High Court 7980 of 2026

involved in an accident, thereby occasioning her injuries; particulars whereof were duly supplied in the Plaint dated 10 th December 2019. The respondent accordingly prayed for general and special damages for pain, suffering and loss of amenities. [3] The appellants denied the respondent’s allegations vide their Defence dated 23rd January 2020. In particular, the appellants denied the respondent’s allegation of negligence and prayed that the suit be dismissed with costs. Upon hearing the parties, the lower court found the appellants 100% liable for the accident. The court then proceeded to assess general damages payable at Kshs. 300,000/=. It accordingly awarded the respondent that sum of Kshs. 300,000/= together with special damages of Kshs. 8,723/=; making a grand total of Kshs. 308,725/=. [4] Being aggrieved by the decision of the lower court, the appellants filed this appeal vide the Memorandum of Appeal dated 17th August 2024 on several grounds touching on liability and quantum. Accordingly, the appellant prayed that the judgment of the lower court be set aside and that the damages payable be assessed afresh. The appellants also prayed that they be awarded costs of the appeal and any such further orders as the Court may deem fit to grant. [5] The appeal was canvassed by way of written submissions, pursuant to the directions given herein on the 30th September 2025. In the appellants’ submissions dated 2 nd February 2026 they pointed out that, although their Memorandum of Appeal 2|Page HCCA NO. E053 OF 2024 JUDGMENT

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had set out some 13 grounds of appeal, the gist of the appeal was quantum. They proceeded to submit that, given the injuries suffered by the appellant, the lower court’s award of Kshs. 300,000/= was inordinately high. They accordingly proposed an award of not more than Kshs. 60,000/=. [6] The appellants relied on Kenya Power & Lighting Co. Ltd & another v Zakayo Saitoti Naingola & another [2008] eKLR, H B (a minor suing through the mother and next friend D K M) v Jasper Nchonga Magari & another [2023] eKLR, L N K (a minor suing through C N K as next friend) & 2 others v Simon Gatuni Njukia [2022] eKLR, and Homa Bay Civil Appeal No. E111 2021: James Kwanya Rege v Lizzy Awuor (minor suing through the father & next friend George Adhiambo Arao in which awards of between Kshs. 60,000/= to Kshs. 80,000/= were made for comparable injuries. [7] In the respondent’s written submissions dated 2 nd October 2025, they submitted that there was no dispute that an accident occurred as was pleaded and that as a direct consequence thereof, she sustained severe bodily injuries causing her pain, suffering and loss of amenities. Accordingly, she urged the Court to find that the motor vehicle in question was so negligently driven, controlled and/or managed that it lost control and caused the accident. On the authority of 3|Page HCCA NO. E053 OF 2024 JUDGMENT

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Butler v Butler [1984] eKLR, the appellant submitted that the award made by the lower court was reasonable in the circumstances, taking into account the injuries suffered. [8] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also important to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its reevaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that: "...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." [9] As was conceded by the appellant, the appeal is in respect of quantum only. It is therefore useful to bear in mind the caution expressed in H. West & Son Ltd v Shephard [1964] AC 326, that: "...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does 4|Page HCCA NO. E053 OF 2024 JUDGMENT

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not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment." [10] The Court of Appeal restated this principle thus in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja vs. Kiarie Shoe Stores Limited [2015] eKLR: "As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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. 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 high that it must be a wholly erroneous estimate of the damages." [11] As has been noted herein above, the lower court awarded the respondent Kshs. 300,000/= as general damages for her injuries along with special damages in the sum of Kshs. 8,725/=. There is no doubt that the respondent justified her claim for special damages by producing supporting documents. As such, there is no contention about that aspect of her claim. [12] The impugned award was premised on the nature of the respondent’s injuries. The injuries as pleaded and proved were: [a] Left shoulder dislocation [b] Blunt trauma to the right leg [c] Blunt injury to the lower back [d] Multiple bruises around the left ear 5|Page HCCA NO. E053 OF 2024 JUDGMENT

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[e] Chest contusion [13] The learned magistrate made reference to the treatment notes and the medical reports produced before the lower court on behalf of the respondent as well as the case of Michael Okello v Priscilla Atieno [2021] eKLR where Kshs. 50,000/= was awarded. The variance between Kshs. 50,000/= and Kshs. 300,000/= was however not justified by the learned magistrate. In the same vein, I find the proposal by the appellant to be on the lower side. [14] I have paid attention to the decision in Channan Agricultural Constractors Ltd v Fred Barasa Mutayo [2013] eKLR in which an award of Kshs. 150,000/= was made for soft tissue injuries to the chest, cut wounds on the head and left leg. Similarly, in Surian Enterprises Ltd v Mary Bahati Peter (Civil Appeal No. E199 of 2021) [2023] KEHC 20426 (KLR) (5 July 2023) (Judgment) an award of Kshs. 300,000/= for soft tissue injuries, including deep cut on the forehead and blunt injury to the right knee, was considered inordinately high. Consequently, the award was reduced to Kshs. 150,000/=. [15] The principle that was reiterated by the Court of Appeal in Stanley Maore v Geoffrey Mwenda [2004] eKLR, is that comparable injuries ought to be compensated by comparable awards. It expressed itself thus: “…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, 6|Page HCCA NO. E053 OF 2024 JUDGMENT

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as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” [16] In the premises, I find merit in the appeal on quantum. The same is hereby allowed and orders granted as follows: [a] That the judgment and decree of the lower court on general damages be and is hereby set aside, and is substituted with an award of Kshs. 200,000/=, taking into account the dislocation of the shoulder joint and the effects of inflation. [b] That the judgment and decree of the lower court on special damages and costs of the lower court be and is hereby upheld. [c] That costs of the appeal be and are hereby awarded to the respondent. It is so ordered. DATED, SIGNED AND DELIVERED THIS 8TH DAY OF MAY, 2026 …………………………… OLGA SEWE JUDGE 7|Page HCCA NO. E053 OF 2024 JUDGMENT

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