Maweu v Medina Bus Service Ltd & 2 others [2026] KEHC 15874 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT MACHAKOS

CIVIL APPEAL NO. E175 OF 2024

STEPHEN MULANDI MAWEU ............................................... APPELLANT

VERSUS

MEDINA BUS SERVICE LIMITED ................................. 1ST RESPONDENT

SMAIL MUSDAF ALI .................................................... 2ND RESPONDENT

DAKAYA BAKAJA ........................................................3RD RESPONDENT

(Being an Appeal from the judgment of the learned magistrate, Hon. Mr. B. S. Khapoya (SPM), delivered at Kithimani Law Courts on 26th June, 2024 in Kithimani PMCC No. 56 of 2020)

JUDGEMENT

1. The Appellant, Stephen Mulandi Maweu through his Plaint dated 15th May 2020 instituted this case jointly and severally against the Respondents- Medina Bus Services, Ismail Musdaf Ali and Dakaya Bakaja seeking the following Orders:

a. Special damages for the sum of Kshs.6,750/=

b. General damages for pain, suffering and loss of amenities.

c. Costs of this suit.

d. Interest on (a), (b) and (c) at court rate.

2. The Respondents neither entered appearance nor filed defence thus the case proceeded by way of formal proof.

3. The Appellant's case is that on or about 2nd December 2019 at around 4.30am, he was lawfully travelling as a fare paying passenger in motor vehicle registration number KСР 099А along Matuu - Thika road at Sofia area when the 3rd Respondent so carelessly and negligently drove, managed and/or controlled motor vehicle registration number KCP 099A that he caused and/or permitted the same to lose control, veer off the road, violently overturn and roll several times in consequence whereof the Appellant sustained severe personal injuries and has suffered loss and damage. The Appellant asserted that at all material times, the 1st Respondent was the beneficial owner, user, possessor, controller and hence the insured while the 2nd Respondent was the registered owner of motor vehicle registration number KCP 099A which was being driven by the 3rd Respondent as the 1st and/or 2nd Respondent's employee, servant, agent and/or authorized driver in the course of the said employment.

4. As per the medical report of Dr. Muli Simeon Kioko, the Appellant sustained the following injuries

a. Generalized and diffuse scalp skin tenderness.

b. Severe tenderness over the forehead.

c. Severe tenderness involving the back; at posterior body trunk.

d. Severe tenderness over the left wrist giving rise to left wrist joint movement limitation.

5. The Appellant’s present complaints at the time of examination were:-

a. Back ache.

b. Pain over the left wrist.

6. The Particulars of Special Damages were:-

a. Medical Report Kshs.5,000/=

b. Treatment expenses Kshs.1,200/=

c. Copy of records Kshs.550/=

Total Ksh.6,750/= -

7. The Appellant testified and adopted his witness statement dated 6th May 2020 in his evidence in chief and produced as exhibits copies of documents contained in his list of documents dated 13th May 2020. He adopted the prayers contained in his plaint.

8. The Appellant filed submissions dated 22nd April 2024. He gave a history of this matter, highlighted his case and identified the following as the issues for determination:

a. Ownership of motor vehicle registration number KCP 099A;

b. Whether, an accident happened as pleaded in paragraph 4 of the plaint;

c. Who is to blame for the said accident;

d. What is the quantum that would adequately compensate the plaintiff.

9. On ownership of motor vehicle registration number KCP 099A, the Appellant submitted that by a copy of records PExh.12, the 2nd Respondent is the owner of the suit motor vehicle.

10. The Appellant asserted that the Respondents failed to adduce any evidence to prove the contrary as was held in Ezekiel Ajwala Otin & Another v C.M. Motors Ltd (2012) eKLR a mere denial or approval in a pleading does not constitute evidence. The testimony and evidence of the Appellant was uncontroverted. The Police abstract and duplicate certificate of insurance PExh.9 and 11 showed the 1st Respondent as the beneficial owner of the suit motor vehicle. He submitted that the Respondents did not lead any evidence to controvert his testimony. The Appellant referred the trial court to the decided case of Unleek Electrical Co. Ltd v Joseph Fanuel Alela Nairobi HCCC Appeal No. 676 of 2002.

11. On whether, an accident occurred as alleged. The Appellant submitted that as per the police abstract PExh.9, it is clear the accident occurred on 2nd December 2019.

