Jesca Kachenje Alucheli (Suing as the next friend and mother of Bravin Musoda) v Sellah Nandwa

defendant liable, vicariously or otherwise. That the claim was based on this particulars of particulars of negligence a) Failing to heed the traffic rules. b) Driving at a speed which was excessive in the circumstances. c) Driving a defective motor cycle. d) Failing to heed the presence of other road users in particular the plaintiff. e) Intentionally causing the accident. f) Failing to swerve, brake, slow down, stop or in any other way so to manage or control the motor cycle to avoid the accident. g) Failing to see the plaintiff in good time to avoid the collision or at all. h) Causing or permitting the motor cycle to be driven along the road when he knew or ought to have known that the brakes were in a defective and unsafe condition. i) Causing or permitting the motor cycle to be driven along the road when it was too loaded, as they knew or ought to have known. j) Causing or permitting the vehicle to skid on the road and/or failing to take any or any adequate measures to correct the skidding of the cycle. b. As a consequence, the plaintiff sustained very serious injuries, for which he holds the defendant wholly liable, vicariously or otherwise namely: a) Swelling on the right face with a racoon eye. b) Bruises on the right hand with swellings. c) Tender swollen mandible region hence difficulty in feeding. d) Comminuted fractures of the right zygomatic arch involving the lateral and medial walls of the right orbit. e) Comminuted fractures of the right maxillary sinus (anterior, lateral posterior and medial walls. f) Marked haemorrhage of the maxillary sinuses. g) Moderate haemorrhage of the ethmoidal sinuses. h) Mild haemorrhage of the frontal sinuses. Civil Appeal No. E061 of 2024 Page 2 of 11

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c. Particulars of special damages a) Medical report by Better Stream Clinic b) X-ray report by RIRTI Imaging clinic - Kshs. 8,000.00 Kshs. 2,000.00 c) Legal fees for drafting demand letter - Kshs. 5,000.00 Kshs15, 000.00 2. The suit was heard and determined at the trial Court and in her decision of 2nd October 2024, the Learned Trial Magistrate, Hon P. M. Karimi, Resident Magistrate, found the Respondent herein to have been fully liable for the injuries sustained by the Appellant. He entered Judgment in favour of the Appellant against the Respondent as follows: Liability 85:15 General Damages Kshs 400,000/= Special Damages Kshs 5,000/= Kshs 405,000/= Less 15% contribution Kshs 60,750/= Total Kshs 344,250/= Plus costs of the suit and interest at Court rates from the date of judgment for general damages and from date of filing for special damages until payment in full. 3. Being aggrieved by the said decision, on 2nd November 2024, the Appellant filed Memorandum of Appeal dated 31 st October 2024. He relied on four (4) grounds of appeal. a. That learned trial Magistrate erred in law and in fact by disregarding the Appellant’s submissions on the issue of quantum hence arriving at an unjust award. b. The learned trial Magistrate erred in law and in fact when she substantially deviated from the pleadings, evidence and submissions of the plaintiff in regard to quantum of damages generally thereby arriving at a grossly low and inordinate award. c. The learned trial Magistrate erred in law and in fact by failing to appreciate the principles informing the award on general damages relating to the nature of the injuries suffered by the plaintiff and their consequences as reflected in the Doctor’s medical report thereby awarding a grossly low figure which was not commensurate Civil Appeal No. E061 of 2024 Page 3 of 11

