[2024] KEHC 16385 (KLR)

Siema v Shivanda (Civil Appeal E119 of 2023) [2024] KEHC 16385 (KLR) (19 December 2024) (Judgment)

Neutral citation: [2024] KEHC 16385 (KLR)

Republic of Kenya

In the High Court at Kakamega

Civil Appeal E119 of 2023

S Mbungi, J

December 19, 2024

Between

Shihembekho Manoah Siema

Appellant

and

Alvin Shivanda

Respondent

(Being an Appeal from the judgment and decree of Hon. S.A Wayodi – RM delivered on 24. 07. 2023 in Kakamega SCCC No. E132 of 2023 between Alvin Shivanda vs Shihembekho Manoah Siema)

Judgment

Brief Background of the Case. 1. The respondent(claimant) filed a statement of claim in the trial court contending that on 20/04/2023 along Kakamega-Shinyalu road at Mulunda area a road traffic accident occurred where the Respondent indicated that he was riding the motor cycle registration number KMFV 5822 Honda when the Appellant, who was driving the Motor Vehicle Registration No. KBA 628H caused an accident which occasioned the Respondent severe bodily injuries. The claimant prayed for general damages, special damages amounting to Kshs. 39,075/=, costs of the claim, future Medical Expenses amounting to Kshs. 150,000/= and interests.

2. In response to the statement of claim, the Appellant(defendant) denied the allegations in the statement of claim and denied any negligence on its part and contended that the injury suffered by the Respondent was solely attributable to his own negligence as particularized in the response to the statement of claim. The Appellant prayed that the suit be dismissed with costs. At the hearing of the suit, the Respondent testified on his behalf while the appellant testified on his behalf too and no independent witness was called by either side.Upon consideration of the evidence, the learned Trial Magistrate in her Judgment found both parties equally to blame for causing the accident and the subsequent injuries sustained by the Respondent and awarded the Respondent Kshs. 350,000/- as General damages, Kshs. 38,875/- as special damages and costs of the suit plus interest.

The Appeal. 3. Having been aggrieved by the judgment by the trial court, the appellant filed a memorandum of appeal dated 09. 08. 2023 on the following grounds:a.That the Learned Trial Magistrate erred and misdirected herself by proceeding on wrong principles when assessing damages to be awarded to the respondent under the head of general damages and thereby failed to apply precedents and tenets of the law applicable.b.That the learned Trial Magistrate erred in law in awarding the Respondent general damages in the sum of Kshs. 350, 000/= an amount which was excessive thus amounting to an erroneous estimate of loss or damage suffered by the Respondent.c.That the learned Trial Magistrate erred in law in over relying on the Respondent's evidence most of which was speculative in nature thereby reaching an entirely erroneous finding.d.That the learned Trial Magistrate erred in law in failing to consider the Appellant's submissions and legal authorities relied upon hence arriving at an erroneous conclusion.e.That the learned Trial Magistrate erred in law by overly relying on the Respondent's submissions and legal authorities which were not relevant and without addressing his mind to the circumstances of the case hence occasioning a miscarriage of justice.

4. The appellant prayed that the appeal be allowed, the general damages awarded be set aside and the court be pleased to reassess general damages downwards and costs of the appeal be provided for.