12. On who was to blame for the accident, the Appellant reiterated his testimony and the factual contents of his Plaint asserting that the evidence he tendered had not been controverted in any way. The Appellant submitted that he could not be blamed for the accident because he was a lawful passenger aboard the subject motor vehicle. Reference was made to the decision in the case of Boniface Waiti & Another v Michael Kariuki Kamau (2007) eKLR in which it was held that it is trite law that a passenger has no control over the manner of driving of a vehicle in which they are conveyed and they cannot be penalized for the poor workmanship of the control of the vehicle. The Appellant went on to submit that the 2nd Respondent's employee did nothing to avoid the accident and referred the court to the case of Agnes Akinyi Okeyo v Marie Stopes Kenya (2004) eKLR where the driver was held 100% liable. The Appellant was categorical that the Respondents did not adduce any evidence to prove particulars of negligence and failing to discharge the evidential burden by failing to testify thus the Respondent was liable for the accident and reference was made to the decided case of John Wainaina Kagwe v Hussein Dairy Ltd (2013) eKLR.

13. On Quantum, the Appellant submitted that an award of Kshs.300,000/= was sufficient in general damages for pain, suffering and loss of amenities and relied on the cases below:

• Catherine Wanjiru King'ori v Gibson Theuri Gichubi (2005) eKLR - in which the plaintiff was awarded Kshs.350,000/= for multiple soft tissue injuries, injury on the left elbow joint and injuries on both ankles.

• HCCC Meru Lucy Ntibuka v Benard Mutwiri (1983) eKLR - in which the court awarded Kshs.500,000/= as general damages for pain suffering and loss of amenities on 8th February 2007 for injuries classified as soft tissues; head injuries, lacerations on the lateral side of the right eye, lacerations and cut wound on the left arm(elbow).

14. Upon considering the factual basis, evidence tendered relating to occurrence of the accident, the fact that the Appellant was a lawful fare paying passenger and that the Appellant’s suit was unchallenged, the trial court apportioned liability at 100% in favour of the Appellant as against the Respondents jointly and severally.

15. On quantum, the trial court made the following awards: -

a) General Damages -Kshs.70,000/=

b) Special Damages - Kshs. 6,550/=

Total Kshs.76,550/=

16. Judgment was entered in favour of the Appellant against the Respondents in the sum of Kshs.76,650/= plus costs of the suit.

17. Special damages would attract interest at court rates from the date of filing suit till payment in full while general damages would attract interest from the date of this judgment till payment in full.

18. Being aggrieved with the above trial court’s judgement, the Appellant lodged a Memorandum of Appeal dated 26th June 2024 which basically challenges the award of general damages which the Appellant considers to be manifestly low. The Memorandum of Appeal raises three grounds of appeal as follows:-

1. That the learned magistrate erred in law and in fact in awarding general damages for pain and suffering of Kshs.70, 000/= which is manifestly and inordinately low bearing in mind the injuries sustained by the Appellant and the effect of the injuries;

2. That the learned magistrate misdirected himself in law and in fact by failing to appreciate the uncontroverted evidence by the appellant adduced during trial on 17.04.2024 in terms of quantum;

3. The learned magistrate erred in law and in fact by failing to be guided by the general principle in assessing damages which is that similar injuries should attract similar award and also taking into consideration the peculiar nature of the injuries in each case, effect of inflation in the value of money and the sequel of the injuries.

19. It is proposed to ask this Court for Orders that: -

(a) The appeal be allowed;

(b) The amount of general damages awarded for pain, suffering and loss of amenities by the learned magistrate in Kithimani, PMCC No.56 of 2020 be substituted with such a higher sum as this Honourable Court will deem fair and just in the circumstances.

(c) The costs of this appeal and of Kithimani, PMCC No.56 of 2020 be borne by the Respondents.

20. Directions were given for the Appeal to be canvassed through written submissions. Only the Appellant complied. There are no submissions filed by the Respondents despite service of mention notices as evidenced by the affidavits of service filed by the Appellant.

Appellant’s Submissions

21. The Appellant submitted that the Appeal should be allowed as prayed on the grounds espoused in his submissions and additionally on the strength of the arguable and meritorious grounds of appeal set out in the Memorandum of Appeal.

22. It is submitted that the trial court indeed erred in pronouncing its judgment in the manner that it did without having any regard or consideration for the submissions presented by the Appellant; the conventional awards for general damages in cases of similar injuries; the passage of time; rate of inflation; nor to the evidence placed before the court. That the learned trial magistrate erred in law and in fact at its findings on quantum for failing to appreciate the evidence put forward by the Appellant in reaching its conclusion. The Appellant wished to rely on her submissions filed in the lower court dated 22nd April, 2024 and prayed that the same be adopted herein.

