https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9735

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CIVIL APPEAL NO. E 054 OF 2025** DISMAS NYAUNDI………………………………………………APPELLANT VERSUS STEVE SAGINI OMARE…..................................................... RESPONDENT ***(Being an appeal from the judgment and decree of the Honourable S. N. Abuya, Chief Magistrate, delivered on 2nd April, 2025 in Kisii CMCC E 076 of 2022).*** **JUDGMENT** The appellant was the defendant in Kisii Chief Magistrate’s Court Civil Case No. E 076 of 2022 while the respondent was the plaintiff. The cause of action between the parties arose because of a road traffic accident that occurred on 28th May, 2021 involving the plaintiff who was travelling as a passenger on motor vehicle Registration No. KCX 791 R along Kisii-Nyamataro Road. In a judgment delivered on 2nd April, 2025 the learned trial magistrate found the defendant vicariously liable for the accident caused by the negligence of his driver and awarded the plaintiff Ksh. 400,000/= in general damages for injuries suffered as a result of the accident and Ksh. 6,500/= in special damages. In a memorandum of appeal dated 16th April, 2025 the appellant is seeking orders to have the judgment of the trial court and the ensuing decree set aside and the plaintiff’s suit dismissed with costs to the appellant both on the appeal and the suit before the subordinate court. Alternatively, the appellant is seeking orders that this appellate court re-evaluates the evidence tendered before the trial court on liability and quantum of damages and make its own decision on award of damages. The grounds in support of the appeal are as summarized hereunder; 1. That the trial magistrate erred in law and fact by finding the appellant wholly liable for causing the accident and for finding that the respondent sustained the injuries alleged in the plaint, 2. That the learned trial magistrate erred in law and fact by failing to give regard to a medical report authored by Dr. Malik dated 23rd March, 2023 who had conducted a second medical examination on the respondent and disputed the alleged injuries suffered by the respondent, 3. That the learned trial magistrate erred in law and fact by misapprehending the evidence adduced and erroneously awarded the respondent general damages of Ksh. 400,000/= which was inordinately too high considering the injuries suffered by the respondent, and 4. That the learned trial magistrate misdirected herself by treating the appellant’s pleadings, evidence and submissions superficially thereby reaching a wrong conclusion. The parties agreed to dispose of the appeal by way of written submissions with the appellant filing submissions dated 11th February, 2026 and the respondent filing submissions dated 20th February, 2026. The appellant has challenged the trial court’s findings on both liability and the award of damages. According to the appellant, the trial court ignored a medical report tendered in evidence for the appellant, which was authored by Dr. Malik, dated 23rd March, 2023. The appellant further submits that the respondent failed to proof any of the particulars of negligence attributable to the appellant as alleged in the plaint. The appellant cited the case of ***MJ suing through JM & 2 Others v Swaleh*** ***O. Shabiby*** (2019) eKLR to buttress his submissions that the respondent failed to proof allegations of negligence. The appellant submits that the opinion of Dr. Malik to the effect that the respondent was unlikely to have suffered the injuries as alleged was not taken into account by the trial court. According to the appellant, the injuries allegedly suffered by the respondent were disputable. The appellant pointed out that the respondent failed to present an X-Ray photograph marked “A”, which was presented to Dr. Malik during the re-examination of the respondent. The appellant faulted the respondent’s doctor for his failure to tender in evidence the treatment notes issued to the respondent when he went to hospital. The appellant characterized the alleged injuries suffered by the respondent as being fraudulent or forged injuries. The appellant submits that the award of Ksh. 400,000/= in general damages was inordinately too high in light of the failure by the respondent to proof his allegations of injury. The appellant urges this court to find that the respondent suffered soft tissue injuries and reduce the award of damages to Ksh. 70,000/=. The respondent submits that the lower court judgment is sound in law and fact and does not warrant any interference by this court. According to the respondent, the evidence adduced by the respondent was uncontroverted including his testimony on how the accident occurred. The respondent submits that a police abstract was produced in evidence and that the trial court evaluated the two conflicting medical reports. According to the respondent, the appellant did not rebut evidence on liability. The respondent has countered