https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12418

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISUMU** **CIVIL APPEAL NO. E054 OF 2025** **SIMBA COACH COMPANY LIMITED ................................... APPELLANT** **VERSUS** **ROSE AUMA OMIA ........................................................ RESPONDENT** *(****Being an appeal from the Judgment and Decree of the Honourable Dr. D. N. Ogoti (CM) delivered on 29th May 2024 in Kisumu CMCC No. 206 of 2018)*** **JUDGMENT** **A. INTRODUCTION** 1. The Respondent, Rose Auma Omia, sued the Appellant, Simba Coach Company Limited, in the Chief Magistrate's Court at Kisumu in CMCC No. 206 of 2018 for damages for personal injuries sustained in a road traffic accident which occurred on 5th August 2017 along the Busia–Kisumu road at Maseno, in which motor vehicle registration number KBW 601H, a Scania bus, overturned while she was travelling in it as a fare-paying passenger. 2. By a judgment delivered on 29th May 2024 the learned trial magistrate, Hon. Dr. D. N. Ogoti (CM), entered judgment for the Respondent in the following terms: liability at 100% against the Appellant; general damages of Kshs. 750,000/=; special damages of Kshs. 29,384/=; costs of the suit to the Respondent; and interest. 3. The Appellant is aggrieved by that judgment on the question of quantum alone. Liability is not in issue in this appeal. **B. BACKGROUND** 4. By a plaint dated and filed on 14th May 2018 the Respondent pleaded that on or about 5th August 2017 she was lawfully travelling as a fare-paying passenger aboard motor vehicle registration number KBW 601H, a Scania bus of which the Appellant was the registered owner, when the Appellant's driver, servant or agent, acting in the ordinary course of his employment, so negligently, recklessly drove, managed or controlled the said motor vehicle as to cause an accident occasioning her multiple severe injuries. Extensive particulars of negligence were pleaded against the Appellant and against its driver, servant or agent. The Respondent pleaded that she would, so far as applicable, rely on the doctrine of *res ipsa loquitur*. 5. The particulars of the Respondent's injuries pleaded at paragraph 7 of the plaint were: (a) Compound fracture of the left proximal humerus; (b) Swollen left hand; (c) Swollen left wrist; (d) Dislocation left wrist; (e) Inability to lift left arm. 6. Special damages were pleaded in the sum of Kshs. 29,384/= being treatment expenses. The Respondent prayed for general damages, special damages, costs of the suit and interest thereon at court rates. 7. The Appellant filed a defence dated 13th August 2019 and filed on 20th August 2019. It denied that it was at all material times the registered owner, beneficial owner or user in possession of motor vehicle registration number KBW 601H; denied the occurrence pleaded at paragraph 4 of the plaint; denied the particulars of negligence; and denied the particulars of injury and of special damages, putting the Respondent to strict proof. Absolutely without prejudice and in the alternative, it averred that if an accident occurred, which was denied, the same was caused by the reckless, negligent or careless acts or omissions of the Respondent herself, the particulars pleaded being a failure to take adequate precaution for her own safety, failure to heed instructions on safety precautions when travelling, failure to heed traffic rules and regulations when travelling, failure to apply or use a seatbelt for her own safety, distracting the driver of the bus by engaging him in endless banter, and *volenti non fit injuria*. It denied that the doctrine of *res ipsa loquitur* was applicable, pleaded that the plaint disclosed no reasonable cause of action, and pleaded inevitable accident. 8. By a reply to statement of defence dated 26th August 2019 the Respondent joined issue with the defence, denied its averments, and pleaded that the defence was bad in law, vague, conflicting, incurably defective and incoherent. **C. THE EVIDENCE AT THE TRIAL** 9.The Respondent called three witnesses. 10. **PW1, Rose Auma Omia**, testified on 24th March 2021 before Hon. P.N. Gesora (CM). She stated that she resides at Sega where she is a farmer, and she relied upon and adopted her written statement. She testified that the road traffic accident involved one motor vehicle, KBW 601H, in which she was travelling; that she was issued with a police abstract; and she produced her medical documents and receipts, a referral letter, a demand letter, a copy of her identity card, a receipt from Simba Coach, the P3 form, the x-ray report, the letter from Kisumu County Hospital and the patient's treatment notes from Tenwek Hospital. She prayed for damages, costs and interest. 11. On cross-examination by Mr. Odhiambo for the Appellant, PW1 stated that she reported the accident at Maseno police station on 29th August 2017; that the road traffic accident had occurred at 5.00 p.m. and she was treated at Tenwek Hospital at 7.00 p.m.; that the x-ray was done at the Aga Khan Hospital and a dislocation was noted; that she was referred from Port Florence Hospital; and that she was treated and discharged the following day. She further stated: *“My hand is disabled and cannot do heavy duties.”* There was no re-examination. 12. **PW2, Philip Kilimo**, testified that he is a clinician working at Kisumu County Hospital; that he examined the Respondent and filled the P3 form; that she was involved in a road traffic accident along the Kisumu–Busia road near Maseno; and that she sustained injuries on the left hand, namely swelling on the left hand humerus region, a tender wrist, and a fracture of the left hand. He testified that the patient was managed at the Aga Khan and Tenwek hospitals, and he produced the P3 form. On cross-examination by Mr. Odhiambo he stated that he had examined the patient, that he relied on the treatment notes from the Aga Khan and Tenwek hospitals, that *“the patient was healing”*, and that there was a fracture of the left humerus. There was no re-examination. 