https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9584

Kosgei v Ambura (Civil Appeal E052 of 2025) [2026] KEHC 9584 (KLR) (25 June 2026) (Judgment) Neutral citation: [2026] KEHC 9584 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E052 of 2025 EN Maina, J June 25, 2026 Between Amos Kiptoo Kosgei Appellant and Stanley Ambura Respondent (Being an Appeal from the Judgment and Decree of Hon. Martha A. Nazushi dated and delivered on 13th February 2025 in Mavoko Civil Suit No. E241 of 2023) Judgment 1.On 5th September, 2022, the Respondent herein, was riding his motorcycle Reg. No. KMCY 0647 along the Lukenya – Samora Road when he was involved in a collision with the Appellant’s motor vehicle Reg. NO. KDG 245M. He sustained a deep cut on the left knee and a fracture of the left mid shaft femur. He sued the Appellant whereupon the court found the Appellant wholly liable for the accident and awarded the Respondent damages as follows: General damages - Kshs. 500,000/= Future medical expenses (removal of implants) - Kshs.200,000/- Special damages - Kshs. 5,950/= 2.Being aggrieved by the quantum of damages the Appellant preferred this appeal on the following grounds.a.That the Hon. Learned Magistrate misdirected herself by limiting the application of its apportionment of general damages for the injuries leading to an excessive award.b.That the Hon. Magistrate erred in Law and in fact in failing to consider the second medical report produced by the Appellant.c.That the Hon. Learned Magistrate erred in law and in fact by awarding Kshs. 500,000/= in general damages.d.That the Hon. Learned Magistrate erred in law and in fact by awarding Kshs. 200,000/= as future medical expenses,e.That the Hon. Learned Magistrate erred in law and in fact in failing to consider the submissions and authorities on general damages in similar circumstances of Appellant while arriving at the judgment.” 3.This court is urged to either set aside or vary the judgment of the court below; to review the general damages downwards and to award the costs of this appeal and in the lower court to the Appellant. 4.The appeal was canvassed by way of written submission. Learned counsel for the Appellant submitted that the assessment of damages was wholly unwarranted, excessive and not supported by the medical evidence adduced. Counsel contended that the learned magistrate relied on medical evidence tendered by the Respondent’s doctor which indicated that the injuries sustained by the Respondent amounted to grievous harm with a permanent incapacity of 6%, yet that evidence was discounted by a second medical report which indicated that the fracture of the femur was unrelated to the accident and that the injuries suffered in the accident were soft tissue in nature. That, therefore there was no basis for any finding of permanent disability. Counsel faulted the learned magistrate for giving more weight to the Respondent’s medical evidence while ignoring that of the Appellant and urged this court to interfere with the award of Kshs. 500,000/= by setting it aside. Counsel proposed an award of Kshs. 80,000/= based on the following cases:a.LNK (A minor suing through CNK as next friend) and 2 others -VS- Simon Gatuni Njukia [2022] KEHC2497 (KLR) where the court awarded Kshs. 80,000/= for a cut wound to the occipital region, neck, right ankle and foot, soft tissue injuries to the chest and lower limbs.b.Nyota Tissue Products -VS- Lawrence Law Kuboka & 4 others [2020] eKLR where Kshs. 70,000/= was awarded for severe soft tissue injury on the leg and blunt injury to the chest.c.HB (Minor suing through mother and next friend DKM) -VS- Jasper Nchonga Magari & another [2021] eKLR where Kshs. 60,000/= was awarded for a blunt injury to the head and neck, thorax, abdomen and limbs which injuries were categorized as soft tissue. 5.In regard to the future medical expenses of Kshs. 200,000 counsel submitted that there was no credible, consistent and cogent medical evidence to justify the award, counsel reiterated that the Appellant adduced evidence that the fracture was not related to the accident in question; that only soft tissue injuries were suffered by the respondent and no permanent incapacity was anticipated. Further, given that the injuries had fully healed there was no factual basis for a claim for future medical expenses. Counsel contended that that award amounted to a wrongful exercise of judicial discretion and an unwarranted enrichment of the Respondent and should be set aside. 6.For the Respondent, it was submitted that there was no error or misdirection on the part of the learned magistrate as would warrant this court to interfere with the magistrate’s exercise of discretion in awarding the damages. Reliance was placed on the case of Simon Taveta -VS- Mutitu Njeru [2014] eKLR where the court stated:“The context in which the compensation for the Respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.” 7.Learned counsel for the Respondent submitted that the nature and extent of the injuries is a question of fact and an appellate court should be slow to interfere unless the contrary is proved. Counsel contended that the injuries were proved through the medical report of Dr. J. W. Siboko who confirmed their severity and classified them as grievous harm. Counsel argued that where the court is faced with two conflicting medical reports then it is only fair to rely on the initial treatment notes. In support of this submission counsel cited the persuasive case of Peter -VS- Kamau & another (Civil Appeal 46 of 2019) [2022] KEHC 10992 (KLR). Counsel stated that the issue of injury was not an issue for determination in the first instance and the same should be disregarded. 