https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10163

Kibii v Keitany (Civil Appeal E002 of 2025) [2026] KEHC 10163 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10163 (KLR) Republic of Kenya In the High Court at Iten Civil Appeal E002 of 2025 E Ominde, J July 9, 2026 Between Lawrence Kipkorir Kibii Appellant and Moses Kipkosgei Keitany Respondent (Being an Appeal from the Judgment of the Honourable E. Kigen (PM) in Iten CMCC No. E075 of 2023 Moses Kipkosgei Keitany V Lawrence Kipkorir Kibii delivered on 18th March, 2025) Judgment 1.The Plaintiff instituted a suit in the trial court vide a Plaint dated 14th November 2023 seeking the following reliefs;i.General damages for pain and suffering.ii.Special damages of Kshs -10,550.00.iii.Future Medical Expenses of Kshs. 200,000.00.iv.Costs of this suit.v.Interest on (a), (b), (c) and (d) above.vi.Any other relief as this Honourable Court may deem fit to grant. 2.The Plaintiff pleaded that the Defendant was the owner of Motor Vehicle Registration Number KBS 559P Toyota Probox and that on 14th January 2022, the Plaintiff was a lawful rider of Motor Cycle Registration Number GKB 450K KTM at Kaptarakwa Area along Kaptarakwa - Iten Road when the Defendant, his driver, agent or servant so negligently and recklessly drove the said Motor Vehicle causing it to lose control and hit the Plaintiff thereby causing him severe injuries, loss and damage. The Plaintiff pleaded the particulars of negligence and sought to rely on the doctrine of Res Ipsa Loquitur. Further, he pleaded the particulars of special damages and prayed that the court grant the orders as prayed. 3.The defendant filed a statement of defence dated 13th December 2023 denying all the allegations on the plaint and pleading the particulars of negligence on the part of the Plaintiff. He denied the doctrine of Res Ipsa Loquitor and Vicarious Liability being applicable and instead pleaded Volenti Non fit Injuria. He urged the court to dismiss the Plaint with costs. 4.The Plaintiff filed a reply to statement of defence dated 16th January 2024 reiterating the averments in the Plaint and denying the allegations in the defence. 5.The matter then proceeded to full hearing and upon considering the testimonies of the witnesses and the evidence tendered in court, the trial court entered judgment in favour of the Plaintiff in the following terms;a.Liability at 80/20 in favour of the Plaintiffb.General Damages………………….Ks. 760,000/-c.Special damages…………………....Ks. 6,550/-d.Costs of Future Medical expenses...Ks. 150,000/-e.Total………………………………..Ks. 916,550/-f.Less contributory negligence……..Ks.183,310/-g.Grand total ………………………..Ks. 733,240/- 6.Being aggrieved with the decision of the trial court, the Appellant instituted the present appeal vide a Memorandum of Appeal dated 24th March 2025 premised on the following grounds;1.That the learned trial magistrate erred in law and in facts by apportioning liability at an exorbitant ratio and in doing so, disregarding the evidence adduced on facts regarding the circumstances of the accident.2.That the learned trial magistrate erred in law and in facts by failing to consider the Appellant's written submissions and legal authorities and/or precedents on quantum thereby arriving at a decision which is excessively high in law.3.That the learned trial magistrate erred in law by failing to stipulate any authorities relied on informing her determination on the inordinate award under general damages for pain and suffering of KES. 760,000/-4.That the learned trial magistrate erred in fact in awarding a sum of KES. 150,000/- under future medical expenses which award is high and in disregard of the evidence tendered on record by the Applicant,5.That the learned trial Magistrate misdirected herself by failing to take into account the well-established principle requiring comparable awards to be made for comparable injuries sustained thereby falling into an error by awarding a sum of KES. 760,000/-which award is manifestly excessive.6.That the sum awarded as general damages under pain and suffering is excessive in view of the injuries sustained by the Respondent and thereby a deviation from the principle of stare decisis requiring comparable awards to be made for comparable injuries sustained. Hearing at the trial court 7.I shall now recount the testimonies at the trial court. 8.PW1 was the PC Geoffrey Kimotho attached to Kaptagat police station. He produced the abstract and stated that the accident occurred on 14th January 2022 at around 1545 hours along the Kaptarakwa-Iten Road involving motor vehicle registration n. KBS 559P and a motorcycle registration number GKB 450J Yamaha. He stated that he was the investigating officer and produced the abstract as PExh-1. 