https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8768

Ndemo v Maroko & another (Civil Appeal E123 of 2025) [2026] KEHC 8768 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 8768 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E123 of 2025 AM Okutoyi, J June 18, 2026 Between Clinton Ndemo 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 25.07.2025 in Ogembo CMCC No. E216 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 who narrated how the accident occurred and produced the police abstract as evidence; and PW2 the appellant who adopted his statement as evidence in chief. 3.The respondents on his part adopted a 2nd medical report as evidence and closed their case. 4.The Magistrate at the trial court delivered a judgement on 25th July 2025 attributing 100% liability in favour of the plaintiff on the ground that the respondents did not adduce any evidence to rebut the plaintiffs. On the quantum, the Magistrate awarded Kshs. 600,000/= for general damages, and 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. 600,000/= which was manifestly low, failing 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 thereof prayed that the quantum award by the trial court be set aside, and the honorable court assesses 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 and relied on the authorities cited at the trial court to oppose the award as inordinately low. Citing various authorities, the respondents proposed an award of Kshs 800,000/= and on future medical expenses proposed 350,000/= Respondent’s submissions 8.The respondent 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 fracture on the left femur had healed, implant removed and stiffness of the knee expected to get better. 9.The respondents asked this court to rely on injuries listed in the p3 form instead. They concluded that the appeal be dismissed for lack of merit and this court should not interfere with trial court’s award. Analysis and Determination 10.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). 11.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.” 12.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. 13.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 respondent has also not been raised in this appeal. The main issue therefore that the appeal has focused on is quantum awards. 14.From the plaint and trial record, the appellant indicates to have sustained the following injuries: Left femur fracture, bruises on the right upper limb, physical and psychological pains, bruises on the left upper limb, blood loss, bruises on the right lower limb, blunt trauma to the back, bruises on the left lower limb and soft tissue injuries. 15.The appellant’s medical report by Dr. Peter Momanyi as at the time of the examination on 25th July 2023 corroborated the above injuries and in conclusion stated that the injuries have left the appellant with long term effects both physical and psychosocial. At the time of examination, he was still using crutches, had multiple healing scars and a fixation on the lower limb. The doctor quantified permanent disability at 20%. 16.The respondent on their side submitted that not all the injuries were included in the initial treatment and P3form. The respondent’s further adduced a second medical report by Dr. M.W. Wokabi dated 4th December 2023 who confirmed that the appellant has sustained a fracture of the left femur. He however contradicted the previous medical report that there is need for a further surgery as the fractures had united. He assessed disability at 12%. 17.With the above analysis, this court is satisfied that the appellant was able to prove his injuries particularly the fracture to the left femur and multiple soft tissue injuries. Quantum 18.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” General Damages for pain and suffering 19.What then have been the quantum awards for comparable injuries. The appellant in their written submissions proposing an award of Kshs. 1,500,000/= cited the following authorities: Jackline Kamunyi Kamau v. Simon Kiiru Njoki (2018) where the courts awarded Kshs. 1,200,000/= for fracture of the right femur which was fixed with a k-nail with a permanent disability 0f 12%; Akbar Mohamed Haji Ali v. Jackton Ouma Okello (2018) where the plaintiff who had sustained fracture to the femur and soft tissue injuries was awarded Kshs. 800,000/=. 20.The respondent in their written submissions argued that an award within the range of Kshs. 100,000/= to Kshs. 150,000/= would be sufficient compensation citing the case of Jane Warugurumiano v. Jotham Nguri Magondu &another (2018) where the courts upheld an award of Kshs. 250,000/= for slightly similar injuries. This court notes that this is an old case with less severe injuries which would explain why the awards are low. 21.This court has further 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 of fractures was not excessive. 22.Having analyzed the comparative cases, I am guided by the principle in the case of Butt v Khan 1982 -1988 1 KAR the 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.” 23.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…………” 24.Taking careful consideration of these aforementioned factors and guided by the cases of comparable injuries cited by both the appellant and respondents as well as this court, I hold the view that an award for Kshs. 600,000/= for general damages only is commensurate to the injuries sustained and guided by comparative awards. However, the diminished earning capacity needs to be assessed on its own as pleaded. Diminished earning capacity 25.The appellant supported by the 1st medical report claimed that his capacity to earn had diminished by 20% proposed and global figure of Kshs, 500,000/=. 26.The respondent on the other hand in his written submissions at the appeal proposed kshs. 50,000/= which this court thinks is very much on the lower side with no justification. 27.The appellant was 22 years at the time of the accident. The two medical reports assessed his permanent disability a 20% and 12% respectively which affirms a level of incapacity. Although he indicated he was unemployed, the court is satisfied that the injury has diminished the appellant’s competitiveness in the labour market. 28.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” 29.Looking at the comparative global award, age and disability of the appellant I would award a sum of Kshs. 300,000/=. Future medical costs 30.The appellant relied on their medical report that recommended the fracture needs to be corrected with metal implants for proper bone alignment at a cost of kshs. 350,000/=. The respondent on their side highlighted that following the second re-examination, the appellant’s stiffness on the leg was improving hence he will not require any surgery. 31.This court notes that upon re-examination of the appellant by the respondent’s doctor on 4th of December 2023, around 4 months after the accident, it was confirmed that the fracture had united and implants removed and recommended that surgery would not be necessary. Noting this expert opinion was given after the 1st medical report, this court therefore is declining any future medical expenses. Special damagesThe 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. Disposition 32.Accordingly, the appeal succeeds on quantum 33.The award of general damages and diminished earning capacity by the trial court of Kshs. 600,000/= is hereby set aside and substituted with the following orders;a.General Damages: Kshs. 600,000/=b.Diminished earning capacity Kshs, 300,000/=. 34.Special damages shall remain as awarded by the trial court 35.The appellant shall have the costs of this appeal. 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