1. This appeal emanates from the judgement and decree of Hon. G.N. Barasah, Senior Resident Magistrate delivered on 11th April, 2024 in Kisumu MCCC/E013/2023 Melton Odhiambo Odhiambo v East African Institute of African Studies Limited.
2. This appeal relates solely to the issue of quantum of damages. The trial court’s finding on liability – that the Appellant was 100% liable in negligence – is not contested. The Appellant relies on the following grounds of appeal, as set out in the memorandum of appeal dated 3rd May, 2024, in seeking to set aside the judgment and decree of the trial court with respect to the award on quantum:
i. THAT the learned trial Magistrate erred in law and in fact in awarding general damages of Ksh.500,000/- which award was excessive and not commensurate to the nature of injuries sustained by the Respondent.
ii. THAT the learned trial Magistrate erred in law and in fact in holding that the Respondent sustained a hairline fracture right radius.
iii. THAT the learned trial Magistrate erred in law and in fact in failing to pay regard to authorities in the Appellant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case that she was deciding.
3. The Appellant proposes that the appeal be allowed, that the trial court’s finding and/or assessment on the quantum of damages be set aside, this court proceeds to make its own assessment and that the costs of the appeal be awarded to the Appellant.
4. As this is a first appeal, I am obligated, pursuant to Section 78 of the Civil Procedure Act and as articulated in Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123, to re-assess, re-analyze and re-evaluate the evidence presented before the trial court and to arrive at my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. I will, however, confine my consideration to the evidence relevant to the issue of quantum of damages.
5. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
7. The matter before the trial court, based on tortious liability arising out of a road traffic accident that is said to have occurred on 1st October, 2021 in which the Respondent (the Plaintiff before the trial court) sustained bodily injuries.
8. The Respondent sued the Appellant vide the plaint dated 10th April, 2023 seeking to recover general damages for the injuries sustained, claiming that the accident occurred due to the negligence of the Appellant and/or its servant, employee and/or agent.
9. The Respondent pleaded listed the following particulars of injuries and particulars of special damages in his pleading:
Particulars of injuries:
a. Hairline fracture of proximal radius of the right elbow.
b. Trauma on both elbow joints.
c. Painful exclusion of the limbs.
d. Swollen right hand elbow.
e. Minor bruises of the left lower limb.
f. Swollen mid right leg with bruises and tenderness.
10. The Appellant resisted the claim and, in that regard, filed a statement of defence dated 3rd May, 2023. In particular, the Appellant denied that the Respondent sustained the nature and extent of injuries as pleaded in the plaint.
11. The Respondent testified before the trial court as PW1 and adopted his witness statement dated 8th November, 2021 as his evidence-in-chief. In that statement, he reiterated that he sustained the injuries enumerated above as a result of the accident. He further stated that he received treatment at Kisumu County Referral Hospital and was subsequently reviewed at the same facility on 18th October, 2021 and 25th November, 2021.
12. The Respondent testified before the trial court as PW1 and adopted the contents of his witness statement dated 8th November, 2021 as his evidence-in-chief. In his statement, the Respondent reiterated that he sustained the injuries listed above in the accident. He stated that he was treated at Kisumu County Referral Hospital where he was later reviewed on 18th October, 2021 and 25th November, 2021.
13. The Respondent produced the following documents in support of his case:
- Outpatient/inpatient statement.
- Radiology request form.
- 2nd Radiology request form.
- Treatment notes and receipts.
- P3 form.
- Copy of Xray results.
- Police abstract.
- Demand letter.
14. The Respondent further testified that he underwent an X-ray, stating that although the doctor who initially treated him did not record any fracture, the doctor who later examined him identified and confirmed its existence.
15. The record of the trial court indicates that the Appellant sought and was granted leave to file and produce a second medical opinion prepared following an examination of the Respondent by the Appellant’s doctor. However, the record further shows that the Appellant thereafter closed its case without calling any witness or producing any documentary evidence, notwithstanding that leave was granted.
16. Among the issues the learned trial Magistrate set out to determine in his judgement of 11th April, 2024, was that of quantum between the parties. In determining that issue, she rendered herself as follows:
“The matter was set down for hearing and PW1 on 1/10/21 (sic) he was aboard M/V reg. No KСХ 134 X - along Kisumu Ahero Road heading to Nairobi. That the M/V herein joined the road abruptly to refuel without stopping to give way and knocked down from behind Motorcycle Registration no. KMDR 074T which was heading the same direction. That the vehicle overturned and the plaintiff sustained the following injuries:-
- Hairline fracture of proximal radius of the right elbow.
