https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9162

Moegi v Ombinya (Civil Appeal E145 of 2025) [2026] KEHC 9162 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9162 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E145 of 2025 AM Okutoyi, J June 25, 2026 Between Cydrick Adedeji Moegi Appellant and Imion Nyarangi Ombinya Respondent (Being an appeal from the judgement of Hon. J Nyariki, Resident Magistrate delivered on 3.09.2025 in Kisii CMCC No. E104 of 2023) Judgment Background of the appeal 1.This appeal arises from a suit filed in the Chief Magistrate’s court in Kisii regarding a road accident that occurred on 16th January 2023 involving a motor vehicle registration number KBT 043 M belonging to the Appellant that allegedly knocked down the Respondent who was a pedestrian. As a result of the accident, the Respondent claims to have sustained injuries. 2.At the trial court, the Respondent relied on four witnesses; PW1 PC Kiprono Langát who produced the police abstract that blamed the Respondent’s driver for the accident; PW2 the respondent who adopted their statement as evidence in chief; PW3 Dr. Fredrick Goga who testified as to the injuries sustained and produced the P3 form and medical report and PW4 Alex Matara a clinical officer. 3.The Appellant on his part adopted a second medical report by Dr. Patrick and closed his case. 4.By consent, judgement on liability was entered at a ratio of 80:20 in favour of the Respondent. 5.The Magistrate at the trial court delivered a judgement on 3rd of September 2025 awarding the Respondent Kshs. 870,000/= in general damages subject to the contributory ratio, Kshs. 26,350/= in special damages and costs and interest of the suit. 6.Aggrieved with the decision of the trial Magistrate, the Appellant filed this instant appeal only on the quantum of damages on the following summarized grounds; That the learned trial Magistrate erred in law in awarding general damages that were excessive and inordinately high, ignored the principles of awarding damages and relied on authorities that were not comparative to the injuries sustained by the Respondent. 7.The Appellant with the reasons thereof prayed that the appeal be allowed, the award of general damages be set aside and substituted with a suitable award and costs. Appellant’s Submissions 8.The Appellant supported his appeal with their written submissions dated 27th February 2026 highlighted the err in law and fact in arriving at the quantum, relying on irrelevant authorities and ignoring those provided by the Appellant. 9.The Appellant further submitted that in failing to compare comparative authorities, the trial court made a fundamental misdirection. 10.The Appellant criticized the authorities cited by the Respondent that they did not have comparable injuries. The Appellant proposed an award of Kshs. 500,000/=. Respondent’s submissions 11.The Respondent on their side opposed the appeal and that it was devoid of merit. In their written submissions dated 27th February 2026, the Respondent maintained the authorities cited at the trial court to support the award of Kshs. 870,000/=. 12.The Respondent highlighted the fact that the trial court had the opportunity of seeing and taking evidence of the parties and had exercised rightly the discretion in arriving at the award. Analysis and Determination 13.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). 14.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.” 15.The appeal before this court is only on the quantum of damages. There is no contention on the injuries sustained by the respondent namely; Fracture of the right tibia-fibula and bruises on the left lower limb. What is in contention is the award that was issued by the learned trial Magistrate of Kshs. 870.000/=. 16.I have carefully analyzed the appeal and trial record in its entirety particularly the authorities cited by both parties. 