https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10477

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCCA/E238/2025 BRIJESH PATEL AND BHAVINKUMAR VINUBHAI PATEL ALIAS BHAXIN PATEL VS STEPHEN OUMA ORIKO JUDGMENT ***(Being an Appeal from the Judgment and Decree of the Hon. Edina Nyboke Angima (Esq) SRM, in Nyando SPMCC No. E-113 of 2022, delivered on 29th October, 2025)*** # INTRODUCTION/ FACTS OF THE CASE 1. The Plaintiff, vide a Plaint dated 21st June 2022, instituted a suit against the Defendants seeking damages arising from a road traffic accident that occurred on 11th May 2022 at Rabour area along Kisumu-Ahero Road involving the Defendant’s Motor Vehicle Registration Number KAS 484Y Toyota Corolla. 2. The Plaintiff averred that he was lawfully riding his Motorcycle Reg No. KMFQ 546P Boxer on his lawful lane of the road along Kisumu-Ahero Road. On reaching Rabour area or thereabout, the Defendants Motor Vehicle Reg. No. KAS 484Y Toyota Corolla while in control of the Defendants, their driver, employee and or agent, was driven so carelessly, negligently and/or recklessly such that it was caused to suddenly lose control and violently knocked, collided and or rammed onto the motorcycle the Plaintiff was riding. As a result of this negligence, the Plaintiff suffered severe bodily injuries, namely chest tenderness including (stitched cut wounds on the head and neck tenderness), fracture of the right clavicle, dislocated and swollen left clavicle, chest tenderness, backache, tenderness and swollen left shoulder joint, swollen and bruises on the left leg, and swollen and bruises on the left knee joint. 1. Subsequently, on 15th March 2023, Counsel for the parties recorded a consent on liability in the ratio of 70:30 in favour of the Plaintiff against the Defendants. The parties further agreed to canvass the issue of quantum by way of written submissions, which were duly filed. 2. On the issue of general damages, Counsel for the Plaintiff proposed an award of Kshs. 1,000,000/=, while Counsel for the Defendants proposed Kshs. 100,000/=. Upon considering the evidence on record and the parties’ respective submissions, the trial court, the learned magistrate made an award of Kshs. 800,000/= which was subjected to the consent ratio totals to Kshs. 560,000/= 3. The learned magistrate, in conclusion, held as follows: 1. ***Liability is apportioned at 70;30% in favour of the Plaintiff.*** 2. ***General damages award -Kshs 560,000/=*** 3. ***Special damages Kshs. 8,650/= Total award Kshs. 568,650/=*** 4. ***Costs and interests of the suit to the Plaintiff."*** 5. Being dissatisfied with the judgment of the trial court, the Defendants lodged the present appeal vide a Memorandum of Appeal dated 8th November 2025, raising the following grounds: - 1. *That the learned magistrate erred and misdirected herself by finding that the Respondent had proved the pleaded injuries yet the evidence tendered and testimony of the witnesses, particularly the Clinical Officer, showed that the Respondent had not suffered any fracture or dislocation injuries as pleaded.* 2. *That the learned magistrate erred and misdirected herself as to the* *nature of the Respondent’s injuries and therefore erred in her assessment of damages awardable to the Respondent which was manifestly excessive.* * + 1. *That the learned magistrate erred in assessing damages by failing to apply the principles applicable in the ward of damages and by failing to rely on comparable awards made for analogous injuries.* 2. *That the learned magistrate erred and misdirected herself in failing to appreciate and apply our rich jurisprudence regarding the award of general damages when entering judgment against the Appellants and therefore arrived at an erroneous determination on merit.* 3. *That the learned magistrate erred by failing to consider the numerous case law cited and included in the Appellants’ submissions filed before her, and thereby arrived at an erroneous determination on merit.* 1. The appeal was canvassed by way of written submissions. Before delving into the submissions of both parties, this court notes that, being the first appellate court, it is required under Section 78 of the Civil Procedure Act and as was held in ***Selle v. Associated Motor Boat Co. Ltd [1969] E.A 123***, to re-evaluate, re-assess and analyses the evidence adduced before the trial court and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witness when they testified. # SUBMISSIONS BY PARTIES ## Appellant’s Submissions * 1. The Appellants submitted themselves on two issues: whether the Respondent proved that he had suffered any fracture or dislocation injuries as pleaded in the Plaint, and whether the damages awarded by the trial court were manifestly excessive in comparison to the injuries suffered by the Respondent. 