5. The respondent filed a memorandum of cross appeal dated 22. 02. 2024 on the grounds:i.That the Learned Adjudicator erred in law and fact by apportioning liability in the ratio of 50:50 without any concrete evidence to indicate that the accident was jointly caused by the Appellant and Respondent.ii.That the Learned Adjudicator erred in law and fact by allowing the Respondent to testify without a statement in the trial court, hence trial by ambush.iii.That the Learned Adjudicator erred in fact and law when she failed to consider the version of events as per the Claimant witness statement and his pleadings.iv.That the Learned Adjudicator erred in fact and law by failing to relate the Respondent's injuries with his version of the events and the injuries he sustained as it aligned more towards the Respondent’s favor.v.That the Learned Trial Magistrate erred in fact and law by allowing unsubstantiated testimony to form part of the court's record as the Appellant never filed any witness statement hence it was not scrutinized by the Respondent's Advocate.vi.That the Learned Adjudicator erred in fact and law by failing to acknowledge the fact that the Appellant's Motor Vehicle KBA 628H caused another accident which fatally ended the life of another rider whose case is proceeding in court, whom could not have been negligent.vii.That the Learned Adjudicator misdirected herself in finding, without any evidence that there was contributory liability hence blaming the Respondent for partly contributing to the accident.viii.That the Learned Adjudicator misdirected herself in law and in fact in failing to rely on the Traffic Rules and Highway Code and therefore erroneously holding the Appellant partially liable for the accident.ix.The Honourable court erred in fact and in law by proceeding to award quantum of damages way too low in commensurate with the level of injuries suffered and the general sums determined by superior courts.x.That the court erred in law and in fact in making a decision premised on incompetent and defective pleadings, whereby they refer to a different accident, and disregarding the Claimant's objection of the same

6. The respondent prayed that the Cross Appeal be allowed, the decision of the court on liability be quashed and the court proceed to find the appellant wholly liable for the accident, the general damages awarded be set aside and the court be pleased to reassess general damages upwards and that the costs of this Cross Appeal and of the subordinate court be awarded to the Objector/Respondent.

7. Both parties agreed that the appeal and cross appeal be canvassed by way of written submissions.

Appellant’s Case. 8. The appellant in his submissions dated 09. 04. 2024 isolated two key issues for determination.

9. On whether the trial magistrate erred in finding the respondent 50% liable, the appellant submitted positively. He averred that both the appellant and respondent adopted their evidence in chief in the trial court which presented two different versions of what transpired. No witnesses, including the police were called by either side and the police abstract produced indicated that the matter was pending under investigations thus was wholly unhelpful. The appellant submits that since it was impossible for the trial magistrate to apportion liability as she could not tell which party bore greater responsibility for what happened, she was right in finding the appellant and the respondent were equally to blame. he referred the court to the case of Hussein Omar Farah vs Lento Agencies [2006] eKLR, and Eliud Papoi Papa vs Jigneshkumar Rameshbai Patel & another [2017] eKLR.

10. On whether the amount awarded was manifestly excessive and that the trial magistrate used the wrong principles in arriving at the same, the appellant also submitted positively. He averred that treatment notes from Sheywe Community Hospital identified the respondent’s injuries as cut wounds on the scalp, face and right leg. Stitching of the wound was done and the respondent was given painkillers and antibiotics. The x-ray of the chest and leg, head CT scan were all normal. He submits that another report dated 22. 05. 2023 indicated further injuries which were not previously pleaded by the respondent to be loss of two molar teeth, and head injury with loss of consciousness and thus assessed permanent disability at 40% and awarded future medical expenses of Kshs. 150,000/-. The appellant contends that the respondent admitted in cross-examination that he did not fracture or lose any teeth as pleaded. All these factors considered, the appellant submitted that the award in general damages was manifestly excessive. he referred the court to the case of Kemfro Africa Limited T/A Meru Express Service, Gathogo Kanini vs A. M. Lubia and Olive Lubia(Civil Appeal No. 21 of 1984).

11. Lastly, the appellant submitted that the trial magistrate only averred that the pleaded injuries were captured in the medical report, but without a determination as to which injuries were sustained by the respondent, the amount awarded has no basis. He submitted that the amount awarded of Kshs. 350,000/- was excessive and in view of the injuries proved, urged that the court reduce the same to Kshs. 100,000/- subject to liability since the only injuries sustained by the respondent were soft tissue injuries.

Respondent’s Case. 12. The respondent submitted that on the material day at around 7:30 pm, the appellant was driving his motor vehicle at a very high speed and ran over the first rider, killing him instantly and subsequently knocking down the respondent causing him severe injuries.

13. He further submitted that the fact that the appellant knocked down two different road users clearly proved negligence on his part and ought to have been found 100% liable.

