https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10343

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CIVI APPEAL NO. E038 OF 2025** CLIMAX COACHES LIMITED**…………………………APPELLANT** **VERSUS** ZACHARIA OWINO ONGWEK...**........................RESPONDENT** **(Being an appeal from the judgement and resultant decree of the Magistrate Court at Siaya (Hon E. Tsimonjero (SRM)) dated 16th May 2025 in Ukwala PMCC No. E104 of 2022)** **BETWEEN** ZACHARIA OWINO ONGWEK**................................PLAINTIFF** **VERSUS** CLIMAX COACHES LIMITED**................................DEFENDANT** **JUDGEMENT** 1. The Appeal arises from the Judgment of **Hon.** E. Tsimonjero **(SRM)** delivered on 16th May 2025 in Ukwala PMCC No. E104 of 2022. The suit had been instituted by the Respondent (then Plaintiff) via a Plaint dated 15th November 2022 wherein he sought compensation for personal injuries sustained in a road traffic accident that occurred on 9th September 2022 along the Kisumu-Busia Road at the Sira area. The accident involved the Respondent who was riding a motorcycle and the Appellant's motor vehicle registration number KCU 575A which was allegedly driven negligently by the Appellant's driver, servant and/or agent. The Appellant entered appearance and filed a statement of defense denying the material allegations of negligence and shifting the blame to the Respondent. After a full trial, the learned trial magistrate entered judgment in favor of the Respondent assessing liability at 100% against the Appellant and awarding general damages of Kshs. 350,000/= and special damages of Kshs. 12,735/= plus costs and interest 2. Aggrieved by the decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 26th May 2025 wherein it raised the following grounds of appeal namely; - 3. **THAT** the learned trial Magistrate erred in law and in fact in awarding general damages of Kshs. 350,000/= which award was excessive and not commensurate to the nature of injuries sustained by the plaintiff/Respondent herein. 4. **THAT** the learned trial Magistrate erred in law and in fact in failing to consider the Appellant's submissions on quantum by completely disregarding the submissions and authorities of the Appellant herein and as a result arrived in unjustified decision on quantum. 5. **THAT** the learned trial Magistrate erred in law in awarding the Plaintiffs/Respondents the sum of Kshs. 12,735/= as special damages an amount which was not proved in the circumstance. 6. **THAT** the learned trial Magistrate exercise of discretion in assessment of quantum was injudicious. 7. **THAT** the learned trial Magistrate erred in law and in fact in failing to pay regard to authorities in the defendant's submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case he was deciding. 8. This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See **Selle vs Associated Motor boat Co. Ltd [1968] EA 123.** 9. The plaintiff's case was anchored on the testimonies of three witnesses. Zacharia Owino Ongwek ( PW1) who testified that on 9th September, 2022 at around 05:30 AM he was riding his motorcycle along the Kisumu-Busia road at the Sira area keeping to the left side. That he was carrying a pillion passenger to the Ugunja market. That the defendant's motor vehicle (Reg No. KCU 575A) approached from behind and rammed into his motorcycle. That the impact killed the passenger on the spot and knocked the plaintiff unconscious. That he regained consciousness at Home Ground Hospital in Ugunja where he received first aid before being referred to Siaya County Referral Hospital. He blamed the defendant’s driver for over speeding, driving carelessly and failing to keep a safe distance. On cross examination, he stated inter alia; that even though it was dark, the motorcycle's headlamps were on; that he had a valid driving license and both he and his passenger were wearing helmets and reflective jackets; that he sustained severe injuries across his body (chest, shoulder, leg, toes and hip dislocation) and remained in persistent pain. 1. The Respondent called Dr. Joseph Sokobe (PW2) who stated that he examined the plaintiff about one and a half months after the accident and compiled a medical report detailing multiple moderately severe soft-tissue injuries and a left hip joint dislocation. On cross examination, the doctor admitted that the initial medical facility notes did not explicitly document a history of "loss of consciousness". That he relied on the history narrated to him by the patient and what was contained on the P3 form. He noted that the plaintiff should have physically healed by the time of the trial. 