REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT MACHAKOS HIGH COURT CIVIL APPEAL NO. E59 OF 2023 JANE WANGUI MAINA ………........………………….. APPELLANT VERSUS PETER NYURURU KIMANI T/A GITHUYA TRANSPORTERS …….....…………. RESPONDENT (Being an appeal from the judgment by Hon. Khapoya S. Benson (SPM) in Kithimani Senior Principal Court in Civil Suit No. 197 of 2019 delivered on the 1st March 2023) JUDGMENT 1. This appeal is against the quantum of general damages awarded to the Appellant in the court below. The Appellant’s grievance is that the award was inordinately low and not commensurate with the injuries suffered. 2. It is not disputed that the appellant sustained the following injuries: fi Head injuries (swelling or haematoma) fi Chest and abdomen injuries – tenderness over the left abdominal quontrant and over the anterior left chest wall. fi Lower limb – bilateral knee joint pains and small lacerations as per the P3 form (15/7/2019) tender bruise wounds (multiple) over both knees according to the medical report of Dr. Muli Simon Kioko dated 24/8/2019. HCCA NO. E059 OF 2023 1
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3. After considering the evidence and submission by both sides the learned magistrate awarded the appellant general damages in the sum of Kshs. 70,000/=. According to the learned magistrate he was guided by the authorities for comparable injuries, the evidence on record, and rate of inflation. 4. The appellant’s advocate faults the learned magistrate for allegedly ignoring his submissions and the precedents cited and relying on the respondent’s submissions without justifiable legal reasoning. In the submissions in this appeal, the advocate has proposed on an award of Kshs. 800,000/=. Counsel has also urged this court to award the costs of this appeal to the appellant. Analysis and determination 5. This being an appeal on the quantum of damages only, the principles that guide this court are; firstly, as was held in the case of Kemfro Africa Ltd t/a Meru Express Service -v- A. M. Lubia & another [1985]eKLR, the appellate court should be slow to interfere with the quantum of damages awarded by the trial court unless it is satisfied that either that court took into account an irrelevant fact or left out a relevant fact or that short of that, the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages. HCCA NO. E059 OF 2023 2
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6. The other principles are that no case is like the other hence each case depends on its own facts; that awards ought not to be excessive; that comparable injuries should attract comparable awards and inflation or passage of time should be taken into account (see the case of Mohamed Mahamoud Jabane –v Highstone Butty Tongoi Olenja [1986] eKLR. 7. The accident in this case occurred on 13th July 2019, the P3 form, which I find contains a more accurate prognosis of the injuries since it was filled barely twenty minutes after the accident, states the injuries as follows: fi Swelling on the head, no cut wounds. fi Pain and tenderness on the left abdomen (left quodrum) no cut wound. fi Chest pains and tenderness no visible rib fractures. fi Bilateral knee joint pains, small lacerations. fi The degree of injury is classified as harm. 8. From the above prognosis it is evident that the injuries were not severe. In assessing the damages, the learned magistrate considered the injuries sustained. The cases cited by counsel for the appellant were in respect to injuries which are not comparable at all to those of the Appellant. In the case of Charles Wanyoike Githuka –vs- Joseph Mwangi Thuo and Thomas Kihara [2008] eKLR where Kshs. 1,600,000/= was awarded, the Plaintiff had sustained severe head injury, fracture mid-shaft fight femur and fracture of the right tibia. In the case of Easy Coach Ltd –vsHCCA NO. E059 OF 2023 3
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Emily Nyangasi [2017] eKLR where Kshs. 300,000/= was awarded, the plaintiff had abrasions on the scalp, blunt injuries to the chest among others. This was in contrast to the cases cited by counsel for the respondent where comparable awards had been awarded for injuries comparable to those of the appellant. In the case of HB (minor suing through mother K. next friend DKM) –vs- Jasper Nchinga Magari [2021] eKLR Kshs. 60,000/= was awarded for injuries to the head and neck thorax, abdomen and limbs. In the case of Kipkerer Ltd –vsPeterson Ondieki tai [2016] eKLR the plaintiff was awarded Kshs. 30,000/= for deep cut wound on the left leg, chest contusion and bruises on the left shoulder. 9. The learned magistrate took into account all the relevant factors including passage of time, comparable awards for similar or comparable injuries in assessing the general damages and I am not persuaded that there was an error as would warrant this court to disturb the award. 10. The upshot is that this appeal has no merit and it is dismissed with costs to the respondent. It is so ordered. Judgment dated, signed and delivered virtually through Microsoft Teams on this 25th Day of June, 2026. HCCA NO. E059 OF 2023 4
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E. N. MAINA JUDGE In the presence of: Ms. Chellangat for Mwihia for the Appellant No appearance for Tom Ojienda & Company for the Respondent. Court Assistant/Interpreter – Catherine HCCA NO. E059 OF 2023 5
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