17.The Appellant in supporting an award of Kshs. 500,000/= cited the following authorities that had similar injuries of a fracture on tibia and fibula coupled with soft tissue injuries;Pride Kings Security v Ekaalet (2023) KEHC 20284 KLR where the courts set aside a prior award of Kshs. 750,000/= to make an award of Kshs. 450,000/=;Wabomba v Wanyama where the high court on appeal set aside the award of Kshs. 800,000/= to make an award of Kshs. 500,000/=;Maina v. Ngumbi & another (2024) KEHC 7663 (KLR) in which the courts awarded Kshs. 400,000/= for a case with similar injuries and disability assessment of 10%;John Kirubi Wanjiku t/a/ Modern Coast Bus v Ohuru (2024) KEHC 8077 (KLR) where the High court assessed general damages at Kshs. 400,000/=;Kamau v Maasai (2025) KEHC 5390 where for similar injuries the courts awarded Kshs. 450,000/=;Kiraithi & Another v. George (2025) KEHC 10227 where on appeal the courts upheld an award of Kshs. 500,000/=;Ichura v Mwai (2025) KEHC 9722 (KLR) where the courts gave an award of Kshs. 500,000/=Ondieki & another v EO aka E (Minor Suing through other and next friend EAO) (2025) KEHC 12139 (KLR) in which the courts assessed general damaged of kshs. 500,000/=;Musembi v Kiptala & another (2025) KEHC 10126 (KLR) for similar injuries the courts awarded Kshs. 500,000/=;Nangulu & 2 others v Wekesa (2025) KEHC 10927 in which the courts upheld Kshs. 500,000/=;Magembe & 2 others v. Shisia (2025) KEHC 11720 (KLR) for similar injuries the courts assessed general damages at Kshs. 500,000/=; andKirero v. Kariuki (2025) KEHC 11099( KLR) where the courts gave the respondent an award of Kshs. 500,000/=. 18.The Respondent on the other hand cited the following authorities to propose an award of Kshs. 1,800,000/= noting the passage of time and the aspect of inflation:Mutisya V Demamoe (Civil Appeal E033 of 2021) (2023) KEHC 24470 (KLR) where an award of Kshs 1,500,000/= was given as general damages for injuries of fractures similar to the one in this appeal; and Subati Flowers Ltd. V Walter Wanyonyi Wekesa (2019) EKLR where the courts awarded Kshs. 1,600,000/= for injuries similar to the Respondent in this case. 19.I have carefully read all the authorities cited by both parties in detail and comparing the injuries sustained. The comprehensive authorities cited by the ppellant are quite recent with very comparable injuries of a fracture and soft tissue injuries. The pattern of awards therein is clear ranging from between Kshs. 400,000/= to Kshs. 500,000/= 20.A carefully reading of the two authorities cited by the respondent indicates more serious injuries as compared to what was sustained by the Respondent in this case. In the first case of Mutisya V Demamoe (Civil Appeal E033 of 2021) (2023) KEHC 24470 (KLR) the Appellant had sustained a displaced fracture of the right femur, tear of the extensor tendon of the right hand, tear of the extensor tendon on the left hand and degloving injury on the right leg. 21.This court notes the multiple injuries in this cited case by the Respondent affecting both the left and right side of the body. These are serious injuries that impact significantly on the functionality, movement ability and overall mobility of a person. In this case disability was assessed at 70%. They can therefore not be a comparison to the current case. 22.The second case of Subati Flowers Ltd v. Walter Wanyonyi Wekesa (2019) eKLR indicates multiple fracture of both the right and left tibia and fibula, coupled with fracture L2 of the lumbar spine and soft tissue injury to the chest. These injuries are by far more serious and the award thereof cannot be used as a comparative guide in the current appeal. 23.This court is alive to the principle that assessment of damages is primarily a matter within the discretion of the trial court and that an appellate court ought not to interfere merely because it would have awarded a different figure. 24.However, where it is demonstrated that the trial court relied on authorities not comparable with the injuries in question and did not rely on relevant authorities, then it amounted to an erroneous estimate of damages that was inordinately high, then an appellate court is warranted to interfere with the award. 25.The court of appeal in the case of Stanley Maore v. Geoffrey Mwenda (2002) emphasized that:“Comparable injuries should as far as possible, be compensated by comparable awards” 26.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.” 27.This court follows the same principles and having taken into consideration the nature of the injuries sustained by the Respondent as well as the range of comparative awards in the cited authorities is persuaded to upset the trial award of Kshs 870,000/= and replace it with Kshs 500,000/=. Disposition 28.Accordingly, the appeal succeeds. 29.The trial court judgment awarding Kshs. 870,000/= for general damages is hereby set aside and substituted with an award of Kshs. 500,000/= subject to the contributory apportioned liability of 80: 20 in favour of the Respondent. 30.The costs of this appeal to be awarded to the Appellant.It is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026A.M. OKUTOYIJUDGEIn the presence of:Ms. Atika for the Appellant.N/A for the Respondent.Ruth Mokeira-Court Assistant.