Onkundi v Onyiego (Civil Appeal E011 of 2025) [2026] KEHC 9118 (KLR) (25 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **KISII HIGH COURT** **HCCA NO. E011 OF 2025** **DAVID MOGERE ONKUNDI ................................APPELLANT** **VS** **BERNARD PAUL OBIKO ONYIEGO.....................RESPONDENT** ***(Being an appeal from the Judgement delivered by Hon. CA Ocharo (CM) on 30th July 2024 at Kisii CMCC No. 872 of 2022)*** **JUDGMENT** **Background of the appeal** 1. This appeal emanates from a suit filed at the Chief Magistrates court in Kisii with regards to a road accident that occurred on 7th of January 2022 involving motor vehicle registration number KCF 077 T where the Respondent was a passenger and motor vehicle registration number KBM 744 Q driven and/or controlled by the Appellant or his agent/driver and in which accident the Respondent allegedly sustained injuries. 2. At the trial court, the Respondent testified in person as PW1 and adopted his statement as evidence in chief, narrated how the accident occurred and the injuries sustained. He produced treatment notes as evidence. 3. The Appellant who was the defendant in the suit at the trial court did not produce any witnesses to testify. 4. The Learned Trial magistrate at the trial court delivered a judgement on 30th July 2024 attributing 100% liability to the Appellant, awarding general damages of Kshs 250,000/= and special damages of Kshs. 6,620/= plus costs and interest. 5. Aggrieved with the decision of the trial court Magistrate, the Appellant filed this instant appeal on the following summarized grounds: *That the learned trial Magistrate erred in law and fact in assessing the award for general damages which was excessive and that the special damages award of Kshs. 6,620/= were not pleaded and proved.* 6. The Appellant therefore prayed for the appeal to be allowed and the judgment of the trial court be set aside. 7. The appeal was canvassed by way of written submissions. **Appellant’s Submissions** 1. The appellant supported his appeal with written submissions dated 20th of February 2026 by highlighting that even thoughthe injuries were confirmed by the medical report of Dr. Morebu Peter Momanyi there was no assessment of disability and the injuries were anticipated to heal. 2. The Appellant further cited seven authorities that demonstrated that the trial court’s award of **Kshs. 250,000/=** for soft tissue injuries was inordinately high. **Respondent’s Submissions** 1. The Respondent in submissions dated 5th of March 2026 opposed the appeal urging the court to be guided by the set principles of awarding quantum and interference by the appellate court and that there was no evidence adduced that the wrong principles was used by the trial court to arrive at the award of Kshs. 250,000/=. **Analysis and Determination** 1. 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).** 2. I have carefully analyzed the appeal and trial record in its entirety as well as the evidence adduced and submissions by both parties. There is no contention that an accident did occur on 7th of January 2022. There only issue in contention in this appeal is on the quantum award by the trial court. 3. The Respondent claims he sustains the following injuries: *Abrasions on the left parietal region, cut wounds on the left zygomatic region, abrasions on the left shoulder, deep cut wounds on the left forearm and deep cut wounds on the right leg.* He further attested that he has continuing effects of headache, pain in the left upper limb, pain on the right leg and large disfiguring permanent scars. 4. The Respondent adduced treatment notes and a medical report by Dr. Morebu Peter Momanyi in which he was examined on 14th March 2022 to corroborate his claim. The Appellant did not refute these claims hence the evidence of the Respondent remains uncontroverted. On a balance of probability, this court I therefore satisfied that the respondent sustained the injuries pleaded. 5. What then should be the appropriate quantum? To establish this, this court will assess comparative awards issued by the other courts. 6. The Appellant in proposing an award of **Kshs. 50,000/=** cited the following authorities: **HB (Minor suing through mother & next friend DKM v. Jasper Nchonga Magari & Another (2021)** where the courts awarded Kshs. 60,000/= for blunt object injury to the head, neck thorax, abdomen and limbs; **Eva Karemi & 5 others v. Koskei Kieng & Another (2020)** where the courts awarded the range of Kshs 40,000/= to 70,000/= for soft tissue injuries**; James Kwanya Rege v. Lizzy Awuor ( minor suing through the father & next fried George Odhiambo Arao** where for bruises, blunt trauma and chest contusion the High court set aside an award of Kshs. 400,000/= to 80,000/=; **Wilson Ondicho Mboga v Grace Jeremiah Osindi Sasi** where the courts awarded kshs. 120,000/= for multiple blunt object injuries to the head neck, thorax, abdomen and limbs; **Boaz Obure & Bethuel Gichonga Muthami v. Samwel Kiyuka Timothy Okwanyo** **(2023)** where the high court reduced the award of Kshs. 250,000/= to Kshs. 70,000/=; and **Wilson Mboga Ondicho v Harrison Nyangau Mosigisi** where the courts placed aside a trial court award of kshs. 300,000/= and awarded Kshs. 80,000/= for soft tissue injuries to the head and leg. 7. The Respondent’s authorities cited at the trial court were too old hence would not guide in a comparative analysis. None were cited at the appeal stage. 8. The Trial magistrate in her judgement cited the authorities of **Daniel Gatana Ndungú & Another vs. Harrison Angore Katana (2020)** where the plaintiff who had sustained cut wounds on the head, blunt, injury to the knee and multiple bruises on the upper limbs had their award substituted from Kshs. 350,000 to Kshs. 140,000/=; and **Pascal vs. Ouko (2023) KEHC 24463 (KLR)** where an award of Kshs. 200,000/= was substituted with 150,000. 9. This court has also done its own analysis on comparative awards as follows; **Lilian Anyango Otieno v Philip Mugoya Ogila (2022) EKLR** where the high court substituted an award of **Kshs. 100,000/= with Kshs. 150,000**/=for soft tissue injuries**; Anthony Nyamwaya v. Jackline Moraa Nyandemo (2022) EKLR** an award of **Kshs. 250,000/=** was given as general damages for multiple soft tissue injuries. 10. For this court to arrive at a determination, it is guided by the trite principles on relooking into the quantum of general damages awarded as 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.”** 1. This court follows the same principles and from the above analysis, taking into consideration the nature of injuries sustained, and the medical assessment of recovery, I find that the trial court’s award of Kshs. 250,000/= was inordinately high and amounted to an erroneous estimate of damages. 2. As such, and guided accordingly by the range of awards given in the cited authorities for soft tissue injuries, the award of Kshs, 250,000/= by the trial court is hereby set aside and substituted with Kshs 150,000/=. which adequately reflects the injuries sustained by the Respondent. 3. The issue of special damages was raised in the memorandum of appeal though it was not highlighted by both parties in their submissions. A perusal of the plaint indicates that special damages of Kshs. 6,620/= were pleaded. An analysis of the record of the trial court shows that receipts totaling to the said amount were adduced as evidence. The court is therefore satisfied that the special damages were pleaded and proved by the Respondent. **Disposition** 1. Accordingly, this court makes the following orders, 2. The appeal succeeds on quantum for general damages 3. The trial court’s award of Kshs. 250,000/= as general damages is hereby set aside and substituted with an award **of Kshs, 150,000/=.** 4. The award of special damages remains as awarded by the trial court 5. The Appellant having succeeded on the sole issue of quantum for general damages shall have the costs of the appeal. The order as to costs made at the trial court shall remain undisturbed. It is so ordered. **DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 25th DAY OF JUNE 2026** **A.M. OKUTOYI** **JUDGE** In the presence of: **Ms. Migiro for the Respondent** **N/A for the Appellant** **Ruth Mokeira-Court Assistant**