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Nduhiu v Ogoti (Civil Appeal E061 of 2025) [2026] KEHC 9538 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9538 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E061 of 2025 RK Koech, J June 18, 2026 Between Consolata Wambui Nduhiu Appellant and Geofrey Momanyi Ogoti Respondent (Being an appeal from the judgment and decree of the Honourable S. N. Abuya, Chief Magistrate, delivered on 2nd April, 2025 in Kisii CMCC E 323 of 2023) Judgment 1.The appellant was the defendant in Kisii Chief Magistrate’s Court Civil Case No. E 323 of 2023 while the respondent was the plaintiff. The cause of action between the parties arose because of a road traffic accident that occurred on 22nd November, 2022 involving the plaintiff who was riding a motorcycle Registration No. KMFY 332 H and motor vehicle Registration No. KCL 469 S along Kisii-Keroka Road. 2.In a judgment delivered on 2nd April, 2025, the learned trial magistrate found the defendant vicariously liable for the accident caused by the negligence of her driver and awarded the plaintiff Ksh. 600,000/= in general damages for injuries suffered as a result of the accident. The respondent was also awarded Ksh. 7,050/= in special damages, making a total of Kshs. 607,050/= under both headings of damages. 3.In a memorandum of appeal dated 23rd April, 2025 the appellant is seeking orders to have the judgment of the trial court and the ensuing decree set aside or varied and be substituted with a suitable apportionment of liability. The appellant is also seeking to have the award of general damages set aside, varied or interfered with and substituted with a suitable award, with costs to the appellant. 4.The grounds in support of the appeal are as summarized hereunder; 1.That the trial magistrate erred in law and fact by finding that the appellant’s motor vehicle lost control, veered onto the lane of the respondent’s motorcycle without stating the reasons for her findings, 2.That the learned trial magistrate erred in law and fact by failing to take judicial notice of other suits before her and appreciating that the respondent was carrying more than one pillion passengers, contrary to the law, and failing to apportion liability and contribution on the part of the respondent, 3.That the learned trial magistrate erred in law and fact by failing to consider the evidence adduced by the appellant and by further failing to consider the appellant’s submissions thereby holding the appellant wholly liable for causing the accident, 4.That the learned trial magistrate misdirected herself by admitting inadmissible evidence and assessing damages without supporting evidence and failing to consider the medical report adduced in evidence by the appellant, and 5.That the learned trial magistrate erred in law and fact by finding that the respondent had proved his case on a balance of probabilities and making an award that was unjust and inordinately high in the circumstances. 5.The parties agreed to dispose of the appeal by way of written submissions with the appellant filing submissions dated 10th February, 2026 and the respondent filing submissions dated 18th February, 2026. The appellant has challenged the trial court’s findings on both liability and the award of damages. According to the appellant, the trial court ignored a medical report tendered in evidence for the appellant, which was authored by Dr. Malik, dated 15th February, 2024. The appellant further submits that the respondent failed to proof any of the particulars of negligence attributable to the appellant as alleged in the plaint. 6.The appellant submits that there was contradictory evidence as regards the number of pillion passengers that the respondent was carrying and regarding the manner in which the accident occurred. The appellant faults the respondent for failing to adduce x-ray films of the neck and leg to proof that he suffered fractures. The appellant points out that the respondent relied on electronically printed treatment notes without a certificate of electronic prints accompanying them. 7.The appellant submits that the trial court made an error by finding the appellant wholly liable for causing the accident in question. She urges this court, as the first appellate court, to re-evaluate the evidence on record and reach its own conclusion on the matter. The appellant submits that the trial court’s judgment offends the provisions of Order 21 Rule 4 of the Civil Procedure Rules. She faults the trial court for failing to give reasons for her findings. The appellant is urging this court to interfere with the award on damages as being excessive in the circumstances. She has cited authorities, which I have duly considered. 8.The appellant points out that there were contradictions between the evidence of the respondent and PW3 who is the investigating officer ass regards the manner in which the accident occurred. She urges this court to find that the respondent suffered soft tissue injuries and should be awarded at most Kshs. 150,000/= in general damages. 9.The respondent submits that this court should be slow in interfering with the assessment made by the lower court unless it is demonstrable that the trial court acted in error. According to the respondent, the evidence adduced by the respondent as regards his injuries showed that he suffered both soft and hard tissue injuries. The respondent points out that he suffered permanent disability assessed at 30 % and that he requires physiotherapy and occupational therapy. The respondent further submits that he requires occasional use of analgesics. 