https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9774

Devlink Resources Consultants & 2 others v Kioko (Civil Appeal E092 of 2021) [2026] KEHC 9774 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 9774 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E092 of 2021 AN Ongeri, J June 12, 2026 Between Devlink Resources Consultants 1st Appellant Chase Bank Kenya Limited 2nd Appellant Matuu High School 3rd Appellant and Phillip Kiilu Kioko Respondent (Being an Appeal from the Judgement of Hon. G.O SHIKWE (SRM) in KITHIMANI MCC NO. 199 of 2017 delivered on 19/05/2021) Judgment 1.The cause of action arose from a road traffic accident that occurred on 15th November 2016. The Respondent was travelling as a passenger in motor vehicle registration number KBP 861K, which was owned by the 3rd Defendant. 2.It was alleged that this vehicle collided with another motor vehicle, registration number KBX 405A, which was owned by the Appellant and the 2nd Defendant. 3.Consequently, the Respondent filed a suit seeking damages for the injuries he sustained as a result of the collision. 4.After hearing the evidence, the trial court (Principal Magistrate’s Court at Kithimani) delivered its judgment on 19th May 2021. 5.The court first addressed the issue of liability. It noted that the only testimony on record came from the Respondent and the police officer who investigated the accident. 6.The Respondent testified as an eyewitness that their driver drove negligently and at high speed, and because it was raining, the driver failed to exercise due caution, causing the vehicle to ram into the rear of the lorry. 7.The police officer corroborated this account, confirming that the driver of motor vehicle KBP 861K was charged with the traffic offence of causing death by dangerous driving. 8.Since the Respondent’s testimony was unchallenged and uncontroverted, the court found it proved on a balance of probabilities. 9.The court therefore held that the accident was caused solely by the negligence of the driver of the 3rd Defendant’s vehicle. Liability was apportioned at 100% against the 3rd Defendant only. 10.On the issue of quantum, the court considered the medical report by Dr. Simon Muli Kioko, which classified the Respondent’s injuries as grievous, including a compound fracture of the right fibular bone and soft tissue injuries to the left hand. 11.The Respondent’s counsel submitted for an award of Kshs. 1,500,000/-, citing High Court cases where awards ranged from Kshs. 800,000/- to Kshs. 1,500,000/-. 12.The Appellant’s counsel submitted for an award of Kshs. 150,000/-, relying on a Nairobi High Court case where Kshs. 150,000/- was awarded for a fracture of the right femur. 13.The trial court, doing the best it could under the circumstances, made an award of Kshs. 700,000/- in general damages. 14.In reaching this figure, the court relied on the case of Godfrey Wamalwa Wamba & another vs. Kyalo Wambua [2018] eKLR, where the appellant sustained a compound fracture of the right distal tibia/fibula and the trial court’s award of Kshs. 700,000/- was upheld on appeal. 15.Additionally, the court awarded special damages of Kshs. 43,605/-, which it found had been pleaded and proved. 16.The court further ordered that the Respondent shall have the costs of the suit as well as interest. 17.In summary, the trial court ruled in favour of the Respondent, holding the 3rd Defendant 100% liable and awarding total damages of Kshs. 743,605/- plus costs and interest. 18.The appellant appealed against the said judgment on the following grounds;i.That the learned magistrate’s decision was unjust, against the weight of evidence by the defendant/Appellants and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice.ii.That the learned magistrate erred in law and in fact when he failed to consider the applicants’ evidence and submissions both on point of law and facts.iii.That the learned magistrate erred in law and in fact by awarding general damages of Kshs. 700,000, Special damages Kshs. 43,605 totalling to Kshs. 743,605/- - an amount that was excessive, unjust in the circumstances, considering the nature of claim, and the current decided cases.iv.That the trial magistrate erred in fact and in law in failing to consider the Appellants’ submissions on quantum.v.That the learned magistrate erred in law and in fact in unduly disregarding the judicial authorities cited by the Appellants and instead relying on the authorities cited by the Respondents which were unrelated to the actual claim.vi.That the Learned magistrate erred and misguided himself as to the exact nature of the Respondents injuries and therefore erred in law in his assessment of damages.vii.That the Learned magistrate erred in law and in fact in unduly disregarding the judicial authorities cited by the Appellants which are related to the injuries and the evidence adduced in trial 19.The parties filed written submissions as follows; The appellant submitted that the lower court awarded Kshs. 700,000.00 in general damages, which was too high considering the Respondent’s injuries. 20.The Respondent sustained a fracture of the right fibula bone and soft tissue injuries on the left hand, leg, and muscle. 21.The Appellant cited the case of Robert Kithinji Kithaka v AG [2018] eKLR, where the court awarded Kshs. 250,000.00 for a fracture on the left leg involving both tibia and fibula, a fracture of the left collar bone, and bruises all over the body. 22.The Appellant cited the case of Herbart Otara Marube v Dankan Ochora [2022] eKLR, where the court awarded Kshs. 450,000.00 for a plaintiff who sustained a fracture of the right tibia, right ankle dislocation, chest contusion, and laceration and cut wounds on the right lower limb. 23.The Appellant cited the case of Atunga v Mogambi (Civil Appeal E009 of 2021) [2022], where the court awarded Kshs. 550,000.00 for injuries including a fracture of the right tibia/fibula bones, dislocation of the right wrist and right hip joint, chest trauma, cut wounds, bruises, and 15% disability. 24.The Appellant submits that the sum of Kshs. 400,000.00 should be upheld considering the injuries and the awards in the cited cases. 25.The Appellant prays to be awarded the costs of this Appeal. 26.The Respondent did not file any submissions in this appeal. 27.The issues for determination in this appeal are as follows;i.Whether the trial court erred in principle by awarding excessive general damages of Kshs. 700,000/- for a compound fracture of the right fibular bone and soft tissue injuries, andii.Whether the appellate court should disturb that award. 28.An appellate court will not disturb an award of damages unless it is demonstrated that the trial court acted on wrong principles of law, misapprehended the evidence, or the award is so inordinately high or low as to represent an entirely erroneous estimate of damages. 29.While the Appellant argues that the award is excessive and cites cases such as Robert Kithinji Kithaka v Attorney General (supra), where lower amounts were granted for similar or more severe fractures, the assessment of general damages remains a matter of judicial discretion guided by the unique circumstances of each case and comparable awards. 30.The trial court relied directly on Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018] eKLR, a comparable precedent where an award of Kshs. 700,000/- for a compound tibia/fibula fracture was upheld. 31.Although the Appellant invites the court to reduce the award to Kshs. 400,000/-, they have failed to demonstrate that the trial magistrate misapprehended Dr. Simon Muli Kioko’s medical report, which explicitly classified the Respondent’s compound fracture and soft tissue injuries as grievous. 32.This categorization distinguishes the present case from simpler, closed fractures such as the femur injury cited by the Appellant in Nairobi High Court Civil Case No. 3438 of 1999, which lacks contemporary inflationary relevance. 33.The final decision of this court is that the appeal lacks merit, the trial court's award of Kshs. 700,000/- in general damages and Kshs. 43,605/- in special damages is hereby upheld in its entirety, and the appeal is dismissed with no order as to costs since the Respondent did not file submissions. 34.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026ASENATH N. ONGERIJUDGEIn the presence ofNo appearance for the AppellantChelagat holding brief Mr Muia for the RespondentChrispin - Court Assistant