9.During cross examination he stated that the motorcycle and vehicle were moving in the same direction and that the motorcycle rammed the vehicle from behind. That he was not aware of the defective brakes and that the vehicle behind was supposed to keep distance. He additionally stated that he had not produced sketch maps and further, that he did not blame the driver of the motor vehicle. 10.PW2 was Moses Keitany, the Plaintiff. He adopted his witness statement as evidence in chief and stated that he sustained injuries. That he broke his left leg and got injured in the chest. He was treated at MTRH and produced the medical report from MTRH as PExhibit no 3 and the Radiology request as PExhibit no .4. He also produced 3 invoices as PExhibits no.5 a, b, c. Further, he stated that metal plates were fitted in his leg and that he used Kshs 200,000/= to remove the metal plates. He stated that he saw doctor Sokobe and produced the report by doctor Sokobe as PExhibit no 6a, the receipt for Kshs 6,000/- as PExhibit no 6b and a P3 form as PExhibit no.7. He also produced the Police abstract as an exhibit, Certificate of cost as PExhibit no 8b, a Summary note as PExhibit no 9a. 11.He stated that he was heading to Iten after the shopping Centre when the Probox KBS overtook him and immediately braked since there was an oncoming vehicle from Iten. That on the left side was a pedestrian and he couldn't swerve. He blamed the driver of the Probox as it was a PSV and he stopped to pick and or drop a passenger. 12.During cross examination he stated that it happened at 2.00pm and that he had a license. Further, that the vehicle overtook him suddenly and braked instantly. That the motorcycle was not defective prior to the accident. That he had not recovered and he had not removed the implants. 13.DW1 was the defendant Lawrence Kipkorir Kibii who adopted his witness statement as evidence in chief. He stated that he used his vehicle for personal use as he is a businessman. That the Plaintiff was the one who knocked him from the rear and that the vehicle did not overtake him. He produced the assessment report as DExhibit no 3. That he blamed the rider and that the motorcycle had brake failure. 14.During cross examination he confirmed that the vehicle was his and that he got his license on the date of the accident. That he had no proof that the plaintiff had 2 passengers and that his wife was with him but he had not called her as a witness. 15.As aforestated, the trial court entered judgment in favour of the Respondent herein. 16.The parties filed submissions on the Appeal. Appellants’ Submissions 17.Counsel for the Appellant urged that the trial court erred in apportioning liability at 80:20% in favour of the Plaintiff, notwithstanding clear and uncontroverted evidence which strongly supports that the Respondent was substantially, if not wholly, to blame for the accident. The facts of the collision were straightforward as the driver of motor vehicle KBS 559P testified that he was lawfully and properly driving ahead when he was suddenly struck from the rear by the Respondent's motorcycle, which had been following at excessive speed. The physical point of impact the rear of the Appellant's vehicle aligns with the common and well-understood mechanics of a rear-end collision, where a trailing vehicle is unable to brake in time, control its speed, or maintain a safe following distance. 18.Counsel urged that the driver's testimony was credible and remained unchallenged on cross-examination as no independent eyewitness was produced by the Respondent to contradict this account. Despite this, the trial court apportioned 80% liability to the Appellant, justifying this heavy apportionment solely on the basis that no sketch map was presented and no independent eyewitness testified. 19.That with respect, this reflects a misdirection in law. That the absence of a sketch plan does not automatically invalidate unshaken oral evidence on where the collision occurred. Similarly, the lack of an independent eyewitness does not, in itself, warrant shifting-greater fault onto the Appellant especially in a rear-end collision, where jurisprudence recognizes a presumption of negligence on the part of the trailing driver, unless that presumption is satisfactorily rebutted. 