https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10721

Odongo v Ayoti Distributors Limited (Civil Appeal E034 of 2025) [2026] KEHC 10721 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10721 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E034 of 2025 DK Kemei, J July 17, 2026 Between David Onyango Odongo Appellant and Ayoti Distributors Limited Respondent (Being an appeal from the judgement and resultant decree of the Small Claims Court at Siaya (Hon J.P Mkala (RM)) dated 23rd May 2025 in Siaya SCCOMM No. E013of 2025) Judgment 1.The Appeal arises from the Judgment of Hon. J. P. Mkala (RM) delivered on 23rd May 2025 at Siaya in SCCCOM E013/2025. 2.The Appellant herein, David Onyango Odongo was the Claimant in the lower court. He filed a Statement of Claim dated 17th January 2025 seeking general damages for pain and suffering, special damages of Kshs. 57,800/- and future medical expenses of Kshs. 200,000/- resulting from a road traffic accident. 3.The case for the Appellant was that on 28th December 2024 at around 0900 hours, he was riding his motorcycle Registration No. KMEG 383U at Kipasi Junction along the Bondo-Misori Road. He alleged that the Respondent’s motor vehicle, an Isuzu Lorry Registration No. KBN 100N driven by the Respondent's authorized driver, carelessly rammed into his motorcycle from behind causing him severe bodily injuries. 4.The Respondent filed its Response to the Statement of Claim denying liability and negligence. In the alternative, the Respondent averred that the accident was solely caused or contributed to by the negligence of the Appellant who joined the main road from a junction recklessly while carrying two pillion passengers unlawfully and further lacked a valid driving license. 5.After a full hearing, the learned Adjudicator found both parties equally to blame and apportioned liability at the ratio of 50:50. The trial court assessed general damages at Kshs. 700,000/-, special damages at Kshs. 39,535/- and dismissed the claim for future medical expenses. Consequently, judgment was entered for the Appellant for 50% of the assessed sum which totaled to Kshs. 389,535/- plus costs and interest. 6.Aggrieved by the decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 26th May 2025 herein he raised the following grounds of appeal namely; -a.That the learned trial Magistrate erred by apportioning the liability in the ration of 50:50 yet it was clear from the entire evidence on record that the Respondent is the one who caused/occasioned the accident and it ought to have been held 100% liable for the accident.b.That the learned trial Magistrate erred both by failing to award the appellant the future medical expenses which were pleaded and proven to the required standard by cogent evidence, submissions and authorities adduced by the Appellant.c.That the learned trial Magistrate erred in awarding a sum in respect of general damages which was inordinately and unjustifiably low and not commensurate to the injuries sustained by the claimant in the circumstances of this case hence occasioning miscarriage by justice. 3.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. 4.It is noted that the Appellant’s appeal relates on the issue of quantum of general damages and future medical expenses. To properly ascertain whether the trial court arrived at a sound determination on quantum, it is necessary to examine the evidence placed before the lower court regarding the accident and the resultant injuries. 5.David Onyango Odongo (Cw1) the Appellant/Claimant In his evidence-in-chief, the witness adopted his written statement dated 17th January 2025 as his primary evidence and produced the following documents as exhibits:CEX-1: Police AbstractCEX-2: Duly filled P3 FormCEX-4: Medical Report by Dr. George MwitaCEX-5A & 5B: Claimant's treatment records and medical receiptsCEX-6 & 7: Motor vehicle copy of records and its payment receiptCEX-8 & 9: Statutory Notice and Notice of institution of suitCEX-10: Demand NoticeUpon cross-examination, the witness stated that he was the rider of the motorcycle at the time of the accident but admitted that he did not have a valid rider's license. He clarified that he does not operate a bodaboda business and was merely returning from a journey. He stated that he knew it was a traffic offense to ride without a license and noted that he was not the registered owner of the motorcycle. He testified that he wore a helmet and a reflector jacket and was carrying two pillion passengers namely George Omondi Odongo and another person whose name he could not recall. That they were heading to Bondo from Owindi. He stated that the motor vehicle involved was coming from Bondo though he did not know its destination. He testified that the accident occurred inside a junction where his motorcycle was hit on the right side. He explained that the motorcycle sustained damage on the front, its fuel tank was dislodged and the front wheel was broken. He stated it was a head-on collision. He denied the allegation that he joined the road without checking whether it was clear. He further testified that he lost consciousness during the incident and that the motor vehicle ran over his leg resulting in a fracture of his right leg alongside injuries to his chest, waist and head. He concluded by stating that he is not yet healed, remains on medication and recorded his statement at the police station, though he does not know if the driver was charged. Upon re-examination, the witness reiterated that they had already entered the junction and were moving upward when the oncoming vehicle came speeding and knocked his motorcycle. 