https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8068

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII COUNTY** **KISII HIGH COURT** **HCCA NO. E171 OF 2024** **NATIONAL CONSTRUCTION AUTHORITY -------------- APPELLANT** **- VERSUS -** **OKEMWA CHUMA -------------------------------------------- RESPONDENT** ***(Being an appeal from the Judgement delivered in the Chief Magistrate’s court in CMCC No. E118 of 2021 by Hon. P.C.Biwott delivered on 28th August 2024 in Ogembo)*** **JUDGMENT** **Background of the appeal** 1. This appeal emanates from a suit filed in the Chief Magistrate’s court regarding a road accident that occurred on 28th January 2021 involving a motor vehicle registration number KCH 706Q driven by a driver of the appellant and the respondent who was riding motor cycle registration number KCH 185Q. As a result of the accident, the respondent claims to have sustained injuries. 2. At the trial court, the respondent relied on three witnesses; PW1 the respondent/plaintiff who adopted their statement as evidence and enumerated the injuries sustained; PW2 the investigations officer who produced the police abstract and blamed the appellant’s driver and PW3, a senior Clinician Dr. Daniel Nyameino who affirmed the injuries sustained and produced the P3 form and medical report. 3. The appellant as their defence denied all averments and attributed the accident to negligence by the respondent. At the trial, the appellant produced a second medical report by Dr. M.S. Malik and closed their case. 4. The Magistrate at the trial court delivered a judgement on 28th August 2024with the findings that the appellant’s driver had a 100% liability. On the quantum, the Learned Trial Magistrate awarded Kshs. 1,000,000/= of general damages, special damages for Kshs. 159,596/. 5. Aggrieved with the decision of the Trial Magistrate court, the appellant filed this instant appeal on the following summarized grounds; 6. *That the learned trial Magistrate erred in law and fact in holding that the appellant was 100% liable for the accident in the absence of evidence to support the same* 7. *That the learned trial Magistrate erred in law and fact in failing to consider the submissions and authorities by the appellant and awarding damages which were excessive in the circumstances hence causing miscarriage of justice to the appellant.* 8. *That the learned trial Magistrate erred in law and fact by failing to give reasons to his decision.* 9. The appellant with the reasons whereof prayed that the entire judgment of the trial court be set aside and be substituted with the dismissal of the original suit or proper judgement. In their written submissions dated 10th of March 2025, the appellant focused on quantum and citing authorities prayed for a substitution of the award to Kshs. 500,000/= 10. The respondent on their side opposed the appeal and in their written submissions dated 17th July 2025 argued that the trial court correctly used the evidence adduced in apportioning liability 100% to the appellant as well as awards which are commensurate to the injuries suffered; a serious fracture and multiple soft tissue injuries. **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. I have carefully analyzed the appeal record in its entirety and the main issue for the determination; 3. **Who was liable for the accident that occurred on the 28th January 2021?** 4. **What is the fair and just quantum for the injuries sustained?** 5. **Who was liable for the accident that occurred on the 28th January 2021?** 6. At the trial, the respondent PW1 in his testimony indicated that the appellant’s motor vehicle hit him from behind as it was overtaking him while speeding. This was corroborated by the police officer PW2 PC Helmut Owuor who blamed the appellant driver for overtaking carelessly and hitting the motorbike. The police officer confirmed he was the investigating officer and he visited the site. 7. The appellant on their side despite having attributed negligence to the respondent in the statement of defence never rebutted the respondent’s evidence during the trial on how the accident occurred by either cross examination or calling independent witnesses to controvert the account. It was only during submissions where attribution of liability was proposed at the ratio of 50:50 on the ground that the investigations were unclear. 8. Having carefully perused the trial court record, I am not persuaded that the appellant proved the attribution of the respondent to the accident. On the other hand, the respondent’s testimony was corroborated by the police officer who both attributed liability to the appellant at 100%. 9. A court cannot apportion liability as a matter of course but there has to be evidence demonstrating contributory negligence. See case **of Khambi & Another v. Mahithi & Another (1968) EA** where the courts emphasized ***that apportionment must be founded upon evidence and not speculation.*** 10. In the circumstances therefore, the respondent’s evidence of the manner in which the accident occurred remains uncontroverted and the trial court cannot be faulted for relying upon it. I therefore uphold the trial court’s finding of liability at 100% as against the appellant. 11. **What is the fair and just quantum for the injuries sustained?** 12. Both medical reports by the Doctors for the respondent and appellant are in consensus that the respondent sustained compound fractures and multiple soft tissue injuries and whilst the respondent doctor assessed permanent disability at 5% the appellant’s doctors placed the same at 10%. 13. The respondent in their testimony indicated loss of consciousness after the accident and later woke up in hospital where he was admitted for one and half weeks. His testimony of the lingering effects of the accident including numbness and difficulty to use his right hand was corroborated by the two medical reports. 14. *T*o determine the appropriate award, this court will analyze other comparable awards of the following injuries sustained by the respondent*. Cut wounds to the right wrist joint area and hand, Right wrist dislocation, Right hand tendon rapture, Right tibia fracture and Right leg laceration.* 15. The appellant cited the following authorities:**Tirus Mburu v. JKN (minor suing through the mother and next friend DWN)** where the appellant sustained fracturs, soft tissue injuries and loss on consciousness the courts substituted an award of **Kshs. 800,000/= to kshs. 500,000:** and the case of **Aloice Mwangi Kihara v. Martin Muttya and Another** where the courts awarded **Kshs. 500,000/=** for compound fractures.I note that both of these cases are over 9 years hence not very helpful in a current comparative analysis. 16. The respondent on their side cited the following authority before the trial court **Kimathi Muturi v Kevin Ochieng Aseso (2020)** where the courts for similar injuries awarded **kshs. 1,200,000**/= for general damages and **Kshs. 630,000/=** for future medical expenses. The second authority cited was for 2015 which would not be very beneficial to the current context. 17. **In the case of Okware v. Ndolo [2025] KEHC 7762 (KLR),** the complainant sustained fractures and multiple soft tissue injuries with an assessment of 10% disability, the high court set aside the trial court award of **Kshs. 1,500,000/= to kshs 1,000,000/=.** 18. I note the lingering effects of the injuries sustained by the respondent in this present case including deformity and inability to use his right hand with a permanent disability assessment of 10%. 19. 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** 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 Buttv Uwais Ahmed Khan ( 1982-88) KAR 5.)** 2. Having carefully analyzed comparative awards for similar injuries, I find no basis upon which to interfere with the judgment of the trial court magistrate. **Disposition** 1. The appeal lacks merit and is hereby dismissed in its entirety with costs to the respondent. It is so ordered. **DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2026** 1. **M. OKUTOYI** **JUDGE** In the presence of: Ms. Kirindo for the appellant Mr. Mokaya for the respondent Zainab Ghana-court assistant