Kinga & another v MAM (A Minor Suing Thro’ the Mother and Next Friend JAA) (Civil Appeal E268 of 2021) [2025] KEHC 12917 (KLR) (Civ) (18 September 2025) (Judgment)

Neutral citation: [2025] KEHC 12917 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E268 of 2021

DKN Magare, J

September 18, 2025

Between

Ephantus Ndwiga Kinga

1^st Appellant

Benson Mutuku Ndonye

2^nd Appellant

and

MAM (A Minor Suing Thro’ the Mother and Next Friend JAA)

Respondent

(Appeal arises from the Judgment and decree of subordinate court delivered by Hon. D.O. Mbeja (PM) on 7.5.2021 in Nairobi CMCC No. 7081 of 2018.)

Judgment

1.This appeal arises from the Judgment and decree of subordinate court delivered by Hon. D.O. Mbeja (PM) on 7.5.2021 in Nairobi CMCC No. 7081 of 2018.

2.The appeal is on quantum only. The Appellant lodged the Memorandum of Appeal dated 18.5.2021 raising 7 grounds of appeal. On the other hand, the Respondent filed a Cross Appeal dated 12.4.2024 raising 7 grounds of appeal. The grounds in the two appeals are winding, repetitive, circumlocutory and argumentative.

3.There must be restraint on the structure of pleadings in a manner to stick to the core matter in controversy. Repetition is acceptable as a tool of art to demonstrate emphasis but there is no utility in setting forth an imprecise and argumentative ground of appeal repeated more than twice. The Court of Appeal had this to say in regard to Rule 86[88] of the Court of Appeal Rules (which is pari mateira with Order 42 Rule 1) in the case of Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] eKLR: -“We are yet again confronted with an appeal founded on a memorandum of appeal that is drawn in total disregard of rule 86 of the Court of Appeal Rules. That rule demands that a memorandum of appeal must set forth concisely, without argument or narrative, the grounds upon which a judgment is impugned. What we have before us are some 18 grounds of appeal that lack focus and are repetitively tedious. It is certainly not edifying for counsel to present two dozen grounds of appeal, and end up arguing only two or three issues, on the myth that he has condensed the grounds of appeal. This Court has repeatedly stated that counsel must take time to draw the memoranda of appeal in strict compliance with the rules of the Court. (See Abdi Ali Dere v. Firoz Hussein Tundal & 2 Others [2013] eKLR) and Nasri Ibrahim v. IEBC & 2 Others [2018] eKLR. In the latter case, this Court lamented:“We must reiterate that counsel must strive to make drafting of grounds of appeal an art, not an exercise in verbosity, repetition, or empty rhetoric…A surfeit of prolixious grounds of appeal do not in anyway enhance the chances of success of an appeal. If they achieve anything, it is only to obfuscate the real issues in dispute, vex and irritate the opposite parties, waste valuable judicial time, and increase costs.” The 18 grounds of appeal presented by the appellant, Robinson Kiplagat Tuwei against the judgment of the Environment and Land Court at Eldoret (Odeny, J.) dated 19th September 2018 raise only two issues…”

4.Parties and counsel ought to apply the art of proper drafting of pleadings. The rationale for concise, precise and brief pleadings is for the certainty of legal issues and a safeguard to the precious judicial time. The appeal and the cross appeal raise only one ground, that is, whether the learned magistrate erred in awarding damages contrary to the principles on the award of damages.

Pleadings

5.In the amended plaint dated 6.10.2021, the Respondent claimed damages for an accident pleaded to have occurred on 13.11.2017 along Outering Road involving the 1^st Appellant’s motor vehicle registration No. KBE 318P driven by the 2^nd Appellant. The Respondent set forth particulars of negligence and injuries and pleaded special damages of Ksh. 24,450. The injuries were pleaded as follows:i.Swollen, painful, tender left ankle.ii.Fracture of the calcaneus boneiii.Dislocation of the distal phalangesiv.Surrounding tissue injuries like swelling, tenderness, pain and limping.

