Ondigi v Opiyo (Civil Appeal E211 of 2024) [2026] KEHC 7487 (KLR) (29 May 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **KISII LAW COURTS** **HCCA E211 OF 2024** **ANDREW ONDIGI …………………………………………..APPELLANT** **VERSUS** **GRACE AKINYI OPIYO …………………………………RESPONDENT** *(Being an appeal against the Judgement and decree of the Subordinate court in MCCC No. E230 of 2021 by Hon. J. Nyariki (SRM) delivered on 6th of November 2024 in Kisii)* **JUDGMENT** **Background of the appeal** 1. This appeal emanates from a road accident that occurred on 21st November 2020 where motor vehicle reg. KCZ713T belonging to the appellant (the defendant then) is alleged to have knocked down the respondent (the plaintiff then) who sustained injuries. The respondent attributed the cause of the accident to the negligence of the appellant’s driver and prayed for special damages as pleaded, general damages and costs and interests of the suit. The respondent claims to have sustained serious injuries that led to her hospitalization for 3 weeks. The appellant in his statement of defense denied the allegation of negligence and instead apportioned the blame to the respondent. 2. At the commencement of the hearing, the parties entered a consent on liability at 25:75 in favour the plaintiff. The case then proceeding for hearing on quantum. The Plaintiff produced two witnesses and closed their case. The defendant did not produce any witnesses and closed their case as well. Written submissions were filed by both parties. Judgment was delivered on the 16th of December 2022 in the presence of the plaintiff and non-appearance by the defendant. A stay was issued for 30 days. 3. Subsequently, the defendant filed a notice of motion dated 5th of June 2023 praying for the setting aside of the judgement. This was allowed and the courts directed hearing of the main suit to proceed. This hearing took place on 15th of October 2024, amidst several prior adjournments and negotiation process on the quantum. At the hearing, three was non-appearance from the defendant and the plaintiff produced one witness and closed their case. The plaintiff prayed for the defence case to be closed since they were not present to prosecute their case. Parties were asked to file their written submissions, only the plaintiff did. Judgement was subsequently delivered on the 6th of November 2024 in the presence of both the plaintiff and the defendant’s counsel who was granted stay of execution for 30 days. 4. The appellant aggrieved with this second judgement of 6th November 2024 has filed the current appeal on the following summarized grounds. THAT; 5. *The learned Trial Magistrate entered a judgment in absence on a lawful and fair trial, relied on documents not formally adduced as evidence* 6. *The learned trial magistrate proceeded and entered a judgment with disregard to the previous ruling and orders in the case and without the jurisdiction hence the same is a nullity for want of procedure and fairness* 7. *The learned Trial magistrate erred in law and fact and applied the wrong principles in awarding the respondent the sum of Kshs. 550,000 as general damages on 100% basis which amount is inordinately excessive and the same were not proven by any evidence by the respondent* 8. *That the Learned Magistrate disregarded the appellants submissions on liability and quantum and was biased against the appellant in the circumstances of the suit.* 9. The appellant with the reasons whereof prayed that the judgment, award of both general and special damages be set aside and the same to be reassessed. The appellant further prayed that the respondent suit at the subordinate court be dismissed with costs or in the alternative the suit to be remitted to the lower court for hearing. The appellant supported his memorandum of appeal with written submissions highlighting the irregularity in proceedings, liability and quantum citing relevant authorities. 10. The respondent on their side opposed the appeal in its entirety through their written submissions stating that the memorandum of appeal lacks merit and is an attempt to re-litigate settled issues citing caselaw and praying that the appeal be dismissed and the trial court judgment upheld. **Analysis and Determination** 1. 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 V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I)** 2. I have carefully analyzed the trial record in its entirely and I can summarize the following as the issues for this court’s determination; 3. ***Whether the trial court that rendered the 6th November 2024 judgement had jurisdiction.*** 4. ***Whether the procedure and evidence adduced at the trial court violated the appellant’s rights to a fair hearing due to irregularities.*** 5. ***Whether the setting aside of the 16th December 2022 Judgement also affected the consent on liability.