20.Counsel cited Orioki vs Kevian Kenya Ltd (Civil Appeal 341 OF 2019) where the Court of Appeal reaffirmed that in rear-end accidents, the trailing vehicle is presumed to be negligent, and that this, presumption can only be displaced by cogent evidence. He additionally cited Maalim v Wanyonyi (Civil Appeal 45 of 2023) and Juma & Another vs Wafula (Civil Appeal E030 of 2023) and urged that the trial court's allocation of 80% liability to the Appellant despite credible, consistent evidence was both legally and factually unsound. A more just and equitable determination would have been to apportion liability at least equally, or even place a greater share of blame on the Respondent given the circumstances. 21.Counsel urged that the trial court failed to adequately consider the evidence tendered, the submissions filed, and the legal authorities placed before it. The Appellant's evidence on liability was consistent and coherent, yet it was ignored solely on the basis that no sketch plan was produced. That similarly, the trial court failed to take into account the Appellant's submissions and cited authorities on quantum, thereby arriving at conclusions that did not reflect the guiding principles on comparable injuries or established judicial trends. That this constitutes a misdirection justifying appellate interference. 22.Counsel urged that the trial magistrate awarded Kshs. 760,000/- as general damages for pain and suffering, stating that she had taken into account the prevailing inflation rates. However, the court failed to cite any; authorities or comparable precedents to justify or anchor this figure. Counsel urged that this omission amounts to a misdirection-in law, especially in personal injury claims where courts are required to adhere to the principle that comparable injuries should attract comparable awards, 23.Counsel submitted that while the Respondent sustained comminuted fractures of the tibia and fibula injuries confirmed during re-examination by Dr. S, Ochieng the Appellant submits that the award of Kshs. 760,000/- is inordinately high when weighed against prevailing jurisprudence on similar injuries. The absence of cited authorities in the judgment left the award unsupported, arbitrary, and detached from the established judicial parameters commonly relied upon in such assessments. 24.Counsel submitted that it is trite that assessment of general damages for pain and suffering is a discretionary exercise, but that discretion must be exercised judicially, with due regard to principle. Further, that the mere acknowledgment of inflation is insufficient without demonstrating how past awards for similar injuries have been adjusted, or showing that the figure falls within a principled range of comparable cases. 25.That further to the above, the medical evidence which was prepared by Doctor Steve Ochieng through his report dated 16th of May 2024 discloses comminuted fractures of the tibia and fibula, which are serious injuries. Yet, the permanent disability was assessed at 10%, reflecting a moderate level of lasting harm. In light of this disability assessment, an award of Kshs 760,000, without reliance on or comparison to precedent, risks being inflated above what comparable cases have justified under similar injury patterns. 26.Counsel cited Kemfro Africa Ltd T/a Meru Express & Another (1987) KLR 30, the Court of Appeal and urged that the Respondent sustained a comminuted fracture of the proximal tibia and fibula together with soft tissue injuries, and the medical report assessed permanent disability at 10%. That while these injuries are not insignificant, they do not justify the award of Kshs. 760,000/- in view of the current judicial trend on awards for comparable injuries. 27.He cited Brenda Murugi v Eric Ochieng Onyango, Civil Appeal E792 of 2022 (2025), where the Respondent had sustained fractures of the tibia and fibula and permanent incapacity was assessed at 5%. The trial court had awarded Kshs. 11,000,000/-, but the High Court found this excessive and substituted it with Kshs. 600,000/-, noting that current comparable awards for such injuries generally fall within the range of Kshs. 500,000/- to 600,000/-. This authority is particularly persuasive as it is both recent and directly comparable to the injuries suffered in the present matter, where disability was assessed at 10%. 28.Further, that the same approach was taken in Karanja & Another V Mwachala, Civil Appeal E749 of 2021 [2024] KEHC 7171, where the plaintiff sustained more severe compound (open) fractures of the tibia and fibula and permanent incapacity of 10%. Even in that more aggravated case, the High Court upheld an award of Kshs. 600,000/-. This further illustrates that the award of Kshs. 760,000/- in the present matter is outside the accepted range. That similarly, in Sereni Fries Limited & Another V Kuria [2024] KEHC 9097, where the plaintiff suffered a fragmental tibia fracture with 5% disability, the High Court awarded Kshs. 500,000/- as general damages. 