https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8776

Omboga v Maroko & another (Civil Appeal E122 of 2025) [2026] KEHC 8776 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8776 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E122 of 2025 AM Okutoyi, J June 18, 2026 Between Amos Omboga Appellant and Rosic Maroko 1st Respondent Maroko Gibson Nyameino 2nd Respondent (Being an appeal against the Judgement of Hon. P.C. BIWOTT, (CM) delivered on 01.08.2025 in Ogembo in CMCC No. E217 of 2023) Judgment Background of the appeal 1.This appeal emanates from a suit filed in the Chief Magistrate’s court regarding a road accident that occurred on 7th July 2023 involving a motor vehicle registration number KDG 067 Q driven and owned by the respondents. The appellant alleges that he was knocked down by the motor vehicle thereby sustaining serious body injuries. 2.At the trial court, the appellant relied on two witnesses; PW1 PC Joseph Gichiku whose evidence in CMCC No. 216 of 2023 was by consent adopted in this case and the production the occurrence book as well; and PW2 the appellant who adopted his statement as evidence in chief. 3.The respondents on their part adopted a 2nd medical report as evidence and closed their case. 4.The Magistrate at the trial court delivered a judgement on 1st of August 2025 attributing 100% liability as against the respondent on the ground that they did not adduce any evidence to rebut the plaintiff’s. On the quantum, the Magistrate awarded Kshs. 1,800,000/= for general damages, Kshs. 7,050/= for special damages, and costs and interest of the suit. 5.Aggrieved with the decision of the trial Magistrate, the appellant filed this instant appeal on the following summarized grounds; That the learned trial Magistrate erred in law and fact in awarding Kshs. 1,800,000/= which was manifestly low, failure to award damages for diminished earning capacity and future medical expenses and that there was no proper analysis of the appellant’s pleadings and submissions before coming to an award on quantum. 6.The appellant with the reasons whereof prayed that the quantum award by the trial court be set aside, and the honorable court asses the quantum of damages afresh as well as determination on future medical expenses. Appellant’s Submissions 7.The appellant supported the appeal with written submissions dated 1st of November 2025 highlighting the err in law and fact in arriving at quantum. The appellant relied on the authorities cited at the trial court to oppose the award as inordinately low. The appellant further averred that the trial court focused on general damages and ignored the other prayers of damages for diminished earning capacity and future medical expenses. Respondents’ submissions 8.The respondents on their side opposed the appeal and in their written submissions dated 5th of March 2026 highlighted that not all pleaded injuries were captured by the P3 form and initial treatment notes and that the 2nd medical report pierces the 1st medical report for its lack of tenets like nature of injuries, diagnosis and site of injuries. 9.The respondents asked this court to rely on injuries listed in the P3 form instead. Citing various authorities, the respondents proposed an award of Kshs 800,000/=. On diminished earning capacity the respondents recommended Kshs 400,000/= and on future medical expenses proposed Kshs.500,000/=. 10.The respondents concluded that the appeal be dismissed for lack of merit and this court should not interfere with trial court’s award. Analysis and Determination 11.The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I). 12.Similarly, in Peter v Sunday Post Ltd (1958) EA 424. The court stated that;“Whilst an appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand, this jurisdiction is exercised with caution.” 13.The principles governing interference with an award of damages are well settled. An appellate court will only interfere where the trial court acted on wrong principles, misapprehended the evidence, took into account irrelevant factors, failed to take into account relevant factors or where the award is so inordinately high or low so as to represent an entirety erroneous estimate. 14.I have independently re-valuated and analyzed the appeal and trial record in its entirety. From the record, there is no contention that an accident did occur on 7th July 2023 involving a motor vehicle registration number KDG 067 Q belonging to the respondent. The attribution of 100 % liability as against the respondents has also not been raised in this appeal. The main issue therefore that the appeal has focused on is on quantum awards. 