3.No. 701710 PC Eugene Masika (CW2) The witness testified that he is a police officer currently attached to the Bondo Traffic Base performing traffic duties. He produced the police abstract of the accident as CEX-1 and noted that the accident involved a motorcycle registration No. KMEG 383 ridden by David Odongo Onyango and an Isuzu Lorry, registration No. KBM 100N. He stated that one pillion passenger died from the accident while the rider sustained serious injuries. He indicated that the scene was visited and the case status was marked as Pending Under Investigation (P.U.I). Upon cross-examination, the witness admitted that he did not personally investigate the accident explaining that the investigating officer was Inspector Nyandusi who was away attending an official meeting in Kisumu. He confirmed that the investigations were not yet complete. He further stated that he had not looked at the Occurrence Book (OB) and that he did not have the physical police file, could not detail the exact circumstances of the incident and could not attribute blame to any party since no one had been charged. This marked the close of the Claimant’s case. 4.Ezekiel Owino (RW1) was the Respondent's driver. In his evidence-in-chief, the witness stated that he resides in Kisumu, works as a driver and holds a valid driving license. He adopted his witness statement dated 5th February 2025 as his evidence and produced three documents as exhibits as per the Respondent’s list of documents. He testified that he was driving from Bondo and upon reaching the Kipasi Junction along the Bondo-Misori Road, his vehicle was hit by the motorcycle on the left side of the fuel tank. He reported the accident and recorded his statement at the police station. He noted that the motor vehicle was subsequently inspected and blamed the rider for causing the accident, stating that he had not seen him prior to the impact. Upon cross-examination, the witness stated that he was driving at a speed of 50 km/h on the main road and did not see the motorcycle before the crash, only hearing the sound of someone hitting his vehicle. He denied running over the Appellant's leg and stated he did not know if the Appellant broke his leg. He confirmed that he recorded his statement on the same day as the accident and later returned to collect the abstract letter though he did not provide the abstract to the court. Upon re-examination, the witness firmly reiterated that he did not run over the Appellant's leg. 5.Ben Onyango Owino (RW2) In his evidence-in-chief, the witness stated that he comes from Homa Bay and works as a sales person for Ayoti Distributors Limited. He adopted his witness statement dated 5th February 2025 as his evidence before the court. Upon cross-examination, the witness testified that there were three occupants in the lorry at the time of the accident including himself and their team leader Arthur. He stated that they reported the incident to their fleet manager Frankline Pamba who then reported the matter to the police station on the very same day. He noted that he personally recorded a statement at the police station. He added that the driver tried to slow down and successfully stopped the vehicle after the accident occurred. Upon re-examination, the witness clarified that he was not the one who physically reported the matter to the police. This marked the close of the Respondent's case. 6.The Appeal was canvassed by way of written submissions. Both parties filed their respective submissions. 7.The Appellant submitted that he instituted the suit via a Statement of Claim dated 17th January 2025 in which he sought specific reliefs against the Respondent namely: special damages in the sum of Kshs. 57,800/-, general damages for pain and suffering, loss of amenities, loss of future earning capacity, future medical expenses as well as the costs and interest of the suit. 8.The Appellant stated that the facts of the case as outlined in his pleadings and lower court witness statement were that on 28th December 2024, he was riding his motorcycle Registration No. KMEG 383U on his proper side of the road at Kipasi Junction along the Bondo-Misori Road when the Respondent’s motor vehicle Registration No. KBN 100N knocked him down causing him severe and serious bodily injuries. 9.The Appellant further contended that the Respondent's witnesses confirmed during their testimonies that they never saw the motorcycle prior to the impact and only became aware of the accident after hearing a bang. He highlighted the driver's cross-examination where the driver admitted that he did not attempt to swerve, slow down or speed off to avoid the collision and further noted that the Respondent's witnesses admitted to driving at a speed exceeding 50 kilometers per hour at a junction. 