6.The Appellants filed their joint defence dated 19.11.2018 and issues were joined.

7.The lower court considered the matter and awarded reliefs as follows:a.Liability at 90:10 as agreedb.Special damages Ksh. 24,450/=c.General damages Ksh. 500,000/=

Evidence

8.By consent, the parties agreed on liability at 90:10 in favour of the Respondent. The respective treatment notes and medical reports were produced without calling the makers and parties filed submissions on the issue of quantum of damages.

Submissions

9.The Appellants filed submissions dated 24.3.2022 by which it was submitted that an award from Ksh. 100,000/= would have been adequate as regards the injuries herein which were soft tissue injuries. They relied on the case of Ndungu Dennis v Ann Wangari Ndirangu & Eddah Mwihaki [2018] KEHC 8799 (KLR), where it was submitted that in that case the lower court awarded lower leg and back soft tissue injuries at Ksh. 300,000/=, which the High Court reduced to Ksh. 100,000/=.

10.The Respondent filed submissions dated 28.6.2024 in respect of the appeal and the cross appeal. The Respondent submitted that an award of Ksh. 500,000/= was inordinately low without proposing what could be adequate in her view. The Respondent cited inter alia the cases of Mary Pamela Oyioma v Yess Holdings Limited (2011) eKLR, Daneva Heavy Trucks & Another v Chrispine Otieno (2022) eKLR and David Mutembei v Maurice Ochieng Odoyo (2019)e KLR. All the authorities relied on by the Respondent are however, dissimilar to the instant injuries. The injuries therein range from tibia and fibula fracture to compound tibia and fibula fractures with soft tissue injuries. They cannot be said to be similar injuries to this case that has no pleaded fracture of the tibia, fibula, or both. I dismiss these authorities and dismiss the cross appeal which has no basis.

Analysis

11.This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a subordinate court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. This court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong. In the case of Mbogo and Another vs. Shah [1968] EA 93 the court stated:“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”

12.This court is not bound necessarily to accept the findings of fact by the court below. The duty of the first appellate court was set out in the case of Selle and another Vs Associated Motor Board Company and Others [1968]EA 123, where the Judges in their usual gusto, held as follows;-“.. 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 re-subordinate and the Court of Appeal is not bound to follow the subordinate Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”

13.The court is to bear in mind that it had neither seen nor heard the witnesses. It is the subordinate court that has observed the demeanor and truthfulness of those witnesses. However, documents still speak for themselves. The observation of documents is the same as the lower court as parties cannot read into those documents matters extrinsic to them. In the case of Peters vs Sunday Post Limited [1958] EA 424, the court therein rendered itself as follows:-“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion…”

14.The appeal and cross appeal herein are on quantum only. For the Respondent, the medical reports were produced without calling the medical doctors who authored them. From the record, the initial P3 form dated 16.11.2017 indicated no penetrative injury but there was swelling and tenderness of the left foot. The x-ray of the left ankle was done on 13.11.2017 and subsequently on 27.11.2017 per the report from from the University of Nairobi Department of Imaging dated 23.2.2018. Both x-rays were done on the left ankle and found no fracture.

15.There is also Dr. G.K Mwaura’s report dated 13.11.2017 which found that the minor sustained soft tissue injuries with swollen, painful and tender left ankle. Finally adduced for the minor was the medical report dated 6.3.2018 by Dr. A.O. Wandugu. This report diagnosed a fracture of the calcaneus bone, dislocation of the distal phalanges and soft tissue injuries to the left ankle.

16.For the Appellant, they produced the medical report dated 18.4.2018 by Dr. Jeniffer Kahuthu, also without calling the maker. This report diagnosed no fracture or dislocation. The report found soft tissue injuries of the left foot.

17.I only place a rider that as the medical doctors who examined the minor were not called to testify on the contents of the respective reports, the probative value of the reports will not be given the full weight as when the doctors had been called to testify and be cross examined. The Court of Appeal, on its part in Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 held that:“… such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is proper and cogent basis for doing so.”