14. The respondent averred that the appellant never produced his driving license to prove that he is a qualified driver, nor did he produce any inspection report to show the road worthiness of the said motor vehicle.

15. On quantum, the respondent submitted that he produced evidence totaling to Kshs. 189,075/- for special damages(including Kshs. 150,000/- for future medical expenses) and pleaded that this court award Kshs. 250,000/- for general damages. He averred that the respondent showed the court that he still had mobility issues and in need of further medical management including physiotherapy and thus has hindered his activities as a teacher.

Analysis. 16. This being a first appeal, this court is under a duty to re-evaluate and re assess the evidence and make its own conclusions. It must, however, keep in mind that a trial court, unlike the appellate court, had the advantage of observing the demeanor of the witnesses and hearing their evidence first hand. In Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the court stated as follows:“…This being a first appeal, we are reminded of our primary role as a first appellate court namely, to re-evaluate, re-assess and reanalyze the extracts on the record and then determine whether the conclusions reached by the learned trial Judge are to stand or not and give reasons either way...”

17. In Selle & Another vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123, this principle was enunciated thus:“...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..."

18. I have looked at the memorandum of appeal, the cross appeal, the submissions by both parties, the proceedings from the lower court and the trial court’s judgment.

19. The issues for determination are:i.Whether the trial court was wrong in apportioning liability at 50%.ii.Whether the court considered the wrong principles into arriving in its finding on the quantum.

Determination. 20. On the issue of liability, the claimant testified as follows;“I am Alvin Shivanda. I stay in Shinyalu. I am a painter. I filed a statement on 7th July I wish to adopt the same as my evidence in chief. I filed documents. I wish to produce them as PEX 1 to 10. The x-ray is in court but there is no fracture. I was from Kakamega to Shinyalu. A Motor vehicle came from behind. I was knocked. It was at Mulundu Airstrip it knocked the person behind me and it knocked me. I found myself at general. X-ray was at sonar. I brought documents to prove injuries. I had helmet and a reflector the other person died at the hospital.”On Cross - Examination he stated:“My ID No is non- existence. It got lost. I have no proof. I wish to stand down the next witness. He has no documents. I reported to the huduma centre. I came to Kisumu. I can't remember the date. It was in June. It was a female doctor. It was on 20/4/23. I was riding the motor cycle. I am not licensed. I am aware I was endangering my life. The motor bikes got involved in the accident. The other motor cycle was from Kakamega to Shinyalu. I was heading to shinyalu. I was the one in front. After the accident I was told the one behind died. I didn’t see the other motor bike the motor vehicle was behind. I was just told. I didn’t see the motor vehicle. The motor vehicle got damaged. I can't tell the side. Damage was in front on the right side on the driver side. It is possible impact on the driver side. I was not overtaking. I can't tell the side of the accident. I have not testified in a traffic case. I wrote statement at the police. I had a helmet on. The helmet mirror cut me on the mouth. It got broken. I was treated at general hospital and then Sheywe. I went to Sheywe the same day I got hurt on the head, chin, leg, thigh and knees. I did not fracture my tooth got broken. 3 got broken. Refer to the treatment notes from Sheywe. It does not state about the tooth. It got broken into small pieces. I can't tell if the doctor has not noted about the tooth. I got cuts. I still feel pain. I went to the hospital last week. I have no documents in court. I went to the hospital. My tooth is sensitive. My head pains. I have 90% disability. My head pains day. I was given crutches because a metal cut the lower part of my leg.I have no injury in the back only have in front. The motor vehicle was from Kakamega to Shinyalu. The motor bike was behind the respondent motor vehicle. My motor cycle was in front of the motor vehicle. The motor cycle was in front the deceased was not from Shinyalu to Kakamega. There was no head collision. I didn't see the motor vehicle to date. I can't tell where the motor vehicle got damaged. The respondent was the first to report. I can't tell.”On re-examination, the claimant stated:“I know to ride. We were hit from behind. I fell in front that's why my injuries are in front. Head on collision if was there. I can't tell why they reported. The P3 states loss of tooth. I wrote a statement at the station. I can't tell what happened after the accident. I need physiotherapy because I saw a doctor who prepared a report. (Made report) the tender cut with a construction my cause disability.”