- Trauma on both elbow joints, swollen right hand elbow.
- Painful exclusion of the limbs.
- Minor bruises on the left lower limb.
- Swollen mid right leg with bruises and tenderness.
That he was rushed for treatment at JOOTRH and was treated and discharged. That he was issued with a P3 form which was filled after he reported at the police station.
PW1 closed his case and the defence closed theirs without calling any witness.
Issues for determination by the court is:
- Liability.
- Quantam and costs.
The plaintiff was an authorized passenger aboard the M/V herein and didn't contribute in any way to the occurrence of the accident, so liability will be sat 100% against the defendants.
I will rely on Civil Appeal No. E050/21 Kiautha v Ntarangwi where Justice Edward Muriithi set aside an award of Ksh.2,000,000/- for a fracture and substituted it with Ksh.800,000/-.
In this case hairline fracture is a tiny crack in the bone caused by repetitive stress or force mostly from over use. PW1 was also treated and discharged the same day. From the P3 form the injuries are classified as harm.
It is unfortunate that the documents were produced by consent without calling the makers or experts. I will therefore give an award of Ksh.500,000/-.”
17. As is evident from the memorandum of appeal and as previously stated, the present appeal is solely premised on the issue of liability. The appeal was canvassed by way of written submissions.
18. In its written submissions, the Appellant contends that the central issue for determination by this Honourable Court is whether the Respondent sustained a hairline fracture of the right radius and whether the award of Ksh.500,000/- as general damages was excessive in the circumstances.
19. The Appellant urges the Court to set aside the entire finding of the lower Court and to re-evaluate the quantum, noting that the Respondent mainly suffered soft tissue injuries.
20. The Appellant submits that the assessment of general damages is a discretionary exercise which must be conducted judicially, with due regard to legal principles. The exercise of discretion can be interfered with if the trial court took into account irrelevant factors, omitted relevant factors or arrived at an amount that is so inordinately high or low as to constitute a wholly erroneous estimate. The Appellant asserts that an award of damages must remain within limits set by precedent, taking into account comparable injuries, as established in Kigaraari v Aya (1982-88) 1 KAR 768, and cited in Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018] eKLR.
21. The Appellant outlines that the Respondent’s injuries, as per the plaint, included a purported hairline fracture of the proximal radius of the right elbow, trauma on both elbows, painful exclusion of the limbs, swollen right elbow and hand, minor bruises on the left lower limb and a swollen mid-right leg with bruises and tenderness.
22. Evidence from Kisumu County Hospital, including radiology reports and P3 treatment forms, as per the Appellant’s contention, indicated that the right elbow was normal with no fracture or dislocation and the treatment administered was analgesics. Documents allegedly indicating a fracture were only marked for identification and were not admitted into evidence, and therefore do not form part of the court record. It relies on the case of Billiah Matiangi v Kisii Bottlers Limited & Another [2021] eKLR.
23. The Appellant emphasizes that the Respondent failed to prove a hairline fracture and that only soft tissue injuries were substantiated. Accordingly, the Appellant argues that the award of Ksh.500,000/- was excessive and urges the Court to reduce the award to not more than Kshs. 100,000/-.
24. In support, the Appellant cites PF (Suing as next friend and father of SK (Minor)) v Victor O Kamadi & Another [2018] eKLR, where a similar award for soft tissue injuries was adjusted on appeal from Ksh.50,000/- to Ksh.100,000/-.
25. The Appellant concludes by requesting that the Honourable Court exercise its discretion in favour of the Appellant, allow the appeal, and award costs accordingly.
26. The Respondent, just like the Appellant, contends in his submissions that the primary issue before the Court is whether he sustained a hairline fracture of the right radius and whether the general damages awarded were excessive. He relies on his oral testimony, written statement and treatment documents, including outpatient/inpatient continuation sheets, X-ray request and report forms and the P3 form which he states confirm the injuries he sustained, which include a hairline fracture of the proximal radius of the right elbow, trauma on both elbows, painful exclusion of the limbs, swelling and bruises.
