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Okumu v Oloo (Civil Appeal 835 of 2024) [2026] KEHC 8170 (KLR) (Civ) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8170 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal 835 of 2024 NM Orina, J June 11, 2026 Between Ann Akinyi Okumu Appellant and Joaness Papa Oloo Respondent (Being an appeal from the judgment and decree of Hon. Rawlings Liluma Musiega (SRM) delivered on 27 June 2024 in Nairobi CMCC No. E2698 of 2023) Judgment Background 1.This appeal arises from the judgement of the lower in respect of a road traffic accident which happened at Kibera Olympic Stage on 6 October 2022. Joaness Papa Oloo, the Respondent herein, instituted Nairobi CMCC No. E2698 of 2023 (hereinafter, “the suit”) claiming general damages for pain, suffering and loss as well as special damages of the sum of Kshs. 5,550.00 and costs. The lower court found the Appellant wholly liable and awarded the sum of Kshs. 1,200,000.00 as general damages for pain, suffering and loss of amenities, special damages of the sum of Kshs. 5,550.00, costs of the suit and interest. 2.Dissatisfied with the lower court’s findings, the Appellant filed the instant appeal on the following grounds:a.The learned Trial Magistrate erred in law and in fact by failing to find and hold that the Respondent had not proved his case to the required standard;b.The learned Trial Magistrate erred in law and fact by misapprehending the extent of the injuries allegedly sustained by the Respondent;c.The learned Trial magistrate erred in law and fact by failing to consider and give weight to the evidence of the Appellant’s witness;d.The learned Trial Magistrate erred in law and in fact by making an award of Kshs. 1,200,000.00 as general damages for pain and suffering which is excessive in the circumstances;e.The learned Trial Magistrate erred in law and fact by applying the wrong principles and misapprehending the evidence and assessing general damages of Kshs. 1,200,000.00 which was so inordinately high as to represent an entirely erroneous estimate;f.The learned Trial Magistrate erred in law and in fact by failing to weigh all the evidence placed before him before assessing damages and/or relying on insufficient evidence; andg.The learned Trial Magistrate erred in law and in fact in failing to be guided by recent precedent thus arriving at a high award. The Appellant’s submissions 3.In her written submissions dated 12 September 2025 the Appellant argues that the Respondent did not suffer a fracture of the left malleolus as pleaded. It is the Appellant’s case that the Respondent failed to provide any proof of x-rays done to confirm the fracture and or the deformity pleaded. 4.The Appellant contends that despite the Respondent’s doctor, one Dr. Cynthia Muriithi, testifying that she took or saw an x-ray that confirmed the fracture, this x-ray or its report was not produced. On the other hand, the Appellant submits that her witness, one Dr. Wambugu – a Consultant Surgeon, testified that he had performed a check x-ray a year after the accident on the Respondent which x-ray did not reveal any fracture. The Appellant thus urges the Court to be guided by Dr. Wambugu’s evidence as he is a consultant surgeon with extensive practice in surgery and treatment of fructures as opposed to Dr. Muriithi who is a general practitioner and whose experience may be limited. 5.Consequently, the Appellant submits that the award of Kshs. 1,200,000.00 awarded as general damages is inordinately high in the circumstances. The Appellant, therefore, urges the court to find that considering that the Respondent did not suffer any fracture of the malleolus, the award of Kshs. 1,200,000.00 was not justified. Instead, the Appellant considers an award of Kshs. 100,000.00 to be sufficient compensation for the injuries suffered. The Appellant relies on the case of Climax Coaches Limited v. Kavaya (Civil Appeal E129of 2023) [2024] KEHC 6182 (KLR) 30 May 2024) (Judgment) where the court held that the Respondent had failed to prove a fracture of the right clavicle and substituted the award of kshs. 500,000.00 with Kshs. 150,000.00. 6.In any case, the Appellant contends that even if the court were to find that the fracture was proven, the awarded damages would still be high and in that regard the Appellant proposes a reduction of the award to Kshs. 500,000.00. In this regard, the Appellant relies on Zoa Taka Limited & another v. Kyalo (Civil Appeal E0031 of 2022) [2025] KEHC 1606 (KLR) and Musabi v. Dodha & another (Civil Appeal E407 of 2024) [2025] KEHC 2473 (KLR) where the courts awarded Kshs. 500,000.00 for general damages where fractures were proved. 