15.From the plaint and trial record, the appellant indicates to have sustained the following injuries: Traumatic amputation of the left leg, mangled left leg extremity with crushed compound tibia and fibula bones, crushing injury on the left foot with exposed bones, left leg ischemia, physical and psychological pains, blunt trauma to the back, blood loss, multiple bruises on the right upper limb, chest contusion, bruises on the left lower limb, and multiple bruises on the left upper limb. 16.The appellant’s medical report by Dr. Peter Momanyi, upon examination on 25th July 2023, corroborated the above injuries and in conclusion stated that the injuries have left the appellant with long term effects including inability to carry out his living as a business man and breadwinner as before the accident, that he requires physiotherapy and occupational therapy, disfigurement has left him with ugly scars, loss of libido and inability to have his conjugal rights and that he requires an artificial limb after every 2-4 years in his entire life. He quantifies permanent disability at 50%. 17.The respondents on their side submitted that not all the injuries were included in the initial treatment and P3 form. The respondents further adduced a second medical report by Dr. Jaren Oeba dated 5th April 2025 where he indicated the inefficiency of the initial medical report as lacking important details such as the nature of injuries, diagnosis and site of injury. 18.The Doctor also raised the challenge of communication noting that the appellant had speech disability hence was not able to diagnose and to this recommended the plaintiff be examined with the help of a certified sign language interpreter. 19.In the court’s analysis of the trial record, the respondents do not give sufficient evidence to rebut that which was stated by the plaintiff as pertains to the injuries sustained. There was no further re-examination nor any doctor called to testify as against the injuries pleaded by the appellant. 20.This court then finds that on a balance of probability, the injuries sustained have been proved and that he suffered serious body injuries including the amputation, crushed bones and multiple soft tissue injuries. Fair and comparable quantum 21.Having established the injuries sustained, what then is the suitable award of quantum. The principles guiding this court in relooking into the quantum of general damages awarded were set out in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini v A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730 as follows:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it 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 damage” 22.The appellant also raised, as one of the grounds in the appeal, that not all prayers for damages pleaded were assessed and awarded by the trial magistrate. This court agrees with this and will therefore assess all the categories that were pleaded and proved using comparative awards. General Damages for pain and suffering 23.The appellant cited the following authorities for supporting a proposed award of Kshs. 3,000,000/= Synohydro Tianjin Engineering C. Limited v. Michael Onyango Asowa (2021) where an award of Kshs. 2,800,000/= was given for amputation of above the knee and an assessment of 75% for disability. 24.The respondents on their end cited several old authorities that are not very helpful for the purposes of comparative awards. 25.This court further analysed other comparative awards to guide in coming to a just and fair award. In the case of Muthee v Njagi (2025) KEHC 11669 (KLR) the courts reduced a trial court award of Kshs 3,000,000 to Kshs. 2,500,000/= for a traumatic amputation on the lower right limb. In the case of Crown Bus Services Ltd. & 2 others v. B.M. (Minor suing through his mother and next friend) (2020) the courts awarded Kshs. 2,500,000/= for an amputation of the right leg at the knee. 26.Having reviewed comparable awards, and taking into consideration the principle that comparable injuries should as far as possible attract comparable awards. I am persuaded that an award of Kshs. 1,800,000/= fell on the lower side and represented an erroneous estimate of the damage suffered by the appellant. 27.The court is further mindful on the need for moderation and consistency in awards as stated by the Court of Appeal in Ugenya Bus Service v. Gachoki (1976) that awards should be kept within limits that the Kenyan economy can reasonably sustain while ensuring fair compensation to the injured litigants. 