Mutuku & another v Monari (Civil Appeal E050 of 2023) [2026] KEHC 10127 (KLR) (3 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MAKUENI** **CIVIL APPEAL NO. E050 OF 2023** **JULIUS MUTUKU ………………. 1st APPELLANT** **MUSAVI DAVID ………………. 2nd APPELLANT** **Versus** **FRANCIS JOHN MONARI ………………. RESPONDENT** **JUDGEMENT** **Introduction** 1. This appeal arises out of the judgement of the court in Makindu CMCC No. 372 of 2016 delivered on 25/05/2023 in which the trial magistrate awarded the Respondent Francis John Monari Kshs. 1,500,000 general damages and Kshs. 500 as special damages. 2. The Respondent was the Plaintiff in the suit and he had sued the Appellants, defendants in that matter, following a road accident that occurred on 16/08/2011 along Mombasa road involving the Appellant’s motor vehicle registration number KAZ 286B which the Respondent was a passenger. 3. Dissatisfied with the judgement of the trial court, the Appellants filed the present appeal vide a memorandum of appeal dated 19/06/2023 with the following listed grounds; 1. THAT the learned Magistrate’s decision was unjust, against the weight of evidence by the defendants/Appellants and was based on misguided points of fact and wrong principles of law and has occasioned a miscarriage of justice. 2. THAT the learned trial Magistrate erred in law and fact in finding the Defendants/Appellants 100% liable for the accident. 3. THAT the learned trial Magistrate erred in law and fact by failing to exonerate the Appellants from any wrong doing in view of the actions of the Respondent. 4. THAT The Learned Magistrate erred in fact and in law in finding that the Respondent was entitled to General Damages of Kshs.1,500,000/=. 5. THAT the learned trial Magistrate grossly misdirected herself in treating the evidence presented before her on quantum and consequently coming to a wrong conclusion on the same. 6. THAT the learned trial Magistrate erred in awarding a sum in respect of damages which was inordinately high in the circumstance was excessive in the circumstances occasioning miscarriage of justice; and 7. THAT the learned trial Magistrate failed to adequately evaluate the evidence provided both on quantum thereby arrived at a decision unsustainable in law. 4. The Appellant asked the court to set aside the award of the trial court and order the respondent to beat the costs of the appeal. 5. The appeal was canvased by way of written submissions. **Submissions by parties** **Appellant’s submissions** 1. The Appellants in in their joint written submissions dated 14/11/2025, argued the trial court's judgment delivered on 25th May, 2023, awarding the Respondent Kshs. 1,500,000 under general damages was erroneous and inordinately excessive. They contend that the trial court went on a "fishing expedition" to gather evidence regarding the Respondent's injuries and that the Respondent failed to attach the medical report prepared by Dr. Okere to his list of documents, meaning the injuries were not proved. 2. On whether the award on general damages was excessive, the Appellants submitted that the trial court did not act on correct principles of law and failed to take into account all relevant and material factors in finding that the Respondent had proved her injuries. They argued that the Respondent did not sustain any form of disability and that the injuries were limited to a single fracture of the tibia together with soft tissue injuries. They contended that the award of Kshs. 1,500,000 was high and should be substituted with Kshs. 300,000. To buttress their position, they relied on ***Daniel Toroitich Arap Moi v Mwangi Stephen Murithi & another* [2014] eKLR; *Nahason Nyandega v Peter Nyakweba Omboga* [2021] eKLR** (where Kshs. 650,000 was awarded for compound fracture of the right tibia) and ***Hussein Sambur Hussein v Shariff A. Abdulla Hussein & 2 others* [2022] eKLR** (where Kshs. 600,000 was awarded for fracture of tibia and fibula bones). **Respondent’s submissions** 1. The Respondent in his written submissions dated 28/05/2026 argued that the trial court's judgment delivered on 25th May, 2023 was proper and should be upheld. 2. On whether the Appellants were 100% liable for the accident, the Respondent submitted that the Respondent's testimony that the driver drove at high speed, carelessly and recklessly, and that passengers prevailed upon him to drive reasonably but he ignored them, was uncontroverted. He argued that the driver of the accident motor vehicle was charged with careless driving, pleaded guilty, and was convicted, which is conclusive evidence of negligence. He further submitted that the Appellants led no evidence to prove any contributory negligence on the part of the Respondent. To buttress his position, he relied on ***Ephantus Mwangi & Geoffrey Nguyo Ngatia v Duncan Mwangi Wambugu* (1982-88) KAR 278** as well as ***James Gikonyo Mugai v DM* (Kisii High Court Civil Appeal No. 1 of 2012).