21. The defendant(appellant) stated as follows regarding how the accident occurred:“I am Manoah Siema, I work as businessman. I stay in Shinyalu. My motor vehicle was in an accident KBA 628H. The accident was on 20/2/23. It was around 7:30 pm on the material day I was from Kakamega to Shinyalu. Upon reaching Mulundu bar a Motor bike came from Shinyalu to my way and the other was overtaking. At the time I heard a loud bang. The two collided. The impact pushed them on the right side and broke the side glass of the window. The vehicle got hit on the driver side since I was in motion. I stood in front. It was in the evening, I saw people heading to the venue and others from behind. I decided to report at mwanda police station and I left. I reported and I got an OB.After that I was called by the police that traffic police from Kakamega were following up and they wanted to see the motor vehicle so that I can assist in the investigations. I went to the station. They requested to see the motor vehicle. I was told to go to the police station. I wrote a statement and got discharged. My motor vehicle got damage at driver's side on that door. I have no traffic case. I have an inspection report. My motor vehicle has no damages. The motor vehicle got damaged on the side the driver at the door.”On cross-examination the appellant stated:“I am Mr. Manoah. I have the same in court. I am a qualified driver. It is not produced in court. It is not stated in the list. I didn't knock two people. I was at 40kmph. It was at Mulundu. It is a Marram road. It has lose chipings. It was around 7:50pm. I expected to be more careful. It is near Lwanda sec school, friends church private academy and a bar. Air strip is behind. My registration no is KBA 628H. It is on the road for more than 20 years. I have driven for 20 years. It is old in manufacture. I have no proof of the report. I was arrested and put in custody. I was not charged. Time for the charging is still on. The motor vehicle got damaged at the driver's door. I paid for the repair not the insurance. I was not injured. I have not filed a suit. I have not produced the photo of the damage. I was told someone died.”On Re - Examination the defendant/appellant stated that:“I am a qualified driver. I have a license. I was hit on the right side. I don't see properly. It was at night. The claimant was overtaking. I have not been charged, it is about 3 months. I blame the claimant, he was not careful when overtaking, he hit the deceased. It is the claimant case.”

22. The legal burden of proof fell on the respondent in the lower court and the evidential burden of proof fell on the appellant in the lower court. However, it is noteworthy that the respondent never pleaded the doctrine of res ipsa loquitor.

23. Section 107 of the Evidence Act, Section 109 and Section 112 of the Evidence Act were dealt with in the case of Anne Wambui Ndiritu -vs- Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, in which the Court of Appeal held that:“As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act."

24. Similarly, in WILLIAM KABOGO GITAU -VS- GEORGE THUO & 2 OTHERS [201011 KLE 526 it was stated that:“In ordinary civil cases a case may be determined in favor of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposing party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegations that he made occurred."

25. In summary, the respondent stated that both him and the appellant were travelling towards the same direction, from Kakamega to Shinyalu. He stated that the appellant was driving his motor vehicle at a very high speed and ran over the first rider, killing him instantly before hitting the respondent from behind. On the other hand, the appellant stated that he was travelling from Kakamega to Shinyalu, while the respondent was travelling from Shinyalu to Kakamega and collided with another motorcycle which was overtaking. As a result, the impact pushed both riders on the right side and broke the side glass of the window of the appellant’s motor vehicle on the driver’s side.

