https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10148

Maina v Mulwa & 2 others (Civil Appeal E026 of 2024) [2026] KEHC 10148 (KLR) (13 July 2026) (Judgment) Neutral citation: [2026] KEHC 10148 (KLR) Republic of Kenya In the High Court at Makueni Civil Appeal E026 of 2024 TM Matheka, J July 13, 2026 Between Elijah Mwangi Maina Appellant and Dorcas Mbinya Mulwa 1st Respondent Samuel Mwangi Maina 2nd Respondent Samuel Kyalo Maingi 3rd Respondent (Being an Appeal from the judgment of Hon. P. Gesora (CM) in the Chief Magistrate’s Court at Makueni, Civil Case No.E156 of 2021 delivered on 14th February 2024) Judgment 1.By a Plaint dated 24th September, 2021 the Plaintiff/1st Respondent herein Dorcas Mbinya Mulwa filed suit seeking judgment against the Defendant/ Appellant Elijah Mwangi Maina for:1.General damages for pain, suffering and loss of amenities.2.Special damages of Kshs.22,450.3.Future medical expenses of kshs.300,000.4.Costs of this suit.5.Interest on (a), (b) and (c) above.6.Any other or further relief as this court may deem fit and just to grant. 2.. This was following a road accident on 05/11/2020 accident where she sustained personal injuries . It was her case that the accident occurred along Wote-Machakos Road; that she was a pillion passenger on motor cycle registration No. KMFG 744Z when motor vehicle registration No. KCG 010F was negligently/carelessly driven/managed/controlled that it veered off the road while overtaking and hit the motor cycle as a result of which , she sustained severe bodily injuries. 3.The Plaintiff /1st Respondent pleaded that she sustained the following injuries:- Blunt injury to the upper limb Blunt injury to the right thigh Fracture to the right femur mid shaft Cut wound on the right leg 4.The Appellant ELIJAH MWANGI MAINA entered appearance and filed a defence he denied the Plaintiff’s allegations and put her to strict proof thereof. In the alternative he pleaded that if the accident occurred then the same was wholly caused by the motor cycle the Plaintiff was being ferried on or substantially contributed to by the negligence of the rider/controller of the motor cycle. Particulars of negligence on the part of the rider of motor cycle reg. Number KMFG 744Z were set out in the defence. He also blamed the Plaintiff for the accident and set out particulars of negligence on her in the defence. He also averred that he would seek leave foe the rider of the motor cycle to be joined as a third party to this suit. In the end the Defendant prayed for the suit to be dismissed with costs. 5.Third party proceedings were taken out by the Defendant/Appellant and a notice was accordingly issued and served upon one Samuel Kyalo He did not enter appearance and an interlocutory judgment was entered against him on 26/04/2023. 6.The record is not clear on the identity of the 2nd Respondent or his role in these proceedings . He was not mentioned in the judgment of the trial court . 7.After the preliminaries, the matter proceeded between the Appellant, 1st Respondent and 3rd Respondent culminating in a judgment whereby the trial court apportioned liability in the ratio of 75:25 between the Appellant and 2nd Respondent respectively and assessed damages as follows;General damages……………kshs 1,200,000/=Future Medical Expenses……………300,000/=Special damages…………………………22,450/=Total…………………………………….1,522,450/=Appellant to shoulder……………1,141,837.50/=3rd Party to shoulder………………..380,612.50/=Plus, costs and interest in the same ratio. 8.Aggrieved by the entire decision, the Appellant filed this Appeal and raised the following grounds;a.The trial magistrate erred in law and fact by apportioning liability at 75:25 between the defendant and third parties when in fact the evidence on record clearly showed that the plaintiff and third parties were wholly to blame for the accident.b.The learned trial magistrate erred in law and fact by applying the wrong principles and misapprehending the evidence and as a result arrived at a figure on quantum so inordinately high as to represent an entirely erroneous estimate.c.The learned trial magistrate erred in law and fact in awarding kshs 1,200,000/= as general damages and kshs 300,000/=as cost of future medical expenses without any basis or evidence.d.The learned trial magistrate erred in law and fact by failing to dismiss the suit against the Appellant/defendant for want of proof despite of the plaintiff failing to meet the standard of proof. 9.The parties elected to canvass the Appeal through written submissions and appropriate directions were given. Accordingly, the parties complied and filed their respective submissions. Submissions by the Appellant 10.On liability it was submitted that the Appellant raised the defence of contributory negligence, and the 1st Respondent had not controverted his evidence 11.That the Appellant’s evidence (DW1) before the trial court was that he was carefully driving along the Wote-Machakos road heading towards Machakos when the motor cycle encroached on his lane while attempting to overtake a lorry and collided head-on with the Appellant’s vehicle. 