18.The evidence of a medical report as in this case must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. In Parvin Singh Dhalay vs. Republic [1997] eKLR; [1995-1998] 1 EA 29, it was held that:“It is now trite law that while the courts must give proper respect to the opinions of experts, such opinions are not, as it were, binding on the courts and the courts must accept them. Such evidence must be considered along with all other available evidence and if there is proper and cogent basis for rejecting the expert opinion, a court would be perfectly entitled to do so. We will repeat what this Court said in the case of Elizabeth Kamene Ndolo vs. George Matata Ndolo, Civil Appeal No. 128 of 1995.

19.The documents were admitted without calling the makers and the Respondent did not also testify in court since the matter proceeded by submissions, having agreed on liability. On the question of quantum of damages, the Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 set out the circumstances under which an appellate court can interfere with an award of damages in the following terms:“Assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”

20.The appellate court is only entitled to increase an award of damages by the lower court if it is so inordinately low that it represents an entirely erroneous estimate. In such circumstances, the party seeking an increase must demonstrate that, in arriving at that inordinately low figure, the trial Judge either proceeded on a wrong principle of law or misapprehended the evidence in some material respect.

21.The Court of Appeal in Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457, stated that 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, or unless it is shown that the judge proceeded on a wrong principle or misapprehended the evidence in some material respect. This was also pronounced succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd Vs Meru Express Servcie Vs. A.M Lubia & Another 1957 KLR 27 as follows: -“The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts 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 damages.

22.The foregoing statement had been ably elucidated by Sir Kenneth O’Connor P, in restating the Common Law Principles earlier enunciated in the case at the Privy Council, that is, Nance vs British Columbia Electric Co Ltd, in the decision of Henry Hilanga vs Manyoka 1961, 705, 713 at paragraph c, where the learned Judge ably pronounced himself as doth regarding disturbing quantum of damages :-“The principles which apply under this head are not in doubt. Whether the assessment of damages be by the Judge or Jury, the Appellate Court is not justified in substituting a figure of its own for that awarded simply because it would have awarded a different figure if it had tried the case at the first instance…”

23.It is thus settled that for the appellate court to interfere with the award, it is not enough to show that the award is high or had I handled the case in the subordinate court, I would have awarded a different figure. It has been held time and again by the Court of Appeal that the court of first instance assesses damages even if it finds that liability has not been established as correctly stated in Ngonze v Ng’ang’a (Civil Suit 82 of 2017) [2024] KEHC 11261 (KLR) (26 September 2024) (Judgment), where this court stated as doth:“

46.Assessment of damages is exercise in discretion. In the case of Butler –V- Butler (1984) KLR 225 the court held: -“The assessment of damages is more like an exercise of discretion by the trial judge and an appellate court should be slow to reverse the trial judge unless he has either acted on wrong principles or awarded so excessive or so little damages that no reasonable court would; or he has taken into consideration matters he ought not to have considered, and in the result arrived at a wrong decision."

24.There was no evidence that the Respondent suffered fracture of the calcaneus bone. The injuries proved were the injuries pleaded as follows:i.Swollen, painful, tender left ankleii.Fracture of the calcaneus boneiii.Dislocation of the distal phalangesiv.Surrounding tissue injuries like swelling, tenderness, pain and

limping.

25.However, the original medical documents from the P3 and the University of Nairobi show that the only injury suffered was a swollen, painful, tender left ankle. The second examination also confirmed these injuries. The subsequent reports show different injuries. There was no evidence that the subsequent injuries could thus be related to the original injury.

26.The question then is what is the correct award. In the case of Highlands Mineral Water Company v Purity Wambui Muriithi [2014] KEHC 3996 (KLR), which was subsequently affirmed in Purity Wambui Murithii v Highlands Mineral Water Co. Ltd [2015] KECA 981 (KLR), the court reduced an award of Ksh. 700,000/= to Ksh. 150,000/= for injuries to the left elbow, pubic region, lower back and right ankle. These were more serious injuries.

