https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10563

Ombulo v Harick Enterprises Ltd (Civil Appeal E026 of 2025) [2026] KEHC 10563 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10563 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E026 of 2025 DK Kemei, J July 16, 2026 Between Maryline Atieno Ombulo Appellant and Harick Enterprises Limited Respondent (Being an appeal from the judgement and resultant decree of the Small Claims Court at Siaya (Hon J.P Mkala (RM)) dated 21st March 2025 in Siaya SCCOMM No. E010of 202) Judgment 1.The Appeal arises from the Judgment of Hon. J. P. Mkala (RM) delivered on 21st March ,2025 at Siaya in SCCCOM E010/2025. 2.The claim before the lower court arose out of a road traffic accident that occurred on 26th December 2024 at around 1100 Hours at the Boro Area along the Siaya-Nyadorera Road. The Appellant was riding as a pillion passenger on a motorcycle Registration Number KMEB 416Y when the Respondent’s motor vehicle, an Isuzu FTR truck bearing Registration Number KDC 812P knocked the motorcycle from behind. That as a consequence of the impact, the Appellant sustained injuries, received medical treatment and subsequently filed a Statement of Claim in the Small Claims Court seeking both special and general damages. 3.Upon hearing the testimonies of the witnesses and considering the respective parties’ positions, the trial court entered judgment in favor of the Appellant in the following terms:Liability: 100% against the Respondent.General Damages (Pain & Suffering): Kshs. 90,000/-.Special Damages: Kshs. 7,650/-.Costs: Assessed at Kshs. 20,000/-.Stay of Execution: Granted for 30 days. 4.Aggrieved by the decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 31st March 2025 wherein she raised the following grounds of appeal namely; -a.That the learned trial Magistrate erred in law and in fact by awarding a sum in respect of general damages that was inordinately and unjustifiably low under the circumstances, occasioning a miscarriage of justice.b.That the learned trial Magistrate erred by failing to properly consider the Appellant’s testimony, evidence and submissions on record thereby arriving at an untenable and unjust finding. 3.This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See Selle vs Associated Motor boat Co. Ltd [1968] EA 123. 4.To properly ascertain whether the trial court arrived at a sound determination on quantum, it is necessary to examine the evidence placed before the lower court regarding the accident and the resultant injuries. The Appellant (then Claimant) testified on her own behalf and called a police officer and a clinical officer. 5.Maryline Atieno Ombulo, the Appellant testified that on the material day 26th December 2024, she was a lawful pillion passenger on a motorcycle along the Siaya-Nyadorera Road when the Respondent's vehicle rammed them from behind. She told the trial court that the impact threw her heavily onto the tarmac road causing immediate excruciating pain across multiple parts of her body. She was rushed to the Siaya County Referral Hospital where she received emergency medical attention was x-rayed, prescribed medication and discharged on the same day for home-based recuperation and clinics. She testified that the injuries severely disrupted her daily life and caused persistent physical suffering. 6.George Mwita a Senior Clinical Officer attached to the Siaya County Referral Hospital testified as the expert medical witness. He produced the Appellant’s treatment notes, the official P3 Form and his comprehensive Medical Assessment Report. He confirmed to the court that upon examination, the Appellant presented with physical trauma distributed across five clear regions: the forehead, the back, the neck, both elbow joints and the fingers of her left hand. He categorized the injuries globally as soft tissue injuries resulting from blunt force impact. On cross-examination, he conceded that the clinical examinations and radiological assessments revealed no bone fractures, dislocations, internal organ damage or permanent neurological deficits and that the patient had made a satisfactory recovery. 7.The Respondent called two witnesses. Kevin Otieno Omondi stated that he is a businessman and confirmed that indeed an accident took place involving their vehicle and a motorcycle. That one Stephen was the motorcycle rider while Maryline Atieno Ombulo was the pillion passenger. That Maryline Atieno was not admitted but the rider was. That he was not aware of how the accident took place. Barack Ochola Ogola was the lorry driver who testified that an accident took place and that the rider and pillion passenger were injured and that he contributed a sum of Kshs 6,500/ for their treatment. He further added that they were moving in the same direction and that he had hooted as he wanted to overtake the rider. 8.The Appeal was canvassed by way of written submissions. Both parties filed their respective submissions. 9.The Appellant contended that the trial court’s award of Kshs. 90,000/- for general damages was inordinately and unjustifiably low under the circumstances of the case thereby occasioning a severe miscarriage of justice. It was argued that the trial court failed to properly weigh the Appellant’s testimony, evidence and submissions on record which led to an untenable and unjust finding. 10.The Appellant highlighted Sections 107 and 108 of the Evidence Act (Cap 80) emphasizing that she had discharged the statutory burden of proof by presenting substantial uncontroverted evidence. To establish both the fact of the accident and the gravity of the injuries, the Appellant testified by adopting her witness statement and produced several exhibits including her birth certificate, a police abstract, a duly filled P3 Form, treatment records from the Siaya County Referral Hospital and Rabuor Sub-County Hospital, a statutory notice and a medical assessment report authored by George Mwita. The Appellant further emphasized that on cross-examination she stated she was not yet fully healed and was still purchasing medication from a pharmacy. 