https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9736

Miruka v Onguti (Civil Appeal E078 of 2024) [2026] KEHC 9736 (KLR) (18 June 2026) (Judgment) Neutral citation: [2026] KEHC 9736 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E078 of 2024 RK Koech, J June 18, 2026 Between Joseph Maganga Miruka Appellant and Albert Omete Onguti Respondent (Being an appeal from the judgment and decree of the Honourable P. K. Mutai, Principal Magistrate, delivered on 8th April, 2024 in Kisii CMCC E 894 of 2021) Judgment 1.The appellant was the 1st defendant in Kisii Chief Magistrate’s Court Civil Case No. E 894 of 2021 while the respondent was the plaintiff. The cause of action between the parties arose because of a road traffic accident that occurred on 20th July, 2021 involving the plaintiff who was travelling as a pillion passenger on motorcycle Registration No. KMEZ 537 M and motor vehicles Registration No. KAA 021 K along Kisii-Keroka Road. 2.In a judgment delivered on 8th April, 2024 the learned trial magistrate found the 1st and 2nd defendants jointly liable for the accident and awarded the plaintiff Ksh. 200,000/= in general damages for injuries suffered as a result of the accident and Ksh. 7,920/= in special damages. 3.In a memorandum of appeal dated 30th April, 2024 the appellant is seeking orders to have the judgment of the trial court and the ensuing decree set aside and that the plaintiff’s suit dismissed with costs to the appellant both on the appeal and the suit before the subordinate court. Alternatively, the appellant is seeking orders that this appellate court re-evaluates the evidence tendered before the trial court on quantum of damages and make its own decision on the award of damages. 4.The grounds in support of the appeal are as summarized hereunder;1.That the trial magistrate erred in law and fact by assessing and awarding the respondent Ksh. 200,000/= in general damages which the appellant deems excessive considering the injuries suffered by the respondent,2.That the learned trial magistrate erred in law and fact by failing to give regard to the authorities cited by the appellant which would have guided the court in assessing the appropriate quantum of damages as decided in comparable cases , and3.That the learned trial magistrate erred in law and fact by failing to exercise its discretion on assessment of quantum of damages judiciously. 5.The parties agreed to address the appeal by way of written submissions with the appellants filing submissions dated 7th February, 2026 and the respondents filing submissions dated 20th February, 2026. The appellant has adopted his submissions before the subordinate court as found at pages 25 to 28 of the record of appeal. The appellant is only challenging the assessment of the quantum of damages awarded to the respondent. The appellant submits that the respondent suffered soft tissue injuries that were expected to heal, with no permanent disability or incapacity, as per the medical report authored by Dr. Peter Morebu Momanyi. 6.According to the appellant, the award of Ksh. 200,000/= in general damages was inordinately high. The appellant suggests that Ksh. 50,000/= would be sufficient to compensate the respondent for the injuries suffered. The appellant has cited the case of Kenya Power & Lighting Company Ltd. & Another v Zakayo Saitoti Naingola & Another (2008) eKLR as cited in the case of Jennifer Mathenge v Patrick Muriuki (2020) eKLR in support of his proposition on how damages ought to be assessed based on injuries suffered. He urges this court to consider four authorities, listed in his submissions, with comparable injuries to those suffered by the respondent in the present case. 7.The respondent submits that the lower court judgment is sound in law and fact and does not warrant any interference by this court. According to the respondent, the evidence adduced by the respondent was uncontroverted. He has cited the case of Motex Knitwear Ltd v Gopitex Knitwear Ltd (2009) eKLR. The respondent submits that he suffered multiple soft tissue injuries as per the report of his doctor. He has cited the case of Butt v Khan (1977) 1 KLR 1, Kemfro Africa Ltd t/a Meru Express Services v Lubia & Another (1982-88) 1 KLR 727 and Selle v Associated Motor Boat Co. Ltd (1968) EA 123 in urging this court not to interfere with the judgment and decree of the trial court. 8.There is only one issue for determination by this court; 1. Whether the trial court properly assessed damages payable to the respondent for injuries suffered because of the road traffic accident involving the appellant’s motor vehicle which occurred on 20th July, 2021. 9.The trial court based his assessment of damages for injuries suffered by the respondent on the medical report of Dr. Morebu Peter Momanyi who testified as PW3 (see exhibits 5(a) and 4). It is noted, in the medical report that the respondent suffered bruises on the frontal region of the head, blunt trauma to the left ankle region, chest contusion, and bruises on the left leg, right upper limb and left upper limb. The doctor opined that the respondent’s wounds were healing, albeit after a long time, with prominent large disfiguring ugly scars thereby creating a significant cosmetic defect on his appearance. He further opines that permanent disability is anticipated but he does not state the nature of the disability. 10.During the trial the respondent sought general damages of Ksh. 600,000/= while the appellant suggested an award of Ksh. 50,000/= for the injuries suffered. After considering the rival submissions of the parties, the trial court awarded the respondent Ksh. 200,000/= which is now the subject of this appeal. 11.Assessment of damages is a matter for the trial court’s discretion. 12.In the case of Mariga v Musila (1984) KLR 251, it was held; and I quote;The assessment of damages is more like an exercise of discretion and an appellate court is slow to reverse a lower court finding on the question of the amount of damages unless it is satisfied that the Judge acted on a wrong principle of law or has for these or other reasons made wholly erroneous estimate of damage suffered. The question is not what the appellate court would award but whether the lower court Judge acted on the wrong principles.” 13.It is trite law, as severally held in many decisions that a first appellate court is like a trial court and must re-evaluate the evidence on record to see if the decision of the trial court is factually and legally sound. In the case of Selle & Another v Associated Motor Boat Co. Ltd (1968) EA 123, it was held; and I quote;Being a first appeal, this court is enjoined to re-evaluate the evidence on record and draw its own conclusions while bearing in mind that it did not see or hear witnesses testify.” 14.Guided by the above principle appellate courts are hesitant to interfere with the findings of fact by the trial court that had the benefit of hearing witnesses and assessing the credibility of their testimonies.“The above position was reiterated in the case of Kemfro Africa Ltd. t/a Meru Express Services v Lubia & Another (1982-88) 1 KLR 727 where it was held, “The principles guiding an appellate court on interference with an award of damages are well settled. An appellate court will not disturb an award of damages unless it is demonstrated that the trial court acted on a wrong principle, misapprehended the evidence, took into account irrelevant facts, failed to take into account relevant factors or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages.” 15.An evaluation of the evidence shows that the trial court appreciated the entire evidence, the submissions of the parties and the applicable parameters in assessment of damages payable for the injuries suffered by the respondent. Even though the respondent suffered largely soft tissue injuries, he has been left with a disfigured face due to an ugly scar. This according to the respondent’s doctor has been caused by keloid formation on his face. For a young man aged 34 years, aesthetics mean everything. 16.An award of Ksh. 200,000/= in the circumstances cannot be said to be excessive. The appellant has failed to appreciate the permanent nature of the respondent’s facial disfigurement. He did not avail a rival medical report disputing the findings of Dr. Morebu. For the above reasons I do dismiss the appeal by the appellant with costs to the respondent.It Is Hereby Ordered. JUDGMENT READ, DATED, SIGNED AND DELIVERED VIRTUALLY THIS 18TH DAY OF JUNE, 2026HON. RICHARD K. KOECHJUDGEIn the presence of: Ms. Munji appearing virtually for the Appellant Mr. Onguti appearing virtually for the Respondent Mr. Brian Onkundi, appearing virtually, Court Assistant Right of appeal within 30 days