26. From the above analysis, it is evident that both sides provided conflicting testimonies of the same accident.

27. After analyzing the Trial record and all the evidence tendered in the case, and having had no advantage of seeing and hearing the witnesses and in absence of independent evidence for there were no eye witnesses, this coupled with the fact that the police investigations were said to be incomplete at the time of filing the suit, no sketch plans, legend and measurements taken of the scene were produced for the trial court to have a feel of the scene of the accident, no inspection reports of the motor vehicle and the motor cycle showing the parts that were damaged were produced which would have enabled the trial court on a degree of probability to assign the blame thus it becomes a challenge to make a determination on liability in this appeal. It would appear, from the circumstances of the accident, when all is considered, the fair outcome would be to conclude that both the appellant and respondent were equally to blame for the accident. A finding which the trial court reached after taking into account all the gaps I have stated herein above. The trial court also relied on the case law of Hussein Omar Farah v Lento Agencies [2006] eKLR (Nairobi Civil Appeal No. 34 of 2005), where the Court of Appeal while faced with a similar situation held as follows:“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame…… The trial court, as we have said, had two conflicting versions of how the accident occurred. Both parties insisted that the fault lay with the other side. As no side could establish the fault of the opposite party we would think that liability for the accident could be equally on both the drivers. We therefore hold each driver equally to blame.”

28. The same principle was held in the case of Eliud Papoi Papa v Jigneshkumar Rameshbai Patel & another [2017] eKLR (High Court of Kenya at Naivasha Civil Case No. 23 of 2015) where it was stated as follows:“Thus, the court is confronted with conflicting and irreconcilable evidence regarding how the collision occurred and which driver is to blame. It is true that under Section 107 of the Evidence Act the Plaintiff was obligated to prove his allegations of negligence against the Defendants. However, the existence of conflicting versions on the collision does not necessarily mean that nobody was liable; a collision involving two vehicles almost always involves fault on the part of one or both drivers….”

29. From the foregoing, I am satisfied that the trial court took into account the evidence tendered by both the appellant and the respondent and applied the relevant principles before arriving into a finding that both the appellant and the respondent were to blame. Therefore, I will not disturb that finding. I therefore find that the cross-appeal by the respondent, Alvin Shivanda, fails on liability.

30. On quantum, the trial court awarded the claimant on damaged of Kshs. 350,000/- which the respondent in the cross appeal wants the amount enhanced and the appellant wants the amount assessed downwards.

31. The claimant/ respondent in his statement of claim submitted the following injuries:i.Deep cut wound on the scalpii.Deep cut wound on the faceiii.Blunt injury on the chestiv.Blunt injury on the right kneev.Deep cut on the right legvi.Loss of two molar teeth

32. The claimant was examined by Dr. Andambi on 22. 04. 2023 where chest x-ray and x-ray right foot were done. The findings were as follows:i.The heart was normal in size and shape,ii.The aorta was normal in caliber and coarseiii.The lung parenchyma and lung markings were normaliv.Diaphragmatic contours were smooth and regular with sharp costophrenic anglesv.The thoracic cage and soft tissues were normalvi.There was no evidence of cervical rib.vii.the tibia-tolar, inter-tarsal, tarsal-metatarsal, metatarsal phalangeal and interphalangeal joints were congruent.

33. The medical doctor drew the conclusions that it was an essentially normal chest x-ray, no rib fracture or hem pneumothorax seen. On the x-ray right foot, no fracture or dislocation was seen, injury likely soft tissue.

34. The same doctor did a serial axial CT Scan of the head from the base of the skull to the vertex and found:i.The inter hemispheric fissure was midlineii.There was no evidence of space occupying lesion, acute infarct or acute intra parenchymal bleed seeniii.The cerebral and cerebellar parenchymas were of normal CT attenuationiv.The sellar, suprasellar and parasellar regions were clearv.The ventricular zystem, basal cisterns and sulci were of normal size and configurationvi.No abnormal fluid collection or bleed was seen in the dural spacesvii.The posterior cranial fossa structures appear normalviii.The globes and other orbital structures were intact Opacification of the left maxillary air sinus with a low atteruating fluid (sinusitis) is seenix.The rest of paranasal sinuses and mastoid air cells were clearx.The calvarium and other visualized bony structures were clear.