29.Counsel additionally cited Daniel Otieno Owino & Another v Elizabeth Atieno Owuor [2020] eKLR, where the court awarded Kshs. 400,000/- for fractures of the tibia/fibula and soft tissue injuries, and Third Engineering Bureau China Construction Group Ltd vs Edwin Kinanga Atuya [2021] eKLR, where Kshs. 500,000/-was awarded for compound fractures are consistent with this trend. 30.Counsel urged that in awarding the sum of Kshs. 150,000/- for future medical expenses, the learned trial magistrate made an error in fact and law by selecting a figure that is unsupported by any cited authority, and by failing to align the award with the credible medical evidence on record. During cross examination, Dr. Sokobe admitted that his original estimate of Kshs. 200,000/- was "on the higher scale" and would be substantially lower if the procedure was undertaken in a public hospital. 31.Meanwhile, Dr. Steve, whose report appears as DEX 2, opined that Kshs. 80,000/- would be sufficient for the removal of implants. The trial court nevertheless fixed the award at Kshs. 150,000/-, which is nearly double the realistic medical estimate and closer to the higher speculative figure; yet the court failed to justify why it' adopted the elevated number. Counsel urged that it is settled that a claim for future medical expenses must be specifically pleaded and proved, and that the award must be rationally linked to the medical evidence provided — including the nature of the injuries, the required future treatment, and the likely cost thereof. 32.Counsel cited Nyoike v Mwatemu (Civil Appeal 78 of 2023) [2024] KEHC 10414 and Pesa v Riambila (Civil Appeal E058 of 2023) [2025] KEHC 243 and urged that the learned trial magistrate's award of Kshs. 150,000/- is arbitrary because it lacks a demonstrated connection to the actual medical evidence and lacks any precedent to justify such an elevated figure in these circumstances. Given that the Respondent's treatment requirement (removal of implants) was clearly quantified by medical expert opinion at Kshs. 80,000/-, the court should have either adopted that figure or provided reasoned justification for a higher sum which it did not. 33.Counsel urged that the Court should interfere with the impugned award and substitute a sum of Kshs. 80,000/ as the appropriate amount for future medical expenses. Respondents’ submissions 34.Counsel for the Respondent urged that in the case of Isabella Wanjiru Karangu v Washington Malele Civil Appeal No. 50 of 1981 [1983] KLR 142 and Mahendra M Malde v George M Angira Civil Appeal No. 12 of 1981, it was held that apportionment of blame represents an exercise of a discretion with which the Appellate Court will interfere only when it is clearly wrong or based on no evidence or on the application of a wrong principle. 35.Counsel reproduced the evidence of PW1 PC Geoffrey Kimotho and urged that his evidence was corroborated by the evidence of the Respondent. He urged that the trial court was right in apportioning a higher liability on the part of the Appellant. Further, that in the case of Isabela W. Karanja vs W. Malele (1982- 88) KLR, the Court held that where the accident involved the pedal cyclist and a Motor Vehicle, the latter was driving a lethal machine hence he had a greater duty of care. 36.Counsel urged that the Appellant was with his spouse at the time of the accident but he did not call her as a witness in this matter. That an inference is to be drawn that the Appellant feared that the evidence of his spouse would have tended to be adverse to his defence. He cited the case of Mureithi & Another vs Mwami & 3 Others (Environment & Land Case 298 of 2019) [2024] KEELC 6230 (KLR) (24 September 2024) (Ruling) in this regard. He additionally cited the case of Bukenya & Others vs Uganda [19721EA 549, Mann Holdings Pte Ltd & Another vs Ung Yoke Hoke 12018] SGHC 69, and Elgin Finedays Ltd vs Webb 1947 AD 744. 37.Counsel submitted that the Appellant produced a Driving Licence that was issued to him on the date of the accident. That it could be inferred that the Appellant was not a licensed driver at the time of the accident. He cited the case of Al Kamar Trading Company Limited v Harrison Otina (2015) eKLR and the case of Magdalene Yula Mutua vs Isaack Mwaniki 11993] eKLR. Counsel further submitted that the Appellant's only defence was that he was not charged with a traffic offence which is neither here nor there. He cited the case of Mary Njeri Murigi vs Peter Macharia & another [2016] eKLR and Nester Shikuri -vs-Ibrahim Okwiri Matanji [2020] eKLR, in this regard. 