Maranga v Onsomu (Civil Appeal 120 of 2024) [2026] KEHC 9154 (KLR) (25 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII COUNTY** **KISII HIGH COURT** **HCCA NO. 120 OF 2024** WILLIAM MOGAKA MARANGA..................................APPELLANT VS JOSEPH ANYORO ONSOMU...................................RESPONDENT *(Being an appeal from the Judgement delivered by Hon. Calestous Sindani Nambafu on 14th May 2024 in Ogembo PMCC E052 OF 2022)* **JUDGMENT** **Background of the appeal** 1. This appeal emanates from a suit filed at the Chief Magistrates court in Kisii with regards to a road accident that occurred on 5th February 2022 involving a motor vehicle registration number KCS 306 M driven by the Appellant’s driver/agent that allegedly knocked down the Respondent who subsequently sustained injuries. 2. At the trial court, the Respondent relied on four witnesses:PW1, Dr. Peter Morebu, a senior medical officer working at KTRH who produced a medical report, discharge summary and the P3 form. He testified that he examined the respondent three weeks after the accident and that he assessed him at 30% disability as at the time of examination. 3. PW2; Risper Nyawera Mwangi, a health records officer from Hema Hospital confirmed the Respondent had been admitted in their facility and underwent surgery and had x rays undertaken, she produced treatment receipts, and a discharge summary. 4. The Respondent also called PW3, PC Alfred Komen a police officer who produced the police abstract. He stated that he did not visit the scene neither does he have sketch plans and that from the police abstract, the investigations are ongoing hence he could not attribute liability to any party. The Respondent testified as PW4 where he adopted his statement as evidence in chief. 5. The Appellant called in one witness DW1, Dr. Mohammed Malik who testified that he examined the Respondent on 19/8/2022 and that he was walking on one crutch, though he could walk without it. He further stated that he undertook a second x- ray which indicated a fully united oblique fracture of the upper third of the tibia and a visible fracture line. He further stated that the x ray did not show any mental implants as indicated in the treatment card and that the site of the fracture did not match with the one provided by the Respondent. He concluded the respondent did not suffer any permanent disability. 6. The Learned Trial magistrate at the trial court delivered a judgement on 15th March 2024 attributing 100% liability to the appellant, awarding general damages of Kshs 650,000/= and special damages of Kshs. 132,860/= plus costs and interest. 7. Aggrieved with the decision of the Trial Court Magistrate, the Appellant filed this instant appeal on the following summarized grounds: That the learned trial Magistrate erred in law and fact by failing to properly evaluate the Appellant’s evidence and submissions and thus reaching an erroneous decision on the issue of liability and quantum; failing to award as sought, basing decisions on irrelevant fact rather than those on record and failing to uphold the legal parameters of binding precedents. 8. The Appeal also sought to introduce new evidence showing the matter in the lower court was fraudulent and judgment is prejudicial to the Appellant. The Appellant therefore prayed for the appeal to be allowed and the judgment of the trial court be set aside or quashed. **Appellant’s Submissions** 1. The Appellant supported his appeal with written submissions dated 3rd of February 2026 focusing on both liability and quantum. On liability, the Appellant highlighted that PW3, the police officer, confirmed he was not the investigations officer and could only read the circumstances as was recorded in the occurrence book and that he did not visit the scene and therefore the evidence in court was not firsthand. 2. The Appellant further averred that PW3 did not produce any sketch maps or police files to assist the court make a fair decision as to who caused the accident. The Appellant submitted that the allegation that the motor vehicle knocked down the Respondent was never proved. 3. On quantum, the Appellant submitted that the trial court failed to reconcile the material contradictions and failure to interrogate on the severity, consistency and healing status of the alleged injuries in light of the totality of the medical evidence. The Appellant highlighted the second medical report that lay questions of credibility on the x rays presented. 4. The appellant further averred that the trial court was not guided by the nature and extent of injuries to give a comparable award. Citing two authorities, the appellant proposed an award of Kshs. 250,000/=. **Respondent’s Submissions** 1. The Respondent on their side opposed the appeal through their written submission dated 2nd March 2026 on liability and quantum as well as the introduction of new evidence. On quantum the respondents highlighted that the Appellant’s doctor did not dispute the compound fracture of the tibia. He reiterated the injuries sustained and an assessment of disability at 30%. The respondent further stated that the assertions by the Appellant’s doctor on credibility does not hold with water since the doubts were cleared by Hema Hospital. The Respondent citing one authority supported the trial court’s award of Kshs. 650,000/= 2. On liability the Respondent submitted that it is not in dispute that the accident occurred on 5th of February 2022. The Respondent averred that the police officer’s evidence was in his favor and that the Appellant did not call any witnesses to rebut the evidence. 