https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6871

Owino v Awa (Civil Appeal E015 of 2025) [2026] KEHC 6871 (KLR) (19 May 2026) (Judgment) Neutral citation: [2026] KEHC 6871 (KLR) Republic of Kenya In the High Court at Homa Bay Civil Appeal E015 of 2025 JR Karanja, J May 19, 2026 Between John Jerry Owino Appellant and Elisha Arunga Awa Respondent Judgment 1.The appeal arises from the decision and judgement of the Resident Magistrate at Oyugis delivered on 5th September, 2024 in Oyugis CMCC NO. 061 of 2012 in which the appellant , John Jerry Owino was the defendant in a suit filed by the respondent, Elisha Arunga Awa for loss and damages arising from a road traffic accident which occurred on the 1st day of August 2021, involving a motor vehicle Reg. No. KCZ 723Cbelonging to the appellant and a motor cycle on which the respondent was travelling. 2.It was pleaded in the plaint dated 13th April 2022 that on the material date of the accident at a place called Kanyadhiang the appellant’s motor vehicle was so negligently driven, managed and controlled such that it knocked down the motor cycle thereby resulting in the respondent/plaintiff suffering grievous bodily injury. 3.The respondent attributed the accident to the defendant/appellant’s negligence and/or that of his driver, servant, agent or employee and prayed for both special and general damages against the appellant who denied the claim in his statement of defence dated 17th May 2022 and contended that if the accident indeed occurred then it was as a result of the respondent’s recklessness, negligence, carelessness or omission.The appellant/defendant therefore prayed for the dismissal of the respondent’s claim. 4.The trial court considered all the evidence availed by both sides and arrived at the conclusion that liability had to be apportioned between the plaintiff and the defendant at the ratio of 70:30 in favour of the plaintiff against the defendant. In that regard, the trial court awarded damages as follows:-a.General damages - kshs.800,000/-b.Special damages - kshs.5,140/-c.Future earnings - kshs.300,000/-d.Future Medical expenses - kshs.250,000/-Total - kshs.1,355,140/-Less 30% liability - kshs.406,542/-Grand Total - kshs.948,598/-together with costs of the suit and interest. 5.Being dissatisfied with the judgment, the defendant preferred the present appeal on the basis of the nineteen (19) grounds set out in the memorandum of appeal dated the 10th March 2025. 6.The hearing of the appeal was by way of written submissions which were filed by the appellant, through the firm of KRK Advocates LLP and by the respondent through the firm of Ms Khan & Associates. 7.After due consideration of the appeal on the basis of the supporting grounds and those in opposition thereto in the light of the rival submissions, the duty of this court was to reconsider the evidence and draw its own conclusions bearing in mind that the trial court had the advantage of seeing and hearing the witnesses. 8.Accordingly the evidence led by the plaintiff/respondent (PW1) and his five witnesses (PW2, 3, 4, 5, & 6) was considered against that of the defendant/appellant through his driver (DW2), a traffic police officer (DW1) and a medical doctor (DW3). 9.From the pleadings and the evidence what emerged as issues for determination included the question of liability and that of quantum of damages. Thus whether the accident was as a result of the appellant’s negligence either directly or indirectly and if so, whether the respondent was entitled to damages from the appellant and to what extent. 10.On liability, the evidence by the plaintiff/respondent (PW1) indicated undisputedly that he was the rider of the ill-fated motor cycle and that he was riding on his correct lane heading towards the direction of Kendu Bay when he was hit by the material vehicle while its driver was in the process of overtaking another vehicle. This clearly implied that the appellant’s driver was to blame for the accident in the manner of driving his vehicle outside his correct lane or in the manner of overtaking another vehicle recklessly without proper lookout for other road users. 11.However, there was no independent witness to verify and confirm the plaintiff’s evidence regarding causation of the accident. The Traffic Police Officer, Sgt. Ibrahim Jillo (PW4) investigated the accident. He indicated that the ill-fated motor vehicle was a public service vehicle (Matatu) driven at the time by Samuel Adek (DW2) when it hit the motorcycle which then fell down off the road. 12.The officer (PW4) indicted further that the motorcycle was not at the scene when he arrived there and that he found no one to blame for the accident. He was accompanied to the scene by his colleague, James Theuri Mbogo (DW1) who said that neither the vehicle nor the motorcycle were at the scene when they arrived there. He alluded to both the rider of the motor cycle (PW1) and the driver of the motor vehicle (DW2) blaming each other for the accident. They blamed each other for encroachment on each other’s correct lane. 13.The vehicle’s driver (DW2) blamed the motor cycle rider for the accident. He indicated that he was on his correct lane of the road when the motor cycle emerged from a side or feeder road and abruptly joined the main road thereby hitting the vehicle on the driver’s door. He thus implied that there was no head on collision between the two vessels. 14.The witness (DW1) further indicted that there was one eye witness at the scene who indicated that there was a head on collision caused by motorcycle hitting the motor vehicle while its rider was in the process of overtaking another vehicle. 15.The entire evidence availed at the trial indicated that police investigations on the cause of the accident were incomplete for purposes of laying blame on either the rider of the motor cycle (PW1) or the driver of the motor vehicle (DW2). The two blamed each other for the accident but none availed independent witnesses to support their respective version of the circumstances leading to the accident. 16.It was therefore the word of the motor cycle rider against that of the motor vehicle driver. However, the burden to prove the claim against the defendant/appellant lay with the plaintiff/respondent on a balance of probabilities.The occurrence of the accident was not disputed and so was the appellant’s ownership of the ill-fated vehicle. 