court as set out in Kemfro Africa Limited t/a Meru Express Service -Vs- A.M. Lubia & Another (1987) KLR 27. The Appellant prayed that the award of Kshs.1,600,000/= awarded by the trial court be substituted with an award of Kshs.600,000/= which would be proper compensation to the Respondent subject to liability. Respondent’s submissions 14. The Respondent cited the following cases: fi In Mwaura Muiruri vs. Suerta Flowers Limited & another (2014) eKLR; the court awarded Kshs.1,450,000 for pain and suffering where the plaintiff sustained a double fracture of the right leg upper third of tibia and fibula together with soft tissue injuries. The matter was decided in 2014. fi In Margaret Aoko Diero vs. African Line Transport Company Limited & Another (2004) where the plaintiff sustained a dislocation of the ankle with fractures of malleoli both tibia and fibula with multiple soft tissue injuries, the court awarded General damages of Kshs.1,250,000 for pain and suffering and a further Kshs.250,000 for loss of earning capacity. The matter was decided in 2004. fi In Joseph Musee Mua vs. Julius Mbogo Mugi & 3 others (2013) eKLR; which is a case on all fours with the current case; the plaintiff sustained fracture of the left leg tibia fibula, two broken upper jaw teeth and soft tissue injuries. The court awarded General 7

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damages for pain and suffering of Kshs.1,300,000 in 2013. 15. The Respondent submitted that taking into account the nature of injuries sustained by the Respondent which are displaced compound/open fractures, and also taking into account the duration of treatment that the Respondent has had to undergone and the number of surgeries and hospital admissions, and also taking into account that the fracture injuries may still take time to unite, and further taking into account the element of inflation and the authorities cited, the trial court’s award of Kshs.1,600,000 for General damages for pain and suffering was not too excessive as to invite this court to interfere with the trial court’s discretion. 16. The Respondent submitted that this appeal is without merit and we pray that the same be dismissed with costs to the Respondent. Analysis and Determination 17. I have carefully considered the record, the appeal and the Parties’ advocates written submissions to the appeal. The Appellants seem to be challenging only the award for general damages for pain, suffering and loss of amenities which they assert to be excessive. This court will therefore consider whether the said general damages which were for Kshs.1,600,000/= should be disturbed and reduced as sought by the Appellants. 18. For an Appellant Court to interfere with an award of damages, it must be shown that the trial court in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied. 8

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19. In the case of Maraga V Musila (1984) 1 KLR 251, where the Court of Appeal when addressing its mind to this issue expressed itself thus; “The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”. 20. The approach taken by courts in the assessment of damages is that comparable injuries should as far as possible be compensated by comparable awards although the court should bear in mind that no two cases are exactly the same. The court will also consider factors such as the state of the economy and the rate of inflation in its assessment of damages. (See Stanley Maore v Geoffrey Mwenda [2004] eKLR and Ugenya Bus Service v Gachoki [1982] eKLR). 21. In the circumstances, it is my considered finding that the cases cited by the Appellant are not only a bit old but also reflect less severe injuries to those sustained by the Respondent in the instant appeal. 22. Having given due consideration to the injuries sustained by the Respondent, I find that the case relied upon by the trial court being Mary Wanja Gachomba v Josinta Adhiambo Ogana (2021) eKLR to have injuries that are more comparable to those sustained by the Respondent herein. In addition, in the said case, judgement was delivered in the year 2021 whereas in the instant case the judgement was delivered in March 2023 almost a year after. The said case was a perfect comparison and proper guide to the case at hand. 9

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23. Hence, from the foregoing comparison, this court finds that the trial court’s award of Kshs.1,600,000/= as general damages for pain suffering and loss of amenities to be adequate compensation. The same cannot be said to be manifestly excessive as to amount to a wrong assessment. In the premises, there is no sufficient cause, in my view, for disturbing the award made by the trial court under the general damages head. 24. However, this court noted that trial court subjected the award on special damages to apportionment of liability which was erroneous. 25. Accordingly, this court upholds the trial court’s awards save that the special damages will not be subjected to apportionment of liability. The award of special damages does not need to be subjected to apportionment of liability. See Hashim Mohamed Said & another v Lawrence Kibor Tuwei [2018] eKLR where the court stated that special damages should not be subjected to the apportionment. 26. In the end, the court makes the following orders: a) Liability at 80% :20% b) General damages ................Kshs.1,600,000/= c) General damages for loss of earnings ........NIL d) Cost of future medical expenses .....Kshs.120,000/= TOTAL AWARD ......................Kshs.1,720,000/= Less 20% contribution .................Kshs. 344,000/= Kshs.1,376,000/= .....................Kshs. Special damages 49,420/= NET AWARD...........................Kshs.1,425,420/= 10

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27. In the end, the appeal is dismissed with costs to the Respondent assessed at kshs.30,000/=. 28. It is so ordered. This file is closed. JUDGEMENT WRITTEN, DATED & SIGNED AT MACHAKOS THIS 18 TH MARCH 2026 NOEL I. ADAGI JUDGE DELIVERED VIRTUALLY ON TEAMS AT MACHAKOS THIS 18 TH MARCH 2026 In the presence of : 11

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