*** 6. ***Whether the right principles were applied in the award of quantum*** 7. **Whether the trial court that rendered the 6th November 2024 judgement had jurisdiction** 8. In order for this court to determine this factor, there is need to analyze carefully the Notice of Motion by the appellant at the trial court dated 5th of June 2023 seeking review of the judgment delivered on 16th of December 2022 on the basis of new evidence and that the suit be heard afresh in respect of quantum. The trial court in its ruling rendered on 23rd of August 2023 allowed the application for the referenced judgment to be reviewed and the resultant decree be set aside. The suit therefore proceeded to be heard again. 9. Order 45, rule 1(1) of the Civil Procedure Rules provides that: Any person considering himself aggrieved— ***(a)by a decree or order from which an appeal is allowed, but from which no appeal has been preferred; or*** ***(b)by a decree or order from which no appeal is hereby allowed, and who from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or the order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree or order, may apply for a review of judgment to the court which passed the decree or made the order without unreasonable delay.*** 1. This rule allows a court the power to review or set aside it’s decree. However, it does not automatically nullify prior proceedings unless expressly ordered. This was not the circumstance in this case where the focus of the application and ruling was on the setting aside of the judgment and decree. 2. In the case of **Joab v Ondieki & another (2025) KEHC 19407** while citing **Namae v. Kipkoris & Another (2024) KEHC 4115 (KLR)**, it was observed that ***“A review being a continuation of the original judgement and not a fresh hearing, the court can only review its judgment where there is an error apparent on the face of the record, or discovery of new and material facts which the party could not with reasonable diligence have placed before the court when the judgement was delivered.”*** 1. The setting aside of the judgement in this case did not by itself vacate the evidence previously adduced and therefore remained part of the record. The absence of an express order directing a hearing de novo or vacating the evidence already recorded means that the evidentiary record remains available in court. The trial magistrate was then right to proceed and use evidence adduced in the previous hearing to come to a determination. 2. **Whether the procedure and evidence adduced at the trial court violated the appellant’s rights to a fair hearing due to irregularities** 3. The appellant alleges that he was not accorded a lawful and fair hearing at the second hearing of the suit in the trial court and particularly highlights that on the 15th of October 2024 when the matter proceeded for hearing, he was ambushed and denied an opportunity to be heard. The respondent on their part refuted this claim as a tissue of fabrication. 4. I have perused the court proceedings on the said date of the 15th of October 2024 and note that the counsels to both parties were in attendance. Parties were given time to negotiate and come back later in the day for either recording of settlement or hearing of the case. When the matter came later, there was no appearance from the appellant and the hearing proceeded nevertheless. 5. In the case of **Phoebe Ndunda & Others v. Mwakini Ranching Co. Ltd & Another, (Civil Application No. NAI 448 of 2001 (CAK)** as cited with approval in **Attorney General of Kenya v. Prof. Peter Anyang’ Nyong’o & 10 others, (Appeal No. 1 of 2009 (EACJ)** the courts stated that: ***“The opportunity given to the applicants was squandered and if it is their case that the advocate was to blame, they are at liberty to seek recompensate from the advocate. As it is, the applicants appeal to sympathy rather than sound factual and legal basis in seeking the orders above”*** 1. My further perusal of the entire record of this case indicates that the appellant had been given numerous times to prosecute his case including a favourable ruling by the trial court to set aside the previous judgment and afford an opportunity to tender new evidence. The appellant having the judgement set aside on the basis of new evidence failed to prosecute this further at the hearing. I am therefore satisfied that there was no denial of the right to a fair hearing to the appellant in the course of the case at the trial court. 2. **Whether the setting aside of the 16th December 2022** **Judgement also affected the consent on liability** 3. To determine this aspect, I will once again revisit the history of this case. On the 8th of September 2021, both parties entered a consent on liability on the ratio of 75: 25 in favour of the plaintiff. The first hearing then proceeded on the issue of quantum only. In the notice of motion dated 5th of June 2023, the prayers sought were among others that the suit be heard afresh in respect of quantum. In the subsequent hearing, there was no contestation on the issue of the liability settled by both parties. 