3. On the production of additional evidence at the appeal evidence, the Respondent refuted this stating that it will be a circumvention of the law and that the forum for such is a review not an appeal. **Analysis and Determination** 1. Before delving into the crux of the appeal, this court will commence on the ground of appeal that sought to introduce new evidence at this stage. 2. It is trite that an appeal is not a retrial in the sense of affording a party an opportunity to reconstruct their case or fill in evidential gaps. 3. While this court has limited discretion to admit evidence on appeal, the same is exercised sparingly and only in exceptional circumstances. Indeed Order 42 Rule 7 of the Civil Procedure Rules provides for these circumstances if: 4. **the court from whose decree the appeal is preferred has refused to admit evidence which ought to have been admitted; or** 5. **the court to which the appeal is preferred requires any document to be produced or any witness to be examined to enable it to pronounce judgment, or for any other substantial cause,** 6. To permit evidence at the appeal stage would prejudice the other party. 7. In the case of Ladd v. Marshall (1945) 1 WLR 1489, the courts stated that; ***“It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial… the evidence must be such that if given it would probably have an important influence of the result of the case.”*** 1. Having carefully analyzed the record of appeal and the Appellant’s submissions thereto, this court is unable to find any evidence that points to the trial court’s fraudulence as alleged by the Appellant. 2. Having dispensed with the above issue the court will go to the main issues arising in this appeal. There is no contention that an accident did occur on 5th February 2022. There is also no contention that the vehicle in question KCS 306M belonging to the Appellant. What is in contention and which the court has framed as the main issues for determination are as follows: 3. Whether the learned trial magistrate properly evaluated the evidence to apportion liability; 4. What is the nature of injuries sustained by the respondent; and 5. What quantum should be awarded for the damages? **Whether the learned trial magistrate properly evaluated the evidence to apportion liability** 1. I have carefully analyzed the appeal and trial record in its entirety as well as the evidence adduced and submissions by both parties. At the trial, PW3, PC Komen produced the police abstract that confirmed the accident occurred on 5/2/2022 at 11pm involving the Appellant’s motor vehicle KCS 306 M. 2. In his testimony he indicated that he did not visit the scene, did not have the sketch plans and that the abstract indicated the matter was still under investigations. He indicated that he could not tell the circumstances of the accident and was unable to blame either party. 3. The Respondent on his part indicated that he was walking along the road and was knocked by the Appellant’s vehicle, that he was on the left side, but that it was at night hence he could not see the vehicle’s registration number. In his plaintiff statement dated 8th March 2022 which was produced as evidence in chief, he testified that the driver of Motor Vehicle KCS 306M had been careless and was driving at a high speed. 4. Before I determine this issue, this court is reminded of the trite principle of an appellate court that the role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (**See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I).** 5. The Appellant in this appeal faults the trial court Magistrate for finding him wholly liable despite the police officer not being the investigating officer, no sketch maps provided and being unable to apportion blame on either party. 6. However, liability in a civil claim is not established exclusively through police investigations. The Respondent testified as an eye witness to the accident and maintained that he was walking on the left side of the road when he was knocked down by the Appellant’s vehicle that was driving at a fast speed. 7. The police abstract corroborated the occurrence of the accident and identified both the Appellant’s motor vehicle as well the respondent at the site of the accident. 8. The Appellant elected not to call the driver of the vehicle or any other witness to rebut the above evidence of how the accident occurred and their negligence or to offer an alternative narrative. 9. Faced with the above context, this court is satisfied that the learned trial Magistrate exercised proper discretion, on a balance of probability to accept the Respondent’s unrebutted evidence. 10. An appellate court interferes with findings only where they are based on no evidence, or founded on a misapprehension of the evidence, or where the trial court acted on wrong principles as elaborated in the case of **Kiruga v Kiruga & Another (1988) KLR 348**. 