https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8081

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **CIVIL APPEAL NO. E034 OF 2025** **DENNIS KIPKIRUI …………………………………..…… APPELLANT** **VERSUS** **STEPHEN OMONDI OLOO ………………………..….... RESPONDENT** *(Being an Appeal from the Judgment of Resident Magistrate, Michuki M.**at the Magistrate’s Court at Bomet, Civil Suit Number E184 of 2024)* **J U D G M E N T** 1. The Appellant (then Plaintiff) sued the Respondent (then Defendant) for general and special damages that arose from a road traffic accident that occurred on 26th June 2024 along Bomet-Narok Road. 2. The trial court conducted a hearing where the Appellant called one witnesses before closing his case while the Respondent did not call any witness. 3. This is a sister file to Bomet High Court Appeals Numbers E033 of 2025 and E035 of 2015. On 14th May 2025, the parties recorded a consent on liability in the ratio of 80:20 in favour of the Appellant/Plaintiff. This consent was to apply to all three sister files as the cause of action arose from the similar road traffic accident. 4. In its Judgement delivered on 4th July 2025, the trial court awarded the Appellant Kshs 60,000/= as general damages and Kshs 10,550/= as special damages. 5. Being aggrieved with the Judgment of the trial court, the Appellant filed his Memorandum of Appeal dated 22nd July 2025 appealing against the low award on damages. 6. My duty as the 1st appellate court is to re-evaluate and re-examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I neither heard nor saw the witnesses testify. 7. I hereby proceed to summarise the case in the trial court and the parties’ respective submissions in the present Appeal. **The Plaintiff’s/Appellant’s case.** 1. Through his Plaint dated 5th August 2024, the Appellant stated that he was a pillion passenger on motorcycle registration number KMGB 502W when they were involved in a road traffic accident with motor vehicle registration number KCX 557X which belonged to the Respondent. 2. It was the Appellant’s case that the Respondent or his driver was negligent in causing the accident. The particulars of the negligence were stated in paragraph 4 of the Plaint. That as a result of the accident, the Appellant suffered the following injuries: - 3. Bruises on the knee. 4. Bruises on the lower limb. 5. Soft tissue injury on the ankle joint. 6. The Appellant prayed for special and general damages against the Respondent. 7. Through his written submissions dated 8th April 2026, the Appellant submitted that he sustained bruises to his knee affecting his mobility, soft tissue injury on the ankle joint limiting weight bearing and bruises on the thumb finger affecting hand function. That the injuries had impacted his daily activities and quality of life.The Appellant further submitted that the award of Kshs 60,000/= was low and proposed an award of Kshs 350,000/=. He relied on **Devki Steel Mills Ltd vs James Makau (2012) eKLR, Paul Kipsang Koech & another vs Titus Osule Osore (2013) eKLR et.al.** **The Defendant’s/Respondent’s case.** 1. Through his statement of defence dated 3rd September 2024, the Respondent denied the occurrence of the accident on 26th June 2024 and further denied being the registered owner of motor vehicle registration number KCX 557X. 2. It was the Respondent’s case that if the accident occurred then it was caused by the negligence of the Appellant or his driver. The particulars of negligence were contained in paragraph 7 of the Defence. 3. Through his written submissions dated 27th April 2026, the Respondent submitted that the Appellant suffered soft tissue injuries which had healed completely without any complications. That the trial court did not err when it awarded the Appellant Kshs 60,000/= as general damages. He relied on **Orukan v Patel & another (Civil Appeal 29 of 2023) [2025] KEHC 7180 (KLR) and West Sugar Co. Ltd v Kalibo (Employment** and **Labour Relations Appeal E001 of 2022) [2023] KEELRC 939 (20 APRIL 2023) (JUDGMENT).** 4. I have gone through and carefully considered the Record of Appeal, the Appellants’ written submissions dated 8th April 2026 and the Respondent’s written submissions dated 27th April 2026. The only issue that I have sieved for my determination was whether the award on damages was low. 5. From the parties’ submissions, it was undisputed that the Appellant suffered soft tissue injury to the ankle joint and bruises on his knee and lower limb. It was the Appellant’s case that the award of Kshs 60,000/= was low and proposed an award of Kshs 350,000/= while on the other hand, the Respondent was of the view that the award was reasonable and fair. 6. For this court to interfere with an award, it must be satisfied that the trial magistrate misdirected himself in some manner and as a result arrived at a wrong decision, or that it was clear from the case as a whole that the trial magistrate was clearly wrong in the exercise of his discretion and that as a result there has been a miscarriage of justice. 7. It is judicial practice that the general approach in awarding damages for injuries is that comparable injuries should as far as possible be compensated by comparable awards. In the present case, the Appellant suffered soft tissue injury on the ankle joint and bruises on the knee and lower limb. In terms of comparison, I have found the following cases quite helpful: - 8. In **Daniel Gatana Ndungu & another v Harrison Angore Katana [2020] KEHC 6806 (KLR),** the respondent sustained a cut wound on the head, blunt injury to the right knee, multiple bruises on the upper limbs and bruises on the right knee. The court set aside the finding by the subordinate court that awarded Kshs 350,000/= on general damages and substituted it with an award of Kshs 140,000/=. 9. In **Justine Nyamweya Ochoki & another v Jumaa Karisa Kipingwa alias Juma Karisa Kipingwa & another [2020] KEHC 4128 (KLR),** the respondent suffered a blunt object injury to the lower lip, blunt object injury to the chest and blunt object injury to the left wrist and was awarded Kshs 300,000/= On appeal Nyakundi J. set aside that amount and awarded Kshs 150,000/=. 10. In **John Wambua v Mathew Makau Mwololo & another [2020] KEHC 1602 (KLR),** the Plaintiff sustained blunt injury to the right shoulder and a blunt injury to the right big toe. The trial court assessed general damages for pain and suffering in the sum of Kshs. 120,000/= and this was affirmed by the High Court. 11. In addition to the authorities above, I have also considered the authorities put forth by the parties and I agree with the trial court that no two cases are similar. The court uses authorities as guide when determining the range of damages it will award. The injuries suffered by the Appellant were in the nature of soft tissue injuries and were not severe soft tissue injuries as stated in the Appellant’s submissions. In the circumstances, I find the award of Kshs 60,000/= as general damages as fair, just and commensurate to the injury suffered by the Appellant. 12. In regards to the special damages, the Appellant pleaded Kshs 550/= for motor vehicle search and Kshs 10,000/= for the medical report. I have seen the receipts for the motor vehicle search and medical report all totaling to Kshs 10,550/=. It is my finding that the special damages were pleaded and proved and the award of Kshs 10,550/= as special damages is upheld. 13. Flowing from the above, it is my finding that there was no reason to interfere with the award of the trial court. 14. In the end, the Appeal dated 22nd July 2025 has no merit and is dismissed. 15. Each Party to bear its own costs for the Appeal. **Judgment delivered, dated and signed at Bomet this 9th Day of June, 2026.** **...........................................** **HON. JULIUS K. NG’ARNG’AR** **JUDGE** **Judgment Delivered in the presence of;** **Siele/Susan – Court Assistant** **Ngeno for the Appellant** **Mutuku for the Respondent**