https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10783

Onyango v Harick Enterprises Limited (Civil Appeal E027 of 2025) [2026] KEHC 10783 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10783 (KLR) Republic of Kenya In the High Court at Siaya Civil Appeal E027 of 2025 DK Kemei, J July 17, 2026 Between Stephen Otieno Onyango Appellant and Harick Enterprises Limited Respondent (Being an appeal from the judgement and resultant decree of the Small Claims Court at Siaya (Hon J.P Mkala (RM)) dated 21st March 2024 in Siaya SCCOMM No. E011of 2025) Judgment 1.The Appeal arises from the Judgment of the Hon. J. P. Mkala (RM) delivered on 21st March 2024 at Siaya in SCCCOM E011/2025 2.The claim before the lower court arose out of a road traffic accident that occurred on 26th December 2024 at around 1100 Hours at the Boro Area along the Siaya-Nyadorera Road. The Appellant was riding as a pillion passenger on a motorcycle Registration Number KMEB 416Y when the Respondent’s motor vehicle, an Isuzu FTR truck bearing Registration Number KDC 812P knocked the motorcycle from behind. 3.As a consequence of the impact, the Appellant sustained injuries, received medical treatment and subsequently filed a Statement of Claim in the Small Claims Court seeking both special and general damages. 4.Upon hearing the testimonies of the witnesses and considering the respective parties’ positions, the trial court entered judgment in favor of the Appellant in the following terms:Liability: 100% against the Respondent.General Damages (Pain & Suffering): Kshs. 90,000/-.Special Damages: Kshs. 32,888/-.Costs: Assessed at Kshs. 20,000/-. 5.Aggrieved by the wholesale decision of the trial court, the Appellant moved this Court via a Memorandum of Appeal dated 31st March 2025 herein they raised the following grounds of appeal namely; -a.That the Learned Trial Magistrate erred in law and in fact by awarding a sum in respect of general damages that was inordinately and unjustifiably low under the circumstances, occasioning a miscarriage of justice.b.That the Learned Trial Magistrate erred by failing to properly consider the Appellant’s testimony, evidence and submissions on record thereby arriving at an untenable and unjust finding. 3.This being the first Appellate court, its duty is to re-evaluate the record of the lower court and subject it to an independent analysis so as to reach its own conclusion as to whether or not to uphold the decision of the trial court. See Selle vs Associated Motor boat Co. Ltd [1968] EA 123. 4.To properly ascertain whether the trial court arrived at a sound determination on quantum, it is necessary to examine the evidence placed before the lower court regarding the accident and the resultant injuries. The Appellant (then Claimant) testified on her own behalf and corporate/expert witnesses were called to state their respective cases. 5.PW1, Stephen Otieno Onyango, He testified that he is the Claimant and was formerly known as Stephen Oduor Onyango before changing his name to Stephen Otieno Onyango. He admitted that he did not present any official documentation to prove the name change or to show he is the same person. He further noted that the discrepancy regarding his age in the documents was a typographical error made by the doctor. He testified that on 26th December 2024,he was riding motorcycle registration number KMEB 416Y. He had one pillion passenger on board at the time of the accident. Both he and the passenger were wearing helmets and reflective jackets. He stated that a lorry hit him from behind but he did not know the reason why it did so. He testified that he was hospitalized following the accident and was discharged on 2nd January, 2025. He stated that he was taken for a CT scan and spent Kshs. 30,000/- on medication. He added that at the time of his testimony, he was feeling well but acknowledged that he had no documents to show he was still under medication. 6.He adopted his witness statement dated 17th January 2025 as his evidence-in-chief and produced the following documents as exhibits; PEX-3: Copy of Identity Card and Copy of Records, Payment receipt for records .CR12 and its respective payment receipt, Notice of institution of suit and Demand letter; Exhibit 11a: Summarized documents; Exhibit 11b: Medical receipt; Exhibit 11c: Discharge summary; Exhibit 11d: Receipt for Kshs. 6,500/-; Exhibit 11e: Radiology report. Under cross-examination, he stated that his advocate performed the motor vehicle search while he was hospitalized. He claimed the motorcycle had insurance but conceded that he did not produce anything in court to prove it was insured nor did he produce his driving license. 