Agroline Hauliers Limited v Kennedy Asiko Makhotsa

therefore proceeded to trial on quantum only. The trial magistrate Hon. C. A. S. Mutai, (SRM) evaluated the medical evidence and assessed general damages at Page 2 of 8

page 2 of 14

Kshs. 6,800,000/=. After deducting the Respondent’s 30% contributory negligence, the net award was Kshs. 4,760,000/=. Special damages of Kshs. 3,200/= were also awarded. 3. Being aggrieved by the award, the Appellant appealed to the High Court at Bungoma vide Civil Appeal No. 33 of 2019. In the High Court, Hon. S. N. Riechi, J. re-evaluated the evidence and, in a judgment delivered on 19 th November 2019, dismissed the appeal, thereby upholding the trial Magistrate’s award of Kshs. 6,800,000/=. 4. Still dissatisfied, the Appellant preferred the current appeal. The Memorandum of Appeal raises eight grounds, which we crystalize into two principal limbs: a. That the Learned Judge erred in law by upholding an award of Kshs. 6,800,000/= which is manifestly excessive and inordinately high; b. That the Judge failed to consider and distinguish binding precedent, thereby failing to ensure that comparable injuries attracted comparable awards. 5. The appeal proceeded for hearing on 27 th April 2026. Learned counsel Mr. Louis Johnson appeared for the Appellant and highlighted his written submissions dated 8th July 2025 while learned counsel Mr. Lazarus Nabibia held brief for Ms. Chunge for the Respondent and relied on the Respondent’s written Page 3 of 8

page 3 of 14

submissions dated 9th December 2022, without making further highlights. 6. This being a second appeal, our jurisdiction is strictly limited to matters of law, as was held in Jaswant Singh Kahlon vs. The Commissioner of Prisons & Another [2022] KECA 84 (KLR). This Court will not interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence or there is a clear misapprehension of facts. However, the assessment of damages remains an exercise of judicial discretion. An appellate court is entitled to interfere with that discretion if it is shown that the court below acted on wrong principles of law, or misapprehended the facts in some material respect, resulting in an award that is inordinately high or low (See Butt vs Khan [1981] KLR 349). 7. According to the medical reports by Dr. Alushula and Dr. D.W. Oketch, which were produced by consent before the trial court, the Respondent sustained a fracture of the neck, bruises on the left upper limb, a fracture of the left hip, a fracture of the left thigh bone (femur), an injury to the left knee, a fracture of the left leg, a fracture dislocation of the left ankle joint, and the loss of upper incisor teeth. 8. Dr. Oketch’s report further indicated that at the time of examination, the Respondent walked using two armpit Page 4 of 8

page 4 of 14

crutches; he had a persistent wound on the left thigh Page 5 of 8 chronic discharging

page 5 of 14

requiring daily cleaning and dressing; and he suffered from a deformed and significantly shortened left lower limb. The doctor concluded that the multiple fractures healed with joint fusion and limb shortening, permanently rendering the limb functionless, with a resultant permanent incapacitation estimated at 50%. Taken cumulatively, the neck fracture, the shattered lower limb, the 6-inch shortening, and the chronic wound resulting in 50% disability, which are undoubtedly crippling injuries. From the foregoing, the Respondent sustained multiple and severe injuries. 9. However, the core issue before us is not whether the Respondent’s injuries were severe; it is undisputed that they were. Rather, the grievance is about the legal principles that must guide the assessment of damages. The law is settled that an award of general damages, though an exercise of judicial discretion, is not an arbitrary exercise or a matter of sheer chance. In the seminal case of Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v Lubia & Another (No. 2) [1987] KLR 30, this Court held that the general method of approach in assessing damages is that comparable injuries should, as far as possible, attract comparable awards, to avoid inconsistent and arbitrary figures. The overarching purpose of such an award is restitutio in integrum, meaning restoration to the original Page 6 of 8

page 6 of 14

condition; the award should be fair and reasonable compensation, not a windfall. Page 7 of 8

