https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9521

JUDGMENT HCCA NO. E180 OF 2024 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU CIVIL APPEAL NO. E180 OF 2024 MICHAEL OTIENO GONDO……………….………. ………..APPELLANT -VERSUS- KENNEDY OCHIENG OBARA……………..…………… RESPONDENT (Being an appeal from the judgment of C. L. Yalwala SPM, delivered on 21st August, 2024 in Maseno PMCC No. E059 of 2022) JUDGMENT Introduction 1.This appeal emanates from the judgment delivered on 21st August, 2024 in Maseno PMCC No. E059 of 2022. The suit was instituted by the plaint dated 23rd August, 2022 and filed by Kennedy Ochieng obara being the Plaintiff in the lower court (hereafter the Respondent) against Michael Otieno Gondo, the defendant in the lower court (hereafter the Appellant). 2. The suit was for general and special damages arising from a road traffic accident which occurred on or about the 31st May, Page | 1 JUDGMENT HCCA NO. E180 OF 2024 2022, along Kisumu – Busia road when the Plaintiff was a riding Motor Cycle Registration number KMDS 640S Honda and the Defendant/his agent/servant or driver was driving motor vehicle registration number KCW 514 L. 3.The Plaintiff had pleaded negligence on the part of the defendant. The suit was heard to conclusion and the trial Magistrate found the defendant 100% liable for the injuries suffered by the Plaintiff and also awarded general damages for pain and suffering at Kshs.950,000/-. 4.The Defendant dissatisfied with the trial Magistrate’s Judgment on the issue of quantum has now filed the instant Appeal. The Defendant has sought to have this court reevaluate the evidence afresh and reassess the general damages of pain and suffering. Trial Court Evidence 5.At the trial court the Respondent had testified and told court that as a result of the accident, he sustained a deep cut wound on the left leg above the ankle, cut wound on the left knee, open mid shaft femur fracture and displacement, swollen left leg, left knee and left thigh with tenderness on the left thigh. He was treated at Jaramogi Oginga Odinga Teaching and Page | 2 JUDGMENT HCCA NO. E180 OF 2024 Referral Hospital. By the time of his testimony in court, the Respondent was still undergoing treatment. 6.PW2 was Dr. Kilimo who had treated the Respondent on the date of the accident. He confirmed that the Respondent had sustained a fracture of the left femur, which with proper treatment, was expected to fully heal. 7.PW3 was Dr. Owiti Sylas Aketch who had examined the Respondent and done his medical Report. The witness told court that the Respondent had suffered deep cut wound on the left leg above the ankle, cut wound on the left knee, open mid shaft femur fracture and displacement, swollen left leg, left knee and left thigh with tenderness on the left thigh. 8.The witness told court that he had seen x-ray films for x-rays done on 31st May, 2022 and 4th August, 2022, which confirmed that the Respondent had suffered a displaced fracture of the midshaft left femur. The diagnosis by the witness was displaced fracture of the midshaft left femur and soft tissue injuries. 9.The witness told court that on examination, he confirmed the injuries and found that the fracture had resulted to deformity of the left thigh and shortening of the left limb. He awarded the Respondent an approximate permanent disability of 20%. Page | 3 JUDGMENT HCCA NO. E180 OF 2024 10.The Appellant called DW1 – Dr. Jenipher Kahuthu who testified that she had examined the Respondent and confirmed that he suffered the following injuries; - open fracture of the left femur and soft tissue injuries that were a cut wound on the left knee and left leg pain. The Respondent was treated on the date of the accident at JOOTRH and discharged on his request to seek medical attention in a different facility. 11.The defense witness told court that on the 22nd August 2022, the Respondent was admitted at JOOTRH and treated for malunion of the left femur and was discharged on the 2nd September 2022. The defense witness reexamined the Respondent for purposes of the second medical Report on the 24th November 2022. At the time of examination, the Respondent had a healed scar on the left thigh anteriorly, he was unable to fully flex the hip and knee respectively and stiffness of the joints was noted. The Respondent had a K-Nail still in situ. The witness awarded the Respondent a 10% permanent disability. 12.After the trial, the trial Magistrate awarded the Respondent Kshs.950,000/- in general damages of pain and suffering. Page | 4 JUDGMENT HCCA NO. E180 OF 2024 Aggrieved by this outcome, the Appellant preferred this appeal which is premised on the following grounds: a. The learned Magistrate erred in law and fact in awarding general damages Kshs.950,000/- which award was excessive and not commensurate to the nature of injuries sustained. b. That the learned trial Magistrate/Adjudicator erred in law in over relying on the Plaintiff’s evidence most of which was speculative in nature thereby reaching an entirely erroneous finding. c. That the learned trial Magistrate/Adjudicator erred in law in over relying on the Plaintiff’s submissions and legal authorities which were not relevant as they had severe injuries, without addressing his mind to the injuries of the Plaintiff, hence occasioning a miscarriage of justice. 