** 3. On whether the award of Kshs. 1,500,000 was excessive, the Respondent submitted that the injuries were properly pleaded and proved through the treatment notes, discharge summaries from Makindu Hospital and Aga Khan Hospital, and the P3 Form. He argued that the Appellants' claim that the trial court went on a "fishing expedition" is an attempt to raise an issue not canvassed at trial, and that the absence of a medical report is not fatal since primary documents are more reliable. He further submitted that the Respondent had not completely healed even 12 years after the accident and that the award of Kshs. 1,500,000 was adequate and not excessive considering the serious injuries sustained. To buttress his position, he relied on ***Ndungu Dennis v Ann Wangari Ndirangu & Another* (Kiambu High Court Civil Appeal No. 54 of 2016)**, as well as ***Moi Teaching and Referral Hospital Board & Another v Christopher Kibwott Kosgei* (Eldoret High Court Civil Appeal No. 162 of 2016).** 4. The Respondent prayed that the Appeal be dismissed with costs to the Respondent and that the trial court's award on both liability and quantum be upheld. **Analysis and determination** 1. This is the first appeal. My duty as the 1st appellate court is to re-evaluate and re- examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I neither heard nor saw the witnesses testify. 2. The issues for determination before this court are liability and quantum. **Liability** 1. With respect to liability, I have seen a copy of the Police Abstract on file which blames the driver of motor vehicle KAZ 286B for careless driving and causing the road accident herein. I have also seen a copy of the copy of Motor Vehicle Copy of Records 2nd September, 2014 search records confirming the identity of the owner of the motor vehicle KAZ 286B as Musavi David. 2. It is not in dispute that the driver of motor vehicle registration number KAZ 286B was charged with the offence of careless driving vide Makindu Traffic Case No. 1404 of 2011, that he pleaded guilty, and that he was convicted and sentenced accordingly. Section 47A of the Evidence Act provides thus; **“47A. Proof of guilt.** **A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence as charged.”** 1. In the present case therefore, the conviction herein was never appealed and is therefore conclusive evidence that the driver of KAZ 286B drove carelessly on the material day, causing the accident in which the Respondent was injured. However, I note that the conviction of the driver does not in itself prevent the Appellants from raising contributory negligence. The same position was adopted by the High Court in Bungoma in ***Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo [2021] KEELRC 2012 (KLR).*** 2. One of the Appellants contention before this court is that the trial court erred in finding that the Defendants were 100% liable for the accident. 3. I have looked at the record of appeal where the Appellants pleaded contributory negligence in their statement of defense, particularizing it as the Respondent’s failure to take precautions for his own safety, failure to heed safety instructions and traffic rules, and failure to wear a seatbelt while travelling. However, I note that the Appellants did not call the driver or any other witness at the trial and closed their case without tendering any evidence to substantiate the pleaded particulars of contributory negligence. 4. On this basis the trial court proceeded to hold the Appellants 100% liable for the accident and I find no reason to interfere with this finding. **Quantum** 1. It is trite law that an appellate court can only interfere with the trial court’s assessment of damages where it is satisfied that the court took into account an irrelevant factor or left out a relevant factor or the award was either inordinately high or low as to amount to an erroneous estimate of the damage or that the assessment was not based on evidence. 2. On appeal, the Appellants complain that the amount awarded being Kshs. 1,500,000, was so excessive as to invite the conclusion that it was founded on wrong principles. The Appellants argue that the Learned Trial Magistrate erred by relying on wrong principles to arrive at the high award given that what the Respondent suffered were soft tissue injuries. 3. The Appellant thus invited this court to vary the award and substitute it with Kshs. 300,000/= based on comparable cases. In particular they cited: 1. ***Nahason Nyandega v Peter Nyakweba Omboga [2021] eKLR*** where the Plaintiff on Appeal was awarded Kshs 650,000 in respect of compound fracture of the right tibia bone; and 2. ***Hussein sambur Hussein v Shariff A. Abdulla Hussein & 2 others [2022] eKLR*** where the Plaintiff who sustained fracture of tibia and fibula bones, dislocation of the right ankle among other injuries was awarded Kshs 600,000 on Appeal. 