Mogaka v Juma (Civil Appeal E044 of 2025) [2026] KEHC 13253 (KLR) (28 May 2026) (Judgment)

** REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NYAMIRA** **(CHERERE-J)** **HCCA E044 OF 2025** **BETWEEN** **JARED NYAKUNDI MOGAKA................................................APPELLANT** **AND** **JOSEPH OWINO JUMA.........................................................RESPONDENT** **(Being an appeal from the judgment and decree in Keroka MCCC E105 of 2021 by Hon. E.K. Nyutu (CM) on 15th July 2025)** 1. By a Plaint dated 09th August 2021, the Plaintiff, Joseph Owino Juma, pleaded that on or about 30th June 2021 he was lawfully travelling as a fare paying passenger aboard motor vehicle registration number KCX 643Q along the Kisii–Sotik road near Sagem area when the driver negligently and/or carelessly lost control of the motor vehicle causing an accident whereby the Plaintiff sustained severe injuries. The Plaintiff averred that the 1st Defendant was the owner, driver and/or person in possession and control of the said motor vehicle while the 2nd Defendant was the beneficial owner and/or manager thereof. He attributed the accident to the negligence of the Defendants and set out particulars of negligence including failure to observe the Highway Code, driving at excessive speed, driving without due care and attention, and causing the accident. 2. In a Defence dated 20th February 2022, the 1st Defendant denied the contents of the Plaint and in particular denied ownership, possession and/or control of motor vehicle registration number KCX 643Q. The Defendant further denied that the Plaintiff was travelling in the said motor vehicle as alleged or that the accident occurred due to the Defendant’s negligence. In the alternative, the Defendant pleaded that if any accident occurred, then the same was caused and/or substantially contributed to by the Plaintiff’s own negligence, particulars whereof included failure to take adequate precautions for his own safety, failure to heed safety instructions, failure to fasten the safety belt, and failure to observe traffic rules and regulations. 3. Having heard both parties, the trial court entered judgment in favour of the respondent against the appellant at 100% liability with an award of KES.700,000 as general damages and KES.25,110 as special damages together with costs and interest. 4. Being dissatisfied with the said judgment, the appellant lodged a Memorandum of Appeal dated 23rd July 2025 challenging both liability and quantum. Subsequently in the written submissions dated 25th February 2026, the appellant abandoned the appeal on liability and confined the appeal to the question whether the award on general damages was excessive in the circumstances. 5. The respondent opposed the appeal through the written submissions dated 27th April 2026 and urged this court not to interfere with the findings of the trial court. 6. The only issue falling for determination in this appeal is whether the award of KES.700,000 as general damages was excessive in the circumstances and whether this court ought to interfere with the same. 7. As a first appellate court, this court is obligated to reconsider, re-evaluate and analyse the evidence on record and arrive at its own independent conclusion while bearing in mind that it neither saw nor heard the witnesses testify. In **Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123**, the Court stated that a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions. 8. The principles governing interference with an award of damages are equally settled. In **Kemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia & Another [1982–88] 1 KAR 727**, the Court of Appeal held that interference with quantum is justified where the trial court took into account irrelevant factors, failed to consider relevant factors or arrived at an award so inordinately high or low as to amount to an erroneous estimate. Similarly, in **Butt v Khan [1981] KLR 349**, the Court of Appeal underscored that an appellate court should not interfere merely because it would itself have awarded a different figure, but only where the award is wholly erroneous or founded on misdirection. In **Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55**, the Court of Appeal further emphasized that comparable injuries should, as far as possible, attract comparable awards in order to maintain consistency and fairness in the assessment of damages. 