28.This court therefore awards Kshs, 2,500,000/= as general damages in consideration of the injuries and disability sustained and as guided by comparable awards. Diminished earning capacity 29.The appellant supported by the 1st medical report claimed that his capacity to earn had diminished by 50% as a result of the assessment of the permanent disability. Relying on the principle established in the case of Butler v Butler (1984) KLR where the courts observed that”“A plaintiff loss of earning capacity occurs where as a result of his injury, his chances in the future of any work in the labour market or work, as well as paid as before the accident, are lessened by his injury” 30.The appellant cited the authority of Synohydro Tianjin Engineering Co. Limited v. Michael Onyango Asowa (2021) the courts adopted the multiplicand of Kshs. 10,954 as the minimum which was the minimum wage for a general labourer aged 29 years to award a total of Kshs. 2,267,622.90/=. 31.The appellant therefore proposed a minimum wage of a general labourer at Kshs, 8,190.90/= and noting the age of 40 used the multiplier of 20 years and incapacity of 50 as follows ( (Kshs. 8,190.90201250%) which brings the total to Kshs. 973,188/=. 32.The respondents on their end called on the court to be guided by the case of S.J. v. Francesco Di Nello & Another (2015) and Beatrice Anyango Okoth v. Rift Valley Railways (Kenya) Limited (2018) where the courts observed that damages under this heading are awarded when it is proved that owing to the injury suffered the chances of getting a job in the labour market comparable to the one held before have diminished. 33.The respondent submitted that the appellant had failed to produce any employment records indicating he had a regular income. The respondents proposed a global award of Kshs 400,000/- citing the authorities of Abdi Werdi Abdullahi v James Royo Mungatia where an award of kshs, 500,000/= was made to a 38 year old, and in Mbasu & another v. Swaka (2024) where the courts awarded kshs. 300,000/= where disability was assessed at 50%. 34.On this heading of diminished earning capacity, I agree with the respondents that there was no evidence to indicate that the appellant had a regular employment to justify using the multiplicand method. 35.However, he was an economically active 40-year-old at the time of the accident and breadwinner of his family. This court is therefore, guided by the comparative global award, age and disability of the appellant to award a sum of Kshs, 400,000/=. 36.Future medical costsIn the trial records, it was pleaded and proved that the appellant would require an artificial limb (prosthesis). What is in contention is the cost. The appellant relied on the medical report that gave the estimate of Kshs 400,000/= to be changed after every 2-4 years which when calculated by 5 till he reaches 60 years comes to a total of Kshs. 2,000,000/=. 37.The respondent on their side recommended Kshs. 500,000/= citing authorities of Mbatia & Another v. Maina akias Boniface Karanja Maina alias Boniface Mwangi Maina alias Boniface Mwangi (2025) KEHC 8265 (KLR) where the courts observed that a prosthesis for a 24-year-old would cost the range of Kshs. 250,000/= to Kshs 300,000/= changeable after every 8-10 years thus awarded Kshs.1,000,000/=. 38.Looking at the two competing proposals and working with a conservative range of Kshs 300,000/= for a prosthesis and further guided by the medical report by the appellant of the need to change the same every 2-4 years, for his age of 40 years I would award Kshs 1,500,000/=. Special damages 39.The trial court awarded the appellant the pleaded and proved special damages of Kshs. 7,050/= and this was not in contention hence this award remains. 40.This court notes that the loss of a limb is not merely a physical injury but a permanent deprivation affecting the earning capacity, social functioning, mobility and independence that significantly hampers the enjoyment of life. 41.I am further guided by the case of West (H) & Son Ltd v Shepherd [1964] AC. 326,345, where the courts stated that:………..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 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………… Disposition 42.Accordingly, the appeal on quantum succeeds 43.The award of general damages made by the trial court of Kshs. 1,800,000/= is hereby set aside and substituted with the following awards:a.General Damages- Kshs. 2,500,000/=.b.Diminished earning capacity- Kshs 400,000/=c.Future Medical Expenses- Kshs 1,500,000/= 44.Special damages shall remain as awarded by the trial court 45.The appellant shall have the costs of this suit.It is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 18th DAY OF JUNE 2026A.M. OKUTOYIJUDGEIn the presence of:Mr. Mulupi for the AppellantMr. Omondi for the RespondentRuth Mokeira-Court Assistant