38.Counsel submitted that the Investigating Officers’ evidence is that of an expert witness and thus the same is uncontroverted, placing reliance on Mohammed Sunkar vs Diamond Trust Bank (K) Limited where the Court held that the evidence of an expert can only be challenged by evidence of another expert. Counsel urged that there was no good reason to interfere with the apportionment of liability and urged that the appeal lacks merit and should be dismissed. 39.Regarding quantum, Counsel urged that the Learned Trial Magistrate had the discretion to assess damages payable to the Respondent and that discretion was exercised judiciously. The Appellant has not demonstrated that the Trial Magistrate adopted wrong principles in assessing quantum. Counsel cited the cases of Jeremiah & Brothers Contractor & Another -vs- Francis Egusangu Kaguli [2020] eKLR, Simon Taveta vs Mercy Mutitu [2014] eKLR, Charles Oriwo Odeyo -vs- Ann olio Justus Andabiya & Another [2017] eKLR, Savannah Saw Mills Ltd -vs- George Mwale Mudomo [2005] eKLR, and Loise Wanjiku Kagunda vs Julius Gachau Mwangi CA 2003, in this regard. 40.Counsel urged that the Respondent pleaded that he sustained the following injuries: - Blunt injury to the chest and a Fracture of the left tibia / fibula (comminuted) proximal. He cited the case of Pestony Limited & Another vs Samuel Honye Kagoko [2022] eKLR, where the High Court reviewed an award of Kshs. 1,400,000/= as general damages to Kshs. 800,000/= in a case where the Respondent sustained a fracture of the left femur (mid-shaft) and swollen tender thigh. 41.He also cited the case of Francis Ndungu Wambui & 2 Others vs VK (A minor suing through next friend and mother MCWK [2019] eKLR, where the High Court at Embu upheld an award of Kshs. 1,000,000/= general damages where the Plaintiff had sustained soft tissue injuries to the upper limbs, compound fracture of tibia fibula -shaft as well as loss of consciousness for more than 30 minutes after the accident. He also cited Easy Coach Limited -vs- Emily Nyangasi [2017] eKLR, where the Respondent sustained facial injuries, chest injury, injury to the back, injury to the right hand with cut wound and injury to the right leg with cut wound and the High Court upheld an award of Kshs. 700, 000/=. 42.Regarding future medical expenses, Counsel urged that the Learned Trial Magistrate was faced with two rival expert opinions that were not binding on the Court which considered both and arrived at her own opinion and this is what the law provides for. He cited the case of Shah & Another vs Shah & Others [2003] 1 EA 290 on expert opinions and urged that the Appeal on quantum lacks merit. He prayed that the court dismiss the appeal with costs. Analysis & Determination 43.The Duty of the Court was set down in the case of Selle & another vs. Associated Motor Boat Co. Ltd & others [1968] E.A at page 126 where it was held that: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 demeanour of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)” 44.Having addressed my mind to the pleadings, the evidence and submissions, it is my considered opinion that the following issues arise for determinationi.Whether the trial court erred in its apportionment of liabilityii.Whether the trial court erred in its award of damages 45.On the 1st issue of whether the trial court erred in its apportionment of liability, the court notes from the evidence by both sides that the parties did not produce any eyewitnesses to corroborate their testimonies as to the occurrence of the accident. However, the testimonies on record, are that the vehicle and the motorcycle were moving in the same direction and the motor vehicle, after overtaking the motorcycle, stopped abruptly causing the motorcycle to ram into the vehicle from behind. 46.This evidence originated from the Investigating Officer, PW1 and was confirmed by the Plaintiff in his testimony. It was therefore undisputed that the Plaintiff rammed the Defendant from behind. Additionally, the Defendant tendered a certificate of examination and test of the vehicle which found that the motor vehicle had defective brakes, which were defective before the accident. The court notes that this testimony was not rebutted. 47.Lord Reid in Stapley v Gypsum Mines Limited [1953] AC 663 at pg. 68, stated that:“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation, it is quite irrelevant in this connection in a court of law as this question must be decided as a properly instructed and reasonable jury would decide it ...” and “...The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history, several people have been at fault but that if one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the fault of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases, it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.” 