11.Invoking the principles guiding a first appellate court as established in Selle and Another v. Associated Motor Boat Company Limited and Others [1968] EA 123, Williamson Diamonds Ltd and Another v. Brown [1970] EA 1 and Abok James Odera t/a A.J. Odera & Associates v. John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, the Appellant urged this Court to re-evaluate the entire evidence on record and arrive at its own independent conclusions. 12.On quantum, the Appellant relied on the Court of Appeal decision in Mbaka Nguru and Another v. James George Rakwar [1998] eKLR and Halsbury’s Laws of England (4th Edition, Volume 12(1), Page 348, Paragraph 883) to demonstrate that the award must reflect the trend of recent comparable decisions and fairly compensate for the physical and mental distress endured. The Appellant drew the Court's attention to the specific injuries sustained, namely: Injury on the forehead; Injury on the back; Injury on the neck; Injury on the elbow joints; and Injury on the left fingers. 13.While noting that the medical records categorized these as soft tissue injuries, the Appellant argued that they were serious and grave enough to attract fair compensation. She cited Kenya Power and Lighting Company Ltd v. Mary Akinyi (Kisii HC Civil Appeal No. 72 of 2007) where Lady Justice R.N. Sitati upheld an award of Kshs. 350,000/- for soft tissue injuries. Taking into account the extensive nature of the injuries and the biting inflationary spirals of the economy, the Appellant urged this Court to set aside the trial court's award and substitute it with an enhanced sum of Kshs. 500,000/- in general damages. Additionally, the Appellant prayed for the costs of the suit and interest to run from the date of filing the suit until payment in full. 14.The Respondent has submitted this brief in response to the Appellant's Memorandum of Appeal dated 31st March 2025 which contests the trial Court's Judgment delivered on 21st March 2025. In the lower court proceedings, the Appellant (then the Claimant) had sought damages for personal injuries arising from a road traffic accident that occurred on 26th December 2024 at the Boro Area along the Siaya-Nyadorera Road. 15.Upon evaluating the evidence, the learned trial Magistrate found in favor of the Appellant assessing liability at 100% and awarding Kshs. 90,000/= as general damages for pain and suffering alongside special damages of Kshs. 7,650/= and capped costs at Kshs. 20,000/=. Dissatisfied with the quantum of general damages, the Appellant moved to the High Court on the principal ground that the award was inordinately low. In response, the Respondent has prayed for the entire appeal to be dismissed with costs. 16.The Respondent has distilled a single issue for determination by the High Court namely whether the learned trial Magistrate properly exercised his judicial discretion in awarding Kshs. 90,000/= as general damages for the Appellant's soft tissue injuries. 17.The Respondent argues that it is a long-standing trite principle of Kenyan jurisprudence that an appellate court will not disturb an award of damages assessed by a trial court unless it is demonstrated that the trial court applied wrong legal principles, misapprehended the evidence or made an award so inordinately high or low as to represent an entirely erroneous estimate. 18.To support this position, the Respondent has cited key judicial precedents: Kemfro Chemical Agencies Limited & Another v. A.M. Lubia & Another (1982) 1 KAR 343: The Court of Appeal held that an appellate court must be satisfied that the trial judge either took into account an irrelevant factor left out a relevant one or arrived at a wholly erroneous estimate before it can interfere with quantum. Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR: This case laid down the guiding principles for assessing personal injury damages emphasizing that an award is meant to compensate rather than enrich a victim must be commensurate with the injuries sustained and should use previous awards as a guide while factoring in inflation. Bashir Ahmed Butt vs Uwais Ahmed Khan (1982-88) KAR: The Court of Appeal re-emphasized that an appellate court will not disturb general damages unless the award is an entirely erroneous estimate resulting from a misapprehension of evidence or wrong principles. 19.The Respondent submits that the Appellant has completely failed to demonstrate any misdirection, error of law or misapprehension of facts by the trial Magistrate that would justify setting aside the lower court's evaluation. 20.The Respondent points out that according to the medical records, P3 form and medical report on record, the Appellant sustained injuries to the forehead, back, neck, elbow joints and left fingers. The medical examiner explicitly classified all these injuries as soft tissue injuries noting that there were no fractures, permanent disfigurements, internal organ damages or neurological deficits. 21.Furthermore, the Respondent highlights that the Appellant was riding as a pillion passenger without protective gear was treated for these minor tissue injuries and was released on the very same day. While the Appellant claims to suffer from residual pain, the medical evidence confirms a complete recovery from standard soft tissue trauma. The Respondent maintains that since general damages are compensatory rather than punitive, an award of Kshs. 90,000/= is realistic, reasonable and legally sustainable under current Kenyan economic conditions. 