10.The respondent has characterized the second medical report as mere opinion of the appellant’s doctor, which is unsupported by evidence. The respondent submits that treatment notes cannot be rendered inadmissible unless renounced by the issuing hospital. The respondent is of the view that treatment notes are primary documents made contemporaneously when a patient seeks treatment unlike reports made long after the event. 11.On liability, the respondent submits that the occurrence of the accident is undisputed. The respondent points out that the appellant’s driver admitted hitting a guardrail and seeing injured people on the ground. The respondent submits that the appellant’s driver was charged with a traffic offence after she lost control of her car and hit the respondent. The respondent submits that this court should not interfere with the trial court’s findings on liability, saying the appellant was wholly to blame for the accident. 12.I can identify two (2) issues for determination by this court; 1.Whether the trial court properly assessed damages payable to the respondent for injuries suffered as a result of the road traffic accident involving the appellant’s motor vehicle and the respondent’s motorcycle which occurred on 22nd November, 2022, and 2.Whether the trial court erred in law and fact by finding the appellant wholly liable for causing the said accident. 13.I will first address the issue of liability for causing the accident; the appellant is aggrieved by the trial court that found her wholly liable for causing the accident in question. The record shows that respondent testified regarding how he was involved in a road traffic accident while riding his motorcycle Reg. No. KMFY 332 H that he told the court was hit by the appellant’s vehicle. The respondent also testified regarding the injuries that he suffered. 14.It is the evidence of the respondent that he was hit from behind; he told the court that the appellant’s vehicle veered off its lane and hit the respondent. The respondent told the trial court that he was carrying a pillion passenger at the time of the accident. It is the evidence of the respondent that he was treated and discharged at Kisii Teaching and Referral Hospital (hereinafter referred to as KTRH). The respondent, who says he suffered a fracture on the neck, told the court that he was fitted with a neck brace for a period of three months. The respondent told the court that his advocate had x-ray films in his possession. He further told the court that he suffered a fracture of the leg and a plaster of Paris was applied for six (6) weeks. He denied a suggestion that his x-ray film was a forgery while admitting that he was x-rayed by the appellant’s doctor. 15.Dr. Morebu P. Momanyi produced the respondent’s medical report; he told the court that he examined the respondent on 25th February, 2023 and relied on treatment notes and x-ray films from KTRH. He conceded that he did not refer to any radiology report to ascertain that the respondent suffered a neck fracture. He told the court that the plaster on the respondent’s fractured leg had not been removed when he examined the respondent. He says he also referred to the respondent’s P3 issued at KTRH. 16.No. 82220, PC Silas Kimutai, testified for the respondent and produced a police abstract on the accident. He confirmed that a road traffic accident occurred between the appellant’s vehicle, driven by one Flora Njeri and the respondent’s motorcycle. It is his evidence that the appellant’s driver was charged for the traffic offence of careless driving even though he could not recall the traffic case reference. 17.The appellant’s driver testified during the trial, she conceded that a road traffic accident occurred on 22nd November, 2022 while she was driving the appellant’s motor vehicle. It is her evidence that she swerved to avoid being hit by a speeding Matatu and that her vehicle hit a guardrail and stopped. When the appellant’s driver emerged from her vehicle, she saw a rider and a pillion passenger lying on the road. Shortly the injured rider and passenger were taken to KTRH. 18.From the above evidence, it is apparent that the appellant’s driver lost control of her car at the accident scene, which in turn knocked the respondent’s motorcycle. The trial court cannot therefore, be faulted for finding the appellant wholly, vicariously liable, for causing the accident. There is no evidence to suggest that the respondent contributed, in any way, to the occurrence of the accident. 19.I now turn to the assessment of damages for the injuries suffered by the respondent. The medical report produced by Dr. Morebu Peter Momanyi dated 25th February, 2023 shows that the respondent suffered blunt trauma on the neck with cervical collar support, fracture of the neck, blunt trauma to the chest, bruises on the right elbow, fracture of the right tibia and fracture of the right leg fibula. The respondent’s doctor opined that the respondent suffered both soft and hard tissue injuries and requires both physiotherapy and occupational therapy. He assessed his permanent disability at 30 % and reported that he requires occasional use of analgesics. 20.The appellant called Dr. M.S. Malik who testified and produced a medical report dated 15th February, 2024, which is the day when he examined the respondent. Dr. Malik reports that the respondent had no scars on the neck. He says that the respondent had maintained a normal curvature of the spine. According to the doctor, the respondent had no tenderness to pressure over the cervical vertebrae. He reports that he had a full range of pain free movements of the neck with normal muscle power. As regards the right lower leg, he reports that there was an abrasion scar. He notes that the tibia and fibula are straight and solidly united with no bony swellings suggestive of any past, healed fractures. He has casted doubt on allegations that the respondent suffered fractures captured in his first medical report. He is of the view that if the respondent had suffered fractures, he would be having bony swellings on his tibia. 