7.The Appellant, therefore, argues that she has established sufficient basis for interference of the lower court’s judgement. The Appellant argues that the trial court’s judgement is rife with inconsistent conclusions and failed to consider material facts, evidence, submissions and precedents. 8.The Appellant prays for the appeal to be allowed as prayed. The Respondent’s case 9.The Respondent opposed the appeal through written submissions dated 7 April 2026. He submits that the trial court was properly guided by authorities in arriving at the quantum for general damages which is the subject of the challenge before the court. The Respondent urges the court to exercise deference to the trial court’s own assessment of damages unless the court finds that the trial court did not apply the proper principles in arriving at the quantum. 10.On whether the trial court erred in disregarding the Appellant’s evidence, the Respondent submits that the trial court relied on the documents and witness statements adduced by the parties in making its findings. In regard to the expert evidence which is in contention, the Respondent submits that there were two contradicting expert testimonies from Dr. Muriithi for the Respondent and Dr. Wambugu for the Appellant. It is the Respondent’s case that the trial court had properly assessed the evidence in finding that Dr. Wambugu’s findings were hearsay while noting that Dr. Muriithi had relied on fresh medical documents that indicated the x-ray was done and confirmed the injuries. 11.The Respondent prays that the appeal be dismissed with costs. Analysis and Determination 12.Having carefully considered the appeal alongside the rival submissions, there are two issues that emerge for determination being: whether the trial court failed to properly consider the Appellant’s evidence and; whether the award of Kshs. 1,200,000.00 for general damages is inordinately high. 13.Sitting as a first appellate court, my role is to evaluate the whole evidence afresh and to reach my own conclusions. However, in doing this, my assessment is done having in mind that I did not have the opportunity to see or hear the witnesses first hand. This duty was stated in Selle & another vs. Associated Motor Boat Co. Ltd. & others (1968) EA 123 as follows:I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hammed Saif vs. Ali Mohamed Sholan (1955), 22 E.A.C.A. 270) 14.On whether the trial court failed to consider the Appellant’s evidence, the trial court record shows that the Respondent called three witnesses while the Appellant called one witness to testify on her behalf. The evidence relevant to the contestation before me was given by PW2 on behalf of the Respondent. PW2 produced a medical report dated 30 March 2023 and testified that she is a medical doctor. She also testified that she had seen the Respondent on 30 March 2023 and relied on a P3 form provided and a medical report from Mama Lucy Kibaki Hospital. It was her testimony that she had not done an x-ray on the Respondent and there documents she relied on did not indicate if one had been done. The witness, however, conceded that an x-ray was important although there were other ways of noting a fracture. 15.Along the same lines, PW3 who was the Respondent testified that an x-ray had been done at Mbagathi hospital and he had taken the same to Mama Lucy and showed it to Dr. Muriithi. He also testified that he had visited Dr. Wambugu but had not gone with the x-ray. 16.DW1 was Dr. Wambugu Munyi. He testified that he had examined the Respondent on 23 November 2023 which was a year after the accident had occurred. He produced a report dated 24 November 2023 whose findings were that the Respondent had produced a check x-ray dated 23 October 2023 which did not reveal any fracture. The Respondent did not avail the initial x-ray. DW1 concluded that in his opinion the injuries were blunt trauma and the check x-ray did not reveal any recently healed fracture. 