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with the gravity of the said injuries and thus occasioning a miscarriage of justice/ d. The learned trial Magistrate erred in law and in fact when she failed to consider comparable awards for similar injuries as in the instant suit thus arriving at a grossly low award. 4. The appeal was canvassed by way of written submission in which learned Counsel Mr. OKumu for the Appellant moved this appeals Court to reexamine and evaluate the issue of quantum which in his view was below the laid down principles in the past awards with similar kind of injury. In the foresaid submissions learned Counsel faulted the trial Court for placing reliance on the case of Ahmed v Abdi [2024] eKLR whose injuries were not in consonant with what the Appellant suffered during the accident which became the subject of litigation on damages. In the alternative learned Counsel submitted and urged the Court to exercise discretion to review the award on damages by way of enhancement within the already settled principles in the following cases; Benson Wanyoike v Nyambura & Another vs Esther Muthoni Gichimu [2025] eKLR, Simiyu Daniel vs Benson Muli Makau [2020] eKLR, BAJ vs Roadstar Ltd & 2 Others [2018] eKLR, Thuge Caroline & 2 Others vs Kimani Nganga Kago[2022] eKLR, Kenya Wildlife Services v Godfrey Kirimi Mwiti [2018] eKLR and Sosines Orindo v Emkay Buildres LTd [2019]eKLR. 5. It is against this background on the law, learned Counsel for the Appellant submitted on appeal that the injuries sustained by the Appellant cannot be compared to those in the case of Ahmed vs Abdi (supra) which authority was substantially relied upon by the trial Court to exercise discretion in making an award on quantum in favour of the victim of the accident. 6. This line of arguments and submissions was strongly opposed by the learned Counsel Mr. Akwala for the respondent. It was in his contention that no new evidence has been adduced that the Appellant suffered more serious injuries to influence the Court to enhance the award upward as submitted by the Appellant Counsel. Civil Appeal No. E061 of 2024 Page 4 of 11

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7. In determining this appeal, the above submissions would form the legal lens upon which the decision by this Court shall be considered and appropriate declaration be made to that effect. Legal analysis and determination 8. It is settled law that the duty of a first appellate Court is to evaluate afresh the evidence adduced before the trial Court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 9. This was aptly stated in the case of Selle & Another vs Associated Motor Boat Co. Ltd & Others [1968] EA 123 where the Court therein held that the appellate Court was not bound by the findings of fact of the trial Court but that in re-considering and re-evaluating the evidence so as to draw its own conclusions, it always had to bear in mind that it neither saw nor heard the witnesses and thus make due allowance in that respect. 10. Having looked at the grounds of Appeal and the Respondent’s Written Submissions, it appeared to this Court that the only issue that had been placed before it for determination was whether or not the quantum that was awarded was low in the circumstances warranting interference by this Court. 11. The Respondent submitted that the Appellant sustained soft tissue injuries to the head and right hand and fracture of the maxillary sinuses with resultant bleeding. She argued that the suspected fractures of the skull and mandible were ruled out upon X-ray as the Trial Court concluded that the alleged fractures of the head had not been proved. She added that Dr. Oketch Protas Were who re-examined the Appellant on 15th July 2024 concluded that he had healed with no resultant permanent incapacitation. 12. She contended that for the said moderate injuries, the Trial Court awarded a sum of Kshs 400,000/= on general damages for pain, suffering and loss of amenities which award she argued was adequate recompense to the Appellant. In this regard, she placed reliance on the Civil Appeal No. E061 of 2024 Page 5 of 11

