https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8044

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT BOMET** **CIVIL APPEAL NO. E035 OF 2025** **GIDEON KIPKORIR …………………………………..…… 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 E182 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 E034 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 a 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 riding 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 tibia of distal tibia. 3. The Appellant prayed for special and general damages against the Respondent. 4. Through his written submissions dated 8th April 2026, the Appellant submitted that he sustained an open fracture of the distal tibia with bone loss, bruises on the head and forehead, chest pains, neck pain and back pain. That the injuries had reduced his mobility and diminished his quality of life.The Appellant further submitted that the award of Kshs 400,000/= was low and proposed an award of Kshs 1,000,000/=. He relied on **Joseph Musee Mua vs Julius Mugi & 3 others (2013) eKLR, Wamoto & another v Mumo [2025] KEHC 1704 (KLR) et.al.** 5. It was the Appellant’s submission that he produced documentary proof of the motor vehicle search and hospital bill amounting to Kshs 153,755/=. That this court should interfere with the award on special damages by the trial court as it awarded him Kshs 75,550/=. **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 a fracture of the tibia bone had healed completely without any complications. That the trial court did not err when it awarded the Appellant Kshs 400,000/= as general damages. He relied on **Reamic Investment Limited vs Joaz Amenya Samuel (2021) eKLR** and **Daniel Otieno Owino & another vs Elizabeth Atieno Owuor (2020) eKLR.** 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 a fracture to his tibia bone. It was the Appellant’s case that the award of Kshs 400,000/= was low and proposed an award of Kshs 1,000,000/= 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 a fracture to his tibia bone. In terms of comparison, I have found the following cases quite helpful: - 8. In **Wainaina v Muniu [2026] KEHC 839 (KLR),** the court upheld the award of Kshs 500,000/= for a fracture of the right femur, severe soft tissue injuries of the right hip joint, further soft tissue injuries to the left shoulder joint, blunt injuries to the right knee that led to more soft tissue injuries, mid shaft right humerus and soft tissue injuries to the right hand, left cheek and left leg. 9. In **Nyambura v Njuguna & another [2024] KEHC 4185 (KLR),** the court upheld the award of Kshs 400,000/= for a closed left tibia fibula fracture, deep cut wound on he left big toe leading to soft tissue injuries, crush to the left second toe leading to disarticulation at the distal phalanx, deep cut wound on the left heel leading to soft tissue injuries, soft tissue injuries on the right leg, soft tissue injuries of the right hand and blunt injury to the lower back leading to soft tissue injuries. 10. In **Otundo v Oeri [2025] KEHC 2328 (KLR),** the court upheld the award of Kshs 400,000/= for a fracture of the left femur, bruises on the right upper limb, bruises on the left upper limb, chest contusion, bruises on the left knee and blunt trauma to the back 11. In addition to the parties’ authorities, I have also considered the authorities above and I find that the injuries sustained by the Appellant were similar to the injuries quoted above. In the circumstances, I find the award of Kshs 400,000/= 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 150,205/= for the hospital bill. I have seen the receipts for the motor vehicle search (550/=) and two receipts from Tenwek Hospital (Kshs 25,000/= and Kshs 50,000/=) all totaling to Kshs 75,550/=. 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**