13.The appeal was canvassed by way of written submissions. Appellant’s Submissions 14.The Appellant’s counsel condensed his grounds of appeal into two key issues, namely, the trial court’s respective findings on quantum and whether the said finding should be set aside. Counsel anchored his submissions on the decision in Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123 regarding the power of the Appellate court to Page | 5 JUDGMENT HCCA NO. E180 OF 2024 reevaluate and reassess the evidence adduced in a trial court by the appellate court and the duty to come to its own independent findings. 15.Counsel submitted on the injuries as pleaded in the plaint, being:- a. Open left mid shaft femur fracture and displacement b. Deep cut wound on the left leg above the ankle c. Cut wound on the left knee d. Swollen left leg, left knee and left thigh e. Tender left thigh. 16.He added that although the discharge summary, medical report and p3 form which confirm the injury were produced in court, the Respondent did not produce any x-ray film or x- report to confirm the fracture. He stated that Dr Kilimo (PW2) told the court with proper treatment at Jaramogi Oginga Odinga Teaching and Referral hospital, the Plaintiff would have healed from the fracture and the other soft tissue injuries and Dr. Owiti confirmed to the court that a surgery had already been done on the Respondent and that he should have healed. Page | 6 JUDGMENT HCCA NO. E180 OF 2024 17.The Appellant challenged the award of 20% permanent disability given by Dr. Owiti stating that the manual for assessment was not produced in court. The Appellant therefore submitted that the Plaintiff had fully healed, without any permanent disability. 18. The Appellant drew the court's attention to the well- established principle that in suits brought in respect of bodily injuries, the measure of damages is governed by the principle of restitution in integrum, meaning that an award for bodily injuries is intended to be compensatory in nature. Counsel cited the case of case of West (H) & Son Ltd vs Shepherd (1964) A.C 326 at page 345 where the court stated as follows:- "But 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 an endeavor to have some uniformity in 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. Page | 7 JUDGMENT HCCA NO. E180 OF 2024 19.Counsel for the Appellant submitted that the trial Magistrate had erred in awarding a sum that was excessive and not comparable to awards in comparable injuries. He urged the court to be guided by the following authorities, and find that the injuries suffered by the Respondent herein are less severe and therefore should attract a lesser award, which the Appellant proposed to be Kshs.550,000/-: - a. Jitan Nagra vs Abednego Nyandusi oigo (2018) e KLR where the court substituted an award of Kshs.1,000,000/= to Kshs.450,000/= for lacerations on the occipital area, deep cut wound on the back, right knee and the lateral lane, bruises on the back extending to the right side of the lumbar region, blunt trauma on the chest, bruises on the left elbow, compound fracture of the right tibia/fibula, and segmental distal fracture of the right femur. b. Reamic Investment Limited vs Joaz Amenya Samuel (2021) e KIR where the high court substituted an award of Kshs.600,000/= to Kshs.350,000/= for open left femur fracture, abrasion of the left knees, face, Page | 8 JUDGMENT HCCA NO. E180 OF 2024 neck, right upper as well as contusion on the anterior chest. Respondent s Submissions 20.The Respondent ’s counsel submitted that an Appellate court may only interfere with an award by the trial court in limited circumstances. Counsel cited the case of Butt vs Khan [1981] KLR 349 where the court set the principle that; “For an appellate court to interfere with an award of damages, it must be shown that the trial court, in awarding damages, took into consideration an irrelevant fact or the sum awarded is inordinately low or too high that it must be a wholly erroneous estimate of the damage, or it should be established that a wrong principle of law was applied." 21.The Respondent submitted that the injuries suffered were an open wound and an open mid-shaft femur fracture and displacement; deep cut wound on the leg above the ankle joint; cut wound on the left knee; swelling of the left leg thigh, left knee and left thigh, and tender left thigh. The examining doctor of the Respondent awarded a 20% degree of permanent disability. Page | 9 JUDGMENT HCCA NO. E180 OF 2024 22.According to the Respondent, the trial Court herein was well guided in its award of the general damages. The Respondent cited the case of Pestony Limited & Another vs Samuel Itonye Kagoko [2022] e KLR where the injuries sustained were a fracture of the left femur (mid-shaft) and swollen left tender thigh and the High court awarded Kshs.800,000/=. Counsel submitted that guided by this authority and taking into consideration the age of the case and the market inflation, the award of Kshs.950,000/- given by the trial court was fair and reasonable. 