2. The Plaintiff produced a police abstract and blamed the defendant's driver for the accident as it was recommended that the driver be prosecuted for the offense of causing death by dangerous driving 3. The defendant chose a strictly documentary path and did not call any witnesses. During the hearing on March 6, 2025 the defense closed its case by relying entirely on two medical records produced by mutual consent which comprised a second medical examination report by Dr. Steve Ochieng dated 14th June, 2023 and a radiological report by Dr. Kouko dated 25th May, 2023 which pointed out a reduction of the left hip dislocation alongside a marginal hip fracture. 4. The Appeal was canvassed by way of written submissions. Both parties filed their respective submissions. 5. The Appellant’s case is anchored on written submissions dated 11th May 2026 filed by the firm of KRK Advocates LLP. By way of introduction, it was submitted that the Appellant being dissatisfied with the decree and judgment delivered by Honorable E. Tsimonjero (SRM) on 16th May 2025 in Ukwala SPMCC No. E104 of 2022, preferred the instant appeal vide a Memorandum of Appeal dated 26th May 2025 which raised five (5) grounds solely challenging the trial court's finding on quantum. 6. Highlighting the brief background of the dispute, counsel for the Appellant noted that the Respondent had filed suit via a plaint dated 15th November 2022 following a road traffic accident on 9th September 2022 at Sira area along the Kisumu-Busia road. It had been alleged that the Appellant’s driver negligently managed motor vehicle registration number KCU 575A causing it to knock down the Respondent, a motorcyclist who consequently sustained severe bodily injuries. The Appellant had entered appearance and filed a statement of defence dated 17th January 2023, denying all material allegations of negligence and asserting that the accident was caused by the Respondent's own negligence. 7. Counsel observed that after a full hearing, the trial court delivered judgment in favor of the Respondent finding the Appellant 100% liable and awarding general damages of Kshs. 350,000/=, special damages of Kshs. 12,735/= as well as costs and interest. Aggrieved specifically by the assessment of quantum, the Appellant preferred this appeal. 8. On the duty of this Court as a first appellate court, the Appellant submitted that under Section 78 of the Civil Procedure Act (Cap 21), the Court is duty-bound to re-assess and re-evaluate the evidence adduced before the trial court to arrive at its own independent conclusion, while remaining mindful that it did not have the advantage of seeing or hearing the witnesses testify firsthand. To support this, reliance was placed on the decision in **Kenya Ports Authority vs Kushton (K) Ltd (2009) 2 EA 212** 9. The Appellant isolated a single issue for determination by this Court namely, *whether the general damages award of Kshs. 350,000/= was excessive in the circumstances*. Counsel urged the Court to disturb the quantum arguing that a prudent re-evaluation would reveal the Respondent suffered mainly soft tissue injuries and a dislocation of the left hip joint. 10. It was further submitted that while the assessment of general damages remains a discretionary exercise which discretion must be exercised judicially with circumspection and upon sound legal principles. Counsel argued that an appellate court will interfere with a trial court's discretion if it is demonstrated that the court took into account an irrelevant factor, left out a relevant factor or arrived at an award so inordinately high or low that it constitutes a wholly erroneous estimate of the damages. 11. To bolster the argument that damages must remain within consistent and affordable economic limits, the Appellant cited **Kigaraari vs Aya (1982-88) 1 KAR 768 (as** quoted in **Godfrey Wamalwa Wamba & another v Kyalo Wambua [2018] eKLR),** where it was established that large awards are inevitably passed on to members of the public through increased insurance premiums and fees which the vast majority cannot afford within the Kenyan economy. 