17.Accidents do not just happen. They are caused by acts or omissions of individuals. In this case, the evidence was insufficient to pin point culpability on either the plaintiff/respondent or the defendant/appellant. In the circumstances, each was to equally blame for the accident and hence, equally responsible for the consequences of their respective negligent acts and/or omissions on the road. 18.The trial court was very much alive to this principle of equal blame and responsibility and demonstrated as much by citing relevant and applicable authorities in that regard such as the decision of the Court of Appeal in Hussein Omar Farah Vs Lento Agencies 2006eKLR and that of the High Court in Postal Corp of Kenya & Another Vs Dickens Munyi (2014)eKLR. 19.Yet the trial court, proceeded to apportion liability between the plaintiff and the defendant in the ratio of 70:30 in favour of the plaintiff/respondent instead of the ratio 50:50 to reflect equally shared blame and responsibility for the accident between both parties. This was clearly erroneous and calls for interference by this court. Therefore, on the question of liability the court finds that both the appellant and the respondent were equally to blame for the accident in the ratio of 50:50%. The trial court’s finding on apportionment of liability is hereby set aside. 20.On the question of quantum of damages, the plaintiff/respondent claimed general damages for pain, suffering, loss of amenities as well as loss of future earning capacity. He also claimed special damages, respecting medical expenses inclusive of future medical expenses. He further claimed loss of future earnings capacity under general damages. 21.The medical report by Dr. Momanyi (PW5) produced herein by the plaintiff (PEx 7(a) indicated that the plaintiff/respondent suffered a fracture of the right femur, avulsion of four(4) incisor teeth, cut wound on the limbs, chest contusion and blunt trauma to the back as a result of which he suffered 30% permanent disability. His recovery was expected to stretch over a long period of time due to the fracture of the right femur. He was expected to undergo surgery for correction of the fractured bone at an estimated cost of kshs.350,000/-. 22.Dr. Paul Cheptoo Rono (PW2), indicated that the plaintiff was expected at St. Luke’s hospital, Eldoret for a major surgery to correct the fracture of the right femur, but he did not present himself for the operation while Dr. Jenipher Kahuthu (DW3) in her report dated 26th September, 2022, indicated that the plaintiff vehemently declined to undergo surgery due to his religious beliefs. She (DW3) opined that the plaintiff suffered 25% permanent disability and that the estimated cost of future treatment was kshs.170,000/-. 23.The trial court having considered the evidence and the medical reports awarded the plaintiff a sum of kshs.800,000 general damages for pain, suffering and loss of amenities, a sum of kshs.250,000/- for future medical expenses and a sum of kshs.300,000/- for loss of future earnings. Inclusive of special damages of kshs.5,140, the plaintiff was awarded a total sum of kshs.1,355,140/- less 30% contributory negligence of kshs.406,542, hence a grand total of kshs.948,598/-. 24.In his submissions herein, the appellant seems to suggest that the award made by the trial court was erroneous in as much as it was on a higher side and ought therefore to be downscaled. The respondent was of a contrary view by suggesting that the award was on a lower side and ought to be upscaled by this court. 25.Be that as it may, an appellate court may interfere with an award of damages only if the trial court acted on wrong principles or that the court has awarded damages which are so excessive or so low as to represent an erroneous estimate of damages or if the trial court has taken into consideration irrelevant matters or has failed to take into consideration relevant maters (see, Kemfro Africa Ltd T/a Meru Express & Another Vs A.M. Lubia & Another 1982-881KAR 727). 26.It is the opinion of this court that whereas the plaintiff was indeed entitled to general damages for pain, suffering and loss of amenities, it was doubtful whether he was entitled to general damages for loss of future earnings and for future medical expenses for want of proof. 27.The trial court cited the case of S.J. Vs Francisco D. Netto & Another 2015eKLR, wherein loss of future earnings and loss of earning capacity were explained in the following terms:-“Claims under this heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earning is compensated for real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award of general damages once proved”. 28.Thus whereas loss of future earnings may be claimed under special damages, loss of earning capacity is claimable under general damages. However, both categories of damages have to be established and proved by evidence which was lacking in this case. Therefore, the award made by the trial court under the head of future earnings i.e. kshs.300,000/ was erroneous and is hereby set aside. 29.As for future medical expenses, the award of kshs.250,000/- was not justifiable given that the plaintiff declined to undergo corrective surgery due to his religious beliefs. The surgery was the contemplated future treatment for which the plaintiff was to incur expenses estimated at either kshs.350,000/- or thereabout or kshs.170,000/- or thereabout going by the medical reports availed herein. Therefore, the award of kshs.250,000/- was in the opinion of this court an unjust enrichment of the plaintiff at the expense of the defendant and must hereby be invalidated and set aside. 30.With regard to the special damages, the documentary evidence availed specifically established and proved the sum of kshs.5,140/- which was correctly awarded to the plaintiff even though he had pleaded a much higher amount which was not proved. 31.All in all, this appeal partly succeeds to the extent that the liability is now placed in the ratio of 50:50 and damages for future earnings and future medical expenses have now been set aside. 32.Consequently, the plaintiff is entitled to the following awards:1.General damages for pain, suffering and loss of amenities – kshs.800,000/-2.Special damages - kshs.5,140/-Total 805,140/-Less 50% contributory negligence – 402,570Grand Total – 402,570together with costs of the suit and interest.Otherwise the parties shall bear their own costs of the appeal.Ordered accordingly. DATED AND DELIVERED THIS 19TH DAY OF MAY 2026J.R. KARANJAH, JUDGE19/5/2026IN THE ABSENCE OF THE PARTIES