page 7 of 14

10. Furthermore, as was held in Butt v Khan [1981] KLR 349, an appellate court is duty bound to interfere with a discretionary award if it is satisfied that the court below acted upon a wrong principle of law, or if the amount awarded is so inordinately high or low as to represent an entirely erroneous estimate of the damages. Against this legal matrix of comparable awards, the Appellant placed heavy reliance on the case of Gabriel Mwashuma Sajjad & Another (2015) eKLR, in which a plaintiff who had also sustained severe fractures of the lower limbs was awarded Kshs 3,000,000/= in general damages. 11. It was the Appellant’s submission that the leap from Kshs. 3 Million to Kshs. 6.8 million was unjustified and offended the doctrine of precedent. In Sajjad, the plaintiff suffered a fracture of the left femur, a compound fracture of the left patella and femoral condyle, a comminuted fracture of the tibia and fibula, a fracture of the right fibula, and soft tissue injuries. The permanent disability assessed in that case was 30%, and there was no evidence of limb shortening. In contrast, while the Respondent herein did not suffer compound suffered 50% a or comminuted permanent disability, fractures, a he significant escalation coupled with a 6-inch shortening of the limb, a chronic discharging wound, and permanent reliance on crutches. Page 8 of 8

page 8 of 14

12. The duty of the High Court, being the first appellate court, was to re-evaluate submissions, including the Page 9 of 8 the evidence and the

page 9 of 14

comparative authorities. Hon. Riechi J. correctly set out the legal principles from Butt v Khan (supra) and correctly recited the injuries from Dr. Oketch’s report. However, the learned Judge failed to address, analyze, or distinguish the Sajjad precedent that was centrally placed before him. The Judge simply concluded, without comparative analysis, that the award of Kshs. 6.8 million was "sufficient” to compensate the respondent. 13. In our view, this was a misdirection in law. Where a trial court or a first appellate court is presented with binding or persuasive precedents on comparable injuries, it is duty-bound to consider them and explain why it is departing from them. A failure to do so amounts to acting on a wrong principle of law, which this Court is entitled to correct on a second appeal. 14. In comparing the Sajjad case decided in the year 2015 with the present matter decided in the year 2019, we acknowledge that a 4- year gap justifies an upward adjustment to cater for inflation and the fluctuating value of currency. We also acknowledge that the Respondent's 50% disability and limb shortening are aggravating factors not present in the Sajjad case(supra). Therefore, the Appellant’s invitation to us to reduce the award to Kshs. 3,000,000/= would be an injustice to the Respondent. 15. However, an upward adjustment from Kshs. 3 Million to Page 10 of 8

page 10 of 14

Kshs. 6.8 million over a four-year period for injuries that are comparable but not markedly more severe leans towards excessiveness. The Page 11 of 8

page 11 of 14

trial Magistrate appeared to anchor his figure too closely to the Respondent's counsel's submission of Kshs. 9 million, rather than on proven comparative precedents. The High Court, in turn, failed to correct this misdirection. 16. Taking into account the 4-year time difference, the escalation of disability from 30% to 50%, the absence of compound fractures in the present case, and the overriding need to maintain consistency and predictability in damage awards, we find ourselves in agreement with the Appellant that the award of Kshs. 6,800,000/= is on the higher side and requires interference. In our view, a global award of Kshs. 5,000,000/= (Five Million Shillings) for general damages would be fair, just, and comparable to the prevailing circumstances at the time of the trial court’s judgment in 2019. 17. Accordingly, we allow the appeal partly. We set aside the award of Kshs. 6,800,000/= as general damages and substitute it with an award of Kshs. 5,000,000/= (Five Million Shillings). The final award is accordingly as follows: General Damages: Kshs. 5,000,000/= Less 30% Contributory Negligence: Kshs. (1,500,000/=) Net General Damages: Kshs. Page 12 of 8

page 12 of 14

3,500,000/= Special Damages: Kshs. 3,200/= Less 30% Contributory Negligence: Kshs. (960/=) Page 13 of 8

page 13 of 14

Net Special Damages: Kshs. 2,240/= 18. The total sum payable by the Appellant to the Respondent is Kshs. 3,502,240/= (Three Million, Five Hundred and Two Thousand, Two Hundred and Forty Shillings). As the appeal has partly succeeded, we order that each party shall bear their own costs of the appeal. Dated and delivered at Kakamega this 3 rd day of July 2026. P. NYAMWEYA .................................. ....... JUDGE OF APPEAL R. NGETICH .................................. ....... JUDGE OF APPEAL RADIDO S. OKIYO .................................. ........ JUDGE OF APPEAL I certify that this is a true copy of the original Signed DEPUTY REGISSTRAR Page 14 of 8

page 14 of 14