13. **PW3, No. 72585 PC Mike Kiprop** of the traffic section at Maseno police station, testified on 21st October 2021 and produced the police file and the police abstract. He testified that the accident occurred on 5th August 2017 along the Busia road around the car wash area and involved a Scania bus, registration number KBW 601H, driven by Lawrence Odhiambo and owned by the Appellant; that investigations were conducted by Sgt. Beatrice Songut, who had since been transferred to Kombewa police station; and that the Respondent was a victim in the accident and her statement was recorded on 24th August 2017. He testified that according to the driver's account he had found a matatu on the road picking customers while a trailer was heading in the Maseno direction so that he could not overtake, and that on moving the bus to the left it lost control and swerved to the left; that the driver does not mention that he applied brakes and the inspection report does not disclose any problem with the brakes; that the registration number of the matatu was never given, the investigating officer did not find it, and the sketch marks do not mention it; and that per the sketch plan the bus swerved off 32.5 metres. He testified that according to Edwin, a fellow victim, the bus was speeding and overtaking carelessly as it was late, that it almost hit a matatu heading in the same direction, lost control and overturned; that other passengers had told the driver to slow down but he refused; and that the Respondent could not be blamed for the accident, but rather the bus driver who was speeding and overtook carelessly. 14. On cross-examination by Mr. Turgut for the Appellant, PW3 stated that he was not the investigating officer; that the Respondent's name is not in the initial report and there was no formal report by her; that the initial report said the bus was on the road; that the registration of the matatu was not given; that there is no document to show the motor vehicle was not fitted with a speed governor and the inspection report shows that it had one; that Nicholas, Daniel, Odongo, Rose Auma, Michael and Edwin recorded statements and those who apportioned blame blamed the bus driver, while others did not mention who was to blame; that the driver was not charged; and that the investigating officer blamed the matatu driver for causing the accident and recommended that the file be closed. 15. By a consent recorded before Hon. P.N. Gesora (CM) on 5th May 2021, signed for the Respondent by M/S Oluoch and for the Appellant by M/S Bii, the parties agreed that the medical report from Tenwek Hospital dated 5th September 2017 be admitted in evidence as an exhibit. The Appellant therefore consented to the admission of that report and no question arises as to its admissibility. 16. The Respondent closed her case on 21st October 2021, whereupon counsel for the Appellant sought a defence hearing date and indicated that he would call two witnesses. The Appellant's list of witnesses named Jenipher Kahuthu, the insured's driver Lawrence Odhiambo Otieno, and the Base Commander, Maseno Police Station. Its list of documents included an internal medical report marked *“to be availed at a later date”*. ***The defence case*** 17. The defence hearing was thereafter adjourned on 19th January 2022, 16th March 2022, 5th May 2022, 18th August 2022, 2nd November 2022, 10th November 2022 and 30th November 2022. On the last of those dates counsel holding brief for the Appellant informed the court that the witness was indisposed, and counsel for the Respondent objected that there was no medical proof of that and applied that the defence be closed. By a ruling delivered the same day, Hon. T.A. Odera (CM) allowed the Appellant a final adjournment, observing that although the case was old, several of the adjournments had been occasioned by the court's own unavailability, and fixed the defence hearing for 14th December 2022. 18. On 14th December 2022 the matter came before Hon. E. A. Obina (PM), who recorded that the trial magistrate had been elevated to the High Court and fixed the defence hearing for 15th March 2023. On 13th March 2023 Hon. D. O. Onyango (CM) directed that the matter be taken over by Hon. Dr. D. N. Ogoti (CM). On 15th March 2023 the defence hearing did not proceed, counsel for the Appellant informing Hon. Dr. Ogoti that they could not reach the driver, and a further last adjournment was taken by consent to 19th April 2023. 19. On 19th April 2023 counsel holding brief for the Appellant informed the court, in terms which I set out because the whole of this appeal is affected by them: *“It is for defence hearing. We are closing our case as we are unable to locate our witness. You can give us 30 days for submissions.”* 20. **The Appellant called no evidence.** Its case was closed on 19th April 2023 and the parties were given 30 days within which to file submissions. It follows that the whole of the evidence in the suit — as to the accident, as to the injuries, and as to their consequences — was the Respondent's evidence, and that none of it was contradicted by any witness or document called by the Appellant. 21. As to submissions: on 24th May 2023 a further 14 days were allowed. The Appellant's written submissions are dated 22nd May 2023 and bear the court's filing stamp of 24th May 2023. The Respondent's counsel confirmed on 20th July 2023 that her submissions had been filed. The Respondent's submissions in the trial court do not form part of the record before me. **D. THE JUDGMENT OF THE TRIAL COURT** 22. The judgment is dated and was delivered on 29th May 2024. It runs to two pages. It recites the prayers in the plaint, the Respondent's account of the accident, and the particulars of injury; it records that the Respondent adopted her statement and called two other witnesses, that she produced her documents, and — in terms — that *“The defendant did not call witnesses.”* 23. On liability the learned trial magistrate found that, by the production of a receipt and a police abstract whose particulars were not displaced, the Respondent was a passenger in the bus and an accident took place involving it; that the Appellant or its agent was in full control of the vehicle; and that there was no other evidence to rebut the Respondent's case. He cited **Boniface Waiti & Another v Michael Kariuki Kamau (2007) eKLR** for the proposition that a passenger has no control over the manner in which the vehicle conveying him is driven and cannot be penalised for the poor handling of it. He entered judgment on liability at 100% against the Appellant as vicariously liable for the acts and omissions of its driver. Those findings are not challenged. 24. On quantum the whole of the learned trial magistrate's reasoning is contained in a single paragraph, which I set out in full because the second ground of appeal turns upon it: *“The P3 classified the injuries sustained as maim. The court considered the case of Joseph Njeru Luke & 3 Others Vs. Stella Muki Kioko [2020] eKLR where the respondent sustained a fracture of the pelvis and soft tissue injuries and was awarded kshs. 750,000/=. The injuries in that case were similar to this one. I hence proceed to award the Plaintiff Kshs. 750,000/=. Costs follow events and the Plaintiff is awarded costs of the suit plus Khsh. 29,384, special damages as pleaded and specifically proved by the plaintiff.”