27. The Respondent explains that any apparent disparity in X-ray findings was due to a re-reading by a different doctor who confirmed the fracture after assessing his symptoms. The treatment documents were produced in court by consent of both parties and were not contested by the Appellant. Consequently, he asserts that the injuries were proven on a balance of probabilities.
28. On the applicable law, the Respondent submits that an appellate court will only interfere with an award of general damages if it is so inordinately high or low as to represent an entirely erroneous estimate, or if the trial judge proceeded on wrong principles or misapprehended the evidence. He relies on the authorities of Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR; Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR; and Shabani v City Council of Nairobi [1985] KLR 516. He also cites Kigaraari v Aya [1985] KLR 273 and Simon Taveta v Mercy Mutitu Njeru [2014] eKLR to emphasize the need for consistency in awards and compensation based on comparable injuries.
29. The Respondent argues that the trial magistrate applied these principles correctly, awarding general damages in line with comparable cases. He cites previous authorities with similar or lesser injuries and higher awards: Kirinyaga District Co-operative Union & Another v Eustace Macheru Wilson, H.C.C.A No. 23 of 2010, Judy Ngochi v Kamakia Ele Selelo Ledamoi, H.C.C.A No. 15 of 2017, and Lawrence Wairimu Wanyoike & another v Joseph Letting H.C.C.A No. 2 of 2020.
30. Considering the Respondent’s injuries, the age of the cited cases, and inflationary effects, he contends that the award of Ksh.500,000/- was reasonable. He urges the Court to uphold the trial court’s award, as it was neither inordinately high nor based on wrong principles or misapprehension of the evidence.
31. Having considered the grounds of appeal, the record of the trial court, the submissions of the parties and the applicable law, I will proceed to set out the issues that I am now required to determine.
32. The first issue for determination is whether the Respondent sustained a hairline fracture of the proximal radius of the right elbow as a result of the road traffic accident on 1st October, 2021.
33. The second issue for determination is whether the general damages awarded by the trial court, amounting to Ksh.500,000/-, were excessive and if this appellate court should exercise its discretion to adjust the award.
34. A related issue is whether the trial court properly applied legal principles and precedent in assessing the quantum of damages, taking into account the nature and extent of the injuries, the evidence adduced by the parties and comparable awards in previous cases.
35. I will proceed to address the three issues.
36. The first issue for determination is whether the Respondent sustained a hairline fracture of the proximal radius of the right elbow as a result of the road traffic accident on 1st October, 2021.
37. Upon a careful review of the evidence, it is noted that the Respondent produced an orthopaedic trauma review report dated 18th October, 2025, which confirms the presence of a hairline fracture of the proximal radius.
38. This report was issued following the initial radiology report dated 12th April, 2025, which had not shown any fracture. The Respondent explained that the fracture was not observed in the initial examination but was identified upon a subsequent review by a different doctor, based on his continuing symptoms and clinical assessment.
39. Contrary to the Appellant’s contention that the document indicating the fracture was never produced, the record shows that the orthopaedic review report was in fact produced in evidence and forms part of the trial court’s record. The Appellant was aware of its existence and had the opportunity to challenge it.
40. The explanation that the fracture was noted only upon review is in my view medically sound, as hairline fractures can be subtle and sometimes only detectable upon repeat assessment or careful clinical evaluation.
41. It is instructive from the record of the trial court that the Appellant was granted leave to produce counter evidence, including a second medical opinion, but failed to call any witness or adduce any documentary evidence to contradict the Respondent’s claim. In the absence of any contrary evidence, the Respondent’s proof stands unchallenged.
42. Having considered the evidence, including the orthopaedic review report and the consistent testimony of the Respondent, this court finds that the Respondent proved, on a balance of probabilities, that he sustained a hairline fracture of the proximal radius of the right elbow. The first issue is therefore determined in favour of the Respondent.
43. The second and third issues for determination, which I will now consider together, are whether the general damages awarded by the trial court in the sum of Ksh.500,000/- were excessive, and whether the trial court correctly applied legal principles and precedent in assessing the quantum of damages.
44. It is settled law that assessment of general damages for personal injury is a matter of judicial discretion. An appellate court will only interfere with such an award if it is so inordinately high or low as to represent an entirely erroneous estimate, or if the trial court proceeded on wrong principles or misapprehended the evidence (Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR; Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR; Shabani v City Council of Nairobi [1985] KLR 516).