27.In the case of Lilian Anyango Otieno v Philip Mugoya Ogila [2022] KEHC 1006 (KLR), Fred A. Ochieng, as he then was, awarded Ksh. 150,000/= for only a minor soft tissue injury, but also suffered a concussion for a few minutes, coupled with a head injury.

28.In the case of Rege v LA (Minor suing through her father and next friend GAA) [2022] KEHC 16634 (KLR), Kiarie Waweru Kiarie, awarded a Ksh 80,000/= for bruises on the right hand, blunt trauma to the right hand, and chest contusion.

29.In the case of Eva Karemi & 5 others v Koskei Kieng & another [2020] KEHC 5940 (KLR), the 3rd appellant was awarded a sum of 60,000/= for injuries sustained; a 2cm cut on the forehead, cut wound on the right elbow and right limb (leg and ankle joint).

30.It must be remembered that it is also trite that in assessing compensatory damages, the law seeks at most to indemnify the victim for the loss suffered, but not to punish the tortfeasor for the injury he has caused. The court in Ramadhan Kamora Dhadho v John Kariuki & another Civil Appeal No. 27 of 2015 [2017] eKLR opined thus:“There is no amount of compensation which can restore or renew the physical frame of the victim arising out of injuries occasioned in an accident. Secondly, the assessment and award of damages should not be construed as punishment to the defendant who has been held liable for the claim. Thirdly, while exercising discretion, courts should endeavour to be moderate, underpinning the decision on the well-settled principles to avoid disparity in similar cases and facts.”

31.The principle on the award of damages is settled. In Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR the court set out the principles which guide the court in the assessment of damages in a personal injury case. The considerations include but not limited to; -1)An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained.2)The award should be commensurable with the injuries sustained.3)Previous awards in similar injuries sustained are mere guide but each case be treated on its own facts.4)Previous awards to be taken into account to maintain stability of awards but factors such as inflation should be taken into account.5)The awards should not be inordinately low or high.

32.Equally, it is common reasoning that astronomical awards may lead to increased insurance premiums thus hurting the insurance industry as well as the economy. See the case of H. West and Son Ltd v. Shepherd [1964] AC.326 (supra) where it was stated that:…but money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums which must be regarded as giving reasonable compensation.In the process there must be the endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional…..”

33.The difficulty with this matter is that the parties declined to testify. The court cannot, by fiat, hyperbole, or conjecture, resolve the differences in the reports presented. The only way is to rely on the original documents. Notably, there was no fracture indicated in any of the reports, nor was there evidence demonstrating the source of the alleged discrepancies. In the circumstances, it is clear that the Appellant suffered only soft tissue injuries—an award of Kshs. 120,000/= shall therefore suffice.

34.In the circumstances, I have no difficulty dismissing the cross appeal. Since it was, the issue of costs is governed by Section 27 of the Civil Procedure Act, which provides as follows:a.Subject to such conditions and limitations as may be prescribed, and to the provisions of any law for the time being in force, the costs of and incidental to all suits shall be in the discretion of the court or judge. The court or judge shall have full power to determine by whom and out of what property and to what extent such costs are to be paid, and to give all necessary directions for the purposes aforesaid; and the fact that the court or judge has no jurisdiction to try the suit shall be no bar to the exercise of those powers: Provided that the costs of any action, cause or other matter or issue shall follow the event unless the court or judge shall for good reason otherwise order.b.The court or judge may give interest on costs at any rate not exceeding fourteen per cent per annum, and such interest shall be added to the costs and shall be recoverable as such.

35.The Court of Appeal in the case of Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) had this to say:It is our finding that the position in law is that costs are at the discretion of the court seized up of the matter with the usual caveat being that such discretion should be exercised judiciously meaning without caprice or whim and on sound reasoning secondly that a court can only withhold costs either partially or wholly from a successful party for good cause to be shown.