* 25. The orders which followed were: 1. Liability .................................................. Kshs. 100% 2. General damages ...................................... Kshs. 750,000/= 3. Special Damages ...................................... Kshs. 29,384/= 4. Costs of the suit to the plaintiff 5. Interest on (b) & (c) above. 26. Three observations arise on the face of that judgment, and I make them now so that they do not have to be made twice. 27. First, the judgment makes no reference of any kind to the Appellant's written submissions, nor to the authority annexed to them, nor to the figure for which the Appellant contended. The only comparable award considered is *Joseph Njeru Luke*, which was not cited by the Appellant and which does not appear in the Appellant's submissions in the trial court. The report of that decision is not before me; I know of it only what the judgment says of it, namely that the claimant there sustained a fracture of the pelvis and soft tissue injuries and was awarded Kshs. 750,000/=. 28. Second, the fifth order awards *“Interest on (b) & (c) above”*, but the orders are numbered 1 to 5 and there is no (b) or (c). The reference is evidently to the awards of general and special damages at items 2 and 3. It is a slip, and an obvious one. 29. Third, the particulars of injury as recited in the judgment record *“A swollen right hand”*. The plaint pleaded a swollen **left** hand, and the whole of the medical evidence concerns the left upper limb. That too is a slip. **E. THE DECREE** 30. The decree was extracted long after the judgment. It is signed by Hon. Benson Ireri (SPM) under the designation *“administer judgements”*, given under the seal of the court on 6th March 2025, and it correctly recites that judgment was delivered on 29th May 2024 before Hon. D. Ogoti (CM). It was supplied to this court by a supplementary record of appeal filed on 18th August 2025. It decrees liability at 100%, general damages of Kshs. 750,000/=, and special damages of Kshs. 29,384/=. 31. The decree departs from the judgment in two respects, and since this court is asked to set the decree aside the departures must be recorded. 32. Costs. The judgment awarded the Respondent *“costs of the suit”*, which in the ordinary course fall to be taxed. The decree, however, provides that *“costs of this suit is hereby assessed at Ksh. One Hundred and Ninety One Thousand, Four Hundred and Twenty (ksh. 191,420/=)”*. Nothing in the judgment assessed costs at that or any figure. A decree must follow the judgment upon which it is founded and cannot enlarge it. 33. Interest. The judgment awarded interest on the general and special damages. The decree is silent as to interest altogether. It therefore omits an order which the judgment made. **F. THE APPEAL** 34. Being dissatisfied with that judgment, the Appellant filed a memorandum of appeal dated 3rd March 2025, appealing against the award on quantum upon two grounds: *1. THAT the Learned Trial Magistrate erred in law and in fact in awarding general damages of Kshs. 750,000/= which award was excessive and not commensurate to the nature of injuries sustained by the Respondent.* *2. THAT the Learned Trial Magistrate erred in fact and in Law in failing to consider the Appellant's submissions on quantum by completely disregarding the submissions and authorities of the Appellant and as a result arrived in unjustified decision on quantum.* 35. The Appellant prays that the appeal be allowed and the decree set aside; that this court do re-assess the evidence on the record of the subordinate court on quantum and award with its own decision; and that it be awarded the costs of the appeal. 36. The appeal was canvassed by way of written submissions. **G. THE PARTIES' SUBMISSIONS** ***The Appellant's submissions*** 37. The Appellant's submissions on appeal are dated 30th April 2026. It submits that this being a first appeal, this court is obliged and obtains jurisdiction to review the evidence to determine whether the conclusions of the learned trial magistrate should stand, relying upon **Selle and Another vs Associated Motor Boat Co. Ltd and Another (1968) EA 123** and **Peters vs Sunday Post Ltd 1958 EA 424**. It says it seeks to demonstrate that there was no evidence to support the conclusion reached by the trial magistrate, for which reason this court is entitled to interfere. 38. On the injuries, the Appellant submits that whereas the plaint dated 14/5/2018 claimed compound fractures of the left proximal humerus, a swollen left hand, a swollen left wrist, a dislocation of the left wrist and an inability to lift the left arm, the discharge summary dated 5/8/2017 records a compound fracture of the proximal humerus without evidence of an x-ray report at the time; that an x-ray was eventually done at RITRI imaging clinic on 17/04/2018, approximately one year after the accident, and shows a fracture of the proximal humeral shaft and not a compound fracture as alleged in the plaint; and that the x-ray report confirms there was no dislocation of the wrist since the wrist and hand bones were normal, notwithstanding the letter from Kisumu County Hospital dated 17/3/2018 produced as exhibit 11 which stated that the Respondent had a wrist dislocation even before the same had been confirmed by x-ray. It submits that the Respondent therefore suffered a fracture of the left proximal humerus and soft tissue injuries which had healed without resultant disability. 39. On the measure of damages the Appellant relies on the principle of *restitutio in integrum*, namely that an award for bodily injuries is compensatory in nature such that the plaintiff should receive in monetary terms not more and no less than her actual loss, and on **West (H) & Son Ltd vs Shepherd (1964) A.C. 326 at page 345**, for the propositions that there must be an endeavour towards some uniformity in the general method of approach, that awards must be reasonable and assessed with moderation, and that it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. 