4. I will begin by ascertaining the injuries suffered by the Respondent. The Respondent pleaded and gave evidence of the following injuries arising from the accident: bruised left side of the face; knocked out lower left last molar; soft tissue injury to the left chest wall; and fractured tibia with extensive cut wounds and multiple cuts. These injuries were also recorded in the P3 Form, the treatment notes from Makindu Hospital and the discharge summary from Aga Khan University Hospital, all of which were produced at trial without objection from the Appellants and were not displaced through cross-examination. 5. The Appellants have argued extensively that the injuries were not proved before the trial court because the Respondent did not attach a medical report prepared by Dr. Cyprianus Okoth Okere. 6. That said, the absence of the report from the list of documents is not, by itself, fatal to the Respondent’s claim on injuries, since the P3 Form and the discharge summaries from two separate hospitals were independently produced and were materially consistent with one another. I am guided in this respect by the principle applied in ***Ndungu Dennis v Ann Wangari Ndirangu & another [2018] KEHC 8799 (KLR),*** Kiambu High Court Civil Appeal No. 54 of 2016, where the court found treatment notes, the discharge card and the P3 Form, being prepared contemporaneously by persons with no interest in the outcome of the litigation, to be in some respects more reliable than a subsequently prepared medical report. 7. I do not consider that the trial court engaged in an impermissible “fishing expedition,” as characterized by the Appellants. In any event, a trial court is entitled, indeed obliged, to examine all documents properly produced in evidence in order to satisfy itself on the existence and extent of pleaded injuries, and that is what occurred here. 8. On quantum, I note that the court must further endeavour, so far as possible, to ensure that comparable injuries attract comparable awards, bearing in mind that no two cases are ever exactly alike. 9. I have considered the comparable awards placed before this court by both parties as well as other relevant authorities. In ***Kipkoech v Mella [2025] KEHC 3956 (KLR)*** an award of Kshs. 1,200,000 was made for an open fracture of the tibia and fibula, fracture of the femur, fracture of the ulna and soft tissue injury. In ***Nahason Nyandega v Peter Nyakweba Omboga [2021] eKLR***, relied upon by the Appellants, an award of Kshs. 650,000 was made on appeal for a compound fracture of the right tibia bone alone, without the additional soft tissue and dental injuries present in this case. In ***Civicon Limited v Richard Njomo Omwancha & 2 Others [2019] eKLR***, an award of Kshs. 450,000 was made for, among other injuries, a fracture of the tibia and fibula and dislocation of the hip joint, 10. The injuries sustained by the Respondent in this case, while serious, were confined to a single fracture (the tibia) accompanied by soft tissue and dental injuries, and there is no evidence of any permanent disability, malunion, dislocation or multiple-bone fracture of the kind present in several of the authorities cited by the parties where higher awards were made. 11. I find that the sum of Kshs. 1,500,000 awarded by the trial court does not sufficiently have regard to these comparable awards and is, in the circumstances, on the higher side. At the same time, the sum of Kshs. 200,000 to Kshs. 300,000 proposed by the Appellants understates the severity of a tibia fracture requiring surgical skin grafting and is on the lower side. 12. Guided by the principle tha35t comparable injuries ought to attract comparable awards while bearing in mind that no two cases are ever identical, I find that a sum of Kshs. 800,000 represents fair and reasonable compensation for the injuries proved by the Respondent. I accordingly set aside the trial court’s award of Kshs. 1,500,000 as general damages and substitute therefor an award of Kshs. 800,000. 13. On special damages, I find no basis of interfere with the trial court’s finding. 14. The final award will therefore read as follows; 1. General damages – Kshs. 800,000/= 2. Special damages – Kshs. 500/= TOTAL – Kshs. 800,500/= * 1. Each party to bear their own costs. It is so ordered. Right of appeal 30 days. **Dated, signed and delivered via TEAMS at Nairobi this 3rd day of July, 2026.** **………………………..** **Hon. R. A. Oganyo, Mrs** **Judge.** **In the presence of: -** Court Assistant…... E, Sana Mr. Ouko for the Appellant Miss Onsongo h/b for Njeru Nyaga for the Respondent Mr. Ouko- I pray for 30 days stay of execution. Miss Onsongo- No objection but 15 days should suffice. **Order** There be equal time for stay of execution as is the right of appeal of 30 days.