2. On whether the Respondent proved that he had suffered any fracture or dislocation injuries as pleaded in the Plaint, the Appellants submitted that the Respondent failed to prove, on a balance of probabilities, that he suffered either a fracture of the right clavicle or a dislocation of the left clavicle as pleaded in the Plaint. 3. Regarding the alleged **right clavicle fracture**, the Appellants argued that none of the medical records supported the claim. The treatment notes from Rabuor Sub-County Hospital, the referral notes from Jaramogi Oginga Odinga Teaching and Referral Hospital, the P3 Form, the X-ray request form, and the Respondent’s own testimony only referred to injuries involving the left shoulder or clavicle, with no mention of any right clavicle fracture. They therefore contended that the pleaded injury was unsupported by evidence. 4. As for the alleged **dislocated and swollen left clavicle**, the Appellants submitted that the medical records merely reflected a suspicion of a fracture or dislocation, which required confirmation by an X-ray. Since Rabuor Sub-County Hospital lacked X-ray facilities, the Respondent was referred to Jaramogi Oginga Odinga Teaching and Referral Hospital. However, the X-ray request form did not contain any radiological findings, no X-ray films were produced in evidence, and PW2 acknowledged that the injury had never been confirmed. The P3 Form, it was argued, was prepared on the basis of these unconfirmed records. 5. The Appellants therefore maintained that the alleged fracture and dislocation injuries remained unproven, as the Respondent failed to produce any medical evidence confirming the existence of either injury, leaving only soft tissue injuries supported by the record. 6. On the issue of whether the damages awarded by the trial court were manifestly excessive in comparison to the injuries suffered by the Respondent, the Appellants submitted that the damages awarded by the trial court were manifestly excessive in light of the injuries proved. They argued that the Respondent failed to establish that he had sustained the pleaded fracture or dislocation injuries which had since healed. It was further contended that this was the only reasonable conclusion that could be reached upon a careful analysis of the evidence on record. 7. The Appellants also argued that the Respondent did not produce any treatment notes or other medical documents to demonstrate that he was still undergoing treatment, thereby showing that he had fully recovered from his injuries. On that basis, the Appellants submitted that an award of Kshs. 100,000/= would be reasonable and proportionate compensation for the injuries sustained. * 1. In support of this position, the Appellants relied on comparable authorities where courts awarded modest sums for similar soft tissue injuries, namely: ***Ondicho v. Mosigisi [2025] KEHC 5140 (KLR)***, where the court awarded Kshs. 80,000/= for soft tissue injuries including cut wounds and blunt injuries to the head and lower limbs. ***Ndungu Dennis v Ann Wangari & Another [2018] eKLR***, where the High Court awarded Kshs. 100,000/= for injuries consisting of a blunt head injury, brief loss of consciousness, blunt injuries to the chest and both hands, with complaints of back and chest pain on exertion. ***Godwin Ireri v Franklin Gitonga {2018] KEHC 6614 (KLR)***, where the Plaintiff was awarded Kshs. 90,000 for cuts on the forehead and scalp together with bruises on the left ankle and right knee, **and** *Mbati John & Another v* *China Zhogxing Construction Company Limited & Another [2016] eKLR*, where Kshs. 75,000.00 was awarded for soft tissue injuries. * 1. Alternatively, the Appellants submitted that if the court found that the Respondent suffered a **left shoulder/clavicle dislocation**, an award of **Kshs. 200,000/=** would be reasonable. In support, reliance was placed on *Dreamline* *Express Limited v Sabii & another [2025] KEHC 9429 (KLR)*, *Mohammed v Kumbi [2022] KEHC 13199 (KLR)*, and *Nyamwaya v Moraa [2022] KEHC 14463 (KLR)*, where awards ranging between Kshs. 200,000/= and Kshs. 220,000/= were made for shoulder dislocations accompanied by soft