7.Kevin Otieno Omondi (RW1) He testified that he is a businessman from Uranga, Siaya County. He adopted his witness statement dated 5th February 2025 and his documents were produced as Respondent’s Exhibits 1–3. Under cross-examination, he admitted that a road traffic accident occurred on 26th December 2024 involving their motor vehicle and the motorcycle. He confirmed that Stephen was the rider and Maryline was the passenger and that he was informed they were injured and taken to the Siaya County Hospital. He stated that Maryline was not admitted but Stephen was admitted. He stated he was not aware that they were hit from behind 8.The Appeal was canvassed by way of written submissions. Both parties filed their respective submissions. 9.The Appellant’s counsel submitted that via a Statement of Claim dated 17th January 2025, the Appellant sought compensation for personal loss and injuries arising from a road traffic accident that occurred on 26th December 2024 at approximately 11:00 AM at the Boro Area along the Siaya–Nyadorera Road. 10.It was submitted that the accident involved motor vehicle registration number KDC 812P which was owned, driven or managed by the Respondent's authorized driver, servant or agent. The counsel stated that the Respondent's vehicle hit the Appellant from behind while he was lawfully riding his motorcycle registration number KMEB 416Y. 11.The Appellant's counsel noted that the Respondent filed a Response to the Statement of Claim that consisted entirely of mere denials. 12.The counsel highlighted that during the trial, the Appellant adopted his witness statement and formally produced thirteen (13) distinct items into evidence as exhibits to support his claim. 13.It was reported that during cross-examination, the Appellant maintained that he was not yet fully healed and was still actively managing his recovery by purchasing medication from a pharmacy. Counsel stated that the Appellant sustained serious and grave bodily injuries, suffering immense loss and damage for which the Respondent was strictly liable. They noted that after the defense witness testified, the trial court delivered its judgment on 21st March 2025 finding the Respondent 100% liable and awarding Kshs. 90,000/- for general damages, Kshs. 32,888/- for special damages and court costs of Kshs. 20,000/- alongside a 30-day stay of execution. 14.The submission noted that being dissatisfied with the quantum of general damages, the Appellant lodged this appeal based on the grounds that the trial court's award was inordinately low, untenable and arrived at by failing to properly evaluate the evidence on record. The Appellant's counsel distilled the core issue for determination to be whether the trial court erred in law and fact in its assessment and final award of Quantum regarding General Damages. 15.The Appellant’s counsel cited Sections 107 and 108 of the Evidence Act (Cap 80). They argued that under Section 107, whoever desires a court to give judgment as to any legal right or liability dependent on facts must prove those facts exist. Under Section 108, they noted that the burden of proof lies on the person who would fail if no evidence were given on either side. 16.Counsel submitted that since this is a first appeal, the High Court is legally duty-bound to re-evaluate the entire evidence on record and reach its own independent conclusions. To support this position, the counsel relied on the following landmark decisions: Selle and Another v. Associated Motor Boat Company Limited and Others [1968] EA 123, to argue that a first appeal is a retrial and the appellate court is not bound by the trial judge’s findings if it appears the judge failed to take into account critical circumstances or probabilities. Williamson Diamonds Ltd and Another v. Brown [1970] EA 1 to reinforce that the court must reconsider the evidence, make its own evaluation and draw its own independent conclusions. Abok James Odera t/a A.J. Odera & Associates v. John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR, to emphasize that the primary role of the first appellate court is to re-evaluate, re-assess and re-analyze the record to determine whether the conclusions of the trial judge should stand. 