https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8893

Ngomo & another v Odhiambo (Civil Appeal E016 of 2026) [2026] KEHC 8893 (KLR) (11 June 2026) (Judgment) Neutral citation: [2026] KEHC 8893 (KLR) Republic of Kenya In the High Court at Homa Bay Civil Appeal E016 of 2026 OA Sewe, J June 11, 2026 Between Abisalom Omondi Ngomo 1st Appellant Dennis Maroko Osiemo 2nd Appellant and Eliud Oure Odhiambo Respondent (Being an Appeal from the Judgment and Decree delivered on 18th February 2025 by Hon. B.M. Murangasia, Resident Magistrate, in Ndhiwa CMCC No. E021 of 2023) Judgment 1.Before the lower court, the respondent sued the appellants vide a Plaint dated 17th March 2023, claiming general and special damages, interest and costs in respect of injuries allegedly suffered in a road traffic accident. The respondent averred that, on or about the 8th April 2022, he was travelling as a fare-paying passenger in Motor Vehicle Registration No. KDC 752P along the Ndhiwa-Sori Road. The respondent contended that the said motor vehicle was so negligently driven that it got involved in an accident in which he suffered bodily injuries. 2.On the basis of the evidence presented before him the learned magistrate found the appellants 100% liable, noting that the accident was self-involving. He proceeded to assess general damages at Kshs. 1,000,000/= on the basis of the injuries sustained by the respondent. He likewise awarded the respondent special damages of Kshs. 23,800/= together with interest and costs. 3.Being aggrieved with the decision of the lower court, the appellants filed the instant appeal on 18th March 2025 on the following grounds:(a)That the learned magistrate erred in law and in fact in the assessment of quantum by awarding Kshs. 1,000,000/= for general damages, an award which was excessive in the circumstances.(b)That the learned magistrate erred in fact and law by overly relying on the respondent’s submissions which were not relevant without addressing his mind to the circumstances of the case.(c)That the learned magistrate erred in law and fact in failing to consider the appellants’ submissions which were relevant to the case. 4.Accordingly, the appellants prayed that their appeal be allowed and the judgment delivered in Ndhiwa CMCC No. E021 of 2023 be set aside and the Court be pleased to re-assess quantum. The appellants also prayed for costs. 5.The appeal was canvassed by way of written submissions, pursuant to the directions given herein on 7th July 2025. The appellants complied and filed their written submissions dated 20th July 2025. They expressly acknowledged that the appeal is on quantum only and, on the basis of the injuries suffered by the respondent. They conceded to the more serious aspects of the respondent’s injuries as confirmed in the Medical Report of Dr. Z.G Muriuki dated 5th July 2022. In their submission, an award of Kshs. 400,000/= would suffice for the injuries suffered by the respondent. They relied on Wahome v Lupran Manpower & HRM Services & another [2023] KEELRC 3091 (KLR) (30 November 2023) in which the claimant suffered more or less similar injuries. 6.On his part, the respondent defended the decision of the lower court and submitted that the injuries suffered by him were fairly serious. He pointed out that the injuries included a fracture of the cervical bone at D9 with Grade II central wedging, marrow oedema and posterior bulge of the D9 to D8 disc. He invited the Court to look at the medical evidence adduced before the lower court and find that the award of Kshs. 1,000,000/= was justified. The respondent relied on Nakuru HCCC No. 131 of 2016: Pandrosa Logistics Limited v … in which Kshs. 1,000,000/= was awarded for similar injuries. He therefore prayed for the dismissal of the appeal. 7.This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:“...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..." 8.I have therefore given careful consideration to the evidence placed before the lower court in the light of the injuries sustained. The respondent pleaded the following injuries:(a)Compression fracture of T9 thoracic vertebral body(b)Gas in the T8/T9 thoracic intervertebral body disc space(c)Superficial soft tissue injury left knee(d)Exacerbations of pain at the knee(e)Bruised left lower leg 9.The respondent testified before the lower court on 29th May 2024 and essentially adopted his witness statement dated 17th March 2023. He produced several documents including the following:(a)The P3 Form (Exhibit 1)(b)Treatment Notes (Exhibit 8)(b)The Medical Report (Exhibit 9) 10.On behalf of the respondent, evidence was called from Zachary Muriulaai, an occupational therapist. He testified as PW2 and stated that he examined the respondent in respect of injuries sustained in a road traffic accident that occurred on 8th April 2022. PW2 stated that he noted multiple scars on his chest and abdomen; fracture of the T9 at thoracic spine. He produced before the lower court his Medical Report as the Plaintiff’s Exhibit 9. In addition, PW2 produced a CT Scan and treatment notes, among other documents to back up his report. PW2 also mentioned that he conducted complexity tests and noted that he was unable to bend his spine. 11.The respondent also called PC Caleb Odda Ekeya of Ndhiwa Police Station who confirmed that the occurrence of the accident. Indeed, the matters adverted to by PW3 are not in dispute, noting that the appeal is essentially on quantum. 12.On behalf of the appellants, Dr. Jenipher Kahuthu testified as DW1. She examined the respondent and prepared a second medical report, which she produced as the Defence Exhibit No. 1. She confirmed that the respondent sustained injuries as alleged; and in particular, that he sustained a compression fracture of vertebral bone T9 among other injuries. DW1 further confirmed that the respondent could not bend or walk properly and was predisposed to osteoarthritis on the back. 13.In terms of quantum, it is useful to bear in mind the caution expressed in H. West & Son Ltd v Shephard [1964] AC 326, that:“...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment." 14.The Court of Appeal restated this principle thus in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR:“As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an erroneous estimate. It must be shown that the Judge proceeded on 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. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages." 15.I have re-evaluated the evidence presented before the lower court. There is no dispute that the respondent sustained a compression fracture of the T9 vertebral bone along with soft tissue injuries. In the report of PW2, the injury resulted in a posterior bulge of D7-D8 disc. As a matter of fact, DW1’s prognosis was that the respondent is likely to develop osteoarthritis on the back. 16.The appellants conceded that in Wahome v Lupran Manpower & another (supra), the claimant was awarded Kshs. 750,000/= for comparable injuries. I also note that in Pondrosa Logistics Limited v Evans Nehemiah Kimoi [2020] KEHC 7486 (KLR) the plaintiff the High Court upheld an award of Kshs. 1,000,000/= on appeal in a case where the plaintiff suffered the following injuries: compression fracture of the 9th thoracic vertebra (T9) Soft tissue injuries of the neck, abdomen and chest. Generalised body aches and weakness Back painful, stiff and spastic, cannot bend No dislocation between vertebra, no neurological deficit Possibility of post traumatic osteoarthritis Pains may affect normal work in the farm Due to the injury especially affecting the spinal vertebra from neck to lumper region, total permanent incapacitation of 12 weeks and 15% total permanent incapacitation. 17.The principle reiterated by the Court of Appeal in Stanley Maore v Geoffrey Mwenda [2004] eKLR, is that comparable injuries ought to be compensated by comparable awards. It expressed itself thus:“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.” 18.In the premises, I find merit no basis for interfering with the lower court’s award on general damages. As the other aspects were not contested, it follows that this appeal is for dismissal. The same is hereby dismissed with costs.It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 11TH DAY OF JUNE, 2026.........................HON. OLGA SEWEJUDGE