12. Addressing the evidentiary contradictions on the record, counsel contrasted the particulars of injuries listed in paragraph 6 of the plaint which included a head injury with loss of consciousness with the actual testimony adduced at trial. It was noted that during the hearing on 6th May 2025, the Respondent (PW1) only confirmed suffering a dislocation of the right leg and soft tissue injuries to the chest and toes. Furthermore, the expert witness Dr. Sokobe (PW2) admitted during cross-examination that a history of loss of consciousness was neither indicated in his medical report (Plaintiff’s Exhibit 7a) nor supported by any primary medical notes. 13. Relying on the Court of Appeal's observation in **Simon Taveta v Mercy Mutitu Njeru [2014] eKLR** that compensation must be evaluated based on the nature and extent of the injuries and comparable past awards, the Appellant invited this Court to be persuaded by the following precedents **Mkanjala Mnyapara v Patrick Nyasinga Amenya [2021] eKLR**, where a plaintiff who suffered a head and chest contusion, limb bruises and a hip dislocation was awarded Kshs. 300,000/=. **M & another v HAA (A Minor Suing Through the Next Friend and Father HIR) (Civil Appeal E209 of 2020) [2024] KEHC 6095 (KLR*)*** where the court sustained an award of Kshs. 300,000/= for injuries involving a right hip joint dislocation, trauma to the left knee joint, chronic pain and permanent weakness of the left leg and right arm. 14. In conclusion, the Appellant submitted that the injuries in the cited authorities were far more severe than those sustained by the Respondent. Consequently, counsel maintained that the learned trial magistrate erred in making an award of Kshs. 350,000/= and prayed that this Court substitute it with a more reasonable award of Kshs. 300,000/=. On the question of costs, the Appellant invoked Section 27(1) of the Civil Procedure Act submitting that costs follow the event and prayed for the costs of the appeal. 15. In opposing the appeal, the Respondent submitted that the Appellant was challenging the trial court’s award of general damages. The Respondent noted that the Appellant argued that the trial court erred in awarding Kshs 350,000 and requested that the sum be reduced to Kshs 300,000. 16. The Respondent contended that during the trial, the Appellant had initially prayed for an award of Kshs 200,000 and characterized the Appellant’s subsequent shift to seeking Kshs 300,000 on appeal as speculative and lacking explanation. 17. Regarding the legal principles of the appeal, the Respondent submitted that the award of damages is an exercise of judicial discretion. It was argued that an appellate court should only interfere with such discretion if the trial court is shown to have considered irrelevant factors, excluded relevant factors or reached an erroneous estimate of damages. The Respondent further submitted that comparable injuries must be compensated by comparable awards and that an appellate court should not interfere with an award simply because it might have arrived at a different figure as the court of first instance. 18. The Respondent maintained that the Appellant failed to place sufficient material before the court to justify setting aside the trial court's award. The Respondent contended that the injuries pleaded which included head injuries, blunt trauma to the forehead, scalp bruises, dislocation of the left hip and various lacerations were sufficiently proven through the Respondent's testimony, medical reports and a P3 form. Furthermore, the Respondent asserted that these injuries were not in dispute as evidenced by a second medical examination produced by the Appellant. 19. To support the assertion that the award of Kshs 350,000 was fair and within an acceptable range, the Respondent relied on the following precedents **Bildad Onditi and Anr v Rashid Ramadhan (HCCA No. 125 of 2011)** where an award of Kshs 350,000 for a posterior dislocation of the right hip was upheld.**Hezron Arunga & Herbert Otare Marube v Daniel Omare Nyamboga (HCCA No. E 011 of 2023)** where an award of Kshs 350,000 for similar injuries was upheld on appeal in 2024.**Veronicah Mkanjala Mnyapara v Patrick Nyasinga Amenya (HCCA No. 47 of 2019**) where an award of Kshs 300,000 was upheld by the High Court in 2021. 20. Finally, the Respondent submitted that the Appellant had abandoned the ground of appeal regarding special damages by failing to make submissions on the issue and consequently prayed for the appeal to be dismissed with costs. 