https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10334

Kamau & another v Korir (Civil Appeal E222 of 2024) [2026] KEHC 10334 (KLR) (10 July 2026) (Judgment) Neutral citation: [2026] KEHC 10334 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E222 of 2024 LM Wachira, J July 10, 2026 Between David Njogu Kamau 1st Appellant William Kamau 2nd Appellant and Isaac Kiprono Korir Respondent (Being an appeal from the judgment of Hon Olonyi, PM, delivered on 3rd October, 2024 in Tamu PMCC No. E076 of 2023) Judgment Introduction 1.This appeal emanates from the judgment delivered on 3rd October, 2023 in Tamu PMCC No. E076 of 2023. The question of liability had been agreed upon and a consent was recorded between the parties apportioning liability at the ratio of 85:15 in favor of the Respondent. 2.Parties had agreed to file submission on quantum and have the documents already filed in court produced without calling the makers and this was done and each of the parties filed submission. 3.The trial court in its judgment found that the Respondent had established that he suffered a fracture of the patella and other soft tissue injuries and awarded the Respondent Kshs.350,000/- in general damages of pain and suffering. 4.The Appellant, dissatisfied with the award in general damages filed the instant Appeal and asked the court to find that there was no evidence to prove a fracture of the patella and that the injuries suffered were only soft tissue injuries, and in the circumstances the award was excessively high. Trial Court Evidence 5.The Respondent testified in court and confirmed that he had suffered the injuries as pleaded in the pleadings and produced in court the documents in support of the injuries. He produced the initial treatment chits from Kericho District hospital, the P3 form and medical report by Dr. Obed Omuyoma all indicating that he had suffered a fracture of the patella and soft tissue injuries to the lower back and anterior chest wall. 6.In particular, the report by Dr. Obed Omuyoma indicated that the Respondent had sustained the following injuries: -a.Fracture of the right patellab.Blunt injury to the lower back leading to soft tissue injuries.c.Blunt injury to the anterior chest wall leading to soft tissue injuries. 7.According to the Respondents case there was an X ray that confirmed the fracture and this is indicated in the initial treatment chits, the P3 form and the report of Dr. Omuyoma. 8.The Appellant on the other hand told court that the Respondent had been subjected to a second medical examination and Dr. Malik did not find any fracture or evidence of a healed fracture. The report indicates that the X-rays were not available as the Respondent indicated that he had lost them. 9.The report further indicates that there was no application of a plaster when the Respondent was treated and only an elastic knee brace was put. Dr. Malik opined that if there was a fracture, a plaster would have been applied. Submissions by the Appellant 10.The Appellant has submitted that the award of Kshs.350,000/- is excessively high. The Appellant submits that the Respondent did not prove that he had suffered a fracture of the Patella because there were no X-rays to show this. 11.According to the Appellant, Dr. Malik did a second X ray at the time of the second medical examination and the X ray did not show any radiological sign of any old or healed fracture. And further, that according to Dr. Malik, had there been a fracture a plaster would have been applied and not an elastic knee brace. According to the Appellant, there was no fracture and the trial court erred in assessing damages for a fracture. Submission of the Respondent 12.According to the Respondent, the trial Magistrate had not erred in the award. Their submission is that the Respondent had established that he had a fracture as indicated in the original treatment chits from Kericho District Hospital. The Respondent further submitted that the P3 form filled in the same hospital also confirms that there was a fracture of the patella. That the medical report by Dr. Omuyoma also confirmed the fracture. 13.The Respondent submitted that the court should not interfere with the discretion of the trial court in awarding damages, and submitted that indeed for such a fracture they had submitted for Kshs.2,000,000/- in general damages. 14.Counsel cited the authority in Francis Ochieng & Anor vs Alice Kajimba (2015) eKLR where the court awarded Kshs.350,000/- for soft tissue injuries in 2015 and argued that even if the court was to find that the injuries were soft tissue injuries the amount of Kshs.350,000/- is a reasonable award for such injuries. Analysis and Determination 15.The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle v Associated Motor Boat Co. [1968] EA 123 in the following terms:-“An appeal from the High Court is by way of re-trialand the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.” 16.An Appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding, as was held in Ephantus Mwangi & Another v Duncan Mwangi Wambugu [1982 – 1988] IKAR 278. 17.Upon review of the Memorandum of Appeal and the rival submissions, it is this court’s view that the appeal basically contests the quantum awarded by the trial court. 18.The Respondent’s counsel submitted that an Appellate court may only interfere with an award by the trial court in limited circumstances. This was set out in the case of Butt vs Khan [1981] KLR 349 where the court set the principle that:-“For an appellate court to interfere with an award of damages, it must be shown that the trial court, in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that a wrong principle of law was applied." 19.The Appellant’s contention is that the trial Magistrate awarded damages based on a fracture of a patella while there was no fracture. I have considered this submission and the documents produced at the trial court. 20.The initial treatment chits from Kericho district hospital confirm that the Respondent suffered a fracture of the patella and the treatment given was analgesics, antibiotics and a Plaster of Paris was applied. This was also confirmed by the doctor who filled the P3 form and Dr. Omuyoma who prepared the first medical Report. Indeed, both the initial treatment note and the medical report by Dr. Omuyoma confirm that the treating and examining doctor saw the X ray reports indicating a fracture of the right patella. 21.The basis of the opinion by Dr. Malik when he did the second medical report was that he had not seen the X ray films and had the Respondent suffered a fracture, a POP would have been applied. From the initial treatment chits from Kericho District Hospital, the P3 form and the first medical report by Dr. Omuyoma, a POP was applied as part of the treatment plan and the treatment chit, P3 and medical report indeed indicate that there was an X ray that shown a fracture of the patella. 22.My finding is that the Respondent had demonstrated on a balance of probabilities that he suffered a fracture of the patella as had been pleaded and therefore the trial court did not err in assessing the general damages based on a fracture of the patella. In the circumstances, I find no justification for interfering with the award in general damages as assessed by the trial court. 23.In the result, the court finds that the appeal herein is without merit. It is hereby dismissed, with costs to the Respondent. DELIVERED DATED AND SIGNED ELECTRONICALLY AT NAIROBI ON THIS 10TH DAY OF JULY, 2026.…………………………..………………L. M. WACHIRAJUDGEIn the presence of:Leadys - Court Assistant.NA for the Appellant.Miss Oganga for the Respondent.