10.He noted that the trial court delivered its judgment on 23rd May 2025 apportioning liability at 50:50 and awarding him general damages of Kshs. 700,000/- (reduced by half to Kshs. 350,000/-), special damages of Kshs. 39,535/- and assessed costs of Kshs. 40,000/- with a 30-day stay of execution. Being dissatisfied with that outcome, the Appellant stated that he preferred this appeal on three main grounds: that the trial court erred in splitting liability at 50:50 instead of finding the Respondent 100% liable, that the court failed to award future medical expenses which were pleaded and strictly proven and that the general damages awarded were inordinately low. 11.The Appellant submitted that it is a well-settled principle of law that a party who desires a court to give judgment on any legal right or liability must prove the existence of the facts asserted. To support this proposition, he cited Sections 107 and 108 of the Evidence Act, emphasizing that the burden of proof lies on the party who would fail if no evidence at all were given on either side. 12.He argued that as a first appellate court, this Honorable Court is mandated to conduct a retrial by re-evaluating, re-assessing and re-analyzing the entire evidence on the record to draw its own independent evaluations and conclusions. In support of this legal duty, he relied on the landmark authorities of Selle and Another v. Associated Motor Boat Company Limited and Others [1968] EA 123, Williamson Diamonds Ltd and Another v. Brown [1970] EA 1, and Abok James Odera t/a AJ Odera & Associates v. John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR 13.The Appellant submitted that his account of the accident was uncontroverted and firmly supported by his witness statement and list of documents which showed that the Respondent's vehicle knocked him down and ran over his leg. He added that the police officer (CW2) corroborated this by producing police abstract to that effect. 14.In contrast, the Appellant argued that the Respondent’s driver openly admitted to not seeing the motorcycle which demonstrated that the driver failed to take the necessary safety precautions when approaching a junction. He pointed out that the driver only stopped after a loud bang which occurred after the lorry had already run over his leg and that the driver made no attempt to swerve or slow down to mitigate the accident. 15.Furthermore, the Appellant questioned the credibility of the Respondent's reporting process noting that the accident was reported to the police by their fleet manager (who did not witness the event) rather than the driver or occupants themselves. He argued that this was a deliberate cover-up to shift liability noting that the Respondent failed to produce any police abstract of their own to prove that they made a genuine report. 16.The Appellant asserted that he was wearing a safety jacket, a reflector and riding boots at the time of the crash and therefore could not have contributed to its occurrence. He argued that the Respondent's driver was in control of a "lethal machine" and thus owed a higher duty of care to pedestrians and lighter road users like cyclists and motorcyclists. To ground this argument, he cited Francis K. Righa v. Mary Njeri (Suing as the Legal Representative of the Estate of James Kariuki Nganga) [2014] eKLR, which quoted with approval the case of Wambua v. Patel & Another (1986) regarding a driver's elevated obligation to maintain a proper look-out. Consequently, he urged the court to overturn the 50:50 split and find the Respondent 100% liable. 17.The Appellant submitted that the medical documents on record including the discharge summary, the P3 Form and the Medical Report compiled by Dr. George Mwita established that he suffered severe injuries namely: injuries to the neck, chest, elbow joint, right leg, right knee joint and a fracture of the right tibia/fibula bones. He indicated that the examining doctor classified these injuries under the category of "Grievous Harm". The Appellant proposed that an award of Kshs. 1,000,000/- for pain and suffering would be reasonable and sufficient keeping in mind the pecuniary jurisdiction limits of the trial court. To justify this amount, he relied on Joseph Musee Mua v. Julius Mbogo Mugi & 3 Others [2013] eKLR, where a plaintiff with closely similar injuries was awarded Kshs. 1,300,000/-. 18.The Appellant strongly contested the trial court’s finding that future medical expenses were unpleaded. He asserted that the expenses were explicitly pleaded in his Statement of Claim and strictly proven by the medical report which explicitly stated that he had not fully recovered, continued to experience severe pain and required an orthopedic reconstructive surgery costing an estimated Kshs. 200,000/-. He urged the court to grant this prayer. The Appellant submitted that costs should follow the event praying for the costs of both the lower court and the appeal. On the question of interest, he requested that it be ordered to run from the date the suit was originally filed until full payment is made. The Appellant concluded his submissions by praying for a total all-inclusive award of Kshs. 1,000,000/- (accounting for the pecuniary limit of the Small Claims Court) plus costs and interest, broken down ideally as 100% liability, Kshs. 1,000,000/- in general damages and Kshs. 200,000/- for future medical expenses. 