21. I have carefully considered the Appeal, the Judgement of the Magistrate Court and the rival submissions by parties. I find the issue for determination is whether the appeal has merit. 22. This Court notes from the outset that while the Memorandum of Appeal challenged the lower court’s award of special damages, the Appellant's written submissions focused exclusively on the question of general damages. No single argument or reference was made to contest the special damages of Kshs. 12,735/=. 23. It is a long-standing practice that grounds of appeal raised in a memorandum but not canvassed during written or oral arguments are deemed abandoned. Consequently, the ground of appeal touching on special damages fails. Even if it were considered on its merits, the record indicates that the Respondent pleaded Kshs. 13,270/= and strictly proved a total of Kshs. 12,570/= through formal medical treatment and report receipts which the trial court adjusted properly within reasonable parameters. 24. Similarly, the issue of liability was not contested in the written submissions, effectively leaving the trial court's finding of 100% liability against the Appellant undisturbed. It is clear that the Appellant’s contention was only on the award of general damages. 25. The Appellant submits that the award of Kshs. 350,000/= was excessive because the Respondent sustained primarily soft tissue injuries and a dislocation of the left hip joint proposing instead an award of Kshs. 300,000/=. In contrast, the Respondent maintains that the award was reasonable and in line with comparable authorities. 26. To determine whether the award was an erroneous estimate, this Court reviews the medical evidence on record. According to the plaint, the medical report by Dr. J.C. Sokobe (P. Exh 7a) and the P3 Form, the Respondent sustained the following injuries: 27. Head injury with brief loss of consciousness. 28. Blunt injury to the forehead and bruises on the scalp. 29. Dislocation of the left hip joint. 30. Lacerations on both forearms and both knees anteriorly. 31. Blunt injury to the chest and right shoulder 32. During the trial, the court observed that the Respondent was still using crutches and had noticeable difficulty standing demonstrating that a dislocation of a major joint like the hip carries prolonged discomfort. 33. Respondent cited **Bildad Onditi & Anr v. Rashid Ramadhan (Kakamega HCCA No. 125 of 2011),** where an award of Kshs. 350,000/= for a posterior dislocation of the right hip joint was upheld on appeal in 2013. They further cited **Hezron Arunga & Anr v. Daniel Omare Nyamboga (Kisii HCCA No. E011 of 2023**) where Kshs. 350,000/= was upheld in 2024 for an array of head, chest and limb injuries. 34. Strikingly, both the Appellant and Respondent cited **Veronicah Mkanjala Mnyapara v. Patrick Nyasinga Amenya (Kisii HCCA No. 47 of 2019 [2021] eKLR**). In that case, the plaintiff sustained a head contusion, chest contusion, bruises on both hands and a dislocation of the left hip joint injuries near identical to the instant case. The High Court in that matter upheld an award of Kshs. 300,000/= in 2021. 35. Factoring in the economic realities, inflation and the passage of time between 2021 and the trial court's evaluation in 2025, a minor variation from Kshs. 300,000/= to Kshs. 350,000/= is entirely justifiable. The difference of Kshs. 50,000/= between the trial court's award and the Appellant's proposal does not constitute a "wholly erroneous estimate" or a violation of any legal principle that would warrant appellate interference. The trial magistrate properly balanced past awards with the specific injuries proved. 36. In the final analysis, this Court finds that the Appellant has failed to demonstrate that the trial court exercised its judicial discretion injudiciously or applied improper legal frameworks in determining quantum. Hence, the assessment on quantum of general damages was reasonable and must be upheld. 37. In the result, it is my finding that the Appellant’s appeal is devoid of any merit. The same is dismissed with costs. **Dated and delivered at Siaya, this 10th day of July 2026** **D.KEMEI** **JUDGE** **In the presence of:** **M/s Ngome……………………for the Appellant** **Omondi…………………………for the Respondent** **Maurine…………………………Court Assistant**