9. The respondent sustained chest contusion, blunt trauma injuries, fractures of upper and lower incisors and a degloving injury on the right leg. Although the injuries were more serious than ordinary soft tissue injuries, the medical evidence did not disclose permanent incapacity or long-term disability. 10. The appellant submitted that the award of KES.700,000 was excessive having regard to the injuries proved. The respondent sustained a degloving injury to the right leg, fractured upper three and lower two front teeth, cut wounds around the mouth, chest contusion and blunt trauma injuries. 11. The appellant submitted that the award of KES.700,000 was excessive having regard to the injuries proved. The respondent sustained chest contusion, blunt trauma injuries, fractures of upper and lower incisors and a degloving injury on the right leg. 12. In determining whether the award made by the trial court was excessive, this court is guided primarily by the comparable authorities that were cited before the subordinate court and considered by the learned trial magistrate in the judgment. Although counsel cited additional authorities on appeal, those authorities are only persuasive and cannot properly be used to fault the trial court because they were not placed before it for consideration. 13. The appellants before the trial court relied on **Naomi Nyabonyi Machora v Henry Nyabuto Magati Kisii CMCC No. E568 of 2022** where the claimant sustained blunt neck trauma and soft tissue injuries and was awarded KES.100,000 for soft tissue injuries. Reliance was also placed on **Ondicho v Mosigisi (Civil Appeal E054 of 2023) [2025] KEHC 5140 (KLR),** in which an award of KES. 300,000 for soft tissue injuries was reduced on appeal to KES. 80,000, and **Obure and Bethuel Githonga Muthami v Samuel Kiyuka Timothy Okwanyo [2024] KEHC 13333 (KLR)*,*** where an award of KES. 250,000 was similarly reduced to KES. 70,000 for soft tissue injuries. and **F.M (Minor suing through mother and next friend M.W.M) v J.N.N & J.D.K [2020] eKLR** where the claimant sustained blunt object injuries to the head, neck, chest, abdomen and limbs and the appellate court substituted an award of KES.60,000 with KES.100,000 as general damages. 14. On the other hand, the respondent relied on **Ayieko v Opiyo [2015] eKLR** where KES.1,200,000 was awarded for a comminuted fracture of the right femur; **Ahmed Mzee Famau T/A Najoa Coach Limited & Another v Veronicah Ngii Muia [2020] eKLR** where KES.500,000 was awarded for fracture of the lower jaw and **Francis Ochieng & Another v Alice Kajimba [2015] eKLR** where KES.350,000 was awarded for soft tissue injuries 15. It appears that the parties did not place before the trial court authorities closely comparable to the injuries sustained by the respondent herein, particularly the combination of dental fractures and a degloving injury. The authorities cited by the appellants largely involved soft tissue injuries attracting lower awards, while those relied upon by the respondent involved either significantly more severe injuries such as a femur fracture and jaw fracture or less severe soft tissue injuries. Consequently, none of the authorities provided a precise guide to the assessment of damages in the present case. 16. In the circumstances, I am satisfied that the award made by the trial court was excessive in light of the injuries proved and the range disclosed by the authorities cited before the subordinate court. The award therefore warrants interference by this court. 17. In the circumstances, and taking into account the nature of the injuries proved, the authorities cited before the trial court and the need for consistency and proportionality in awards, I find that an award of KES.450,000 would constitute fair and reasonable compensation for pain, suffering and loss of amenities. 18. Accordingly, the appeal on quantum partially succeeds and I make the following orders: 19. **The award of KES.700,000 as general damages made by the trial court is hereby set aside and substituted with an award of KES.450,000 as general damages for pain, suffering and loss of amenities.** 20. **The award of special damages as awarded by the trial court is hereby upheld.** 21. **The respondent shall have interest on general damages from the date of the judgment of the lower court and interest on special damages from the date of filing suit until payment in full.** 22. **Each party shall bear its own costs of the appeal.** **DELIVERED AT NYAMIRA THIS 28th DAY OF May 2026**  **WAMAE.T. W. CHERERE** **JUDGE** **Appearances** **Court Assistant - Hilda** **For Appellant - Ms. Ongwacho for KRK Advocates** **For Respondent - Mr. Magara for Ombuhi K.Mogire & Co. Advocates**