Joseph Kamau Kimani v Nancy Waithera Muriuki

5. As the issue of liability for the accident was settled before the trial court, the Court appreciates that the parties saved it judicial time to unravel who was to blame for this accident. The issue of liability was settled by a consent recorded in court on the 30th July 2019. The Respondent bore 20% as her apportionment of liability whilst the Appellant bore the majority of the percentage of liability at 80%. 6. The parties agreed to proceed by way of written submissions on the assessment of damages. 7. The particulars of injuries had been pleaded as a degloving injury of the right leg, middle third 1/3. 8. The same was confirmed through the evidence that had been admitted that proved that the Respondent had been examined by Dr. G.K. Mwaura who went ahead to prepare a medical report. Further, the Respondent produced the Discharge Summary from Kenyatta National Hospital and a P3 form that confirmed the injuries sustained by the Respondent. 9. In a contest for quantum assessment for injuries, the parties are often engaged in a bargain with the Court with the Plaintiff fetching the authorities that support the highest awards whilst the Defendant fetches the authorities that suppress the high awards. The Court’s role is to arbitrate these differing positions by either being persuaded entirely or somewhat by what is brought before it or by making the actual assessment without the leanings of what others have decided hitherto save for being comparable. In any event, there is no guarantee that the injuries complained of before the trial court will be a similacrum of those in the decided cases. Further, even those decided cases had to have an original base that was not necessarily another decided case. 10. So the contest of amounts was what happened in the submissions that were filed before the trial Court with the Respondent as the Plaintiff proposing an award of Kshs 900,000/= and relying on the case of, Alphonce Muli Nzuki vs Brian Charles Ochuodho (2014) eKLR where the Respondent sustained compound fracture right tibia and fibula and degloving injury medial aspect of the right leg and foot and the High Court upheld an award of Kshs 800,000/= in general damages for pain and suffering on 20th November 2014. 11. The Appellant as the Defendant on the other hand submitted for an award of Kshs 250,000 in general damages and relied on three judicial authorities as follows. 12. a) H. Young Construction Company Ltd vs Richard Kyule Ndolo [2014] eKLR: The High Court (Thuranira J.) set aside an award of Kshs. 350,000/- and substituted it with Kshs. 250,000/- for a degloving injury to the calf with loss of skin and a blunt injury to the ankle joint. b) Spin Knit Limited vs Johnstone Otara [2006] eKLR: An award of Kshs. 300,000/- was upheld for a degloving injury to the right hand. c) Donald Mwarangi & another v Mejumaa Nuru Mwakio & another [2017] eKLR: The cited High Court decision endorsed the principle of comparable awards and referenced the above case Kshs. 900,000 on the one side and Kshs. 250,000 on the other side. So what did the Learned Magistrate do? She decided and gave reasons to this effect: I have considered the cited authorities, the plaintiff's injuries, and inflation, the period that the plaintiff was admitted in hospital for a period of about a month and three weeks and I am of the opinion that an award of Kshs 600,000/= would suffice in general damages for pain and suffering. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7814/eng@2026-06-04 2

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13. The Appellant has taken issue with the reasoning that was advanced that the Respondent had been admitted to hospital for about two months and notes that if that is the justification for the higher amount, then the Court was confusing and mixing special damages and general damages. 14. I am not at all convinced by the argument by the Appellant that reliance on the hospitalization period, without relating it to the injury's medical severity or the conventional judicial range, amounted to a misapplication of the legal principles. The claim was pain, suffering and loss of amenities. Being hospitalized is in itself a form of suffering as admission to a hospital invariably entails confinement, discomfort, inconvenience and an actual disruption of one’s normal way of life. No one enjoys being admitted in hospital. 15. The reasoning that is behind an award of damages for pain and suffering is per paragraph 883 in HALSBURY'S LAWS OF ENGLAND 4th Ed, vol. 12(1) page 348- 883 where it is stated: Pain and suffering. Damages are awarded for the physical and mental distress caused to the plaintiff, both pre-trial and in the future as a result of the injury. This includes the pain caused by the injury itself, and the treatment intended to alleviate it, the awareness of and embarrassment at the disability or disfigurement, or suffering caused by anxiety that the plaintiff's condition may deteriorate. 16. It would be out of order to expect those who have been injured and seek treatment to alleviate the injuries to then be placed in a straight-jacket only of special damages for what they pay the hospital as has been suggested by the Appellant. 17. There are two decisions to wit Makube vs Nyamuro; Civil Appeal No. 8/1983 (unreported) and Savanna Sawmills Ltd vs George Mwale [2005] eKLR for the proposition that an appellate court ought not to interfere with a trial court’s discretion on assessment of damages unless it be proved that the trial court committed errors of principle and that the appellate court is not free to substitute its own award for that of the trial court merely because it would have awarded a different figure had it sat at trial. 18. This is one of those instances where the appellate court has not been convinced that the Learned Magistrate exercised her discretion wrongly to elicit this appelate Court to interfere with that discretion. Orders 19. Consequently, the Court dismisses the Appeal, and upholds the ruling of Hon. E Wanjala in its entirety. 20. The Appellant shall bear the costs of this Appeal. DATED AND DELIVERED ONLINE AT NAIROBI THIS 4TH DAY OF JUNE 2026. BENARD WAFULA MURUNGA JUDGE Delivered on virtual platform in the presence of ........................................... for the Appellant Ms Mwende for the Respondent Kevin Babu Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7814/eng@2026-06-04 3

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