40. It invites the court to consider **Maina Onesmus vs Charles Wanjohi Githome [2019] eKLR**, where an award of Kshs. 600,000/= was reduced to Kshs. 350,000/= as general damages for fracture of the midshaft humerus, fracture of the condyles, fracture of the shoulder girdle, and pain and psychological trauma; and **Boniface Chege Ndabari vs Isaac Maina Waweru [2025] eKLR**, where an award of Kshs. 400,000/= was affirmed as general damages for fracture of the right humerus bone and right tibia, multiple bruises on the face, scalp, upper lip and forearm, and soft tissue injuries on the anterior chest, right shoulder, right upper arm and right leg. It submits that the injuries sustained by the respondents in those authorities are clearly more severe than those sustained by the Respondent herein; that Kshs. 400,000/= is sufficient; and that the award of Kshs. 750,000/= was manifestly excessive and inordinately high and should be set aside and substituted with Kshs. 400,000/=. ***The Respondent's submissions*** 41. The Respondent, who appears in person, filed submissions dated 27th May 2026. She submits that she was inflicted with serious injuries, some of which were life threatening, and severe fractures; that the appeal documents were never served upon her or her last known advocate until Monday 18th May 2026, which she says raises questions on the part of the Appellant; and that the Appellant failed to deposit the decretal amount in a joint account, which she says amounted to contempt of court in the first instance. 42. She frames three issues: whether she was involved in a road traffic accident on 5/8/2017; whether the Appellant was found liable for the said road traffic accident; and whether she was justly awarded the decretal amount. 43. She submits that by her plaint dated 14/5/2018 she elaborated the chronology of events, how the accident occurred and the particulars of her injuries; that her evidence was corroborated by a number of witnesses including the traffic police officer and the doctor; that documents were produced in court and the Appellant never opposed their production, and the court relied upon those documents to ascertain the degree of injury; that the Appellant's advocate had the chance, time and opportunity to cross-examine her and did so; that the Appellant was found 100% liable bearing in mind that she was merely a passenger aboard the Appellant's motor vehicle; and that the award of Kshs. 750,000/= is commensurate to the injuries she sustained given that her body has never been the same since the accident. 44. She concedes that most of the injuries she sustained have since healed and only scars are left, but submits that it is nine good years of agony, patience and resilience that she still awaits to be compensated for, and that she continues to seek medical attention on several occasions. She urges that the appeal be dismissed with costs for lack of merit and as aimed at frustrating her. She cites no authorities. **H. ISSUES FOR DETERMINATION** 45. The grounds of appeal are directed solely at quantum. Distilling them, and confining myself as I must to the grounds pleaded in the memorandum of appeal rather than to the issues framed by the parties in their submissions, the following issues arise for my determination: (i) Whether the learned trial magistrate erred in law and in fact in failing to consider the Appellant's submissions and authorities on quantum; (ii) Whether the award of general damages of Kshs. 750,000/= was excessive and not commensurate to the nature of the injuries sustained by the Respondent, such as to warrant the interference of this court; (iii) What orders should issue, and who should bear the costs of this appeal. 46. I take the first issue first, because if the learned trial magistrate did not consider the authorities placed before him at all, that is a failure to apply the correct principles which opens the award to interference, and the question of the figure then arises afresh. If he did consider them, the Appellant must show that the award is nonetheless so high as to amount to an erroneous estimate. **I. ANALYSIS AND DETERMINATION** ***Preliminary matters*** 47. Five preliminary matters require disposal before I turn to the issues. 48. **The identity of the trial magistrate.** The memorandum of appeal, the record of appeal and the certificate to the record all describe the judgment appealed from as the judgment of Hon. E. A. Obina (SPM). It is not. The judgment of 29th May 2024 was written, signed and delivered by Hon. Dr. D. N. Ogoti (CM). The proceedings record him taking over the matter on 13th March 2023, presiding over every subsequent hearing, reserving judgment, and delivering it on 29th May 2024; the judgment itself bears the endorsement *“SIGNED BY: HON.DOUGLAS OGOTI”*; and the decree, which the Appellant itself supplied by way of supplementary record, correctly recites that judgment was delivered *“before Hon D. Ogoti (CM)”*. Hon. E. A. Obina (PM) appears once in the whole of these proceedings, on 14th December 2022, when he took a mention and fixed a hearing date. He never heard a witness, never reserved a judgment and never delivered one. 49. The misdescription is unfortunate in a document drawn by counsel, and it has been carried into the record of appeal and into the submissions of both parties. But it is a misnomer and nothing more. There is only one judgment in Kisumu CMCC No. 206 of 2018 delivered on 29th May 2024 awarding Kshs. 750,000/=, there is no doubt what the Appellant is appealing against, and the Respondent has plainly understood the case she has to meet. No prejudice is suggested and none arises. I therefore treat the memorandum of appeal as an appeal against the judgment and decree of Hon. Dr. D. N. Ogoti (CM) delivered on 29th May 2024, and I have titled this judgment accordingly. 50. **The date of the impugned judgment.** In the earlier state of the record it was not possible to reconcile the memorandum of appeal, which gave the date of judgment as 29th May 2024, with the parties' submissions, which both gave it as 1st April 2025. The record now settles the question. The judgment is dated *“Delivered and dated this 29th day of May, 2024”*; the proceedings record *“Judgment delivered”* before Hon. Dr. D. N. Ogoti (CM) on 29th May 2024; the electronic endorsement on the judgment reads 2024-05-29; and the decree recites the same date. I find that judgment was delivered on **29th May 2024**. The parties' references to 1st April 2025 are erroneous. 51. That finding, however, exposes a question which neither party has addressed. Judgment was delivered on 29th May 2024. The memorandum of appeal is dated 3rd March 2025, some nine months later. The record explains part of the interval but not all of it: the Appellant's present advocates came on record by a consent under Order 9 rule 9 of the Civil Procedure Rules dated 28th February 2025, and the decree was extracted on 6th March 2025 — three days after the memorandum of appeal was drawn. 