23. In the instant case, the Appellant submits that the trial court ignored the evidence put forward by the Appellant as regards the nature of the injuries sustained by the Appellant.

24. The Appellant urged this Honourable Court to re-consider the Appellant's evidence and address itself to his pleadings and submissions on quantum in the trial court.

Analysis and Determination

25. This being a first appeal, I am reminded of the primary role as a first appellate court namely, to re-evaluate the evidence before the trial court as well as the judgment and arrive at its own independent judgment on whether or not to allow the appeal. A first appellate court is empowered to subject the whole of the evidence to a fresh and exhaustive scrutiny and make conclusions about it, bearing in mind that it did not have the opportunity of seeing and hearing the witnesses first hand. This duty was stated in Selle & Another v Associated Motor Boat Co. Ltd.& others and in Peters v Sunday Post Limited (1968) E.A 123. (1958) E.A Page 424.

26. I have carefully considered the trial court’s record, the memorandum of appeal and the Appellant’s advocates written submissions on the appeal. The Appellant seems to be challenging only the award for general damages for pain, suffering and loss of amenities which they assert to be manifestly low. This court will therefore consider whether the said general damages of Kshs.70,000/= should be disturbed and increased as sought by the Appellant.

27. For an Appellant 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 the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that the wrong principle of law was applied.

28. The principles guiding appellate interference with awards of damages are well settled. An appellate court will only interfere where the trial court applied the wrong principles, misapprehended the evidence, or where the award is so inordinately high or low as to represent an entirely erroneous estimate. The general principle, as stated in Kemro Africa Ltd & Another v Lubia & Another (1982–88) KLR, is that comparable injuries should attract comparable awards, keeping in mind inflationary trends and the circumstances of each case.

29. In the case of Maraga V Musila (1984) 1 KLR 251, where the Court of Appeal when addressing its mind to this issue expressed itself thus;

“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court on the question of the amount of damages unless it is satisfied that the judge acted on a wrong principle of law or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered.  The question is not what the appellate court would award but whether the lower judge acted on the wrong principles”.

30. The approach taken by courts in assessment of damages is that comparable injuries should as far as possible be compensated by comparable awards although the court should bear in mind that no two cases are exactly the same. The court will also consider factors such as the state of the economy and the rate of inflation in its assessment of damages. (See Stanley Maore v Geoffrey Mwenda [2004] eKLR and Ugenya Bus Service v Gachoki [1982] eKLR).

31. In the circumstances, it is my considered finding that the trial magistrate failed to state which case authority of comparable injuries amongst those cited by the Appellant he did rely upon to make the award of Kshs.70,000/= for general damages.

32. Having given due consideration to the injuries sustained by the Appellant which were as follows; generalized and diffuse scalp skin tenderness, severe tenderness over the forehead, severe tenderness involving the back; at posterior body trunk and severe tenderness over the left wrist giving rise to left wrist joint movement limitation, I am guided by the case of Soi & 2 Others v Katile (Civil Appeal E185 of 2024) [2026] KEHC 8699 (KLR) (19 June 2026) (Judgment), the appellate court set aside Kshs.800,000/= awarded by the trial court and substituted it with Kshs.500,000/= where the Plaintiff sustained head injuries, upper limps injuries and lower limps injuries

33. The above cited case has injuries that are more comparable to those sustained by the Appellant herein. In addition, in the said appeal case, judgement was delivered on 19th June 2026 whereas in the instant case judgement was delivered on 26th June 2024 which is two years back.

34. The said case are a perfect comparison and proper guide to the case at hand.

35. Hence, from the foregoing comparison, this court finds that the trial court’s award of Kshs.70,000/= as general damages for pain suffering and loss of amenities to be manifestly low. The same can be said to be manifestly low as to amount to a wrong assessment. In the premises, I am persuaded that there is justification in interfering with the said award of damages.

36. The trial court’s award is hereby set aside and in place thereof the
Appellant is awarded Kshs.300,000/= for pain and suffering and loss of amenities but the special damages of kshs.6,550/= shall remain as awarded by the trial court.

37. Accordingly, the court makes the following orders:

a) Liability at 100% in favour of the Appellant against the Respondents is upheld.

b) General damages ................Kshs.300,000/=

c) Special damages .................Kshs. 6,550/=

TOTAL AWARD ...................Kshs.306,550/=

38. In the end, the appeal is successful and is allowed with costs plus interest at court rates to the Appellant both for the lower court and this appeal.

39. It is so ordered. This file is closed.

JUDGEMENT DATED & SIGNED AT MACHAKOS THIS 7TH OCTOBER 2026

NOEL. I. ADAGI

JUDGE