17.The counsel cited Mbaka Nguru and Another v. James George Rakwar [1998] eKLR, arguing that any award of damages must reflect the trends of previous, recent and comparable awards while ensuring the victim is fairly compensated within Kenyan conditions. Counsel referred to Halsbury’s Laws of England (4th Edition, Volume 12(1),paragraph 883, page 348) to assert that damages for pain and suffering are meant to compensate an injured plaintiff for both the physical and mental distress endured, including the pain from the injury itself, the medical treatments and any mental anxiety or embarrassment over potential deterioration. 18.Counsel reminded the court that the medical reports, P3 form and treatment notes proved the Appellant sustained soft tissue injuries across five distinct areas: the head, chest, neck, elbow joints and knee joints. They emphasized that the Appellant had to be admitted and treated at the Siaya County Referral Hospital from 26th December 2024 to 2nd January 2025 before undergoing further follow-ups at the Rabuor Sub-County Hospital. It was vigorously argued that these injuries were serious, extensive and grave and therefore the trial court's award of Kshs. 90,000/- was entirely inadequate. To justify an enhancement, the counsel cited Kenya Power and Lighting Company Ltd v. Mary Akinyi (HC Civil Appeal No. 72 of 2007), where Lady Justice R.N. Sitati upheld an award of Kshs. 350,000/- for a plaintiff who had sustained soft tissue injuries in a road traffic accident. 19.Taking into account the severity of the injuries and the biting inflationary spirals of the current economy, counsel prayed that the High Court set aside the trial court's award and award the Appellant a sum of Kshs. 500,000/- in general damages as fair and reasonable compensation. 20.The Appellant’s counsel invoked the trite legal principle that costs follow the event and requested that the Appellant be awarded the costs of the suit. Counsel submitted that interest on the final decretal sum should be ordered to run from the date the suit was initially filed until payment in full. 21.The Respondent opposed the Appeal which was brought via the Memorandum of Appeal dated 31st March 2025. The Appellant herein challenged part of the Judgment of the Honourable J.P. Mkala (Resident Magistrate/Adjudicator) delivered on 21st March 2025 in Siaya SCCC No. E011 of 2025. 22.The Respondent observed that the Appellant being dissatisfied with the quantum of general damages moved to this Court seeking an upward variation of the award to Kshs. 500,000/-. It was the Respondent’s humble submission that the trial court's assessment was grounded in proper legal principles and evidence and that the Appeal entirely lacked merit. 23.The Respondent framed the sole issue for determination as whether the learned trial Adjudicator erred in principle in assessing and awarding General Damages at Kshs. 90,000/- so as to warrant appellate interference. 24.Counsel for the Respondent submitted that it is a long-standing principle of Kenyan law that an appellate court will not disturb an award of damages assessed by a trial court merely because it would have awarded a different sum noting that the parameters of intervention are very strict. To support this position, the Respondent relied on the locus classicus case of Butt v Khan [1981] KLR 349, where the Court of Appeal laid down the standard:“An appellate court will not disturb an award of damages unless it is satisfied that the judge itemized a wrong principle of law or that the amount awarded is so inordinately high or low that it must be an erroneous estimate of the damages." 3.The Respondent further cited the Court of Appeal decision in Kemfro Chemical Agencies Limited & Another v. A.M. Lubia & Another (1982) 1 KAR 343, where it was held:“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge are well settled. The appellate court must be satisfied either that 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 damage." 3.Counsel also referenced Charles Oriwo Odeyo vs. Appollo Justus Andabwa & Another [2017] eKLR regarding the principles guiding the court in the assessment of damages in personal injury cases, highlighting that:1.