tissue injuries. * 1. The Appellants therefore urged the court to substitute the trial court's award with **Kshs. 200,000/**= if a clavicle dislocation was established, or **Kshs. 100,000/=** if the injuries were limited to soft tissue injuries. It was further contended that the trial magistrate's award was manifestly excessive, having failed to cite comparable authorities or provide a proper basis for the assessment of damages, thereby warranting appellate interference. * 1. Subsequently, the Appellants urged the court that an award of **Kshs. 100,000/=** would be appropriate if the Respondent sustained only soft tissue injuries that healed without complications. * 1. The Appellants therefore urged the court to reduce the damages awarded by the trial court and substitute them with an award of Kshs. 100,000/=, arguing that such an amount would be fair, reasonable, and consistent with comparable judicial precedents. ## Respondent’s Submissions * 1. The Respondent framed the first issue for determination as whether the learned magistrate erred and misdirected herself by finding that the Respondent suffered fracture or dislocation injuries. 2. The Respondent submitted that the learned magistrate did not err or misdirect herself in finding that the Respondent suffered fracture and dislocation injuries. It was argued that the injuries sustained in the accident, namely a head injury, chest tenderness, fracture of the right clavicle, dislocation and swelling of the left clavicle, backache, tenderness and swelling of the left shoulder joint, and bruises and swelling on the left leg and knee, were proved through the Referral Letter, Treatment Notes, and P3 form. The examining doctor classified the injuries as grievous harm, thereby confirming the seriousness of the Respondent's condition. 3. The Respondent further contended that the Appellants failed to adduce any medical evidence to challenge the injuries pleaded and proved at trial, having neither obtained a second medical examination nor produced a contrary medical report or called a medical expert to testify. Consequently, the Respondent's evidence remained uncontroverted and was properly relied upon by the trial court. 4. In support of this position, the Respondent relied on authorities such as **Linus Nyanga Kiogo, Philomena Mutheu Nzyoka**, and **Trust Bank Limited**, which establish that where a defendant fails to call evidence, the plaintiff's evidence remains unchallenged, pleadings and submissions cannot substitute evidence, and answers elicited during cross-examination cannot be used to build a defence. The Respondent therefore argued that the Appellants were improperly attempting to remedy its failure to adduce evidence at trial through the appeal and urged the appellate court to uphold the trial court's finding that the Respondent sustained fracture and dislocation injuries. * 1. The Respondent’s last issue was whether the learned magistrate erred & misdirected herself in the assessment of damages awardable to the Respondent which was manifestly excessive. The Respondent submitted that the trial magistrate did not err or misdirect herself in awarding Kshs. 800,000/= as general damages for pain, suffering and loss of amenities. It was argued that the award was commensurate with the injuries proved at trial, namely a fracture of the right clavicle, dislocation and swelling of the left clavicle, and multiple soft tissue injuries, as supported by the referral letter, treatment notes and P3 form. The Respondent further contended that the medical evidence classified the injuries as grievous harm and demonstrated their seriousness and long-term effects. 2. The Respondent relied on the principle that comparable injuries should attract comparable awards, citing **Odinga Jactone Ouma v Moureen Achieng Odera [2016] eKLR** and **Simon Taveta v Mercy Mutitu Njeru CA Civil Appeal No. 26 of 2013 [2014] eKLR**. To demonstrate that the award was reasonable, reliance was also placed on **Judy Ngochi v Kamakia Ele Selelo (2019) eKLR**, where Kshs. 1,000,000/= was awarded for a clavicle fracture, **Joseph Kimathi Nzau v Johnson Macharia (2019) eKLR**, which awarded Kshs. 800,000/=, and **Lawrence Wairimu Wainyoike & another v Joseph Letting [2021] eKLR**, where Kshs. 800,000/= was awarded for a fractured clavicle. * 1. The Respondent maintained that recent authorities indicate that awards for fractured clavicle injuries generally range between Kshs. 800,000/= and Kshs. 1,000,000/=, and that the