11. The finding on liability was supported by the evidence on record hence this court finds no basis to interfere with the trial court holding the Appellant’s 100% liable. **What was the nature of injuries sustained by the respondent as a result of the accident** 1. The Appellant’s doctor indicated that the x ray presented by the Respondent shows a fracture of the middle third of the tibia and no fracture of the fibula. The 2nd x-ray administered shows a united fracture of the upper third tibia that was fully united with the upper third of the fibula. 2. He asserted that it is possible it was a forgery and called on the investigation of the hospital that treated him. The Respondent at the trial refuted this claim when the health records at the hospital where he was treated, Hema Hospital, testified that indeed the Respondent was admitted at their facility, had an x- ray administered and underwent surgery. The discharge summary was adduced as evidence. This was further corroborated by the Respondent’s medical report upon examination on 25th February 2022 as well the P3 form. 3. Having analyzed the above evidence, there is therefore no contention that the Respondent sustained injuries as a result of the accident particularly of a fracture to the tibia. There is also no refuting of the multiple soft tissue injuries. 4. This court is therefore persuaded that on a balance of probability, the Respondent was able to claim that he sustained the following injuries: *bruises on the chest, bruises on the back, compound fractures on the tibia and deep cut wounds on the right knee.* **What is a just and fair quantum to be awarded** 1. Having established the injuries sustained by the Respondent, what then would be the fair and just quantum award. I am guided by the trite principles that awards must be guided by comparable injuries. 2. The Respondent in support of the trial award of Kshs. 650,000/= relied on the authority of **Mwaura Muiruri v Suera Flowers Limited & Another (2014)** where the courts awarded Kshs 1,450,000/= for similar injuries. This court notes that this particular case cited by the respondent entailed multiple double fractures which may not be comparable in this case. 3. The Appellant on the other side while proposing an award of Kshs. 250,000/= cited the following authorities; **Adembesa & another v Gweno (Civil Appeal E192 of 2023) [2024] KEHC 5379 (KLR)** where for multiple soft tissue injuries, the court set aside the award of **Kshs. 1,200,000/=** awarded as general damages and substitute it with an award of **Kshs. 120,000; and National Industrial Credit Ltd & 2 others v MNO (Minor Suing Thro’ Next of Friend and Mother FNM) (Civil Appeal E035 of 2023) [2024] KEHC 3824 (KLR)** where the courts awarded it **Kshs. 250,000/=** for multiple soft tissue injuries. 4. The court notes that the two authorities cited by the Appellant relate to soft tissue injuries and not a combination with compound fracture as the case in the present appeal therefore cannot guide this court on a comparable award. 5. This court has further undertaken an analysis of recent authorities of comparable injuries of compound fractures coupled with multiple soft tissue injuries as follows: **Ndwiga & another v. Mukimba (2022) KEHC 11793 (KLR)** as cited in **Magembe & 2 others v. Shisisa (2025) KEHC 11720 (KLR)** the claimant sustained tenderness and swelling of the left leg and fracture of the tibia and fibula left leg and was awarded Kshs. 500,000/=. In the case of **Onginjo v Ogollah (Civil Appeal E030 of 2025) [2025] KEHC 17998 (KLR)** the courts found that an award of Kshs. 600,000/= for comparable injuries was not excessive; **Hussein Sambur Hussien v. Sharrif A. Abdulla Hussein & 2 others (2022)** where the court awarded Kshs. 600,000/= general damages for fractures, dislocation and permanent incapacity of 18% and the case of **Samuel Ndung’u Mbugua v. Jane Wambui Gitahi and another (2022) eKLR** for comparable injuries awarded Kshs. 400,000/= 6. The principles guiding this court in relooking into the quantum of general damages awarded were set out in **Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini v A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730** as follows: **“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 were held by the former Court of Appeal of Eastern Africa to be 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 damage.”** 1. This court follows the same principles and having taken into consideration the nature of the injuries sustained by the Respondent as well as the healing process where the second medical assessment indicated no permanent disability and a unified tibia, I am persuaded to upset the trial award of **Kshs 650,000/=** and replace it with **Kshs 500,000/=.** **Disposition** 1. Consequently, this court make the following orders; 2. That the appeal on quantum succeeds. The award by the trial magistrate of **Kshs. 650,000/=** is hereby set aside and substituted with **Kshs. 500,000/=** 3. The liability apportioned by the trial court of 100% remains as against the Appellant. 4. Each party shall bear their own costs of this appeal It is so ordered. **DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 25TH DAY OF JUNE 2026** **A.M. OKUTOYI** **JUDGE** In the presence of: **Ms. Anyango for the Appellant** **Ms. Nyandoro for the Respondent** **Ruth Mokeira -Court Assistant**