52. **The scope of the appeal.** The Respondent's submissions invite this court to determine whether she was involved in a road traffic accident on 5th August 2017 and whether the Appellant was found liable for it. Neither question arises. The memorandum of appeal challenges the award on quantum alone, and does so expressly: the Appellant *“Appeals against the award on quantum of the said Judgment and decree”*. The findings on liability stand undisturbed and nothing in this judgment is to be read as disturbing them. 53. **The complaints of non-service and of failure to deposit the decretal sum.** The Respondent complains that the appeal was not served upon her until 18th May 2026 and that the Appellant failed to deposit the decretal amount in a joint account, which she characterises as contempt. There is no application before me on either matter. The Respondent has in fact been served, has filed submissions and has been heard, and no prejudice is demonstrated. As to the decretal sum, contempt cannot arise from the breach of an order which has not been shown to exist. 54. **A slip in the Appellant's submissions.** At paragraph 9 of its submissions the Appellant frames the first issue as whether *“the trial court's assessment and award of general damages at Kshs. 250,000 was excessive and/or inordinately high”*. The award was Kshs. 750,000/=, as the Appellant's own memorandum of appeal and paragraphs 4, 18 and 19 of its submissions all correctly state. The reference to Kshs. 250,000/= is plainly a slip and I treat it as such. ***The duty of a first appellate court*** 55. This is a first appeal. My duty is to reconsider and re-evaluate the evidence on the record, to assess it and to draw my own conclusions, bearing always in mind that I neither saw nor heard the witnesses and making due allowance in that respect. The Appellant relies on **Selle and Another vs Associated Motor Boat Co. Ltd and Another (1968) EA 123**, where it was held that an appellate court is not bound to follow the trial judge's findings of fact if it appears either that he failed to take account of particular circumstances or probabilities, or that the impression of the demeanour of a witness is inconsistent with the evidence generally. It also relies on **Peters vs Sunday Post Ltd 1958 EA 424**, where it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, that jurisdiction is exercised with caution; but that if there is no evidence to support a particular conclusion, or if it is shown that the trial judge failed to appreciate the weight or bearing of circumstances admitted or proved, or plainly went wrong, the appellate court will not hesitate so to decide. I respectfully accept those statements of principle and apply them. 56. In this appeal the caution ordinarily owed to a trial court's impressions of witnesses operates with less than its usual force, for the reason given at paragraph 25: the learned trial magistrate did not see or hear the witnesses either. He assessed the damages upon the same typed record which is now before me. To that extent this court is in as good a position as he was. 57. Where the appeal is against an award of general damages, the principles are narrower still. The assessment of general damages for pain, suffering and loss of amenities is a matter for the discretion of the trial court, and an appellate court does not interfere merely because it would itself have arrived at a different figure. In **Douglas Kalafa Ombeva v David Ngama (2013) eKLR**, quoted in the *Ndabari* judgment which the Appellant has annexed in full to its submissions, the Court of Appeal expressed itself thus: *“.... In law, sitting on appeal, we are duty bound to be slow in interfering with the assessment made by the trial Judge as in doing so the trial Judge is exercising discretionary powers. We can, however, interfere only where the trial Judge either considered matters that he ought not to have considered or did not consider what he should have considered or misapprehended certain aspects of the case, or on looking at the award in itself the award is either too low or too high that it must have reflected improper award.”* 58. In **Catholic Diocese of Kisumu v Sophia Achieng Tete (2004) eKLR**, also quoted in *Ndabari*, the same court emphasised the limited mandate of an appellate court: *“......It is trite law that the assessment of general damages is at the discretion of the trial court and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a difference figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles”.* 59. Those are the principles by which the Appellant's complaint must be measured. ***Issue (i): Whether the trial magistrate failed to consider the Appellant's submissions and authorities*** 60. The factual foundation of this ground is now established beyond argument. The Appellant did file submissions in the trial court. They are dated 22nd May 2023 and bear the filing stamp of the Senior Principal Magistrate's Court at Kisumu dated 24th May 2023. They run to five pages. They address involvement, liability, quantum and special damages in turn. On quantum they submit that the Respondent's injuries were a compound fracture of the left proximal humerus which had united, together with soft tissue injuries which had healed fully, and that an award of **Kshs. 300,000/=** would be fair and adequate compensation. In support the Appellant annexed a single authority, **Maina Onesmus v Charles Wanjohi Githome [2019] eKLR**, reproduced in full over six pages of the record, in which an award of Kshs. 600,000/= for fractures of the midshaft humerus, of the condyles and of the shoulder girdle was reduced on appeal to Kshs. 350,000/=. 61. The judgment does not mention those submissions. It does not mention *Maina Onesmus*. It does not mention the figure of Kshs. 300,000/=. It does not address the contention that the fracture had united or that the soft tissue injuries had healed. The only comparable award it considers is *Joseph Njeru Luke & 3 Others v Stella Muki Kioko [2020] eKLR*, which the Appellant did not cite and which is not to be found anywhere in its submissions. 62. Whether a trial court has *“considered”* submissions is not answered by asking whether it recited them. A court is not obliged to rehearse every argument advanced, and a judgment is not impeachable merely because it does not name every authority cited. Brevity is not a vice; many an excellent judgment is short. What matters is whether the reasoning discloses that the court applied its mind to the competing contentions and to the comparable awards placed before it. A judgment which engages with the authorities and prefers others, or which explains why the comparables urged are distinguishable, is not open to this complaint however much the losing party disagrees with the outcome. 