Cheruiyot v Oloo (Civil Appeal E033 of 2025) [2026] KEHC 8084 (KLR) (9 June 2026) (Judgment)

Cheruiyot v Oloo (Civil Appeal E033 of 2025) [2026] KEHC 8084 (KLR) (9 June 2026) (Judgment) Neutral citation: [2026] KEHC 8084 (KLR) Republic of Kenya In the High Court at Bomet Civil Appeal E033 of 2025 JK Ng'arng'ar, J June 9, 2026 Between Gideon Kipngeno Cheruiyot Appellant and 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 E183 of 2024) Judgment 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. On 14th May 2025, the parties recorded a consent on liability in the ratio of 80:20 in favour of the Appellant/Plaintiff. 3.In its Judgement delivered on 4th July 2025, the trial court awarded the Appellant Kshs 300,000/= as general damages and Kshs 93,755/= as special damages. 4.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. 5.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. 6.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. 7.Through his Plaint dated 5th August 2024, the Appellant stated that he was a pillion passenger on 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. 8.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 a tibia shaft fracture. 9.The Appellant prayed for special and general damages against the Respondent. 10.Through his written submissions dated 8th April 2026, the Appellant submitted that he sustained a fracture of the tibia shaft which required prolonged treatment, immobilization and could result in long-term complications. The Appellant submitted that the award of Kshs 300,000/= was low and proposed an award of Kshs 1,000,000/=. He relied on Kimani Itunje [Civil Appeal 51 of 2019] [2023] KEHC 19752 (KLR), Ombati v Kariuki & another (Civil Case E486 of 2022) [2025] KEMC 5 (KLR) et.al. The Defendant’s/Respondent’s case. 11.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. 12.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. 13.Through his written submissions dated 27th April 2026, the Respondent submitted that the Appellant suffered a fracture of the tibia bone which had healed completely without any complications. That the trial court did not err when it awarded the Appellant Kshs 300,000/= as general damages. He relied on Reamic Investment Limited v Joaz Amenya Samuel (2021) eKLR and Daniel Otieno Owino & another vs Elizabeth Atieno Owuor (2020) eKLR. 14.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. 15.From the parties’ submissions, it was undisputed that the Appellant suffered a fractured tibia bone. It was the Appellant’s case that the award of Kshs 300,000/= 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. 16.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. See Catholic Diocese of Kisumu vs Tete (2004) eKLR. 17.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. I have considered the authorities put forth by the parties and I agree with the trial court that no two cases are similar. The court uses authorities as guidance when determining the range of damages, it will award. 18.In the present case, the Appellant suffered a fracture to the tibia bone. This was a singular injury compared to the injuries quoted in the parties’ submissions which the trial court correctly found as excessive. In the circumstances, I find the award of Kshs 300,000/= as general damages as fair, just and commensurate to the injury suffered by the Appellant. 19.In regards to the special damages, the Appellant pleaded Kshs 93,755/= as special damages. I have seen the receipts for the motor vehicle search, medical report receipt and receipts from Tenwek Hospital all totaling to Kshs 93,755/=. It is my finding that the special damages were pleaded and proved and the ward of Kshs 93,755/= as special damages is upheld. 20.Flowing from the above, it is my finding that there was no reason to interfere with the award of the trial Court. 21.In the end, the Appeal dated 22nd July 2025 has no merit and is dismissed. 22.Each Party to bear its own costs of the Appeal. JUDGMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 9TH DAY OF JUNE, 2026............................................HON. JULIUS K. NG’ARNG’ARJUDGEJudgment Delivered in the presence of;Siele/Susan – Court AssistantNgeno for AppellantMutuku for Respondent