https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8097

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII COUNTY** **KISII HIGH COURT** **HCCA NO. E078 OF 2025** **EVANS R. MAOBE ------------------------------------------------- APPELLANT** * **VERSUS -** **SAMUEL RIOGI MOKAMBA ------------------------------- RESPONDENT** ***(Being an appeal from the Judgement delivered in the Chief Magistrate’s court in CMCC No. E239 of 2018 by Hon. P.C Biwott delivered on 2nd of May 2025 at Ogembo)*** **JUDGMENT** **Background of the appeal** 1. This appeal emanates from a suit filed in the Chief Magistrate’s court at Ogembo regarding a road accident that occurred on 9th September 2018 involving a motor vehicle registration number KCP 089L driven by the respondent and a motor cycle registration number KMCG 668 R in which the respondent was a pillion passenger. As a result of the accident, the appellant sustained injuries. 2. At the trial court, the parties entered a consent on liability at the ratio of 80:20 in favour of the respondent as against the appellant and this was adopted by the court. The trial then proceeded on the issue of quantum only. 3. The respondent who was the plaintiff relied on one witness; PW1 the respondent who articulated his injuries and produced a medical report, receipts amounting to Kshs. 6,500/=. Discharge summary, police abstract, P3 form, demand letter and receipts for Kshs. 10,000/=. The appellant who was the defendant in the suit by consent produced a 2nd medical report and closed his case. 4. The magistrate at the trial court delivered a judgement on 2nd of May 2025 awarding general damages of Kshs 800,000/= on the contributory ratio of 20:80 and special damages of Kshs. 16,500/=. 5. Aggrieved with the decision of the Trial Magistrate, the appellant filed this instant appeal on the following summarized grounds: *That the learned trial Magistrate erred in law and fact by relying on extraneous evidence and without consideration of the defendant’s submissions to arrive at an erroneous calculation of general damages of Kshs. 800,000/=.* 6. The appellant therefore prayed for the appeal to be allowed and the judgment of the trial court be set aside. The appellant supported his appeal with written submissions highlighting the second medical report by Dr. VV Lodhia, adduced at the trial court as defence exhibit 1 which indicates that the respondent incurred soft tissue injuries only and not the compound fractures and loss of teeth as had been claimed. The appellant cited authorities on quantum to support a proposed award for Kshs. 200,000/=. 7. The respondent on their side opposed the appeal and argued that the trial court rightly used the medical report produced by Dr. Morebu and the P3 form. Citing authorities with comparable injuries the respondent prayed for the suit to be dismissed for want of merit. **Analysis and Determination** 1. The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (**See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I).** 2. I have carefully analyzed the appeal and trial record in its entirety as well as the evidence adduced and submissions by both parties. There is no contention that an accident did occur on the 9th of September 2018. The issue of liability was also settled by consent adopted in court at a ratio of 20:80 in favour of the respondent. 3. The following therefore are the main issues for the determination of this court; 4. The nature of injuries sustained by the respondent as a result of the accident 5. The quantum to be awarded 6. **The nature of injuries sustained by the respondent as a result of the accident** 7. In this case there are two contradicting medical reports that were adduced at the trial court. The first produced by the respondent/plaintiff from Dr. Morebu Peter Momanyi who examined the respondent on 15th of October 2018 and enumerated the injuries as follows: *Mandible fractures, blood loss, left hip joint dislocation, avulsion of two upper canine teeth, deep cut wounds on the frontal region of the head, psychological pain, deep cut wounds on the lips, multiple laceration on the frontal region of the head, blunt trauma to the lower back, physical pains, blunt chest injury and blunt trauma to the left foot.* 8. His conclusion was that the respondent sustained fractures loss of teeth and multiple soft tissue injuries and other lingering effects including loss of libido, post traumatic chronic osteoarthritis with recovery projected to take a long time. Dr. Momanyi assessed permanent disability at 15%. 9. The appellant at the trial court produced a second medical report dated 25th January 2019 by Dr. VV Lodhia which enumerates the injuries sustained as *injury to the forehead, cut wound on in the forehead and lips, injury to the teeth, injury to the left ankle and injury to the back*. The doctor concluded that there was no permanent disability. 10. The other contradiction is that the respondent indicated he was admitted in hospital for a week and that he had a dental procedure. However, the second medical report indicated he was a day patient treated and discharged. 11. My role as an appellate court is not to automatically prefer one medical report over the other but rather to analyse the evidence holistically and its entirety and this includes other forms of evidence such as the p3 form, discharge summary and treatment notes. 12. In the case of **Kimatu Mbuvi t/a/ Kimatu Mbuvi &Bros vs Augustine Munyao Kioko (2006) eKLR**, the court of appeal observed as follows: ***“The opinion of the expert witness is not binding on the court, but is considered together with other relevant facts in reaching a final decision in the case and the court is not bound to accept the evidence of an expert if it finds good reasons for not doing so.”*** 1. In essence therefore, medical reports must be analysed together with other medical evidence such as treatment notes made particularly those made contemporaneously with the accident. 2. Looking at these two reports, I find the second medical report very general without illustrating the particulars of injuries. The first medical report is corroborated by the P3 forms that lists his injuries as grievous. I am therefore persuaded that the first medical report sheds more light particularly noting the examination was done close to the accident. 3. I am therefore persuaded that the respondent proved on a balance of probability that he incurred compound fractures, loss of teeth and multiple soft tissue injuries 4. **The quantum to be awarded** 5. Having established that the nature of injuries as compound fractures, loss of teeth and multiple soft tissue injuries the question to determine is what is the fair and comparable award for general damages. 6. The appellants cited authorities of soft tissue injuries which are not comparable to the injuries in this case. 7. The respondent on their side have cited the following cases: **Anthony Nyamweya v. Dorcas Gesare Mounde (2022) KEHC 1353 (KLR)** for injuries on loss of teeth and soft tissue injuries the courts awarded **Kshs. 600,000/=;** **Retco East Africa Limited v. Wycliff Kennedy Makori (2021) KEHC 5761 (KLR)** the courts awarded **Kshs 400,000**/= for loss of teeth and soft tissue injuries: **Daniel v. Kamene (2022) KEHC 11179 (KLR)** the courts awarded Kshs.700,000/=for avulsion of 3 teeth and multiple soft tissue injuries. 8. In the case of **Noreen v Beatha [2025] KEHC 1373 (KLR),** the claimant lost 3 teeth and the high court upheld an award of **Kshs 550,000/=.** In the case of **Onginjo v Ogollah (Civil Appeal E030 of 2025) [2025] KEHC 17998 (KLR)** the courts found that an award of **Kshs. 600,000/=** for comparable injuries was not excessive. 9. I am guided by the principle that an appellate court will not interfere with findings unless it is shown that the trial court acted on no evidence, misapprehended the evidence or applied the wrong principles, which is not so in this case. This has further been elaborated in **Kiruga v Kiruga & Another** **(1988) KLR 348** where the courts stated that: ***“An appellate court cannot properly substitute its own factual findings for that if a trial court unless there is no evidence to support the findings or unless the trial court can be said to be plainly wrong”.*** 1. Having analyzed comparative awards, I find no basis upon which to interfere with the judgment of the trial court magistrate. **Disposition** 1. The appeal lacks merit and is hereby dismissed in its entirety with costs to the respondent. It is so ordered. **DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2026** 1. **M. OKUTOYI** **JUDGE** In the presence of: Mr. Orucho for the appellant Mr. Omandi for the respondent Zainab Ghana-court assistant