36.The Supreme Court set forth guiding principles applicable in the exercise of that discretion in the case of J asbir Singh Rai & 3 others v. Tarlochan Singh Rai & 4 others, SC Petition No. 4 of 2012; [2014] eKLR, as follows: -“(18)It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice. The claims of the public interest will be a relevant factor, in the exercise of such discretion, as will also be the motivations and conduct of the parties, before, during, and subsequent to the actual process of litigation…. Although there is eminent good sense in the basic rule of costs– that costs follow the event – it is not an invariable rule and, indeed, the ultimate factor on award or non-award of costs is the judicial discretion. It follows, therefore, that costs do not, in law, constitute an unchanging consequence of legal proceedings – a position well illustrated by the considered opinions of this Court in other cases.

37.The parties were to blame for the failure to tender proper evidence. Each party should bear their own costs.

Determination

38.In the upshot, I make the following orders:a.The appeal is allowed – the award on general damages of Ksh. 500,000/= is set aside. In lieu of that, I enter judgment on general damages for pain, suffering and loss of amenities of Ksh. 120,000/=.b.The cross appeal is unmerited and is accordingly dismissed.c.Each party to bear its own costs in the Appeal and Cross Appeal.d.Stay of execution for 30 days.e.The file is closed.

DELIVERED, DATED AND SIGNED AT NYERI ON THIS 18^TH DAY OF SEPTEMBER, 2025. JUDGMENT DELIVERED THROUGH MICROSOFT TEAMS ONLINE PLATFORM.KIZITO MAGAREJUDGERepresented by: -Kimondo Gachoka & Co. Advocates for the AppellantsNyongesa Nafula & Co. Advocates for the RespondentCourt Assistant – Michael

1.	Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) Explained	330 citations
2.	Rai & 3 others v Rai & 4 others (Petition 4 of 2012) [2014] KESC 31 (KLR) (4 March 2014) (Ruling) Explained	225 citations
3.	Ndungu Dennis v Ann Wangari Ndirangu & Eddah Mwihaki (Civil Appeal 54 of 2016) [2018] KEHC 8799 (KLR) (1 February 2018) (Judgment) Explained	122 citations
4.	Sheikh Mushtaq Hassan v Nathan Mwangi Kamau Transporters & 5 others [1986] KECA 42 (KLR) Explained	78 citations
5.	Charles Oriwo Odeyo v Appollo Justus Andabwa & another [2017] KEHC 4447 (KLR) Explained	64 citations
6.	Robinson Kiplagat Tuwei v Felix Kipchoge Limo Langat [2020] KECA 224 (KLR) Explained	61 citations
7.	Catholic Diocese of Kisumu v Tete (Civil Appeal 284 of 2001) [2004] KECA 154 (KLR) (1 June 2004) (Judgment) Explained	60 citations
8.	Farah Awad Gullet v CMC Motors Group Limited [2018] KECA 158 (KLR) Explained	50 citations
9.	Kimatu Mbuvi t/a Kimatu Mbuvi & Bros v Augustine Munyao Kioko [2006] KECA 130 (KLR) Explained	44 citations
10.	Eva Karemi & 5 others v Koskei Kieng & another [2020] KEHC 5940 (KLR) Explained	39 citations

Date	Case	Court	Judges	Outcome	Appeal outcome
18 September 2025	Kinga & another v MAM (A Minor Suing Thro’ the Mother and Next Friend JAA) (Civil Appeal E268 of 2021) [2025] KEHC 12917 (KLR) (Civ) (18 September 2025) (Judgment) This judgment	High Court	DKN Magare
7 May 2021	↳ CMCC No. 7081 of 2018	Magistrate's Court	DO Mbeja		Allowed

Kinga & another v MAM (A Minor Suing Thro’ the Mother and Next Friend JAA) (Civil Appeal E268 of 2021) [2025] KEHC 12917 (KLR) (Civ) (18 September 2025) (Judgment)

Kinga & another v MAM (A Minor Suing Thro’ the Mother and Next Friend JAA) (Civil Appeal E268 of 2021) [2025] KEHC 12917 (KLR) (Civ) (18 September 2025) (Judgment)

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