https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8067

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **KISII HIGH COURT** **HCCA NO. E038 OF 2025** **IBRAHIM OTUNDO LUMUMBA ------------------------- 1ST APPELLANT** **MERCY GACHERI ------------------------------------------- 2ND APPELLANT** **- VERSUS -** **KENNETH STEPHEN ONSONGO -------------------- 1ST RESPONDENT** ***(Being an appeal from the judgement in CMCC No. E310 of 2023 by Hon. Mutai Paul Kipkemoi (PM) delivered on 3rd of February 2025 in Kisii)*** **JUDGMENT** **Background of the appeal** 1. This appeal emanates from a road accident that occurred on 15th of August 2022 where it is alleged that the respondent a pillion passenger on motor cycle was hit by motor vehicle registration number KBR601Z being driven by the appellant. As a result of the accident the respondent claims to have sustained injuries and proceeded to sue the appellants for negligence. 2. To support his claim, the respondent at the trial court produced four witnesses; PW1 the respondent who adopted his statement as evidence, PW2 Kenneth George a clinical officer who testified on the respondent injuries and treatment, PW3 Dr. Peter Morebu Momanyi who testified as well on the injuries incurred by the respondent and produced medical reports and P3 form as exhibits and PW4 PC Moses Kasera who gave the findings of how the accident occurred and produced the police abstract as evidence. 3. The appellant who has the defendant in the trial court denied all the averments and invited the plaintiff to strict proof thereof. He attributed the accident to the negligence on the part of the respondent. The defence relied on two witnesses produced DW1 the appellant who adopted his statement dated 7th August 2023 and by consent produced a second medical report by Dr. Malik who had re-examined the respondent on 22nd of September 2023. 4. The trial court in its judgement attributed liability at the ration 70:30 in favour of the respondent as against the appellant, awarded general damages of Kshs. 800,000/=, cost of future medical expenses at 350,000/= and special damages of Kshs. 187,723/= together with interest and plaintiff costs to the suit. 5. The appellant aggrieved with this decision filed an appeal dated 27th February 2025 on the following summarized grounds; THAT 6. *The learned Trial Magistrate erred in fact and law by awarding general damages which were inordinately high in view of the injuries sustained.* 7. *The learned Trial Magistrate erred in Law and Principle by adopting the wrong approach in the computation of the general damages.* 8. *The learned Trial Magistrate erred in law and fact in awarding Kshs. 350,000/= as future medical expenses contrary to the evidence adduced by the appellant’s doctors* 9. The appellant therefore prayed for the appeal to be allowed, the judgement of the trial court set aside and substituted with a suitable award. 10. The appeal was admitted and canvassed by way of written submissions **Appellant’s submissions** 1. The appellant in their written submissions dated 18th November 2025 blamed the trial court for not considering their authorities and that the award of Kshs. 800,000 for general damages to be too high. The appellant relied on the six authorities that he submits are for comparable injuries with awards ranging from Kshs. 400,000/= to Kshs. 500,000/=. The appellant subsequently urged the court to find that the award of Kshs. 500,000 to be reasonable in the prevailing circumstances. 2. On the issue of the future medical expense Kshs. 350,000/=, the appellant urged this court to consider the 2nd medical report of one year after the incident that estimated the expense to cost Kshs. 200,000/=. He further submitted that the appellant doctor was a specialized doctor unlike the respondent’s hence his opinion should be given more weight. **Respondent’s submissions** 1. The respondent on their part in their written submissions dated 2nd September 2025 argued that the trial court award was reasonable based on the injuries sustained. On the issue of quantum, the respondent had proposed an award of Kshs. 2,500,000 and cited three authorities which they claimed have comparable injuries that awarded the range of Kshs 1,450,000/= to 2,500,000/= **Analysis and Determination** 1. The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. ( **See Selle V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I)** 2. Upon perusal of the appeal and written submissions, there is no contention that an accident did occur on the 15th of August 2022. The apportion of liability at 70: 30 in the favour of the respondent is also not in contention. 3. The main issue for the determination of this court therefore is whether the trial magistrate erred in law and fact on assessment of quantum. In coming to this determination, I will first evaluate the injuries sustained*; Compound left tibia fracture, compound left fibula fracture, degloving injury of the left ankle, chest contusion and blunt trauma to the back.* 4. I have considered the two medical reports on record. The medical evidence by both doctors came to the conclusion that the respondent sustained fractures and multi soft tissue injuries. There is no contention on the treatment administered, the ten days hospitalization and the use of crutches I year later. 