35. He concluded that there was no skull fracture or intracranial bleed seen, and there was Incidental left maxillary sinusitis.

36. On 22. 05. 2023 Mr. M.I Martin, a registered medical practitioner prepared a medical report for Alvin Shivanda, aged 23, and recorded the summary of injuries as follows:i.Cut on the headii.Bruise on the left side of the headiii.Bruises of the noseiv.Below the chin deep cutv.Cut around the neckvi.Lost two teeth (Molars)vii.Loss of consciousnessviii.Bruises of the left elbowix.Pain on the left elbowx.Left leg painxi.The left sole a deep cutxii.Right knee painxiii.Right knee bruisesxiv.Right leg bruises

37. He stated that the physical examination and complains by the respondent at the time of examination were: Headache, healed scars, stitches removed, the deep wound on the sole of the right foot still being dressed,

38. He examined as follows with regard to the respondent:i.walked with crutches, he was walking with support, sick lookingii.Head and Neck - Headacheiii.Chest and Abdomen -Normaliv.Lower Limbs - Healing bruises on both legs the right leg was with wounds still being dressed

39. He concluded that Alvin Shivanda sustained grievous harm after being involved a road traffic accident sustained head injury lost two teeth with the right leg severing tendon cuts that will heal with contracture leading to disability of 40% of the limb. He is still undergoing management and will be on long sessions of physiotherapy that will cost him Kshs. 150,000/.

40. The initial treatment notes produced by the claimant captured the following injuries as suffered by the claimant: Cut wounds on the scalp, face and right leg. Stitching of the wound was done and given pain killers and antibiotics. The x-ray of the chest and leg, head CT scan were all normal.

41. Clearly from the reports by Dr. Andambi and the initial treatment notes the following injuries were not reflected:a.Loss of two molar teethb.Head injury with loss of consciousnessBut they are reflected in the report prepared by M.I Martin dated 22. 05. 2023 exactly one month after the reports prepared by Dr. Andambi.

42. There is a possibility that those injuries: Loss of two molar teeth and Head injury with loss of consciousness were sustained elsewhere for they were not captured in the initial treatment notes and the report coming after the initial treatment notes having been made and the examinations done on 22. 04. 2023 by Dr. Andambi. To me, the contents of the medical report are of lesser evidential value when compared to the three earlier reports. Further, M.I Martin only did physical examination of the claimant.

43. In the case of Timsales Ltd V Wilson Libuywa [2008] eKLR, where Maraga J (as he then was) held that:“A medical report by a doctor who examines him much later is of little, if any, help at all. Although it may be based on the doctor's examination of the plaintiff on whom he may, like in this case, have observed the scars, unless it is supported by initial treatment card it will not prove that the plaintiff indeed suffered an injury on the day and place he claimed he did. The scars observed on such person would very well relate to injuries suffered in another accident altogether."

44. I have looked at the record; the trial magistrate did not establish the exact injuries sustained by the respondent (claimant). She observed:“On quantum, the claimant pleaded that he suffered deep cut wounds on the scalp, deep cut wound on the face, blunt object injury to the right knees, chest, deep cut wound on the right leg and loss of two molar teeth. The claimant testimony was supported by P3, medical report from sonar medical clinic and Lirhembe medical clinic, treatment chits from Kakamega county general Hospital and Sheywe community hospital. The respondent filed a 2nd medical report which confirmed that the claimant sustained soft tissue injuries.”

45. If she had carefully scrutinized the medical evidence she would have noted the clear discrepancies I have highlighted herein above and perhaps she might have arrived to a different finding on quantum. And this therefore makes me to interfere with the finding of the lower court after taking into account the principles which an appellate court considers in making a decision to interfere or not as observed in the case of KEMFRO AFRICA LIMITED T/A MERU EXPRESS SERVICE, GATHOGO KANINI VS A. M. LUBIA AND OLIVE LUBIA; CIVIL APPEAL NO. 21 OF 1984 where the Court of Appeal held:“The principles to be observed by this appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are that it 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 low or so inordinately high that it must be a wholly erroneous estimate of the damages.”