8.In regard to the general damages, counsel for the respondent argued that the same were inordinately low and should be varied to take inflation into account; that the award of damages is an exercise of discretion by the trial court based on the evidence before it and this court should be slow to interfere; that which comparable awards should be taken into account each case should be decided on its own merits and peculiar circumstances. Counsel argued that the award of Kshs. 500,000/= was an erroneous estimate of the injuries and it should be enhanced. Counsel relied on the following cases:a.Judy Ngochi -VS- Kamakia Ele Selelo Ledamoi [2019] eKLR where Kshs. 1,000,000/= was awarded for allegedly comparable injuries.b.Alphonce Mali Nzuki -VS- Brian Charles Ochuodho [2014] Eklr where the High Court upheld an award of Kshs. 800,000/= for almost comparable injuries. 9.This court was urged to dismiss the appeal and to allow the cross appeal. Analysis and determination 10.As correctly submitted by learned counsel this being the first appellate court it is enjoined to reconsider and evaluate the evidence in the court below so as to arrive at its own independent conclusion albeit taking into account that it did not see or hear the witnesses who testified – see the case of Selle vs Associated Motor boat Company ltd [1968] E.A. 123. 11.This court must also caution itself that the award of damages is an exercise of discretion and it should be slow to interfere unless it is shown that the award is so inordinately high or low as to represent an erroneous estimate or that the trial court proceeded on wrong principles or misapprehended the evidence in some material respect and so arrived at a wrong decision – see the case of Hellen Waruguru Waweru (suing as the legal representative of Peter Waweru Mwenya -VS- Kiarie Shoes Stores Limited (Supra) and also the case of Shabani -VS- City Council of Nairobi [1985] KLR 516, where the court of appeal stated:“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate based on some wrong principle or on a misapprehension of the evidence.” 12.Emboldened by the above principles this court has relooked the medical evidence in the court below and I am in agreement with counsel for the Appellant that the learned magistrate misapprehended the evidence hence arriving at an erroneous estimate of the evidence. The reason I have arrived at this conclusion is that whereas it was pleaded (the plaint which was never amended), that the accident occurred on 5th September, 2022 the medical evidence relied upon by the learned magistrate to conclude that the Respondent sustained a fracture, indicates that the said fracture was sustained on 5th June 2022. The P3 form indicates the date and time of alleged offence to be 05/06/2022: date and time reported to the police is also stated to be 05/06/2022. These two dates could not have been a typographical error given that the P3 form itself is dated 06/09/2022 and the date sent to hospital is also 06/09/2022 meaning that whereas the Respondent went to hospital on 06/09/2022 it was in respect to an injury suffered on 05/06/2022. The medical report of DR. J. W. Siboko (Ms) which is dated 12th December 2022 also indicates that the accident in which the Respondent sustained the fracture on the left femur and cut wound on the left knee was on 5th June 2022. This medical report does not support the injuries which the Respondent sustained in the accident which occurred on 5th September 2022. To the contrary they support Dr. Wambugu’s prognosis, in the medical report dated 29th November 2023, that the fracture was pre-existing. Dr. Wambugu states that the old healed fracture with an implant insitu was seen in an X-ray taken on 6/9/2022 which is the date the accident, in regard to this appeal, occurred as confirmed by police abstract and the demand letter and notice of intention to sue sent to UAP Insurance Company Limited by counsel for the Respondent. 13.Given the discrepancies in the medical evidence and in the rest of the Respondent’s evidence I am inclined to find the medical evidence adduced by the Appellant more reliable and probable. That evidence is to the effect that the injuries suffered by the Respondent were: Blunt trauma left leg. Cut wound right leg. Blunt trauma to the chest. 14.The above injuries were soft tissue in nature and according to Dr. Wambugu the Respondent had made full recovery by the time of the examination. There was no permanent incapacity. Comparable injuries must receive comparable awards and it is therefore my finding that the award of Kshs. 500,000/= was much on the higher side. In any event it was based on a fracture that never was. Doing the best I can and taking everything into, account including the passage of time and also taking into account the cases cited by counsel for the Appellant, I reduce the award to Kshs. 150,000/= (one hundred fifty thousand only). 15.I do also set aside the award for future medical expenses as the same were based on an erroneous estimate of the injuries and also because there was no need for removal of implants given the nature of injuries sustained. 16.The special damages were not contested and hence shall not be opposed. 17.In the upshot the appeal succeeds but the cross appeal is dismissed and judgment is now entered as follows:i.Liability 100%,ii.General damages Kshs. 150,000/=.iii.Special damages Kshs 5,950/=iv.Interest on specials at court rates from the date of filing suit in the court below and on the general damages (now Kshs. 150,00/=) at court rates from the date of the judgment in the court below. 18.Costs follow the course and the Appellant shall get the costs of this appeal which the costs in the court below shall be to the Respondent. The costs of the cross appeal. It is so ordered. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY THROUGH MICROSOFT TEAMS ON THIS 25TH DAY OF JUNE, 2026.E. N. MAINAJUDGEIn the presence of:Ms. Matuku for AppellantNo appearance for Waiganjo Wachira for the Respondent.Court Assistant – Catherine