trial court properly took into account prevailing economic conditions, including inflation and the rising cost of living. It was therefore submitted that the award was fair, reasonable and consistent with comparable decisions. Citing **Mhaka Nguru & another v James George** ## Rakwar NRB CA Civil Appeal No. 133 of 1998 [1998] eKLR, the Respondent urged the appellate court to uphold the award, dismiss the appeal, and award the costs of the appeal to the Respondent. * 1. In the circumstances, I have considered the submissions from both the Appellants and the Respondent and I therefore wish to have the following as issues for determination; # ISSUES FOR DETERMINATION * 1. Whether the Respondent proved, on a balance of probabilities, that he sustained the pleaded fracture and/or dislocation injuries arising from the accident. 2. Whether the learned trial magistrate properly assessed and awarded general damages in light of the injuries proved and the applicable legal principles 3. Who bears the costs of the suit? # ANALYSIS AND DETERMINATION ## Whether the Respondent proved, on a balance of probabilities, that he sustained the pleaded fracture and/or dislocation injuries arising from the accident * 1. The issue for determination is whether the Respondent proved, on a balance of probabilities, that he sustained the pleaded fracture of the right clavicle and dislocation of the left clavicle arising from the accident. 2. It is trite that he who alleges must prove and that in civil claims the standard is proof on a balance of probabilities. The burden remained throughout upon the Respondent. 3. The Respondent relied on treatment notes, referral documents and a P3 Form which recorded injuries to the clavicle and shoulder region, with clinical impressions indicating fracture and dislocation. The Appellants challenged this evidence on the basis that no X-ray report or radiological films were produced to confirm the alleged fractures or dislocation. 4. The court is guided by the principle in ***Butt v Khan (1982-1988) KAR 1*** that an appellate court will only interfere with findings of fact where the trial court acted on wrong principles, misapprehended the evidence, or reached an erroneous conclusion. 5. The court is further guided *by* ***Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR****,* which emphasises that awards and findings in personal injury claims must be grounded on injuries actually proved and supported by credible evidence. * 1. In the present case, while the medical records consistently indicate injury to the clavicle and shoulder region, the alleged fracture and dislocation were not supported by radiological confirmation. The court accepts that clinical diagnosis is relevant medical evidence; however, where a specific orthopedic injury such as fracture or dislocation is expressly pleaded and contested, the absence of objective radiological evidence materially weakens the probative value of the clinical impression. 2. The Respondent did not call any medical expert to clarify or substantiate the diagnosis beyond the documentary records. Equally, the Appellants did not tender contrary medical evidence. However, the burden of proof does not shift merely due to absence of rebuttal evidence. 3. Upon re-evaluation of the entire record, this court finds that the Respondent proved injuries to the clavicle and shoulder region but did not discharge the burden of proving, on a balance of probabilities, the pleaded fracture of the right clavicle and dislocation of the left clavicle. 4. Accordingly, the trial court erred in fact and principle in treating the fracture and dislocation as strictly proved. ## Whether the learned trial magistrate properly assessed and awarded general damages in light of the injuries proved and the applicable legal principles bears the costs of the suit * 1. The principles governing interference with an award of damages are settled. An appellate court will not disturb an award merely because it would have awarded a different figure. It must be shown that the trial court proceeded on wrong principles or that the award is so inordinately high or low as to represent an erroneous estimate, as stated in **Butt v Khan (1982–1988) KAR** **1**. * 1. Further, in **Kemfro Africa Ltd t/a Meru Express Services v Lubia & Another [1982–88] 1 KAR 727**, the court held that an appellate court will only interfere where the trial court took into account irrelevant factors, failed to consider relevant ones, or misapprehended the evidence. * 1. In assessing damages, courts are guided by the principle of fair compensation, consistency with comparable awards, and the nature of injuries proved, as reiterated in **Hellen Waruguru Waweru v Kiarie Shoe Stores Ltd** **[2015] eKLR**, that comparable injuries should as far as possibly attract comparable awards, subject to inflation and prevailing economic conditions. * 1. In the present case, the trial court awarded Kshs. 800,000/= as general damages, subject to liability apportionment, premised on injuries described as including clavicle fracture, dislocation, and multiple soft tissue injuries. 