the submissions by the appellant that his injuries were not proved. He submits that the respondent’s treatment notes, a P3 and a medical report authored by Dr. Nyameino were tendered in evidence. The respondent submits that it was the appellant’s driver who veered off the road and hit a barrier, thereby causing the accident and that the driver was charged with a traffic offence. The respondent cites his evidence during the trial and the evidence of a traffic police officer who testified as PW3. The respondent submits that he suffered a fracture of the right femur, which was fixed with a metal implant, an injury adjudged to have caused him a 20% permanent incapacity. The respondent submits that Dr. Malik examined the respondent two years after his injury and failed to refer to his X-Ray and theatre notes. The respondent characterizes his report as being speculative and unreliable. The respondent says the trial court rightly found Dr. Nyameino’s medical report more reliable as compared with that of Dr. Malik. He has cited the case of ***Nicholas v Wells Fargo Ltd*** (2025) KEHC 2333 (KLR) of 27th February, 2025 as what guided the trial court while evaluating the competing medical reports. I can identify two (2) issues for determination by this court; 1. ***Whether the trial court properly assessed damages payable to the respondent for injuries suffered as a result of the road traffic accident involving the appellant’s motor vehicle which occurred on 28th May, 2021, and*** 2. ***Whether the trial court erred in law and fact by finding the appellant wholly liable for causing the said accident.*** I will first address the issue of liability for causing the accident; the appellant is aggrieved by the trial court that found him wholly liable for causing the accident in question. The record shows that respondent testified regarding how he was involved in a road traffic accident while travelling in the appellant’s vehicle. The respondent also testified regarding the injuries that he suffered. No. 82476, Cpl. Aquinata Shiloli, a traffic officer attached to Nyanchwa police station also testified for the respondent. It is the evidence of the traffic officer that the appellant’s driver lost control of his vehicle, which hit a traffic light before rolling and finally resting upside down. The officer told the trial court that passengers travelling in the vehicle were injured and were taken to hospital for treatment. The appellant’s vehicle is reported to have sustained extensive damages because of the accident. The police officer produced a police abstract on the accident (see exhibit 6). It is her evidence that the appellant’s driver was not charged with a traffic offence. I note that the appellant did not adduce any evidence as regards how the accident involving his motor vehicle occurred. He did not call his driver to explain the circumstances under which the accident occurred. The respondent was a mere passenger who had no control over the appellant’s vehicle. He cannot be faulted for causing the accident or contributing to its occurrence. The trial court was right in finding the appellant wholly liable, albeit vicariously, for causing the accident. I now turn to the assessment of damages for the injuries suffered by the respondent. The medical report produced by Dr. Daniel Nyameino dated 7th June, 2021 shows that the respondent suffered whiplash neck injuries, back contusion, right elbow joint contusion, fractures of the right radius and ulna and left knee contusion and abrasions. The respondent’s doctor opined that he suffered both soft and hard tissue injuries and was likely to develop posttraumatic cervical spondylosis later in life. He categorized the injuries as “grievous” and assessed his permanent disability at 3%. The appellant called Dr. M.S. Malik who testified and produced a medical report dated 3rd March, 2023, which is the day when he examined the respondent. Dr. Malik has casted doubt on allegations that the respondent suffered fractures captured in his first medical report. He is of the view that if the respondent had suffered fractures, his plaster cast could not have been removed after a month. He opines that he reviewed an x-ray dated 28th May, 2021 which shows a traverse fracture of the lower third of the radius with slight displacement and angulation at the fracture site. According to the doctor, there was no fracture of the ulna and the wrist joint is normal. He is of the view that the x-ray he reviewed does not belong to the respondent who was also x-rayed at his clinic, which revealed a very different fracture. The appellant’s doctor says in his report that there is no doubt that the respondent sustained fractures of his radius and ulna. He reports that the fractures have united in functionally acceptable positions. However, he notes that the fractures were probably sustained because of a different accident and the respondent was making an un-convincing attempt at making it look as the accident of 28th