12.That, according to the evidence of DW2 who was travelling with the Appellant, seated on the co-driver’s seat, it was the 3rd Respondent that carelessly overtook the lorry and occasioned the accident. That, during the hearing of the case, the 1st Respondent and her witness failed to describe the occurrence of the accident in a manner to suit the narrative that the accident was caused by the Appellant’s negligence. 13.That, during cross-examination, PW1-PC Paul Mogesi confirmed that the rider was overtaking when the accident occurred and that the rider was to blame for the accident. That, in a rare turn of events, PW1 feigned ignorance of the culpable party by claiming that the matter was still pending under investigation despite the glaring evidence and his admission that the accident was caused by the 3rd Respondent. 14.That, during the hearing of the case, the 1st Respondent confirmed that the rider was known to her but failed to call him as an eyewitness to corroborate her evidence that it was the Appellant who encroached on their lane. That, she went ahead to claim that the rider was blamed by the police and that both of them were not wearing the requisite protective riding gear. 15.It was contended that the 1st Respondent did not discharge the required burden of proof hence the trial court erred by relying on her evidence. That, the Appellant cannot be held liable to a greater extent for an accident he did not cause. Reliance was placed on Wayne Ann Holdings Limited (T/a Superplus Food Stores) v Sandra Morgan, quoted in Mombasa Maize Millers & Anor -vs- Elius Kinyua Gicovi (2021) eKLR, where the court held;“In this case contributory negligence was raised as a defence. When such a defence [sic] is raised, it is only necessary for a defendant to show a want of care on the part of the claimant for his own safety in contributing to his injury. In Nance v British Columbia Electric Rly [1951] AC 601, at page 611, Lord Simon said:“……When contributory negligence is set up as a defence, its existence does not depend on any duty owed by the injured party to the party sued, and all that is necessary to establish such a defence is to prove … that the injured party did not in his own interest take reasonable care of himself and contributed, by this want of care, to his own injury. For when contributory negligence is set up as a shield against the obligation to satisfy the whole of the plaintiff’s claim the principle involved is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.” 16.Further reliance was placed on Mumbi M’Nabea -vs- Davis M. Wachira (2016) KECA 773 KLR where the Court of Appeal stated;“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not..” 17.Relying on Section 107 and 109 of the Evidence Act the Appellant submitted that the Plaintiff /!st Respondent had not discharged the burden of proof with regard to how the evidence happened. 18.On the award of general damages, the Appellant reiterated their submissions for the award of Kshs.700,000/= as general damages. That the Plaintiff sustained, a fracture of the mid-shaft right femur, cut wound right knee and blunt trauma right hand with a 2% permanent disability and that an award of Kshs.700,000 would suffice as compensation in the circumstances. 19.With regard to quantum, this court was urged to award kshs 75,000/= for future medical expenses as per the medical report of Dr. Wambugu. It was contended that the assessment of kshs 300,000/= by Dr. Kimuyu was exaggerated and couched in a way that was meant to mislead the court. That, Dr. Wambugu categorically stated that the suggested amount would be sufficient at a medium cost hospital while Dr. Kimuyu does not give any explanation as to what informed his exorbitant quote. That, Dr. Wambugu examined the 1st Respondent several months after Dr. Kimuyu by which time she had made tremendous strides towards healing. 20.Reliance was placed on Litembekho -vs- Namasaka (Civil Appeal E156 of 2023([2025) KEHC 773 (KLR) (30 January 2025) (Judgment) where an award of kshs 1,600,000/= was substituted with kshs 650,000/=; there, the Respondent had suffered a fracture of the femur, bruises on the scalp and pain in the left thigh; Karoli -vs- Laban (Civil Appeal E043 of 2023 [2025] KEHC 5023 (KLR) (29 April 2025) (Judgment) where the court upheld kshs 600,000/= for general damages and kshs 75,000/= for future medical expenses where the Respondent suffered a right fracture of the shaft of the femur. 21.It was submitted that there was no justification for the award of Kshs.300,000/= future medical expenses. This is because the range for future medical expenses, between the doctors who testified, was between Kshs.75,000/= and Kshs.300,000/=.It was urged that proposal by Dr. Wambugu a Consultant Surgeon ought to have been more persuasive as compared to Dr. Kimuyu as he examined the 1st Respondent when she had made some strides in healing. It was submitted that if the trial court had put its mind to all the evidence and submissions the outcome would have been different, it was contended that the trial court’s judgment called for interference as was rife with inconsistent conclusions and failure to consider material facts, evidence, submissions and precedents. 