46. The claimant had submitted for an award of Kshs. 250,000/- and relied on the case of Anthony Nyamwaya vs Jackline Moraa Nyandemo [2022] Eklr Civil Appeal No. E046 of 2021 where the court awarded Kshs. 250,000/- by upholding the trial court’s award for soft tissue injuries. The respondent had submitted for an award of Kshs. 100,000/- and relied on the case of HB (Minor suing through mother & next friend DKM) v Jasper Nchonga Magari & Another [2021] EKLR where the court awarded Kshs. 60,000/- for soft tissue injuries. I have looked at the authorities cited.

47. In assessment of general damages for pain, suffering and loss of amenities, the court looks at the nature of injuries sustained, other comparable awards, the ability of the economy to accommodate such an award among other factors. On this, the Court of Appeal observed in Simon Taveta v Mercy Mutitu Njeru [2014] eKLR that –“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”

48. Recent awards by superior courts on soft tissue injuries range from Kshs. 100,000 to Kshs. 300,000/-. Like, in the case of Jyoti Structures Limited & another v Truphena Chepkoech Too & another [2020] eKLR, the High Court awarded Kshs. 125,000/= to a person who had sustained blunt injuries to the head, neck, chest, back, and both thighs. It also made a similar award for a second person who had sustained bruises on the parietal scalp, blunt injury to the chest, and deep cut wounds on the right forearm and right hand and also, In Ogaro & another v Olang' (Civil Appeal 122 of 2019) [2022] KEHC 15465 (KLR), the High Court awarded 150,000/= to a party who had sustained tenderness to the head, neck, thorax, and abdomen as well as swelling in the upper and lower limbs. Also, in Ochola v Owuor (Civil Appeal E039 of 2022) [2024] KEHC 7689 (KLR), the High Court awarded Kshs. 150,000/= to a party who had sustained soft tissue injuries of the right shoulder joint and both knee joint.

49. I have considered the injuries sustained by the respondent (claimant). They are largely soft tissue injuries, taking into account awards in comparable cases, and the rate of inflation I find an award of Kshs. 200,000/- is reasonable for compensation for injuries suffered by the respondent/claimant.

50. The appellant was not aggrieved by the award of Kshs. 38,875/- for special damages and costs awarded to the claimant by the trial court so I have no reason to interfere save that the costs in the lower court shall be based on the new figure of Kshs. 119, 437. 50/-.

51. The upshot of the above findings, is that I find the appellant’s appeal has succeeded to the extent that the general damages awarded of Kshs. 350,000/- to the respondent/claimant are found to be excessive. Therefore, the judgment on the general damages is set aside and substituted with an award of Kshs. 200,000/- for general damages for the injuries sustained by the respondent/claimant.

52. The cross appeal by the claimant on liability fails. The liability remains at 50:50 as ordered by the trial court.

53. The cross appeal by the respondent/claimant on general damages fails as shown in paragraph 51.

54. The cross appeal on the issue of future medical expenses also fails for the court has declared the medical report by M.I Martin of no evidential value for its contents as to the nature of injuries sustained by the claimant greatly differed from the report by Dr. Andambi who did X-Rays and CT scan on the areas injured and also with initial treatment notes.

55. The costs of the appeal to be borne by the respondent/claimant.

56. I hereby make the following orders:Liability…………………..…………….50%Special Damages ……………..…..Kshs. 38,875/-General Damages…………..…….Kshs. 200,000/-Less 50% ……………………………..Kshs. 119, 437. 50/-Total…………………………….…… Kshs. 119, 437. 50/-

57. Right of appeal 30 days explained.

DATED, SIGNED AND DELIVERED AT KAKAMEGA THIS 19TH DAY OF DECEMBER, 2024. S.N MBUNGIJUDGEIn the presence of:Appellant – absentMs. Bii for the appellant presentRespondent – absentMr. Mbetera for the respondent presentCourt Assistant – Elizabeth Angong’a