5. Indeed, the second medical report indicated an infection at the site of the fracture sites necessitating the need for a further operation. There is therefore no contention that the respondent had not healed by the time of the re-examination by the appellant’s doctor. 6. The departure was on the gravity and costs to the future expenses. The respondent doctor assessed permanent disability at 20% while the appellant doctor indicated temporary incapacity at the time of the examination one year later. Both doctors agree that a further surgery is required but depart on the cost with a variance of Kshs. 150,000/= which in my opinion is not too far part taking into consideration the inflation rates. 7. After a perusal of the medical evidence adduced by both parties, there is no doubt that these are unquestionable serious injuries that continue affecting the respondent. One year later, the respondent remained dependent on crutches with the need for continuous and further surgical procedure. It therefore goes without saying that the respondent has undergone excruciating pain and suffering as a result of the injuries sustained. 8. With this in mind, an appropriate award is one that is commensurate to the injuries sustained, time it has taken to heal, future treatment and the pain and suffering incurred. 9. In determining what would be the appropriate quantum award, I am guided by the courts in the case of **West (H) & Son Ltd v Shepherd [1964] AC. 326,345**, where is was expressed that: **“………..money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be endeavour to secure some uniformity in the general method of approach. By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it still must be that amounts which are awarded are to a considerable extent conventional…………”** 1. The principles of quantum further dictate that it has to be comparable and uniform with other awards. I have undertaken an analysis of recent authorities of comparable fractures, loss of teeth, multiple soft tissue injuries, residual incapacity and future medical interventions. 2. The appellant in their submissions cited six authorities with injuries of fracture and soft tissue injuries where the courts awarded between the range of **Kshs. 450,000 to 500,000**/=. It is important to note that the injuries in the present case are a combination of several of these, hence these awards may not be conclusive but a guide. 3. The respondent in their written submissions relied on the three authorities cited at the trial court for comparable injuries where the courts awarded the range of **Kshs 1,450,000/= to** Kshs. **2,500,000**/= for general damages. 4. In the case of **Wamoto & Another v Mumo (2025) KEHC 1704 (eKLR)** the court substituted an award of **Kshs, 1,200,000/= for Kshs. 800,000/=** for injuries of fracture of the right tibia/fibula and soft tissue injury. In the case of **Okware v. Ndolo [2025] KEHC 7762 (KLR),** the complainant sustained fractures and multiple soft tissue injuries and the high court set aside the trial court award of **Kshs. 1,500,000/= to kshs 1,000,000/=.** 5. It is trite that no two cases are the same and each must be determined on its own peculiar facts and circumstances. The above cited authorities serve as a guide to comparable awards. In this case, the respondent has sustained serious injuries with lifelong lingering effects both physical and psychological. One year later, the respondent was yet to heal and still dependent on crutches. The award therefore must be commensurate to these factors aside from the actual injury itself. 6. To further guide my determination therefore, this court is alive to the principle espoused in the case of **Butt v Khan 1982 -1988 1 KAR** where the court pronounced itself as follows; ***“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. It must be shown that the judge proceeded 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.*** 1. I am further guided by the principles guiding interference of quantum awards by the trial courts which are well settled, that, this court as an appellate court, does not interfere merely because it would have awarded a different figure but may only interfere where the trial court applied the wrong principles, considered irrelevant matters, failed to consider relevant matters, or where the award is so inordinately high or low as to amount to an erroneous award **( See Kemfro Africa Ltd. t/a Meru Express Services, Bashir Ahmed Butt v Uwais Ahmed Khan ( 1982-88) KAR 5.)** 2. The court therefore finds that the award for general damages of the trial court of Kshs.800,000 and future expense of 350,000/= is not inordinately far from the quantum in other comparative cases. I therefore see no reason to interfere with the trial courts discretion. **Disposition** 1. The appeal is hereby dismissed with costs to the respondent. **DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 4TH JUNE 2026** **A.M. OKUTOYI** **JUDGE** In the presence of: Mr. Karanja for the appellant Ms. Shilwatso for the respondent Zainab Ghana-Court Assistant