May, 2021. The appellant’s doctor concludes that if it can be proved that the respondent suffered fractures of his right radius and ulna on 28th may, 2021, then he suffered total incapacity of a temporary nature for a period of three months followed by a partial incapacity of a temporary nature for a further period of one month. He opines that in his present condition, the respondent has no permanent physical disability. Based on the submissions of the parties, the trail court awarded the respondent Kshs. 400,000/= in general damages for the injuries suffered. The respondent had filed submissions dated 24th February, 2025 in which he urged the trial court to award him Kshs. 1,000,000/= in general damages. The appellant, on the other hand, filed submissions dated 25th February, 2025. The appellant submitted that the respondent’s injuries were fraudulent, based on the x-ray report done at Dr. Malik’s clinic and his initial x-ray report. The appellant submitted that if the trial court found the injuries to be authentic, then the respondent ought to be awarded Kshs. 400,000/= in general damages as opposed to Kshs. 1,000,000/= that the respondent was seeking. The appellant backed up his proposal on general damages with three authorities involving comparable injuries in which awards were given ranging from Kshs. 600,000/= to Kshs. 1,000,000/= which were reduced on appeal to awards ranging from Kshs. 400,000/= to Kshs. 450,000/=. The trail court ignored the proposal by the respondent for an award of kshs. 1, 000, 0000/= and adopted the appellants proposal to have damages capped at Kshs. 400,000/=. It seems the appellant is trying to run away from his pleadings on assessment of general damages which he initially proposed and persuaded the trial court to adopt. Dr. Malik caused the respondent to be x-rayed; the x-ray showed that he suffered fractures of the ulna and the radius. As such, his findings and those of Dr. Nyameino are similar. What differs is his speculation that the respondent sustained the injuries in an accident other than the accident of 28th May, 2021. There is no basis for his findings, I agree with the respondent’s submissions that the good doctor is merely speculating. More so, considering that he saw the respondent close to two years after he was injured. I find no basis on which to interfere with the trial court’s assessment of general damages on the persuasion of the appellant himself. Assessment of damages is a matter for the trial court’s discretion. In the case of ***Mariga v Musila*** (1984) KLR 251, it was held; and I quote; ***“The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court finding on the question of the amount of damages unless it is satisfied that the Judge acted on a wrong principle of law or has for these or other reasons made wholly erroneous estimate of damage suffered. The question is not what the appellate court would award but whether the lower court Judge acted on the wrong principles.”*** It is trite law, as severally held in many decisions that a first appellate court is like a trail court and must re-evaluate the evidence on record to see if the decision of the trial court is factually and legally sound. In the case of ***Selle & Another v Associated Motor Boat Co. Ltd*** (1968) EA 123, it was held; and I quote; ***“Being a first appeal, this court is enjoined to re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it did not see or hear witnesses testify.”*** Guided by the above principle appellate courts are hesitant to interfere with the findings of fact by the trial court that had the benefit of hearing witnesses and assessing the credibility of their testimonies. The above position was reiterated in the case of ***Kemfro Africa Ltd. t/a Meru*** ***Express Services v Lubia & Another*** (1982-88) 1 KLR 727 where it was held, ***“The principles guiding an appellate court on interference with an award of damages are well settled. An appellate court will not disturb an award of damages unless it is demonstrated that the trial court acted on a wrong principle, misapprehended the evidence, took into account irrelevant facts, failed to take into account relevant factors or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages.”*** An evaluation of the evidence shows that the trial court appreciated the entire evidence, the submissions of the parties and the applicable parameters in assessment of damages payable for the injuries suffered by the respondent. An award of Ksh. 400,000/= in the circumstances cannot be said to be excessive. For the above reasons I do dismiss the appeal by the appellant with costs to the respondent. ***IT IS HEREBY ORDERED.*** **Judgment read, dated, signed and delivered virtually this 18th day of June, 2026** **HON. RICHARD K. KOECH** **JUDGE** **In the presence of:** * Ms. Wambani appearing virtually for the Appellant * Mr. Edwin Karori appearing virtually for the Respondent * Mr. Brian Onkundi Court Assistant Right of appeal within 30 days