22.The court was referred to Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, where this principle was enunciated thus:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..." 23.Further that in Peter Omolo vs. Match Masters Limited [2017] eKLR. High Court Civil Appeal No. 79 of 2013 - Nairobi, the following was stated; "On the quantum of damages, the law is quite clear and there is no dispute about the principles applicable in an appeal relating to quantum of damages. The assessment of damages is an exercise of judicial discretion by the trial magistrate and an appellate court should be slow to reverse the trial court's award unless it is shown that he acted on wrong principles or awarded to excessive or little damages that no reasonable court would; or he had taken into consideration matters he ought not to have considered, or not taken into consideration matters he ought to have considered and, in the result arrived at a wrong result. 24.The 1st respondent also cited Cecilia Mwangi & Another vs Ruth W. Mwangi (1997) e KLR, High Court Civil Appeal No. 251 of 1996 – Nyeri) where the Court opined that though money cannot compensate for the battery a physical frame (body) gets from an accident/injury, the awards must be reasonable, assessed with moderation and comparable injuries should get comparable awards. It was urged that the judgment be set aside, and substituted with an award of Kshs.700,000/-, and future medicals of Kshs.75,000/=. Submissions by the 1st Respondent 25.With regard to liability, it was submitted that judgment of the trial court confirmation that the court took into account all relevant factors in arriving at its finding on liability. 26.The Plaintiff/1st Respondent reminded the court of its role as a court of 1st appeal relying on Abok James Odera t/a A.J Odera & Associates vs John Patrick Machira t/a Machira & Co. Advocates (2013) e KLR, where it stated: "this being a first appeal, we are reminded of our primary role as a first appellate court namely, to re- evaluate, re-assess and re-analyze the extracts on record and then determine whether the conclusions reached by the learned judge are to stand or not and give reasons either way." 27.It is submitted that the court considered the evidence and the pleadings to determine liability. 28.On quantum, this court was referred to Kenya Power Limited v James Matata & 2 others (Suing as the legal representatives of the estate of Nyange Masaga (deceased) [2016] eKLR which relied on Butt vs Khan (1977) 1 KAR where it was statedHowever, an appellate court cannot review the amount downwards merely because it could have awarded a lower figure if it was the trial court. It can only interfere with such an award if the same is inordinately high or inordinately low so as to come up with a wholly erroneous estimate.This is a principle that is well settled in law. In this regard, the Respondents referred this court to the case of Butt vs Khan (1977) 1 KAR in which it was held as follows:-An Appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low" 29.It is submitted that the authorities relied on by the Appellant there was no 2% permanent disability, the Plaintiff’s leg had shortened 30.With regard to quantum, it was submitted that the award was not too high as to represent an erroneous estimate. That, the trial magistrate did not proceed on wrong principles and did not misapprehend the evidence in some material aspect. That, the in the trial court’s judgment the trial court analyzed the injuries and was guided by the two medical reports produced and considered the parties’ submissions. 31.It was submitted that the authorities relied upon by the Appellant were not comparable because, the parties therein had no permanent incapacitation and the limb of the Plaintiff herein had shortened by 1.5 cm thus affecting her walking. That, the seriousness of the injuries was captured in the medical report of Dr. Kimuyu and confirmed by Dr. Wambugu. This court was urged to uphold the award of kshs 1,200,000/= as general damages and reliance placed on Charles Mathenge Wahome -vs- Mboya Lukanga & 2 Others (2011) eKLR where an award of kshs 1,500,000/= was made to a Plaintiff whose leg shortened by 2 inches.; Mwangi -vs- Maina (Civil Appeal E028 of 2021) KEHC 20509 (KLR) (21 JULY 2023) (Judgment) where an award of kshs 1,500,000/= for injuries resulting in shortening of the leg by 2.5 inches. 32.With regard to future medical expenses, it was submitted that the shoe heel would be removed periodically and that Dr. Wambugu’s estimate of kshs 75,000/= was only for removal of the implant without taking into account the heel raise. 