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cases of Paul Kithinji Kirimi & Another vs Gatwiri Murithi Meru HCCA No 84 of 2017(eKLR citation not given) where the Court revised an award of Kshs 700,000/= to Kshs 450,000/= where the plaintiff suffered a fracture of the right femur and the mandible and BK (Minor suing through his mother and next friend EM) vs Wilson Gitari Mburugu Meru HCCA No 67 of 2019 (eKLR) citation not given) where on appeal, an award of damages of Kshs 400,000/= was upheld where the plaintiff suffered multiple injuries to the face, soft tissue injury to the thorax, abdomen and upper and lower limbs, severe injuries to the maxilla and mandible resulting in loss of five (5) teeth with a cut on the lip. 13. She asserted that the injuries sustained by the Claimants in the above cases were graver than those sustained by the Appellant herein, thus, the award by the Trial Court was generous and there was no reason to disturb the same. She urged the Court to dismiss the Appellant’s appeal. 14. It was well settled in law that an appellate Court would not disturb an award of general damages unless the same was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial Court had proceeded on the wrong principles or misapprehended the law, a principle that was dealt with in the case of Margaret T. Nyaga vs Victoria Wambua Kioko [ 2004] eKLR. 15. It must be understood that money can never really compensate a person who had sustained any injuries. No amount of money could remove the pain that a person went through no matter how small an injury appeared to be. It would in fact be difficult to say with certainty that a particular amount of money would be commensurate with the injuries that a person had sustained. It was merely an assessment of what a Court would find to be reasonable in the circumstances to assuage a person who had suffered an injury. 16. I am further guided by the following principles in the matter, for an appellate 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 failed to take into account a relevant fact or the sum awarded is inordinately low or too high that it must be Civil Appeal No. E061 of 2024 Page 6 of 11

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a wholly erroneous estimate of the damage, or it should be established that a wrong principle of law was applied (see Butt v Khan [1981] KLR 349). 17. It bears repeating that this appeal concerns the award of general damages. General damages are damages at large and the Court does the best it can in reaching an award that reflects the nature and gravity of the injuries. In assessing damages, the general method of approach should be that comparable injuries should as far as possible be compensated by comparable awards but it must be recalled that no two cases are exactly alike as the Court of Appeal observed in Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR that: Having so said, 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, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases. 18. In addition, the current value of the shilling and the economy have to be taken into account and although astronomical awards must be avoided, the Court must ensure that awards make sense and result in fair compensation (See Ugenya Bus Service v Gachoki NKU CA Civil Appeal No. 66 of 1981 [1982] eKLR and Jabane v Olenja [1986] KLR 661). 19. Also the Court of Appeal in the case of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenja (Deceased) v Kiarie Shoe Stores Limited [2015] eKLR similarly held: “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 entirely 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 Civil Appeal No. E061 of 2024 Page 7 of 11

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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 low or so inordinately high that it must be a wholly erroneous estimate of the damages.” 20. However, this assessment was not without limits. A Court had to ascertain to itself the sum of general damages that Courts and especially appellate Courts would ordinarily award in respect of a particular injury. A Court therefore had to be guided by precedents. 21. Indeed, in the case of Kigaraari vs Aya (1982-88) 1 KAR 768, it was stated that damages had to be within the limits set out by decided cases and also within the limits the Kenyan economy could afford. This was because high awards would lead to higher insurance premiums which would in turn affect the members of the public. 22. This Court also had due regard to the case of Lim vs Camden HA [1980] AC 174 where it was held that even in assessing compensatory damages, the law sought to indemnify the victim for the loss suffered and not to punish the tortfeasor for the injury that he had caused. 23. Similar injuries ought to attract comparable awards. However, in the quest for consistency, Courts also had to recognise that no case was exactly the same as the other. It must be noted that cases cannot contain exact injuries and they are merely for comparison purposes. Each case therefore had to be decided according to its own peculiar circumstances but keeping in mind that any monies awarded had to be sustainable. 24. Towards this end, an appellate Court ought not to interfere with the discretion of a trial Court merely because it could have awarded a lower or higher sum than that which was awarded by the trial Court. It could only interfere where the award of general damages was so manifestly high or inordinately excessive or manifestly or inordinately low that a trial Court had proceeded on the wrong principles or misapprehended as was held in the case of Margaret T. Nyaga vs Victoria Wambua Kioko (Supra). Civil Appeal No. E061 of 2024 Page 8 of 11