45. In the present case, the trial court carefully considered the nature and extent of the injuries sustained by the Respondent, including a confirmed hairline fracture of the proximal radius of the right elbow, trauma on both elbow joints, swelling, painful exclusion of the limbs and bruising. These injuries, particularly the hairline fracture, were corroborated by the orthopaedic trauma review report dated 18th October, 2025 and the other medical treatment documents, which were produced with the consent of both parties.
46. The Appellant contends that the Respondent only sustained soft tissue injuries and that the award was excessive. However, the confirmed fracture, along with the associated pain and functional limitations, materially increased the severity of the harm suffered. The Appellant was granted leave to produce a second medical opinion to challenge this evidence but failed to do so. In the absence of any contrary evidence, the Respondent’s proof stands unchallenged.
47. The trial court also relied on a previous decision, Civil Appeal No. E050 of 21 Kiautha v Ntarangwi, where the injured party sustained comparable injuries, including a fracture and the award was adjusted to reflect the nature and severity of the harm. This demonstrates that the trial court applied the principle of awarding compensation based on comparable injuries and consistent with established precedent.
48. Further, the trial court’s award aligns with other authorities cited in the record, including Kirinyaga District Co-operative Union & Another v Eustace Macheru Wilson, H.C.C.A No. 23 of 2010, Judy Ngochi v Kamakia Ele Selelo Ledamoi, H.C.C.A No. 15 of 2017, and Lawrence Wairimu Wanyoike & Another v Joseph Letting, H.C.C.A No. 2 of 2020, where parties with injuries of similar or lesser severity were awarded comparable or higher sums.
49. Considering the nature and extent of the Respondent’s proven injuries, the consistent evidence, the absence of counter evidence from the Appellant and the reliance on decisions involving comparable injuries, this court finds that the trial court’s award of Ksh.500,000/- was neither inordinately high nor based on any misapprehension of the law or evidence.
50. Accordingly, the Court determines that the trial court acted judicially and in accordance with established legal principles in assessing the quantum of damages. The second and third issues are therefore resolved in favour of the Respondent and the award of Ksh.500,000/- is upheld.
51. In light of the foregoing determinations, this court finds that the instant appeal lacks merit and is hereby dismissed in its entirety.
52. On the issue of costs, Section 27 of the Civil Procedure Act dictates that costs follow the event, unless for stated reasons the court orders otherwise. Accordingly, the Appellant is hereby condemned to pay the costs of this appeal to the Respondent, which I assess at Ksh25,000/-.
53. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 5th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR APPELLANT: Ms. Turgutt.
FOR RESPONDENT: Ms. Aguko.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.
2. This appeal relates solely to the issue of quantum of damages. The trial court’s finding on liability – that the Appellant was 100% liable in negligence – is not contested. The Appellant relies on the following grounds of appeal, as set out in the memorandum of appeal dated 3rd May, 2024, in seeking to set aside the judgment and decree of the trial court with respect to the award on quantum:
i. THAT the learned trial Magistrate erred in law and in fact in awarding general damages of Ksh.500,000/- which award was excessive and not commensurate to the nature of injuries sustained by the Respondent.
ii. THAT the learned trial Magistrate erred in law and in fact in holding that the Respondent sustained a hairline fracture right radius.
iii. THAT the learned trial Magistrate erred in law and in fact in failing to pay regard to authorities in the Appellant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case that she was deciding.
3. The Appellant proposes that the appeal be allowed, that the trial court’s finding and/or assessment on the quantum of damages be set aside, this court proceeds to make its own assessment and that the costs of the appeal be awarded to the Appellant.
4. As this is a first appeal, I am obligated, pursuant to Section 78 of the Civil Procedure Act and as articulated in Selle v Associated Motor Boat Co. Ltd [1969] E.A. 123, to re-assess, re-analyze and re-evaluate the evidence presented before the trial court and to arrive at my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. I will, however, confine my consideration to the evidence relevant to the issue of quantum of damages.
5. In Selle, Sir Clement De Lestang observed that:
“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.