4. The issue of consent agreements and their effect upon the setting aside of a judgement has been articulated in the cases of **Brooke Bond Liebig (T) Ltd. V Mallya (1975) EA 266** where a consent order remains binding unless set aside on the grounds similar to those rescinding a contract. In the **case of Hirani V. Kassam (1952) EC 131**, the courts held that court sanctioned agreements are binding unless properly impeached. On the face of the entirety of the record, I am therefore satisfied that the issue of liability was settled by the consent of both parties. 5. **Whether the right principles were applied in the award of quantum** 6. The principles guiding interference of quantum awards by the trial courts are well settled; that this court as an appellate court does not interfere merely because it would have awarded a different figure, but may only interfere where the trial court applied the wrong principles, considered irrelevant matters, failed to consider relevant matters, or where the award is so inordinately high or low as to amount to an erroneous **award ( See Kemfro Africa Ltd. t/a Meru Express Services(1976) & another v Olive Lubia & another)** 7. The respondent in the trial court adduced medical evidence of the serious injuries as follows; *scalp lacerations, contusions to the back, abrasions to the right forearm, lacerations to the right upper arm, fracture of the left tibia/ fibula bones, and degloving lacerations to the right leg anteriorly.* The medical report adduced as evidence assessed the injuries sustained by the respondent at 18% permanent disability. 8. The appellant on their side introduced fresh evidence of a second medical report that refuted the respondent sustaining any fracture of the left tibia/fibula and anterior degloving laceration to the right leg. 9. I have read carefully the evidence adduced by both parties as well as the authorities relied upon. The respondent adduced evidence of injuries in the form of medical reports P3 forms, and receipts that supported the injuries claimed. The appellant on their side adduced a second medical report by Dr. Walter S. Adero dated 1st of August 2022 and my careful perusal indicates the findings are generic to many claimants and very difficult to ascertain the facts that are specific to the respondent. Unfortunately, the appellant did not further prosecute their case on this element hence this report remains inconclusive. This court will then proceed on the injuries adduced at the trial court by the respondent medical records. 10. What then have been the quantum awards for comparable injuries. The appellant in their written submissions cited the authorities including the following: **Hussein Sambur Hussien v. Sharrif A. Abdulla Hussein & 2 others (2022)** where the court awarded Kshs. 600,000/= general damages for fractures, dislocation and permanent incapacity of 18% and the case of **Samuel Ndung’u Mbugua v. Jane Wambui Gitahi and another (2022) eKLR** for comparable injuries awarded Kshs. 400,000/= The appellant concluded that an award of over Kshs. 250,000/= would be unreasonable. 11. The respondent in their written submissions argued that an award of Kshs. 550,000 for the multiple injuries was conservative as compared with the case of **Ombati v. Kariuki & Another) Civil Case E486 OF 2022(2025) KEMC 5 (KLR)** where the courts awarded Kshs. 1,120,000/= for similar injuries. 12. This court has analyzed awards from other comparative cases as follows; In the case of **Ndwiga & another v. Mukimba (2022) KEHC 11793 (KLR)** as cited in **Magembe & 2 others v. Shisisa (2025) KEHC 11720 (KLR)** the claimant sustained tenderness and swelling of the left leg and fracture of the tibia and fibula left leg and was awarded Kshs. 500,000/=. In the case of **Onginjo v Ogollah (Civil Appeal E030 of 2025) [2025] KEHC 17998 (KLR)** the courts found that an award of Kshs. 600,000/= for comparable injuries was not excessive. 13. Having analyzed the comparative cases, I am guided by the principle in the case of **Butt v Khan 1982 -1988 1 KAR t**he court pronounced itself as follows: ***“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. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.”*** 1. Taking careful considerations of these aforementioned factors and guided by the cases of comparable injuries cited by both the appellant and respondent and this court, I am satisfied that the trial court applied the right principle in coming to the award of Kshs. 550,000/= as general damages. I therefore see no reason in interfering with this award. **Disposition** 1. ***The appeal is hereby dismissed in its entirety with costs to the respondent.*** It is so ordered. **DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 29TH DAY OF MAY 2026** **A.M. OKUTOYI** **JUDGE** **In the present of** : Mr. Odero for the appellant Mr. Karori for the respondent Ruth Mokeira- court assistant