19.The Respondent submitted that the Appellant instituted a claim in the Small Claims Court at Siaya via a Statement of Claim dated 17th January 2025 arising from a road traffic accident that occurred on 28th December 2024 at Kipasi Junction along the Bondo-Misori Road involving a motorcycle Registration No. KMEG 383U and the Respondent's motor vehicle, Registration No. KBN 100N. 20.The Respondent noted that the trial court in its judgment delivered on 23rd May 2025 found both parties equally to blame and apportioned liability at 50:50. The trial court then assessed general damages for pain and suffering at Kshs. 700,000/- and special damages at Kshs. 39,535/- while dismissing the claim for future medical expenses. Consequently, the trial court entered judgment for the Appellant for 50% of the assessed sum totaling Kshs. 389,535/- plus costs and interest. 21.The Respondent indicated that the Appellant filed this appeal against the whole judgment on three grounds: the 50:50 apportionment of liability, the refusal to award future medical expenses and the quantum of general damages. 22.The Respondent submitted that the trial court was entirely correct in finding that the Appellant largely contributed to the occurrence of the accident. The Respondent highlighted that during cross-examination, the Appellant explicitly admitted that he did not possess a valid rider's license, was not the registered owner of the motorcycle and was carrying two pillion passengers at the time of the collision. 23.The Respondent argued that by carrying two pillion passengers, the Appellant was in flagrant breach of the Traffic Act and the NTSA (Operation of Motorcycles) Regulations which drastically affected the stability, control and braking capacity of the motorcycle. The Respondent further pointed out that the Appellant admitted he was entering a major road from a minor road junction. Under Paragraph 114 of the Highway Code, a road user joining a main road from a junction bears the primary responsibility to wait until it is safe to proceed. 24.The Respondent maintained that its driver (RW1) was driving at a reasonable speed of 50 km/h on the main road and had the right of way. It argued that the Appellant recklessly joined the road without checking for oncoming traffic thereby ramming into the left side of the lorry's fuel tank. To reinforce this position, the Respondent cited Ndatho v. Chebet [2022] KEHC 346 (KLR), asserting that where both road users fail to exercise proper look-out, an equal split of liability is just. The Respondent therefore urged this Court not to disturb the trial court's 50:50 apportionment. 25.The Respondent supported the trial court’s decision to decline the award for future medical expenses. It submitted that while the Appellant claimed Kshs. 200,000/- for future surgery, it is a basic principle of law that special damages including future medical treatment must not only be pleaded but must also be strictly proven with precision. 26.The Respondent submitted that the assessment of general damages is a discretionary power vested in the trial court and an appellate court should only interfere if the award is inordinately high, low or based on wrong legal principles. It cited Kemfro Africa Limited t/a Meru Express Service v. Lubia [1987] KLR 30 to anchor this argument. 27.The Respondent contended that the trial court's assessment of Kshs. 700,000/- for a tibia/fibula fracture and soft tissue injuries was fair, reasonable and fully aligned with established judicial precedents. It cited Dennis Matagaro v. NKO [2021] KEHC 7524 (KLR), where similar injuries attracted comparable awards. The Respondent argued that the Appellant's demand for Kshs. 1,000,000/- was excessive and lacked comparative legal justification. 28.The Respondent concluded its submissions by asserting that the trial court carefully considered all the oral and documentary evidence before arriving at a balanced decision. The Respondent prayed that the entire appeal be dismissed with costs awarded to the Respondent. 29.I have carefully considered the Appeal, the Judgement of the Small Claim Court and the rival submissions by parties. I find the main issue for determination is whether the Appeal has merit. 30.The Appellant contends that the Respondent’s vehicle was a "lethal machine" and owed a higher duty of care. He notes that the Respondent's driver (RW1) admitted to traveling at 50 km/h at a junction and did not see the motorcycle prior to hearing a "bang". Conversely, the Respondent points out that the Appellant admitted during cross-examination that he was joining a main road from a minor road junction. Furthermore, the Appellant conceded that he did not possess a valid rider's license and was carrying two pillion passengers at the time of the collision. 