‘‘An award of damages is not meant to enrich the victim but to compensate them for the injuries sustained.2.The award should be commensurate with the injuries sustained.3.Previous awards in similar injury cases are mere guides, but each case must be treated on its own facts.4.Previous awards should be taken into account to maintain stability of awards, while factoring in inflation.5.The awards should not be inordinately low or high.’’ 3.Consequently, the Respondent submitted that the Appellant had completely failed to demonstrate that the trial Adjudicator acted on wrong principles, misapprehended the evidence or arrived at an award that could be characterized as "inordinately low" given the minor nature of the soft tissue injuries sustained. 4.Regarding the injuries, the Respondent pointed out that according to the medical records and the P3 Form produced by the Appellant, the injuries suffered were entirely soft tissue injuries specifically to the head, chest, neck, elbow joints and knee joints with no fractures, internal organ damage or permanent disabilities documented. 5.The Respondent contended that the trial Adjudicator correctly took into account recent comparable awards for soft tissue injuries placing safe reliance on the decision in Ephraim Wagura Muthui & 2 others v Toyota Kenya Limited & 2 others [2019] eKLR, where the 2nd Appellant suffered head contusions, neck, lower back and right thigh injuries and was awarded Kshs. 90,000/-, while the 3rd Appellant who suffered blunt trauma to the chest, cut wounds on the head/parietal area and contusions was awarded Kshs. 100,000/-. 6.To demonstrate that Kshs. 90,000/- is a reasonable and standard compensation for uncomplicated soft tissue injuries, the Respondent invited the Court to consider the following precedents where appeals for higher amounts were either dismissed or scaled down to similar levels:Adembesa & Another v Gweno (Civil Appeal E192 of 2023) [2024] KEHC 5379 (KLR): The claimant sustained generalized soft tissue injuries on the head, back, chest, shoulders, elbow joints and knees. The trial court's award of Kshs. 1,200,000/- for general damages was set aside on appeal by Justice R.E. Aburili who substituted it with an award of Kshs. 120,000/- finding the initial award grossly excessive for soft tissue harm.Ayoti Distributors Ltd v Auma (Civil Appeal E093 of 2021) [2024] KEHC 3881 (KLR): The claimant sustained soft tissue injuries following an accident. The trial court's award of Kshs. 700,000/- was set aside on appeal by Justice R.E. Aburili as excessive and substituted with Kshs. 200,000/- after factoring in the passage of time and inflation.Mutinda v Runji (Civil Appeal E038 of 2024) [2025] KEHC 3914 (KLR): The appellant sustained wounds on the left leg and left side of the head later developing osteoarthritis in the right knee joint. Justice R.M. Mwongo dismissed the appeal against an award of Kshs. 150,000/-, holding that the trial magistrate exercised proper discretion and that the sum was fair and adequate.Ukaviv Erasmus (Civil Appeal E018 of 2023) [2024] KEHC 1384 (KLR): The claimant sustained soft tissue injuries. The trial court's award of Kshs. 350,000/- was drastically scaled down on appeal by Justice L. Njuguna to a substituted award of Kshs. 180,000/- having found the original award manifestly excessive. 3.The Respondent addressed the authority of Kenya Power and Lighting Company Ltd v Mary Akinyi (HC Civil Appeal No. 72 of 2007) relied upon by the Appellant where Kshs. 350,000/- was awarded. 4.The Respondent argued that this authority was distinguishable pointing out that the Appellant’s own submissions had conceded that the injuries in Mary Akinyi were more severe. The Respondent submitted that it was highly contradictory for the Appellant to request a higher sum of Kshs. 500,000/- when his own injuries were explicitly less severe than those in a case that attracted a lower award. 5.It was further contended that damages must remain compensatory and fair to both sides and that awarding Kshs. 500,000/- for soft tissue injuries where the Appellant fully recovered without any neurological or orthopedic deficits would amount to unjust enrichment. 6.In conclusion, the Respondent submitted that the trial court properly balanced the nature of the soft tissue injuries against established judicial precedents. Finding no gap in logic or misdirection on the part of the trial Adjudicator, the Respondent prayed that the Appeal be dismissed in its entirety with costs to the Respondent. 