33.I have carefully considered the evidence on record the judgment of the subordinate court, the grounds of appeal, rival submissions and entire record, the two issues for determination are;a.Whether the apportionment of liability should be disturbed.b.Whether the quantum of damages should be disturbed. Duty of Court 34.It is now settled that the duty of a first appellate Court is to analyze and re-evaluate the evidence on record in order to reach it’s own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses. (Selle & Another –vs- Associated Motor Boat Co. Ltd. & others (1968) EA 123) Evidence on Liability 35.PW1 was Corporal Paul Mogesi of Makueni Traffic Base. He stated that he was standing in for PC Chebii. He testified that a police abstract was issued to the Plaintiff in respect of a road traffic accident that occurred on 05/11/2020 at 1640 hrs at Mukuyuni. That, she was a passenger in motor cycle KMFG 744Z make Skygo which was ridden by Simon Kyalo Maingi and insured by Explico Insurance. That, the motor vehicle was KCG 010F Volkswagen Passat. That, the OB extract was issued to the Plaintiff’s counsel and the matter was under investigations. PW1 was paid kshs 5,000/= and produced the police abstract as P. Exh 1. 36.On cross-examination, he said that PC Chebii was the investigations officer (I.O). That, he (PW1) signed the police abstract, the scene was visited and measurements taken. That, the contents in the abstract are a reflection of the OB. That, the accident was reported by road users. That, the Plaintiff sustained a fracture on the right leg. That, the rider was overtaking when the accident happened and the rider is to blame for the accident. That, the matter was still pending under investigations as all the parties had not recorded statements. 37.In re-examination, he said that it was not conclusive that the rider was to blame. That, all parties had not recorded statements. That, the Plaintiff would be more authoritative as to how the accident occurred. That, the I.O did not make a final conclusion. 38.PW2 was the 1st Respondent and she adopted her statement as evidence-in-chief where she stated that, on 05/11/2020, she was travelling as a pillion passenger on motor cycle KMFG 744Z from Mukuyuni to Ukia and an accident occurred at Kyamuthei junction. 39.That, motor vehicle KCG 101F from the opposite direction, driven at a high speed, was overtaking another motor vehicle when it lost control and veered off its lawful lane and knocked down the motor cycle she was riding on. That, she was taken to Mukuyuni Health Centre for first aid and then referred to Makueni County Hospital for further treatment. 40.In her further evidence in court, she said that the point of impact was on the left when facing Wote. That, there was a canter ahead of them. That, the vehicle KCG 101F overtook the vehicle ahead of it and hit PW2. That, the motor cycle was not hit but they fell on the left side. That, the driver did not stop but he went to Makueni police station. 41.On cross-examination, she said that she was a pillion passenger and agreed that they had not worn helmets. That, the rider had a reflective jacket and was not known to her but he was also injured. The rider was not a witness in the case and she had no other witness. That, they were moving in the opposite direction but were not overtaking. That, there was a canter ahead of them but she could not recall its registration number. 42.That, there was a saloon car-Toyota Premio ahead of the motor vehicle that hit them. She could not recall the registration number but it was white in colour. She agreed that she had not mentioned the canter in her statement. That, the accident occurred at 6.40pm and the motor cycle head light was on. That, the vehicle was registration number KCU 101F and she saw it at a distance of 5 meters. That, they were on their rightful lane and the rider was blamed initially. That, she was issued with a police abstract and recorded a statement with the police. 43.DW1 was Elijah M. Maina and he adopted his statement as his evidence-in-chief where he stated that on 05/11/2020, he was driving motor vehicle KCG 010F from Wote heading to Machakos. That, the weather condition was dry with clear visibility. That, on reaching Mukuyuni area at about 18.40hrs, an oncoming third party motorcycle KMFG 744Z attempted to overtake another motor vehicle (canter) which was from the opposite direction without ensuring road clearance. That, the motor cycle rammed onto the front right part of his vehicle and damaged it. 44.That, the motor cycle which was carrying a pillion passenger landed on the road surface and the rider and pillion passenger fell on the tarmac. That, the accident was reported at Wote police station and the police arrived and made their observations. That, the vehicle and motor cycle were towed to the police station awaiting inspection. That, he recorded a statement with police. His motor vehicle was released to him and it had no pre-accident defects. 