Whether the award of Kshs. 800,000/- was inordinately low
14.The Court of Appeal in Catholic Diocese of Kisumu vs Sophia Achieng Tele Civil Appeal No. 284 of 2001  2 KLR 55 set out the circumstances under which an Appellate court can interfere with an award of damages in the following terms:-
15.Similarly in Sheikh Mustaq Hassan v Nathan Mwangi Kamau Transporters & 5 Others  KLR 457 that:-
16.According to the reports of Dr. Muleshe and Dr. Wambugu, the appellant suffered the following injuries:-a.Left humerous- fracture of the neck of the humerous;b.Left tibula- fracture of the distal left tibia;c.Left fibula- segmental fracture of the left fibula (not femur) right femur showed a segmented fracture of the right femur.
17.The trial magistrate awarded a sum of Kshs. 800,000/- for general damages for pain and suffering. The appellant submits that the said award is low and is not justifiable in comparison to the injuries he sustained. He urges the court to award a sum of Kshs. 2,200,000/- relying on the cases of Mary Wanja Gachomba vs Jostina Adhiambo (2021) eKLR; Michael Njagi Karimi vs Gideon Ndugu Nguribu (2013) eKLR and Peter Mulanda Wanje vs Capture Transport Limited & 2 Others (2022) eKLR. The respondents submit that the award given is reasonable and adequate and the authorities as cited by the appellant contain injuries which are more severe than the injuries he sustained.
18.Before the trial court, the appellant relied on the case of Mary Wanja Gachombah vs Jostina Adhiambo Ogana (2021) eKLR where the respondent sustained bruises on the scalp, chest contusion, fracture of the right humerous, deep cut wound on the left arm, cut wound on the right lower limb, fracture of the right tibia & right fibula. The appellate court upheld the award of the trial court of Kshs. 2,000,000/-. The appellant also relied on the case of Michael Njagi Karimi vs Gideon Ndungu Nguribu & Another (2013) eKLR where the plaintiff sustained bruises swelling and tenderness of the right arm and forearm and a displaced fracture of the right humerous, deformity and swelling of the right forearm and fractures of the right radius and ulna with displacement, injury to the right lower limb involving the right leg which was tender and swollen and deformed, fracture of the right tibular and fibular and swelling and deformity of the left thigh. The court awarded a sum of Kshs. 2,000,000/- as damages for pain and suffering.
19.On their part, the respondents relied on the case of Akamba Public Road Services vs Abdikadir Adan Galgalo  eKLR where the respondent sustained a fracture of the right tibia leg bone malleolus and right fibular bone and a blunt injury to the right ankle. Further, the respondent suffered a permanent partial disability at 3%. The High Court maintained the award of Kshs. 500,000/- as general damages. The respondents also relied on the case of Florence Njoki Mwangi vs Peter Chege Mbitiru  eKLR where the appellant sustained a fracture of the right mid shift femur, fracture of the left mid shaft femur, degloving wound on the right fibia fibula necessitating skin grafting, amputation of the right foot behind the ankle joint and multiple cuts on the forehead. The High Court on appeal maintained the award of Kshs. 700,000/-.
20.Looking at the decisions relied on by both parties in the trial court and applying the principle of assessment of damages that comparable injuries ought to attract comparable damages being aware that an award of general damages is an exercise of judicial discretion for which the appellate court ought to freely and lightly interfere with, it is my considered view that the award of 800,000/- given by the curt below is adequate compensation for the injuries suffered.
21.The respondents in the cases cited by the appellant sustained far more severe injuries than those suffered by the appellant herein. Furthermore, the respondent in the case of Michael Njagi Karimi vs Gideon Ndungu Nguribu (2013) eKLR underwent multiple major surgeries and was in need for future medical expenses which involved five other surgeries. Notably, the appeal that followed in the Court of Appeal, Gideon Ndungu Nguribu vs Michael Njagi Karimi  eKLR court upheld the award of Kshs. 2,000,000/- taking into account the nature and extent of the injuries, the extended hospitalization and the future medical needs of the respondent. The case of Peter Mulanda Wanje vs Capture Transport Limited & 2 Others  eKLR cited by the appellant also shows that the appellant suffered more severe injuries than those sustained the appellant. The appellant was in the ICU for 4 days, admitted in hospital for 21 days and underwent two surgeries. The cases cited by the respondents in my view are more comparable to the injuries sustained by the appellant herein.
22.I am of the view that the authorities relied on by the appellant had more severe injuries and that those relied on by the respondent were not far below the injuries suffered by the appellant. I have perused the medical report of Dr. Muleshe dated 2nd June 2020 which was prepared about two months after the accident. The appellant was discharged from hospital after two (2) weeks admission with a wheelchair to assist in mobility. The report of the doctor indicates that the appellant was required to go back for medical assessment of the degree of incapacity after he was fully healed. Upon perusal of the record, I did not come across a doctor’s report that assessed the permanent incapacity.
23.Dr. Wambugu examined the appellant on 14/08/2020 which was about (4) months after the accident and agreed with Dr. Muleshe on the injuries suffered. By then, the PoP cast on the leg had been removed about one (1) week earlier. The plaintiff still complained of inability to walk unaided and had pains on the left shoulder upon exertion. The doctor on examination confirmed these two complaints and said that the assessment of total incapacity would be done after complete healing in the next 6-8 months. The appellant did not produce any report on the degree permanent incapacity done after the recommended period.. At the age of 62, the appellant must have suffered permanent capacity upon healing of the fractures. It is only the degree that is not known. It was upon the appellant to prove he suffered permanent incapacity and the degree of such incapacity.
24.I have noticed that the respondent’s authorities relied on were comparable but were of the years 2014 and 2016 whilst the judgement was delivered in 2022. The factors of inflation for about 6-8 years was not taken into consideration during the assessment of damages. This was a factor that ought to have been considered.
25.In conclusion, I hereby set aside the award of the learned magistrate and award the appellant Kshs.1,000,000/- for pain and suffering. The award of special damages of Kshs.3,550/- remains undisturbed. The ration of 80:20 shall be accordingly applied.
26.The following sums shall abide in this appeal.Kshs.a.General damages 1,000,000Less 20% contribution 200,000800,000b.Special damages 3,550Total 803,550
27.This appeal is accordingly allowed.
28.The appellant is awarded the costs of this appeal.
29.It is hereby so ordered.