However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had clearly failed on some point to take account of particular circumstances or probabilities, materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”
6. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of Peters v Sunday Post Limited [1958] EA 424 in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles:
“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;
ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and
iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”
7. The matter before the trial court, based on tortious liability arising out of a road traffic accident that is said to have occurred on 1st October, 2021 in which the Respondent (the Plaintiff before the trial court) sustained bodily injuries.
8. The Respondent sued the Appellant vide the plaint dated 10th April, 2023 seeking to recover general damages for the injuries sustained, claiming that the accident occurred due to the negligence of the Appellant and/or its servant, employee and/or agent.
9. The Respondent pleaded listed the following particulars of injuries and particulars of special damages in his pleading:
Particulars of injuries:
a. Hairline fracture of proximal radius of the right elbow.
b. Trauma on both elbow joints.
c. Painful exclusion of the limbs.
d. Swollen right hand elbow.
e. Minor bruises of the left lower limb.
f. Swollen mid right leg with bruises and tenderness.
10. The Appellant resisted the claim and, in that regard, filed a statement of defence dated 3rd May, 2023. In particular, the Appellant denied that the Respondent sustained the nature and extent of injuries as pleaded in the plaint.
11. The Respondent testified before the trial court as PW1 and adopted his witness statement dated 8th November, 2021 as his evidence-in-chief. In that statement, he reiterated that he sustained the injuries enumerated above as a result of the accident. He further stated that he received treatment at Kisumu County Referral Hospital and was subsequently reviewed at the same facility on 18th October, 2021 and 25th November, 2021.
12. The Respondent testified before the trial court as PW1 and adopted the contents of his witness statement dated 8th November, 2021 as his evidence-in-chief. In his statement, the Respondent reiterated that he sustained the injuries listed above in the accident. He stated that he was treated at Kisumu County Referral Hospital where he was later reviewed on 18th October, 2021 and 25th November, 2021.
13. The Respondent produced the following documents in support of his case:
- Outpatient/inpatient statement.
- Radiology request form.
- 2nd Radiology request form.
- Treatment notes and receipts.
- P3 form.
- Copy of Xray results.
- Police abstract.
- Demand letter.
14. The Respondent further testified that he underwent an X-ray, stating that although the doctor who initially treated him did not record any fracture, the doctor who later examined him identified and confirmed its existence.
15. The record of the trial court indicates that the Appellant sought and was granted leave to file and produce a second medical opinion prepared following an examination of the Respondent by the Appellant’s doctor. However, the record further shows that the Appellant thereafter closed its case without calling any witness or producing any documentary evidence, notwithstanding that leave was granted.
16. Among the issues the learned trial Magistrate set out to determine in his judgement of 11th April, 2024, was that of quantum between the parties. In determining that issue, she rendered herself as follows:
“The matter was set down for hearing and PW1 on 1/10/21 (sic) he was aboard M/V reg. No KСХ 134 X - along Kisumu Ahero Road heading to Nairobi. That the M/V herein joined the road abruptly to refuel without stopping to give way and knocked down from behind Motorcycle Registration no. KMDR 074T which was heading the same direction. That the vehicle overturned and the plaintiff sustained the following injuries:-
- Hairline fracture of proximal radius of the right elbow.
- Trauma on both elbow joints, swollen right hand elbow.
- Painful exclusion of the limbs.
- Minor bruises on the left lower limb.
- Swollen mid right leg with bruises and tenderness.
That he was rushed for treatment at JOOTRH and was treated and discharged. That he was issued with a P3 form which was filled after he reported at the police station.
PW1 closed his case and the defence closed theirs without calling any witness.
Issues for determination by the court is:
- Liability.
- Quantam and costs.
The plaintiff was an authorized passenger aboard the M/V herein and didn't contribute in any way to the occurrence of the accident, so liability will be sat 100% against the defendants.
I will rely on Civil Appeal No. E050/21 Kiautha v Ntarangwi where Justice Edward Muriithi set aside an award of Ksh.2,000,000/- for a fracture and substituted it with Ksh.800,000/-.
In this case hairline fracture is a tiny crack in the bone caused by repetitive stress or force mostly from over use. PW1 was also treated and discharged the same day. From the P3 form the injuries are classified as harm.
It is unfortunate that the documents were produced by consent without calling the makers or experts. I will therefore give an award of Ksh.500,000/-.”