63. This judgment does not disclose that. And the difficulty is not simply that *Maina Onesmus* went unmentioned. It is that *Maina Onesmus* was the only authority on the record concerning a fractured humerus — the very bone in issue in this case — and that it was an authority in which the High Court had reduced an award for three fractures of that limb to Kshs. 350,000/=. The learned trial magistrate awarded Kshs. 750,000/= for one fracture of that limb. He may have had good reasons for doing so. But an award of more than double the figure allowed in the only comparable before him concerning the same bone, made without any reference to that comparable, is an award for which the judgment supplies no reasoned foundation. 64. Nor does the comparable which the learned trial magistrate did adopt supply one. *Joseph Njeru Luke* concerned, on his own account of it, a fracture of the pelvis and soft tissue injuries. A fracture of the pelvis and a fracture of the proximal humerus are not the same injury; they are not injuries to the same part of the body; and they do not carry the same consequences. The proposition that *“the injuries in that case were similar to this one”* is stated as a conclusion and is nowhere explained. Standing alone it might have been a permissible shorthand. Standing in place of any engagement with the authority which pointed the other way, it is not. 65. I should say two things in fairness to the learned trial magistrate before stating my conclusion. The first is that he was not assisted. The Respondent's submissions in the trial court are not before me, but *Joseph Njeru Luke* did not come from the Appellant, and it is a fair inference that it came from the Respondent; a trial court can only work with what it is given, and it was given one authority by each side. The second is that the Appellant itself told the trial court that the injury was a **compound** fracture. It said so in terms in its own submissions. It cannot now complain that the trial court took the injury to be more serious than it was, when the characterisation the trial court adopted was the characterisation the Appellant pressed upon it. That point bears on the first ground of appeal, to which I come, rather than on this one. 66. Making every allowance for those matters, I am driven to the conclusion that the learned trial magistrate did not consider the Appellant's submissions on quantum or the authority annexed to them. That is not a failure of expression. It is, in the language of *Douglas Kalafa Ombeva*, a failure to consider what he should have considered; and in the language of *Catholic Diocese of Kisumu*, it is the application of a wrong principle, the correct principle being that comparable injuries should so far as possible be compensated by comparable awards — a principle which cannot be applied by considering one comparable and ignoring another which is closer to the facts. 67. **The second ground of appeal accordingly succeeds.** The award of Kshs. 750,000/= is open to the interference of this court, and the assessment of general damages falls to be made afresh. To that I now turn. ***Issue (ii): The injuries proved*** 68. The Respondent pleaded a compound fracture of the left proximal humerus, a swollen left hand, a swollen left wrist, a dislocation of the left wrist and an inability to lift the left arm. The Appellant is right that the evidence does not establish all of this. But it overstates its own case in two respects, and I take the points in turn. 69. **The fracture.** The transfer and referral summary of the Aga Khan Hospital, Kisumu dated 5th August 2017 records a diagnosis at transfer of *“compound fracture of left proximal humerus”*. That document, however, was completed in the emergency department on the very day of the accident, before any orthopaedic review, and its stated purpose was to refer the patient onward for an orthopaedic surgeon's review at a hospital of choice. Every subsequent document contradicts the characterisation. The medical report of Tenwek Hospital dated 5th September 2017, authored by Dr. Stephen L. Burgert and admitted by the Appellant's own consent, records that orthopaedic consultation confirmed a **closed** left proximal spiral oblique humerus fracture with wedge fragment, shortening of less than 2 cm, varus of 16 degrees and recurvatum of 14 degrees with acceptable tolerance, and that the radial, ulnar and median nerves were intact. The letter of Kisumu County Hospital dated 17th March 2018 likewise records a *“closed complete fracture of the left Humorous bone”*. The x-ray report of RITRI Medical Imaging Clinic reports a spiral fracture of the proximal humeral shaft. The Appellant is therefore correct that the fracture pleaded as compound was in truth a closed fracture. That is not a semantic point. A compound fracture is one in which the bone breaches the skin, with the attendant risk of infection and the greater pain and disability which follow. The Respondent did not suffer one. 70. I record, however, that this is a point the Appellant did not take in the trial court. Its submissions of 22nd May 2023 asserted in terms that the Respondent's injuries were a *“Compound fracture of the left proximal humerus which fracture has united”*. The learned trial magistrate cannot be criticised for proceeding upon a characterisation which both parties placed before him. The Appellant is entitled to take the point now, because this court re-evaluates the evidence and the medical documents are what they are; but the change of position is a reason for approaching the Appellant's remaining criticisms of the trial court with some care, and it disposes of any suggestion that the trial court shut its eyes to an argument on the compound/closed distinction. There was no such argument to shut its eyes to. 71. **The wrist.** The RITRI report reads the film of the left forearm as showing that the radius and ulna shafts are normal and that the wrist and hand bones are normal. PW2, the very clinician from Kisumu County Hospital who authored the letter of 17th March 2018 and who filled the P3 form, described the wrist in his oral evidence as *“tender”* — he did not say that it was dislocated. The pleaded dislocation of the left wrist is not made out. I note, however, that the Tenwek report records that on 31st August 2017 the Respondent reported left wrist swelling, stated that she had been diagnosed at another facility with distal radial-ulna syndesmosis and placed in a short arm cast, and that on examination a short arm cast and coaptation splint were found. There was therefore a genuine wrist complaint attended by treatment. What there was not was a dislocation. 