31.Under Section 107 of the Evidence Act (Cap 80), the initial burden of proving negligence rests squarely on the claimant. A review of the evidence confirms that the Appellant was in gross violation of traffic safety rules. Paragraph 114 of the Highway Code mandates that any driver or rider joining a junction must wait until there is a safe distance before completing a turn. By carrying two pillion passengers, the Appellant breached Regulation 6(c) of the NTSA (Operation of Motorcycles) Regulations, which drastically impaired his ability to safely control the motorcycle. 32.On the other hand, a driver approaching a visible junction has an auxiliary duty to slow down, anticipate potential road entries and maintain a vigilant lookout. RW1's admission that he did not see the motorcycle until the impact indicates a lack of proper look-out. 33.Where the evidence clearly shows independent elements of negligence on both sides and it is mechanically impossible to perfectly untangle the primary cause of impact, liability must be split evenly. This court aligns with the precedent set out in Ndatho v. Chebet [2022] KEHC 346 (KLR). I find that the trial magistrate correctly appraised the evidence and the 50:50 apportionment of liability is hereby upheld. 34.The learned Adjudicator dismissed the claim for future medical expenses on the sole procedural ground that it was not contained in the Appellant's pleadings stating that "parties are bound by their pleadings". However, a meticulous examination of the Supplementary Record of Appeal (Page 4 and Page 6) reveals that under Paragraph v and prayer (c) of the Statement of Claim, the Appellant explicitly pleaded future medical expenses for reconstructive surgery estimated at Kshs. 200,000/-. The trial court fell into a manifest error of fact by asserting that it was unpleaded. 35.Nonetheless, future medical expenses are specialized damages that must not only be pleaded but must also be strictly proven with reasonable certainty via medical expert testimonies, detailed treatment costings or clinical records. In this case, the Appellant produced a medical report from Dr. George Mwita indicating a fracture of the right tibia/fibula requiring future reconstructive orthopedic evaluation. However, the report failed to provide an objective breakdown, official clinical quotation or definitive surgical timeline to validate the specific figure of Kshs. 200,000/-. 36.While the court recognizes that the Appellant sustained a severe fracture that likely requires future care, a court cannot award a round speculative sum without rigorous justification. Since the procedural ground of dismissal by the trial court was erroneous, this court will set aside that finding but must evaluate proof. Given the medical report verified that the fracture is not fully healed, a reasonable global award under general future medical intervention is justifiable. This court awards a nominal proven sum of Kshs. 100,000/- under this head before apportionment. 37.The trial court assessed general damages for pain and suffering at Kshs. 700,000/-. The medical records confirm that the Appellant suffered a severe fracture of the right tibia and fibula bones, soft tissue injuries to the chest, neck, knee joint and elbow. 38.An appellate court will not disturb an award of damages assessed by a trial court unless it is shown that the trial court acted on wrong legal principles, omitted relevant factors or the award is so inordinately low or high as to be an erroneous estimate (See Kemfro Africa Limited t/a Meru Express Service v. Lubia [1987] KLR 30). 39.Assessing comparable authorities such as Dennis Matagaro v. NKO [2021] KEHC 7524 (KLR), an award of Kshs. 700,000/- for a tibia/fibula fracture paired with soft tissue injuries falls squarely within acceptable judicial ranges and economic parameters. It is neither excessive nor inordinately low. This court finds no error in the exercise of the trial court’s discretion. The assessment of Kshs. 700,000/- is sustained. 40.Consequently, the Appeal succeeds partially only to the extent of the future medical expenses. The final judgment of the Small Claims Court is hereby varied and recalculated as follows:a.Liability between the Appellant and Respondent-50% :50%b.General damages……………………Kshs.700,000/-c.Special damages (as proven in trial court…………………………………...Kshs.39,535/-d.Future medical expenses (as varied in the appeal) …………………………………Kshs.100,000/-e.Gross total assessment………………. Kshs.839,535/-f.Less 50% contributory negligence...Kshs. -419,767.50g.Net award payable to Appellant…..Kshs.419,767.50 3.For clarity, this court enters judgment for the Appellant against the Respondent for the total sum of Kshs. 419,767.50/=. Interest on general damages and future medical expenses shall run from the date of the trial court's judgment (23rd May, 2025) until payment in full. Interest on special damages shall run from the date of filing the suit in the lower court until payment in full. As the appeal has succeeded only in part, each party shall bear its own costs of this appeal. The costs award of Kshs. 40,000/- in the trial court remains undisturbed. DATED AND DELIVERED AT SIAYA, THIS 17TH DAY OF JULY 2026D.KEMEIJUDGEIn the presence of:M/s Omondi For Cheloti…………………for the AppellantM/s Otiato …………...............for the RespondentMaureene………………………………………..Court Assistant