45.That, nobody in his vehicle was injured but the vehicle was damaged on the front right part and the side mirror was ripped off. He blamed the accident on the motor cycle for failing to keep a proper look out and failing to give way. That, the motor cycle was uninsured and the rider had no licence. 46.In his further evidence in court, he said that he didn’t take any action as it happened abruptly but he braked. That, the rider overtook carelessly. He denied taking off and said that the vehicle was towed. 47.On cross-examination, he agreed that he was the driver of the vehicle in question and said that he did not get the registration number of the canter in question. He agreed that he had not indicated the identity of his passenger in his statement and that the police officer didn’t indicate the passenger. 48.That, he was moving in the opposite direction to the motor cycle. That, the overtaking occurred suddenly and the car was hit on the right side. He agreed that the extent of damage is not captured in his statement. That, the damage is not indicative of the speed he was moving. That, the police were called by a police officer who passed and the victims were rushed to hospital by members of the public. That, the rider and pillion passenger didn’t have helmets. He agreed that he had not mentioned the issue of helmets in his statement. 49.He said that his motor vehicle was inspected and a report made. That, he took photos of the motor vehicle and the scene. That, the same should have been produced. That, the I.O blamed the rider for the RTA and he (DW1) got a conclusive abstract on the same. He was not aware if the cyclist was ever charged in court. 50.That, the rider had no insurance but the abstract shows that it was insured. That, the rider had no license. 51.DW2 was Teresia Njoki Muiru and she adopted her statement as her evidence-in-chief. She stated that on 05/11/2020, she was travelling with the Defendant in his motor vehicle KCG 010F from Wote heading to Machakos. She was sitted on the co-driver’s seat. 52.On reaching Mukuyuni at about 6.40pm, an oncoming rider at high speed tried to overtake a canter without ensuring that the road was clear. The motor cycle rammed onto the front right part of KCG 010F and damaged the bumper, right wheel and right mirror. The rider had a pillion passenger and both of them landed on the tarmac. The motor cycle was KMFG 744Z. 53.After a while, the police arrived, took the scene details and had the vehicle towed to Wote police station. Neither her nor the defendant sustained injuries. She blamed the rider for trying to overtake without ensuring that the road ahead was clear. 54.That, the rider should have seen the vehicle as the headlamps were on. That, neither the rider nor passenger had a helmet. 55.On cross-examination, she said that the Defendant was a colleague and they were both employed by Unga Limited. She agreed that she had no police abstract showing that she was a passenger. She agreed that she didn’t record a statement with police and didn’t record a statement with the insurer. 56.That, the rider and passenger had no helmets and there were no barriers on the road. That, there was no deep shoulder and there is no action that the Defendant would have taken to avoid the accident. That, the motor cycle was pushed off their lane and point of impact was on the vehicle’s lane. That, it was the motor cycle which was overtaking and was on high speed. 57.She couldn’t tell who took the victims to hospital. That, the police were called from Wote. That, another colleague-Paul Mutua-drove her and the Defendant to Wote. 58.In determining the matter, the learned trial magistrate stated:-It is not in dispute that the accident which is the subject matter of these proceedings did occur. At the scene motor vehicle KCG 101 F was moving from Wote Town hearing to Machakos general direction. At the point of impact motor cycle KFMG 749Z was being ridden from the opposite direction. The point of impact was almost at the middle of the road. There was need for each part to exercise cause. The Defendant had a higher responsibility considering the circumstances of the case. No effort was made by him to avoid the collision a fact that was admitted by him and his witness DW1. To me the Defendant has a higher responsibility in this matter and I accordingly enter judgment on liability at 75:25 in favour of the Plaintiff. That is to say that the Plaintiff’s rider (3rd Party) will shoulder 25% liability while the Defendant will shoulder 75% liability. The court then awarded Kshs.1,200,000/= for pain and suffering, Kshs.300,000/= future medical expenses and 22,450 special damages. 