23.The Respondent further, relied on the case of Otieno & another vs Owido [2026] KEHC 1357 ( KLR ) where Mabeya J awarded Kshs.1,000,000/= to the Respondent in a matter where the injuries sustained included open wounds, cut wound on the head, chest tenderness, bruises and deep cut wound with stiches on the left hand, deep cut wound on the left thigh with tenderness, fracture of the right mid shaft femoral bone with swelling and tenderness. The Respondent submitted that these injuries are comparable to the injuries that he had suffered and urged the court not to interfere with the award given by the trial court. Analysis and Determination Page | 10 JUDGMENT HCCA NO. E180 OF 2024 24.The court has considered the record of appeal, the pleadings and original record of the proceedings as well as the submissions by the respective parties. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in Selle v Associated Motor Boat Co. [1968] EA 123 in the following terms:- “An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally. 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 Page | 11 JUDGMENT HCCA NO. E180 OF 2024 demeanor of a witness is inconsistent with the evidence in the case generally.” 25.An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did as was held in Ephantus Mwangi & Another v Duncan Mwangi Wambugu [1982 – 1988] IKAR . 278 26.Upon review of the memorandum of appeal and the rival submissions, it is the court’s view the appeal basically contests the quantum awarded by the trial court. 27.On this head, the Appellant did not file its submissions at the trial Court. They have in this appeal filed submissions and proposed an award of Kshs.550,000/- based on the authorities attached to the submissions. These authorities are Jitan Nagra vs Abednego Nyandusi oigo (2018) e KLR where the court substituted an award of Kshs.1,000,000/= to Kshs.450,000/= for lacerations on the occipital area, deep cut wound on the back, right knee and the lateral lane, bruises on the back extending to the right side of the lumbar region, blunt trauma on the chest, bruises on the left elbow, compound fracture of Page | 12 JUDGMENT HCCA NO. E180 OF 2024 the right tibia/fibula, and segmental distal fracture of the right femur and Reamic Investment Limited vs Joaz Amenya Samuel (2021) eKIR where the high court substituted an award of Kshs.600,000/= to Kshs.350,000/= for open left femur fracture, abrasion of the left knees, face, neck, right upper as well as contusion on the anterior chest. 28.The Respondent on his part felt that the award given by the trial Magistrate was reasonable and fair and supported his case with Pestony Limited & Another vs Samuel Itonye Kagoko [2022] eKLR where the injuries sustained were a fracture of the left femur (mid-shaft) and swollen left tender thigh and the High court awarded Kshs.800,000/- and Otieno & another vs Owido [2026] KEHC 1357 ( KLR ) where Mabeya J awarded Kshs.1,000,000/= for open wounds, cut wound on the head, chest tenderness, bruises and deep cut wound with stiches on the left hand, deep cut wound on the left thigh with tenderness, fracture of the right mid shaft femoral bone with swelling and tenderness. 29.I have considered the submissions by the parties and the medical Page | 13 JUDGMENT HCCA NO. E180 OF 2024 evidence adduced in court. Both Doctor Owiti for the Respondent and Dr. Jenipher Kahuthu for the Appellant found that the Respondent had suffered and open fracture of the midshaft femur and they both awarded a permanent disability of 20% and 10% respectively. The submissions of the Appellant that the court should review the award of general damages because the Respondent has fully healed is therefore not entirely correct. 30.Reviewing the authorities cited here, the court is of the view that the authorities cited by the Respondent are more relevant in the instant Appeal as they have comparable injuries specifically the midshaft fracture of the left femur. The authorities cited by the Appellant contain a segmental distal fracture of the right femur and open left femur fracture respectively. These injuries are not entirely similar to what the Respondent herein suffered and a segmental distal fracture is less serious than an open midshaft femur fracture. Out of the authorities relied on by the trial court, the court finds the case of Pestony Limited & Another vs Samuel Itonye Kagoko (supra) more relevant although in that case too, no permanent incapacity was assessed. Page | 14 JUDGMENT HCCA NO. E180 OF 2024 31.Considering the general damages awards made in comparable authorities, the court is satisfied that the award made by the trial court is within the range of awards made in respect to comparable injuries, and therefore reasonable, more so considering that the Respondent herein suffered some degree of permanent disability. There is therefore no justification for interfering with the award in general damages. 32.In the result, the court finds that the appeal is without merit. The appeal is hereby dismissed, with costs to the Respondent. DELIVERED Dated and signed Electronically at Nairobi On this 26th day of June, 2026. …………………………..……………… L. M. WACHIRA JUDGE In the presence of: Leadsy - Court Assistant. N/A for the Appellant. Miss Ochieng for the Respondent. Page | 15