72. The court also notes that the Appellant submits at paragraph 11 of its submissions on appeal that an x-ray *“was eventually done at RITRI imaging clinic on 17/04/2018, that is approximately one year after accident”*. That is not what the document says. The RITRI report is dated 17th April 2018, but it reports upon two films: an x-ray of the left humerus dated 5th August 2017, the day of the accident, and an x-ray of the left forearm taken at Jaramogi Oginga Odinga Teaching and Referral Hospital on 22nd August 2017. The receipt from that hospital dated 22nd August 2017 for an x-ray of the wrist joint confirms the second date. The films were contemporaneous; only the radiologist's report upon them was later. I make the correction because accuracy requires it, but I record that it assists rather than harms the Appellant: it means that the report upon which it relies is a reading of contemporaneous imaging and not, as it supposed, a snapshot taken a year after the event. 73. **Residual disability.** It is here that the Appellant overstates its case, and it does so on a foundation which the record has now removed altogether. It submits that the injuries *“had healed without resultant disability”*. No document before this court says so, and no witness said so. The Tenwek report of 5th September 2017 is the last medical document in point of time and it does not discharge the Respondent: it records that at the final review of 31st August 2017 there was still no visible callus and there was varus angulation, that the plan was to continue calcium tablets to attempt molding, and that she was to return for review in four weeks. What occurred at that review is not on the record. The letter of Kisumu County Hospital of 17th March 2018 — some seven months after the accident — records that a check x-ray showed that *“the healing process is still going on”*. PW2 said in cross-examination that the patient *“was healing”*, not that she had healed. And PW1 testified in cross-examination, in terms upon which she was not re-examined, that *“My hand is disabled and cannot do heavy duties.”* 74. The Appellant called no evidence. It closed its case on 19th April 2023 without calling the driver, without calling the Base Commander, and without producing the internal medical report which its own list of documents had marked *“to be availed at a later date”*. It never obtained a medical examination of the Respondent, or at least never produced one. PW1's evidence that her hand is disabled and cannot do heavy duties therefore stands **wholly unrebutted**, as does PW2's evidence that she was still healing, and as does the documentary evidence that the healing process was still going on seven months after the accident. The learned trial magistrate said as much: *“There was no other evidence to rebut the plaintiff's case.”* The submission that the injuries healed without resultant disability is not merely unsupported; it is contrary to the only evidence there is. 75. I therefore find the injuries proved to be: a closed spiral oblique fracture of the left proximal humerus with a wedge fragment, shortening of less than 2 cm, varus angulation of 16 degrees and recurvatum of 14 degrees, with the nerves intact; associated soft tissue injury including swelling of the left hand and wrist and a tender wrist; treatment by coaptation splinting and long arm posterior splinting and by U-slab plaster of Paris for some six weeks; a healing process still incomplete some seven months after the accident; and residual difficulty in the use of the left hand for heavy work. The pleaded compound fracture and the pleaded dislocation of the left wrist are not proved. The Respondent was 52 years of age at the time of the accident and is a farmer by occupation. ***The comparable awards*** 76. Five comparable awards are before this court. I take them in turn. 77. In **Joseph Njeru Luke & 3 Others v Stella Muki Kioko [2020] eKLR**, relied upon by the learned trial magistrate, concerned a fracture of the pelvis and soft tissue injuries, for which Kshs. 750,000/= was awarded. The report is not before me and I know of the case only what the judgment says of it. For the reasons given at paragraph 68 it is not a comparator for a fracture of the humerus. 78. Further in **Maina Onesmus v Charles Wanjohi Githome [2019] eKLR**, annexed by the Appellant in the trial court and relied upon again on appeal, is a decision of the High Court at Nyeri (Mumbua T. Matheka, J.) delivered on 8th February 2019. An award of Kshs. 600,000/= was set aside and Kshs. 350,000/= substituted for fractures of the midshaft humerus and of the condyles and a fragment fracture of the shoulder girdle. The learned Judge proceeded expressly on the footing that both the doctor who filled the P3 and the doctor who examined the claimant subsequently had assessed the degree of injury as *harm*, meaning that there was no permanent damage and the injuries had healed well. 79. Also in th case of **Boniface Chege Ndabari v Isaac Maina Waweru [2025] eKLR**, whose neutral citation is [2025] KEHC 8409 (KLR), concerned severe multiple soft tissue injuries and fractures of the right humerus and the right tibia, with a prognosis that the affected bones would suffer early osteoarthritis. The High Court at Murang'a (C. W. Githua, J.) declined to interfere with an award of Kshs. 400,000/=. 80. The *Ndabari* judgment, annexed in full to the Appellant's submissions on appeal, itself refers to two further awards which are accordingly before this court. In **Kiama v Mutiso [2024] KEHC 5135** an award of Kshs. 700,000/= as general damages for pain and suffering for a fracture of the left tibia and other soft tissue injuries was set aside and Kshs. 400,000/= substituted. In **Nguku Joseph & Another v Gerald Kihiu Maina [2020] eKLR** the High Court awarded Kshs. 500,000/= to a claimant who had suffered a fracture of the right humerus and other soft tissue injuries. 