59.It emerges from the testimony that all witnesses pointed blame to the rider. The police officer, the Plaintiff, the Appellant and his witness. This rider, though joined as the 3rd Party did not appear. In addition, the Plaintiff did not call him as her witness despite the fact that he said he was known to her. It is not clear to me how the trial court faced with this evidence arrived at the apportionment of liability as evidently the witnesses pointed at his negligence. The police officer said that the scene was visited, measurements taken and a conclusion drawn by the I.O that the rider was to blame even though he had not taken the statements of witnesses. The Plaintiff said the rider was to blame “initially” so what changed. No evidence is given as to what changed this initial blame placed by the Plaintiff who was the pillion passenger 60.The evidence of the Appellant and 1st Respondent is in agreement that, on the material day at around 6.40pm, an accident occurred at Mukuyuni area along the Wote- Machakos road between motor vehicle registration No. KCG 010F and motor cycle registration number KMFG 744Z. The accident was reported at Wote police station as per the abstract produced by PW1. The fact of the accident is therefore not in dispute. It is also clear that the vehicle and motor cycle were heading in opposite directions. 61.The 1st Respondent (PW2) was a pillion passenger on the motor cycle hence an eyewitness. Her version of how the accident occurred was that the vehicle was overtaking a Toyota Premio when it encroached on the rightful lane of the motor cycle and hit it. 62.On the other hand, DW1 was the vehicle driver hence also an eyewitness. His version was that it was the motor cycle which encroached on his rightful lane as it tried to overtake a canter. PW2 and DW1 are therefore blaming each other but PW2 had the burden of establishing that the accident occurred as per her version. She had a duty to convince the court that her version was more probable. 63.PW1 who was called to aid the 1st Respondent’s case testified that the rider was to blame for the accident as he was overtaking. He changed his narrative in re-examination and said that the I.O had not made a conclusion on who was to blame. Unfortunately, a sketch map was not availed for the court’s benefit but both PW2 and DW1 talked about the presence of a canter at the scene and PW2 agreed that the canter was ahead of the motor cycle. 64.Having re-evaluated the evidence before court, it is more probable that it was the motor cycle that was overtaking the canter, and in this case the rider did so without ensuring that the road was clear hence ramming into the oncoming vehicle. 65.DW1’s evidence that the accident occurred suddenly is believable because the canter ahead of the motor cycle had hidden it from view. The fact that the motor cycle’s view was obstructed by the canter called for more caution on the part of the rider hence his attempt to overtake in those circumstances was negligent. In James Muniu Mucheru -vs- National Bank of Kenya Limited [2019] KECA 1058 (KLR), the Court of Appeal stated as follows;“Indeed, it is settled law that in civil cases the standard of proof is on a balance of probability. This is in effect to say that the Courts will make a finding based on which party’s version of the story is more believable.”Clearly there for the apportionment of liability by the trial court was in error as the evidence clearly shows that the rider was largely to blame for the accident. Quantum of Damages 66.In the plaint , the Plaintiff/1st Respondent pleaded that she had sustained the following injuries;a.Blunt Injury of upper limbb.Blunt injury right thighc.Fracture right femur mild shaftd.Cut wound right leg 67.The 1st Respondent produced a medical report by Dr. Kimuyu (P. Ex 4a) which particularized the injuries as above. It indicates that at the time of examination on 23/09/2021, the 1st Respondent’s complaint was; ‘difficulty in walking and occasional pain on right leg at fracture site’. 68.Her opinion was that the 1st Respondent was clinically stable and had a healed post-surgical scar on right internal thigh. Right lower limb was shortened by approximately 1.5 cm. Right knee was stiff and tender. She suffered serious bone and soft tissue injuries secondary to RTA. She had not fully recovered and was still on follow up. Right lower limb had healed with shortening and was affecting her walking. Inserted implant was still in situ and would require removal at an estimated costs of kshs 300,000/= after fracture unites. Right knee required more physiotherapy to address stiffness. Future review was advised to assess permanent incapacity. 69.On the other hand, the Appellant produced a medical report by Dr. Wambugu P.M dated 06/04/2022. The injuries sustained were stated to be; closed fracture right femur involving the mid shaft, cut wound right knee region and blunt trauma right hand. The fracture was managed by open reduction and internal fixation using metal implants. The complaints at the time of examination were; occasional pain right leg worse on exertion, metal implants still in situ. 70.The physical findings were that the 1st Respondent was walking with a slight right sided limping gait though unaided, had a 1.0 cm true shortening of the limb, had a healed surgical scar lateral aspect of thigh. No discharging sinuses. Hip and knee joint movements complete in range and pain free. 71.Her prognosis was that the 1st Respondent had sustained skeletal and soft tissue injuries from which she had made adequate recovery. The fracture had united and metal implants maybe electively removed after one year at an estimated all-inclusive cost of kshs 75,000/= in a medium cost private hospital. There was residual shortening of limb and she would benefit from a shoe-heel raise to obviate the uneven weight distribution axis. Permanent incapacity awarded at 2%. 