22.To counter the Appellant's demand for Kshs. 500,000/=, the Respondent has invited the Court to consider several recent precedents where appeals regarding soft tissue injuries were either scaled down or dismissed: Adembesa & Another v Gweno (2024): The High Court set aside an excessive lower court award and substituted it with Kshs. 120,000/= for generalized soft tissue injuries on the head, back, chest, shoulders, elbows, and knees. Ayoti Distributors Ltd v Auma (2024): The High Court reduced an excessive trial court award of Kshs. 700,000/= down to Kshs. 200,000/= for soft tissue injuries and blunt trauma. Mutinda v Runji (2025): The High Court dismissed an appeal and upheld an award of Kshs. 150,000/= ruling that the trial magistrate exercised proper discretion for leg and head wounds that later developed into knee osteoarthritis. Ukavi v Erasmus (2024): The High Court allowed the appeal and reduced a trial court award from Kshs. 350,000/= to Kshs. 180,000/= for soft tissue injuries. 23.The Respondent further argues that the authority cited by the Appellant, Kenya Power and Lighting Company Ltd v. Mary Akinyi (2007) is entirely distinguishable due to differences in medical complications, treatment durations and historical economic baselines. 24.In conclusion, the Respondent states that the learned trial Magistrate properly evaluated the medical evidence, adhered to the parameters of proportional compensation and arrived at a fair estimate. Consequently, the Respondent argues there is no legal basis to interfere with the trial court's judicial discretion and prays that the High Court dismiss the appeal in its entirety, uphold the lower court's decree on quantum and award the costs of the appeal to the Respondent. 25.I have carefully considered the Appeal, the Judgement of the Small claim court and the rival submissions by parties. I find issue for determination is whether the Appeal has merit. 26.The legal framework controlling when an appellate court can interfere with an assessment of damages by a trial court is strictly settled. As established in the locus classicus case of Kemfro Chemical Agencies Limited & Another v. A.M. Lubia & Another (1982) 1 KAR 343, an appellate court will not disturb an award of damages unless it is demonstrated that the trial court applied wrong legal principles, misapprehended the evidence, took into account an irrelevant factor, left out a relevant factor or that the final sum is so inordinately high or low as to represent an entirely erroneous estimate.According to the medical evidence on record including the P3 Form and the Medical Report authored by Senior Clinical Officer George Mwita (CW2), the Appellant sustained the following injuries: Injury on the forehead, injury on the back, Injury on the neck, Injury on the elbow joints and Injury on the left fingers. 27.The medical examiner explicitly classified these as soft tissue injuries. There were no fractures, no neurovascular deficits, no internal injuries and no long-term or permanent disfigurement or disability recorded. The Appellant was treated at the Siaya County Referral Hospital on the day of the accident and discharged on the same day. 28.The Appellant has heavily relied on the case of Kenya Power and Lighting Company Ltd v. Mary Akinyi [2007] eKLR, where an award of Kshs. 350,000/- was upheld for soft tissue injuries. Conversely, the Respondent pointed to more modern and proximate authorities such as Adembesa & Another v. Gweno (Civil Appeal E192 of 2023) [2024] KEHC 5379 (KLR) and Ayoti Distributors Ltd v. Auma (Civil Appeal E093 of 2021) [2024] KEHC 3881 (KLR) where awards for generalized soft tissue injuries were scaled down or substituted by the High Court to figures between Kshs. 120,000/- and Kshs. 200,000/- to guard against unjust enrichment. 29.The trial court in assessing the quantum evaluated comparative jurisprudence specifically pointing to Ephraim Wagura Muthui & 2 Others v. Toyota Kenya Limited & 2 Others [2019] eKLR, where a claimant with blunt trauma and soft tissue contusions to the head, neck, back and limbs was awarded Kshs. 90,000/-. 30.While damages for personal injury are at the judicial discretion of the court and should be compensatory rather than punitive, they must mirror standard Kenyan economic realities and account for the progressive impact of inflation. The lower court made its assessment in March 2025. Considering the extensive and distributed coverage of the soft tissue trauma across five distinct areas of the Appellant's body (forehead, back, neck, elbow and fingers), an award of Kshs. 90,000/- is slightly on the lower side though not shockingly or excessively low. 31.However, when taking into account the passage of time, monetary fluctuations and looking at comparable parameters of inflation as highlighted in contemporary High Court determinations (such as Adembesa [2024] which assessed similar broad-spectrum soft tissue harms at Kshs. 120,000/-). This Court is persuaded that a modest upward adjustment is justified to ensure fair and realistic compensation. I find that an award of Kshs. 150,000/- serves as standard, balanced compensation under Kenyan conditions for multiple soft tissue injuries without enriching the victim and which also takes into account the effects of inflation on the economy. 32.Consequently, the Appellant's appeal succeeds. The same is allowed. The judgment of the Small Claims Court delivered on 21st March 2025 regarding the award of Kshs 90,000/ as general damages for pain and suffering is set aside and substituted with an award of Kshs. 150,000/-. As there is no dispute over the other sums, the same shall remain undisturbed. Each party to bear their costs of this appeal. DATED AND DELIVERED AT SIAYA, THIS 16TH DAY OF JULY 2026D.KEMEIJUDGEIn the presence of:M/s Omondi for Cheloti……………..for the AppellantM/s Muthoni………………………….for the RespondentMaurine………………………………..Court Assistant