17.I have perused the exhibits produced by the Respondent before the trial court and it is noted that the medical report from Mama Lucy Kibaki Hospital dated 12 October 2022 indicated that the Respondent suffered chest tenderness, bruises on the face, bruises on the hands, left malleolus fracture and a septic wound on the foot. PW2’s medical report dated 30 March 2023 also indicated that the Respondent had been diagnosed with a fracture of the left malleolus. These are the only documents that support the Respondent’s claim that he suffered a fracture. Although the Respondent indicated that he had taken an x-ray at Mbagathi Hospital, the same was neither produced in evidence nor availed to PW2 and DW1. 18.On the other hand, DW1’s medical report dated 24 November 2023 indicates that a check x-ray had been availed to him and the same did not indicate any fracture which had healed. DW2 also noted that no prior x-ray had been availed to him. 19.In its judgement, the trial court accepted the evidence of PW2 who had indicated in her testimony that she relied on medical records which indicated that an x-ray had been conducted. The trial court rejected DW1’s testimony on the basis that the same was hearsay as the radiologist who had done the check x-ray was not called. 20.I am not satisfied that the Respondent proved on a balance of probabilities the nature of injuries suffered as pleaded. The onus of proving the injuries lay on the Respondent. The Respondent claimed that he suffered a fracture and yet there is no x-ray taken to prove those injuries. It is also noted that the Respondent testified that he availed the x-ray taken to PW2 but the same was denied by PW2 who asserted that she only relied on the medical notes from Mama Lucy Kibaki Hospital. Is it possible then that a finding could be made by the trial court on the nature of injuries suffered without such a crucial piece of evidence? I don’t think so. The medical notes from Mama Lucy Kibaki Hospital are of no probative value without an x-ray confirming the nature of injuries. It is my conclusion, therefore, that the Respondent did not prove on a balance of probabilities that he suffered a fracture. 21.Having determined that the Respondent did not prove that he suffered a fracture as a result of the accident, it is now necessary to assess the general damages awarded. In assessing the award of damages, I am guided by the words of Law, J.A. in the case of Butt v. Khan (1977) KAR 1 where he stated:“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 as either inordinately high or low." 22.The Appellant contests the award of Kshs. 1,200,000.00 as general damages on two fronts. The first (which has succeeded) is that the Respondent did not prove to the required standard that he had suffered a fracture. Second, the Appellant argues that the general damages awarded are in any case inordinately high. The Appellant proposes an award of Kshs. 100,000.00. 23.In assessing general damages awardable, a court must take into account the extent of the injury sustained. It goes without saying that soft tissue injuries attract less damages as compared to fractures. The court is also reminded that it has a duty to demonstrate transparency in how the award is arrived at. Transparency is an important tenet in the administration of justice. Absent a general guideline in the law on award of damages, a court must then look at comparable awards made in the past and take into account other necessary factors like inflation. 24.In a comparable case - Ephraim Wagura Muthui & 2 Others v. Toyota Kenya Limited & 2 Others [2019] eKLR, the court awarded Kshs. 100,000.00 for cut wound on the parietal area of the head, contusion on the neck, blunt trauma to the chest, cut wound on the left leg and blunt trauma to the back. 25.In Ndungu Dennis v Ann Wangari Ndirangu & another [2018] KEHC 8799 (KLR) the Court awarded Kshs. 100,000.00 for soft tissue injuries. Further in Climax Coaches Limited v. Petronilar Kavaya [2024] KEHC (KLR) 30 May 2024) (Judgment), the court awarded Kshs. 150,000.00 for soft tissue injuries. 26.Taking into account inflation, it is my finding that an award of Kshs. 200,000.00 is sufficient as general damages for soft tissue injuries sustained by the Respondent. The award of damages of the trial court of Kshs. 1,200,000.00 is hereby set aside and substituted with an award of Kshs. 200,000.00. 27.Parties shall bear their own costs of this appeal considering the outcome. DELIVERED, DATED AND SIGNED AT NAIROBI THIS 11TH DAY OF JUNE, 2026.NABIL M. ORINAJUDGEJudgment virtually delivered virtually in the presence of:Ms. Maina for the RespondentN/A for the AppellantLisa – Court Assistant