48.The Court of Appeal in Orioki v Kevian Kenya Limited (Civil Appeal 341 of 2019) [2025] KECA 780 (KLR) (9 May 2025) (Judgment) held;Under common law, a driver who hits another vehicle from behind is generally presumed to be at fault, unless there is sufficient evidence to rebut this presumption. (See: Njuguna v Chogo [1985] KLR 452). In this case, the appellant admitted that he collided with the respondent’s vehicle from behind. This fact alone placed the burden on the appellant to prove that the collision was not due to his negligence. 49.The Respondent had placed reliance on the doctrine of res ipsa loquitor which was aptly described in the East African Court of Appeal’s decision in Embu Public Road Services Ltd. v Riimi [1968] EA 22 in the following terms:“The doctrine of res ipsa loquitor is one which a plaintiff, by proving that an accident occurred in circumstances in which an accident should not have occurred, thereby discharges, in the absence of any explanation by the defendant, the original burden of showing negligence on the part of the person who caused the accident. The plaintiff, in those circumstances does not have to show any specific negligence but merely shows that an accident of that nature should not have occurred in those circumstances, which leads to the inference, the only inference, that the only reason for the accident must therefore be the negligence of the defendant … The defendant can avoid liability if he can show either that there was no negligence on his part which contributed to the accident; or that there was a probable cause of the accident which does not connote negligence of his part; or that the accident was due to the circumstances not within his control.” 50.However, given that the Appellant tendered his own explanation as to the occurrence of the accident, it follows that this doctrine could not apply in the circumstances. Further, in considering the circumstances in this case, in light of the fact that it is contended that the Appellant abruptly braked in front of the Respondent resulting in the accident, even though the evidence is not very clear on the actual overtaking and abrupt braking, it is my view that this is the case of one party against another and in the absence of any eye witness accounts, it is my considered opinion that for a fair and just determination of this case, the liability should have been apportioned at 50-50. In this regard, I now hereby set aside liability as apportioned at 80-20 in favour of the plaintiff and set the same at 50-50 51.On the 2nd issue of the apportionment of damages, in Kemfro Africa Limited t/a “Meru Express Services” [1976] & Another V. Lubia & Another (No. 2) [1987] KLR, the Court of Appeal held that:''…. The principles to be observed by the appellate Court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held to be that; it must be satisfied that either that 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 low or so inordinately high that it must be a wholly erroneous estimate of the damage.'' 52.On the mode of assessing damages, the Court of Appeal in the case of Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that comparable injuries should attract comparable awards, a position that the court echoed in Simon Taveta v Mercy Mutitu Njeru Civil Appeal 26 of 2013 [2014] eKLR wherein the court held that:“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.” 53.On the claim for future medical expenses, the Court of Appeal in the case of, Tracom Limited & Another vs. Hassan Mohamed Adan Civil Appeal Number 106 of 2006, stated thus;“We understand that to mean that once the plaintiff pleads that there would be need for further medication and hence future medical expenses will be necessary, the plaintiff may not need to specially state what amount it will be as indeed the exact amount of that future expenses will depend on several other matters such as the place where the treatment will be undertaken, and if overseas, the strength of the currency particularly Kenya currency at the time treatment is undertaken and of course the turn that the injury will have taken at the time of the treatment. We think all that will be necessary to plead (if it has to be pleaded at all) is the approximate sum of money that the future medical expenses will require.” 