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25. In his Plaint dated 18th January 2024 and filed on 8th February 2024, the Appellant indicated that he suffered swelling on the right face with a racoon eye, bruises on the right hand with swellings, tender swollen mandible region hence difficulty in feeding, comminuted fractures of the right zygomatic arch involving the lateral and medial walls of the right orbit and the right maxillary sinus (anterior, lateral posterior and medial walls, marked haemorrhage of the maxillary sinuses, moderate haemorrhage of the ethmoidal sinuses and mild haemorrhage of the frontal sinuses. He produced treatment chits from Mungoma Hospital and Vihiga County Referral Hospital together with a P3 Form. 26. The doctrine of pain and suffering is to allow a Claimant to get money from the wrong doer the physical pain and mental sadness caused by an injury or injuries. It is settled law that civil Courts use it to restore the victim of an accident in a negligence claim to their original state of being. As stated elsewhere in this judgement in summation Court’s discretion underpinned in the following principles: fi Comparable Awards: Judges look at past Court cases to make sure similar injuries get similar money. fi Economic Limits: The award must be reasonable and fit what the Kenyan economy can handle. It should not bankrupt the person paying or cause insurance fees to rise too much for the public. fi Inflation: Courts will adjust older case amounts to match today’s money value. fi No Over-enrichment: The award pays for the loss. It does not make the claimant rich. 27. This is one of the most subjective area of law when it comes to assessment of damages applying the yardstick of comparable awards. Why do I say so? Pain is real and of course the suffering it causes is real and is individualized. The Kenyan civil legal system holds a wide spread desire as documented in our jurisprudence to provide a compensatory award of damages for pain and suffering even though the sum assessed and awarded would neither remove or mitigate the pain and suffering. Indeed, for decades now since we domesticated our legal system from common law Courts have tolerated such awards in Civil Appeal No. E061 of 2024 Page 9 of 11

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road traffic accident and those which occur in our factories and other manufacturing and industrial enterprises as a justified aberration to the standing theory of damages, which means to compensate and indemnify the Claimant with mandatory awards. 28. Therefore, in my considered view, in our jurisdiction various levels of Courts continue to award pain and suffering damages yet it is difficult for either Trial Courts or Judges of Appeal to quantify pain, suffering and loss of amenities. The overriding purpose of our law of damages is to compensate the injured, not to punish the injurer: his or her degree of fault is irrelevant to damages (except in cases involving contributory negligence). “Punitive” or “exemplary” damages, over and above compensatory, are allowed (if at all) only against Defendants guilty of contumelious disregard of Plaintiffs’ rights, as in cases of deliberate libel or wanton physical attack. 29. I have reviewed the various guidelines for pricing pain and suffering, I tend to argue and hold the view that all of this variables and determinants are logically and analytically problematic in achieving the set objectives of restoration of the victim of total negligence to his/her original being before the occurrence of the negligence act. The main source of discomfort for me is that pain and suffering damages seemed to be, first that they are unpredictable and second that because a nonnegligible amount of Court time is dictated to prove the pain and suffering and loss of amenities in personal injury cases. 30. For all these reasons, when I examine the structure judgment of the Trial Court and the brief summary in the foresaid decision, it is clear that the victim of the accident to this appeal suffered more serious injuries compared with what the Claimant suffered in the case of Ahmed and Abdi (supra). Essentially the near side of the principles are those cited by the learned Counsel for the Appellant which is also corroborated by the medical report from both sides although Lady Lucky was on the side of the victim of the accident of this appeal that there was no permanent incapacitation suffered as a post effect of the accident. I am therefore influenced by these factors to review the award of damages by trial Court and have it substituted with an award Civil Appeal No. E061 of 2024 Page 10 of 11

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of Kshs 700,000 for pain and suffering and loss of amenities to enhance the Claimant’s welfare when the pain and suffering was experienced. As a consequence, the appeal partially succeeds on the limb of general damages whereas all other awards remain uninterfered with to the extent of affirming the decision of the Court below. The costs of this appeal shall be shared equally by both parties. DATED AND DELIVERED THIS 22ND DAY OF JULY 2026. ………………………………………… R. NYAKUNDI JUDGE Civil Appeal No. E061 of 2024 Page 11 of 11

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