81. Of these, *Nguku Joseph* is the closest comparator on the injuries: a fracture of the humerus together with other soft tissue injuries, for which Kshs. 500,000/= was awarded in 2020. *Onesmus* concerned three fractures of the same limb and attracted Kshs. 350,000/= in 2019, but on the express footing that the degree of injury was harm and that the injuries had healed well and left no permanent damage. *Ndabari* concerned two fractures, extensive soft tissue injury and a prognosis of early osteoarthritis, and attracted Kshs. 400,000/=, an award made in March 2023 and upheld in June 2025. *Kiama* concerned a single tibia fracture and attracted Kshs. 400,000/= in 2024. 82. Measured against those authorities, an award of Kshs. 750,000/= for a single closed fracture of the humerus with associated soft tissue injury is on any view high. It exceeds *Nguku Joseph*, the closest comparator, by half, and approaches double the awards made in *Ndabari* and *Kiama* for injuries which were not less serious. 83. Two matters pull the other way, and I record them so that they are not lost. The first is the passage of time. The award in *Nguku Joseph* was made in 2020, and the assessments in *Onesmus* and *Ndabari* relate to injuries earlier still. An award made in 2024 is not to be measured against a 2019 or 2020 figure as though the value of money had stood still. Comparable awards guide; they do not bind; and some allowance for the erosion of the currency is legitimate and indeed necessary if the principle of *restitutio in integrum* upon which the Appellant itself relies is to mean anything. 84. The second is that in none of the four authorities urged by the Appellant was there evidence of unrebutted residual functional loss of the kind PW1 spoke to. In *Onesmus* in particular the court proceeded expressly on the footing that the injuries had healed well and that there was no permanent damage; that is the very foundation of the reduction to Kshs. 350,000/=, and it is a foundation which is absent here. In this case the last medical document in time records healing still in progress, the P3 classified the degree of injury as **maim** and not as harm, and the Respondent's unchallenged evidence is of a hand that cannot do heavy duties — evidence given by a farmer, for whom the use of the hands is not incidental to her livelihood but central to it. The Appellant, having called no evidence at all, is in no position to say otherwise. 85. It follows that the Appellant's proposed figure of Kshs. 400,000/= cannot stand. It would place a single fracture attended by an unrebutted residual functional loss and a P3 classification of maim on a par with *Ndabari*'s two fractures with a prognosis of early osteoarthritis, and below *Nguku Joseph*'s single humerus fracture assessed four years earlier. Neither comparison is one which the authorities the Appellant has itself cited will support. I note in passing that the Appellant asked the trial court for Kshs. 300,000/= and asks this court for Kshs. 400,000/=; it does not explain the difference, and the discrepancy does not improve either figure. ***The assessment*** 86. Having found that the learned trial magistrate applied a wrong principle, I must assess the damages afresh. The exercise is not arithmetical. I take as my starting point *Nguku Joseph*, the closest comparator on the injuries, where Kshs. 500,000/= was awarded in 2020 for a fracture of the humerus with other soft tissue injuries. I add something for the passage of the four years to the date of the trial court's judgment, and something for the two features which distinguish this case from the authorities urged by the Appellant, namely the P3 classification of maim and the unrebutted evidence of residual difficulty in the use of the left hand for heavy work in a claimant who farms for her living. I deduct nothing for the pleaded compound fracture and the pleaded dislocation, neither of which is proved, because I have not taken either into account in the first place. 87. Doing the best I can, I assess the general damages for pain, suffering and loss of amenities at **Kshs. 600,000/=**. I set aside the award of Kshs. 750,000/= and substitute that figure. ***Interest, special damages and the costs of the suit*** 88. The award of special damages of Kshs. 29,384/= is not appealed. It could not sensibly have been: the Appellant conceded in the trial court that the special damages pleaded and proved might be awarded. It stands. 89. The orders of the trial court as to the costs of the suit and as to interest are likewise not appealed, and the reduction of the general damages does not disturb them. The costs of the suit remain the Respondent's, to be taxed if not agreed; and interest remains payable on the general and special damages, the general damages now being in the reduced sum. For the avoidance of any doubt, and because the decree does not presently reflect either order accurately, I direct that the decree be amended to conform to the judgment as varied by this court. ***Issue (iii): Costs of the appeal*** 90. Costs ordinarily follow the event. The event here is equivocal. The Appellant has succeeded: it has established that the trial court failed to consider its submissions, and it has obtained a reduction of the award. But it has succeeded on a figure materially higher than the one it contended for, and its principal factual submission — that the injuries healed without resultant disability — has failed for want of any evidence, evidence which it was in its power to call and chose not to. 91. Against that, the Respondent has been out of her damages since 2018 in respect of an accident which occurred in 2017. She now appears in person against a corporate appellant represented by counsel. And the delay in the prosecution of the suit was very substantially the Appellant's doing: its defence hearing was adjourned on seven occasions between January 2022 and November 2022, it was granted a final adjournment which it did not use, and it ultimately closed its case without calling a witness at all. 92. In those circumstances I decline to award the Appellant the costs of this appeal, and I decline to award the Respondent hers. Each party shall bear its own costs of the appeal. **J. DISPOSITION** 93. The memorandum of appeal contains three prayers. I deal with each in turn. 1. **The appeal be allowed and the decree set aside.** 2. **That this court re-assess general damages afresh at Kshs. 600,000/= and substituted for the initial decretal sum of Kshs. 750,000/=.** 3. **Each party shall bear its own costs of the appeal** It is so ordered. **DATED, SIGNED AND DELIVERED AT KISUMU THIS 31ST DAY OF July 2026.** **HON. ALEX ITHUKU** **JUDGE** Judgment read in the presence of: Mr. .............................. for the Appellant The Respondent in person Court Assistant: Annastacia