72.The Appellant argued that the award of kshs 1,200,000/= as general damages for pain and suffering was inordinately high and that kshs 700,000/= would be sufficient compensation. He also argued that the recommendation by Dr. Kimuyu of kshs 300,000/= as future medical expenses was exaggerated and meant to mislead the court. 73.The injuries sustained are not in dispute and the two doctors are in agreement that the 1st Respondent’s right lower limb was shortened. Dr. Kimuyu puts it at 1.5cm while Dr. Wambugu puts it at 1.0cm. They also agreed that the metal implants required to be removed but there was divergence on the estimated cost. Dr. Kimuyu’s estimate was kshs 300,000/= while Dr. Wambugu’s estimate was kshs 75,000/=. 74.It is noteworthy that although Dr. Wambugu’s estimate is lower, she also recommended a shoe-heel raise but did not indicate the estimated cost for that. Ultimately therefore, the cost of future medical expenses would go up. Further, Dr. Wambugu’s estimate was for a medium cost private hospital but Dr. Kimuyu did not specify the medical facility. It is therefore clear that the cost varies from one facility to another. 75.. In the circumstances therefore, and from the evidence the cost of removing the implants falls in the range of kshs 75,000-300,000. Consequently, I am of the view that an award of kshs 200,000/= for future medical expenses is reasonable. 76.On quantum on pain and suffering the case of Charles Mathenge Wahome cited by the Plaintiff to be distinguishable in that the case the permanent incapacity was set at 25% while on the present case it is set at 2%. In Mwangi v Maina the Plaintiff sustained more serious injuries. 77.I have looked at the two cases cited by the Appellant to support a proposal of kshs 700,000/= and I am alive to the fact that no two cases can be completely similar. Be that as it may, it is trite that in assessment of damages, comparable injuries should as much as possible attract comparable awards. 78.In the case of Litembekho -vs- Namasaka (supra) where an award of kshs 1,200,000/= was reduced to ksh 650,000/= and which I find to be comparable to the case herein, the appellate court observed as follows;“ 10.In this case, the injuries sustained by the respondent are not contested. According to the treatment notes from Bungoma Referral Hospital, he sustained a closed fracture of the left femur and the hospital carried out open reduction and internal fixation. The report by Dr. Sokobe confirmed the injuries. Dr Sokobe further opines that the respondent will need further treatment i.e., the removal of implants at an estimated cost of Kshs 150,000/-. Therefore, the award on future medical expenses of Kshs 150,000 was pleaded and proved.” 79.In Pestony Limited & Anor -vs- Samuel Itonye Kagoko [2022] eKLR the court awarded Ksh.800,000/=for fracture of the femur mid shaft with 4% permanent incapacity. The court captured the Respondent’s injury as follows;“ 20.The most severe injury suffered by the Respondent was a fracture of the left femur mid-shaft with Dr. G.K Mwaura assessing permanent degree of incapacity assessed at 5% (left lower limb) as of 2016. Dr. P.M Wambugu upon examining him in August 2017 confirmed the fracture of the mid-shaft left femur noted to have adequately recovered by union. However, he also noted that the Respondent was predisposed to early onset osteoarthritis hence assessing 4% permanent incapacitation.” 80.From the foregoing it is evident that the award of kshs 1,200,000/= was inordinately high as it does not align with awards in comparable cases. An award of kshs 750,000/= is reasonable in the circusmtances. 81.The award of special damages of kshs 22,450/= is not contested. 82.I find that the appeal has merit. I allow the same , set aside the award of the trial court and substitute is as follows. 83.Liability at 25%;75% in favour of the Defendant /AppellantGeneral damages……………kshs 750,000/=Future Medical Expenses…………200,000/=Special damages……………………..22,450/=Total…………………………………972,450/=Ksh 243,112.50: Ksh 729,337.50 plus costs and interest with effect from the date of the Judgment in the subordinate court.The appellant will have ¾ of the costs of this appeal JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT KABARNET HIGH COURT THIS 13TH JULY 2026MUMBUA T MATHEKAJUDGEIn the presence of:-CA Chrispol/DanAppellant’s AdvocatesK.Itonga & Co. Advocateslegal@k-itongaadvocates.com1st Respondent’s AdvocatesMulyungi & Mulyungi Associatesmulyungiassociates.adv@gmail.com