7.I have carefully considered the Appeal, the Judgement of the Small claim court and the Rival submissions by parties and the main issue for determination is whether the Appeal has merit. 8.The legal framework controlling when an appellate court can interfere with an assessment of damages by a trial court is strictly settled. As established in the locus classicus case of Kemfro Chemical Agencies Limited & Another v. A.M. Lubia & Another (1982) 1 KAR 343, an appellate court will not disturb an award of damages unless it is demonstrated that the trial court applied wrong legal principles, misapprehended the evidence, took into account an irrelevant factor, left out a relevant factor or that the final sum is so inordinately high or low as to represent an entirely erroneous estimate. 9.In Butt v. Khan [1981] KLR 349, the Court of Appeal re-emphasized this threshold:“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low." 3.To ascertain whether the sum of Kshs. 90,000/- was appropriate, this Court must examine the nature, gravity and extent of the injuries sustained by the Appellant. Per the treatment notes from Siaya County Referral Hospital and the medical report compiled by Senior Clinical Officer George Mwita (CW2), the Appellant sustained multiple soft tissue injuries; Injury on the head, Injury on the chest, Injury on the neck. Injury on the elbow joints and Injury on the knee joints. 4.Crucially, the record reveals that the Appellant was not merely treated and discharged; he was hospitalized/admitted at the Siaya County Referral Hospital from 26th December 2024 to 2nd January 2025 (a period of 7 days) and continued to seek post-discharge care for persistent orthopedic pains. 5.In awarding Kshs. 90,000/-, the trial court placed substantial reliance on HB (Minor) v. Jasper Nchonga Magari [2021] eKLR (where Kshs. 60,000/- was awarded for right thigh injuries and limb bruises) and Ephraim Wagura Muthui & 2 Others v. Toyota Kenya Limited & 2 Others [2019] eKLR (where awards ranged between Kshs. 90,000/- and Kshs. 100,000/- for contusions on the forehead, neck, chest and lower back). 6.The Appellant argues in his submissions that the trial court failed to appreciate the multiplicity of the injuries and the impact of inflation since 2019 and 2021. The Appellant proposes an award of Kshs. 500,000/-, citing Kenya Power and Lighting Company Ltd v. Mary Akinyi, H.C.C.A. No. 72 of 2007, where an award of Kshs. 350,000/- for soft tissue injuries was upheld. 7.While awards must be reasonable and reflect comparable trends within Kenyan conditions (Mbaka Nguru & Another v. James George Rakwar [1998] eKLR), each case must be handled based on its unique facts. The authorities relied upon by the trial adjudicator involved minor contusions that did not warrant prolonged hospitalization. In the present case, the Appellant suffered extensive, generalized soft tissue injuries covering five distinct anatomical regions (head, neck, chest, knees and elbows) and was hospitalized for a week. 8.By assessing the injuries strictly as basic "soft tissue injuries" without factoring in the physical distress of a seven-day hospitalization and ongoing post-discharge orthopedic management, the trial court misapprehended the weight of the evidence. Compounding this is the macroeconomic reality of inflationary trends over the years. To award Kshs. 90,000/- for injuries requiring hospital admission in 2025 is inordinately low and represents an erroneous estimate. 9.Guided by comparable jurisprudence and balancing the need to ensure the Appellant receives just compensation for his pain and suffering without creating an unjust windfall, this Court finds that an award of Kshs.150,000/- is reasonable, fair and legally sustainable in the circumstances. 10.In view of the foregoing observations, it is my finding that the Appellant's appeal which was on quantum of general damages has merit. The same is allowed. The judgment of the Small Claims Court delivered on 21st March 2025 regarding the quantum of general damages is hereby is set aside and substituted with an award of Kshs. 150,000/-.The other awards shall remain undisturbed. The costs of the appeal are awarded to the Appellant. DATED AND DELIVERED AT SIAYA, THIS 17TH JULY DAY OF JULY 2026D.KEMEIJUDGEIn the presence of:M/s Omondi for Cheloti………………for the AppellantM/s Akinyi for M/s Muthoni………………..for the RespondentMaureen……………………………………..Court Assistant