2. However, having already found that the more serious skeletal injuries were not proved on a balance of probabilities, it follows that the factual foundation upon which the award was anchored was materially overstated. An award based on injuries not proved cannot stand without adjustment, as it would amount to compensation for non-existent harm. 3. When the injuries are properly re-characterized as soft tissue injuries involving chest tenderness, shoulder strain, head injury, and bruises, the appropriate award must fall within the conventional range for such injuries as reflected in comparable authorities cited by the Appellants, including **Ndungu** ## Dennis v Ann Wangari & Another [2018] eKLR and Mbati John & Another v China Zhongxing Construction Company Ltd [2016] eKLR, where courts awarded between Kshs. 75,000/= and Kshs. 100,000/= for comparable injuries. * 1. While the Respondent cited authorities involving clavicle fractures and dislocations, those authorities are distinguishable on the basis that in those cases, the fractures were radiologically confirmed and, in some instances, involved longer recovery periods or complications, thereby justifying higher awards. 2. The trial magistrate also appears not to have clearly delineated the evidentiary basis for elevating the injuries to fracture and dislocation status. This failure to closely interrogate the medical foundation of the pleaded injuries resulted in an award that was anchored on an exaggerated injury profile. * 1. Accordingly, this court finds that the award of Kshs. 800,000/= was inordinately high in the circumstances, having been premised on unproven skeletal injuries. The proper award, taking into account the proved soft tissue injuries, judicial comparable, and the principle of fairness, would be substantially lower. 2. To that extent, the appeal on quantum succeeds, and the award of general damages by the trial court is set aside and substituted with an appropriate award consistent with the injuries proved. ## Who bears the costs of the suit * 1. On the issue of costs, the general principle is that costs follow the event unless the court for good reason orders otherwise, as provided under Section 27 of the Civil Procedure Act. 2. In the present appeal, the Appellants have succeeded in part on the critical issue of the nature of injuries and has also succeeded on quantum to the extent that the award has been found to be excessive and requiring interference. 3. However, it is also evident that liability was not contested on appeal and the Respondent remains a successful party on the question of negligence and entitlement to damages, albeit on a reduced quantum. 4. In the circumstances, this court finds that the just and equitable order is that costs of the appeal be awarded to the Appellants, as the successful party on the substantial issue of quantum, while each party shall bear its own costs in the trial court given the partial success on both sides. # DISPOSITION * 1. Having carefully considered the pleadings, the record of appeal, and the rival submissions by counsel, together with the applicable law and authorities, this court now proceeds to render its determination on the issues arising for resolution in this appeal as follows; 1. The Appeal is hereby allowed in part. 2. The award of general damages by the trial court is hereby set aside and substituted with an award of Kshs. 100,000/= for pain, suffering and loss of amenities. 3. The judgment and decree of the trial court is hereby varied to that extent only but is otherwise upheld. 4. The Respondent shall have cost of suit in the trial court 5. The Appellants shall have the costs of this appeal. 6. Interest on the costs of the Appeal shall accrue at court rates from the date of taxation until payment in full. It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Civil Date: 2026-07-13 22:18:32