21The appellant’s doctor says he decided to take fresh x-ray on the respondent’s lower leg. He says his findings were that the right tibia and fibula are straight with no radiological signs of any past, healed fractures as shown in an x-ray film marked “B” which he compared with an x-ray film marked “A” presented by the respondent. The doctor says he reviewed the respondent’s outpatient card and noted that it was printed on 30th November, 2022 as opposed to 22nd November, 2022 when the respondent was involved in an accident. 22.Dr. Malik has opined that a patient who suffers a fracture of neck vertebrae would have been admitted to hospital for observation and probably taken to the theatre for open reduction and internal fixation of the spine and stabilization of the fracture. He rules out the possibility that the x-ray marked “A” belongs to the respondent. Dr. Malik concludes that it is possible the respondent sustained minor soft tissue injuries to his neck, chest, right elbow and right lower leg because of the accident. He has ruled out the possibility that the respondent suffered any permanent disability. The x-ray films referenced in his report have been annexed to the second medical report (see defence exhibit 4). 23.Assessment of damages is a matter for the trial court’s discretion. 24.In the case of Mariga v Musila (1984) KLR 251, it was held; and I quote; 25.The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court finding on the question of the amount of damages unless it is satisfied that the Judge acted on a wrong principle of law or has for these or other reasons made wholly erroneous estimate of damage suffered. The question is not what the appellate court would award but whether the lower court Judge acted on the wrong principles.” 26.It is trite law, as severally held in many decisions that a first appellate court is like a trial court and must re-evaluate the evidence on record to see if the decision of the trial court is factually and legally sound. In the case of Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123, it was held; and I quote; 27.Being a first appeal, this court is enjoined to re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it did not see or hear witnesses testify.” 28.Guided by the above principle appellate courts are hesitant to interfere with the findings of fact by the trial court that had the benefit of hearing witnesses and assessing the credibility of their testimonies. 29.The above position was reiterated in the case of Kemfro Africa Ltd. t/a Meru Express Services v Lubia & Another (1982-88) 1 KLR 727 where it was held, “The principles guiding an appellate court on interference with an award of damages are well settled. An appellate court will not disturb an award of damages unless it is demonstrated that the trial court acted on a wrong principle, misapprehended the evidence, took into account irrelevant facts, failed to take into account relevant factors or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages.” 30.An evaluation of the evidence on record shows that the trial court made a finding that the respondent suffered injuries itemized in his plaint and captured in Dr. Peter Momanyi’s medical report. The trial court made no mention of Dr. Malik’s second medical report. I do agree with the appellant’s submissions that the impugned judgment rendered in a contested suit falls short of the requirements of Order 21 Rule 4 of the Civil Procedure Rules. The trial court should have given reasons why she believed Dr. Morebu Momanyi’s report and disbelieved Dr. Malik’s report. It is apparent that the respondent’s doctor authored his report without the aid of x-ray films and radiologist reports to support the allegations that the respondent suffered fractures. His report is brief and devoid of supporting x-ray films and radiology reports. I agree with Dr. Malik’s observations that a patient who suffers a neck fracture cannot casually walk to hospital, have a cervical collar affixed and walks back home to recuperate. 31.Neck fractures involve serious life threatening injuries, which are normally handled by neurosurgeons and orthopedic consultants. Dr. Morebu’s report makes no mention of which part of the neck vertebrae was affected. The x-ray taken by Dr. Malik shows both the right tibia and fibula, which appear normal. Had the trial court scrutinized both medical reports she would have noted the remote likelihood that the respondent suffered fractures as suggested in his medical report. What is likely is that he suffered soft tissue injuries, as suggested by Dr. Malik, which are also captured in Dr. Morebu’s medical report. The assessment of damages, in the circumstances, is so erroneous and excessive. 32.It is the duty of this court, as the first appellate court, to re-assess the damages for the plausible injuries suffered by the respondent. Having found that he only suffered soft tissue injuries, I do reduce the general damages awarded by the trial court from Kshs. 600,000/= to Kshs. 200,000/= (in words, Kenya shillings two hundred thousand only). I will not disturb the award for special damages. The appeal succeeds to the above extent; I will also award the appellant the costs of the present appeal. 33.It is hereby ordered. JUDGMENT READ, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE, 2026HON. RICHARD K. KOECHJUDGEIn the presence of: Ms. Barasa appearing virtually for the Appellant Ms. Nyandoro appearing virtually for the Respondent Brian Onkundi, Court Assistant, appearing virtually.Right of appeal within 30 days