https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8009

Owuor v MOA (Suing as next friend of HAO - Minor) (Civil Appeal E031 of 2024) [2026] KEHC 8009 (KLR) (28 May 2026) (Judgment) Neutral citation: [2026] KEHC 8009 (KLR) Republic of Kenya In the High Court at Homa Bay Civil Appeal E031 of 2024 OA Sewe, J May 28, 2026 Between Kennedy Ochieng Owuor Appellant and MOA (Suing as next friend of HAO - Minor) Respondent (Being an appeal from the Judgment and Decree delivered by Hon. C. Mutai, Principal Magistrate, on 19th April 2024 in Homa Bay Chief Magistrates Civil Case No. E012 of 2022) Judgment 1This appeal arises from the Judgment and Decree passed in Homa Bay Chief Magistrate’s Civil Case No. E012 of 2022: MOA (suing as the next friend of HAO, minor) v Kennedy Ochieng Owuor. The respondent had alleged before the lower court that on or about the 24th November 2021, the minor was a lawful passenger in Motor Vehicle Registration No. KDD 617X, Toyota Matatu, along Homa Bay-Rongo Road when a road traffic accident occurred at Sophia area involving the said motor vehicle. The respondent alleged that the motor vehicle was driven so carelessly that it lost control and rolled; and that as a result the minor sustained serious bodily injuries. 2.The respondent supplied the particulars of negligence and injuries suffered at paragraphs 5 of the Plaint dated 30th December 2021. On account thereof the respondent claimed general damages, costs of the suit and interest thereon at court rates. 3.The appellant denied the respondent’s allegations vide their Defence dated 8th February 2022. He denied that an accident occurred as alleged or that the minor was a lawful passenger in Motor Vehicle Registration No. KDD 617X Toyota Matatu. The appellant also denied the respondent’s allegations of negligence in the driving of the subject motor vehicle and put him to strict proof thereof. In the alternative, the appellant alleged negligence on the part of the minor. 4.Upon hearing the parties, the lower court found the appellant 100% liable for the accident in its Judgment dated 19th April 2024. The court then proceeded to assess general damages payable to the minor at Kshs. 660,000/= and entered judgment in that sum together with costs and interest. 5.Being aggrieved by the decision of the lower court, the appellant filed this appeal vide the Memorandum of Appeal filed herein on 23rd May 2024 proffering the following grounds:(a)That the learned magistrate erred in law and in fact by failing to consider and appreciate the applicable principles in assessment of damages and thereby arrived at an excessive and unjustified award.(b)That the learned magistrate erred in law and fact by awarding general damages of Kshs. 660,000/= for pain and suffering; an award which was so excessive as to amount to an erroneous estimate of loss or damages suffered by the plaintiff.(c)That the learned magistrate erred in fact and in law in relying on extraneous circumstances not supported by the evidence on record.(d)The learned magistrate erred in fact and in law by overly relying on the respondent’s submissions which were not relevant.(e)The learned magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature. 6.The appellant therefore prayed that the appeal be allowed with costs. 7.Directions were given on the 19th January 2026 that the appeal be canvassed by way of written submissions; and while the appellant complied, the respondent did not. The appellant filed written submissions in which he reiterated that his appeal is on quantum. He urged the Court to take into account the evidence adduced before the lower court on the nature of the minor’s injuries. Accordingly, the appellant proposed an award of Kshs. 300,000/= for the injuries sustained by the minor. He relied on the case of Njoga v Mwema [2026] KEHC 2091 in which the plaintiff was awarded Kshs. 450,000/= for fracture of the tibia and fibula as well as soft tissue injuries. The appellant pointed out that the injuries suffered in that case were more serious than those of the minor herein. 8.Therefore, the appellant prayed that the appeal be allowed and the orders asked for in his Memorandum of Appeal filed on 23rd May 2024 be granted as prayed. 9.This being a first appeal, it is the duty of the Court to re-evaluate the evidence adduced before the lower court and come to its own conclusions thereon while bearing in mind that it did not see or hear the witnesses. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..." 10.I have given careful consideration to the evidence placed before the lower court in the light of the pleaded injuries. The respondent testified on 8th June 2023 as PW1 and stated that the minor is his son; and that he was involved in a road traffic accident on the 24th November 2021 in which he suffered severe injuries. PW1 adopted his witness statement dated 30th December 2021. 11.PW1 further stated that, upon receiving information about the accident, he rushed to the scene and found that his sone had already been taken to Homa Bay County Teaching and Referral Hospital. He proceeded to the hospital and confirmed that indeed his son had been injured. He also ascertained that the minor had boarded Motor Vehicle Registration No. KDD 617X, Toyota Matatu which was involved in a road traffic accident at a place called Sophia on the Homa Bay-Rongo Road. PW1 further stated that the minor, who was 16 years at the time, was confined in hospital for 5 days while undergoing treatment. 12.The respondent also called the Chief Clinical Officer attached to Homa Bay Teaching & Referral Hospital, Michael Ogola (PW2). He confirmed that the minor herein, was attended to at their facility; and that he was injured in a road traffic accident that occurred on 24th November 2021. PW2 testified that the minor sustained a fracture of the left fibula bone along with cut wounds and bruises on the left knee joint and left leg. He assessed the degree of injury as grievous harm and added that at the time of the examination, the minor was still experiencing pain as well as occasional headaches. PW2 produced the x-ray film, Discharge Summary, Medical Report and P3 Form prepared by him as exhibits before the lower court. 13.The appellant offered to adduce no evidence. It was on the basis of the foregoing evidence that the learned magistrate assessed damages at Kshs. 660,000/= for minor’s injuries. Accordingly, the lower court entered judgment in the respondent’s favour in that sum together with interest and costs of the suit. 14.Looking at the grounds of appeal, it is manifest that the appeal is on quantum. In H. West & Son Ltd v Shephard [1964] AC 326, it was acknowledged that:“...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment." 15.The Court of Appeal restated this principle thus in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR:“As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages." 16.The principle reiterated by the Court of Appeal in Stanley Maore v Geoffrey Mwenda [2004] eKLR, is that comparable injuries ought to be compensated by comparable awards. It expressed itself thus:“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” 17.The injuries as pleaded and proved were:(a)Fracture of the left fibula bone(b)Cut wounds on the left knee joint(c)Bruises on the left leg(d)Back injury(e)Head injury 19.Taking into account the submissions made by the appellant, the authority relied on by him as well as the effects of inflation, I find an award of Kshs. 500,000/= to be reasonable in the circumstances. Indeed, in Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR, the Court of Appeal held:“The assessment of damages in personal injury case by a court is guided by the following principles: An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained The award should be commensurable with the injuries sustained Previous awards in similar injuries sustained are a mere guide but each case be treated on its own facts Previous awards to be taken into account to maintain the stability of awards but factors such as inflation should be taken into account The awards should not be inordinately low or high.” 20.In the premises, I find merit in the appeal on quantum. The same is hereby allowed and orders granted as follows:(a)That the judgment delivered in Homa Bay Chief Magistrate’s Civil Case No. E012 of 2022 on 19th April 2024 be and is hereby set aside and substituted with the judgment of this Court for general damages in the sum of Kshs. 500,000/= only.(b)The costs of the appeal and of the lower court suit to be borne by the appellant.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 28TH DAY OF MAY, 2026............................HON. OLGA SEWEJUDGE