54.The medical report presented by Dr. Sokobe indicated that the respondent sustained soft injuries and skeletal injuries and further, that the Respondent required future treatment comprising of implants at an estimate of Kshs. 200,000/- with permanent disability assessed at 10%. The second medical report by Dr. Steve Ochieng dated 16th May 2024 revealed that he might require future treatment at a cost of Kshs. 80,000/-. The court exercised its discretion and awarded Kshs. 150,000/-. For reasons that the Appellant has not proved that this award was erroneous in principle and therefore I see no reason to disturb the same. 55.On the award on general damages, the Respondent sustained the following injuries;a.Blunt injury to the chestb.Fracture of the left tibia/fibula (comminuted) proximal 56.In considering the award of Ks. 760,000/- awarded by the trial court, apart from the authorities cited by Counsel in their submissions, I have also considered the following cases with comparable injuries bearing in my mind that no two injuries can be precisely and exactly the same, and the damages awarded therein; 57.In Akamba Public Road Services v Abdikadir Adan Galgalo [2016] eKLR an amount of Kshs. 500,000/= was awarded for pain, suffering and loss of amenities for a respondent who had sustained a fracture of the right tibia bone among other injuries.In Ann Namulembo Nyando v Mungai Mwangi & another [2019] eKLR, Ks. 500,000/= was awarded as general damages for pain, suffering and loss of amenities to an appellant who had sustained a compound fracture of the right tibia and fibula. In Zoa Taka Limited & another v Kyalo (Civil Appeal E011 of 2022) [2025] KEHC 1606 (KLR) (Civ) (27 February 2025) (Judgment) the plaintiff was awarded general damages in the sum of Kshs. 850,000/= for fracture of right malleolus bone and soft tissue injuries. The award was reduced on appeal to Kshs. 500,000/=. 58.Further, in Francis Ndungu Wambui & 2 others V VK (a minor suing through next friend and mother MCWK) [2019] eKLR the appellate court upheld the trial court award of Kshs.1,000,000/- as general damages for a claimant who suffered soft tissue injuries to the upper limbs, compound fracture of distal tibia fibula shaft as well as loss of consciousness for more 30 minutes after the accident and it was also noted due to the severity of the fracture he was at risk of secondary stress fractures on the same site. In Alphonce Muli Nzuki v Brian Charles Ochuodho [2014] eKLR where the Respondent sustained compound comminuted fracture of right tibia and fibula and degloving injury medial aspect of right leg and foot and was awarded Kshs. 800,000 general damages. 59.Also in Motrex Co. Limited & Another v Fidelis Njoki Gachoka H.C.C.A No. 205 of 2011, Mbogholi Msagha J. (as he then was) upheld the award of Kshs 800,000/= as General Damages for the Respondent who had sustained an open fracture of tibia and fibula of right leg and non-displaced fracture of right jaw. when surgery was done the open fracture was fixed with external fixators. Lastly, in Mikua v Nthiga (Civil Appeal E001 of 2023) [2025] KEHC 12439 (KLR) (4 September 2025) (Judgment), the Appellant sustained the following injuries a compound tibia fibula fracture of the right lower limb, degloving injuries to the distal third of the right leg and ankle and extensive tissue injuries to the right lower limb. 60.By dint of my observation above that no one injury can be the exact match of another,it is my considered view that the injuries sustained in the authorities herein cited are as close as close be and therefore comparable to the injuries sustained by the Respondent herein. That said, in considering the damages awarded therein awarded, I have observed that they generally range between Ks. 500,000/- and Ks. 800,000. This being the case then, I do not find the trial court’s award of Ks. 760,000/- as General Damages which is within this range to be so inordinately high and excessive as to warrant the interference of the same by this court. I therefore uphold the same and the appeal in this regard is accordingly dismissed. 61.In noting that the award of special damages was not appealed against, the same as awarded by the trial court is accordingly upheld. In the end the appeal is now hereby allowed only to the extent that liability as apportioned at 80-20 is set aside and the same is now hereby apportioned at 50-50 as against each of the parties and the award of Ks. 760,000/- in General damages and Ks. 150, 000/- for future medical expenses are both upheld. The Appellant is to bear the costs of the Appeal. READ DATED AND SIGNED VIRTUALLY AT BUNGOMA ON 9TH JULY 2026E. OMINDEJUDGE