17. As is evident from the memorandum of appeal and as previously stated, the present appeal is solely premised on the issue of liability. The appeal was canvassed by way of written submissions.
18. In its written submissions, the Appellant contends that the central issue for determination by this Honourable Court is whether the Respondent sustained a hairline fracture of the right radius and whether the award of Ksh.500,000/- as general damages was excessive in the circumstances.
19. The Appellant urges the Court to set aside the entire finding of the lower Court and to re-evaluate the quantum, noting that the Respondent mainly suffered soft tissue injuries.
20. The Appellant submits that the assessment of general damages is a discretionary exercise which must be conducted judicially, with due regard to legal principles. The exercise of discretion can be interfered with if the trial court took into account irrelevant factors, omitted relevant factors or arrived at an amount that is so inordinately high or low as to constitute a wholly erroneous estimate. The Appellant asserts that an award of damages must remain within limits set by precedent, taking into account comparable injuries, as established in Kigaraari v Aya (1982-88) 1 KAR 768, and cited in Godfrey Wamalwa Wamba & Another v Kyalo Wambua [2018] eKLR.
21. The Appellant outlines that the Respondent’s injuries, as per the plaint, included a purported hairline fracture of the proximal radius of the right elbow, trauma on both elbows, painful exclusion of the limbs, swollen right elbow and hand, minor bruises on the left lower limb and a swollen mid-right leg with bruises and tenderness.
22. Evidence from Kisumu County Hospital, including radiology reports and P3 treatment forms, as per the Appellant’s contention, indicated that the right elbow was normal with no fracture or dislocation and the treatment administered was analgesics. Documents allegedly indicating a fracture were only marked for identification and were not admitted into evidence, and therefore do not form part of the court record. It relies on the case of Billiah Matiangi v Kisii Bottlers Limited & Another [2021] eKLR.
23. The Appellant emphasizes that the Respondent failed to prove a hairline fracture and that only soft tissue injuries were substantiated. Accordingly, the Appellant argues that the award of Ksh.500,000/- was excessive and urges the Court to reduce the award to not more than Kshs. 100,000/-.
24. In support, the Appellant cites PF (Suing as next friend and father of SK (Minor)) v Victor O Kamadi & Another [2018] eKLR, where a similar award for soft tissue injuries was adjusted on appeal from Ksh.50,000/- to Ksh.100,000/-.
25. The Appellant concludes by requesting that the Honourable Court exercise its discretion in favour of the Appellant, allow the appeal, and award costs accordingly.
26. The Respondent, just like the Appellant, contends in his submissions that the primary issue before the Court is whether he sustained a hairline fracture of the right radius and whether the general damages awarded were excessive. He relies on his oral testimony, written statement and treatment documents, including outpatient/inpatient continuation sheets, X-ray request and report forms and the P3 form which he states confirm the injuries he sustained, which include a hairline fracture of the proximal radius of the right elbow, trauma on both elbows, painful exclusion of the limbs, swelling and bruises.
27. The Respondent explains that any apparent disparity in X-ray findings was due to a re-reading by a different doctor who confirmed the fracture after assessing his symptoms. The treatment documents were produced in court by consent of both parties and were not contested by the Appellant. Consequently, he asserts that the injuries were proven on a balance of probabilities.
28. On the applicable law, the Respondent submits that an appellate court will only interfere with an award of general damages if it is so inordinately high or low as to represent an entirely erroneous estimate, or if the trial judge proceeded on wrong principles or misapprehended the evidence. He relies on the authorities of Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR; Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR; and Shabani v City Council of Nairobi [1985] KLR 516. He also cites Kigaraari v Aya [1985] KLR 273 and Simon Taveta v Mercy Mutitu Njeru [2014] eKLR to emphasize the need for consistency in awards and compensation based on comparable injuries.
29. The Respondent argues that the trial magistrate applied these principles correctly, awarding general damages in line with comparable cases. He cites previous authorities with similar or lesser injuries and higher awards: Kirinyaga District Co-operative Union & Another v Eustace Macheru Wilson, H.C.C.A No. 23 of 2010, Judy Ngochi v Kamakia Ele Selelo Ledamoi, H.C.C.A No. 15 of 2017, and Lawrence Wairimu Wanyoike & another v Joseph Letting H.C.C.A No. 2 of 2020.
30. Considering the Respondent’s injuries, the age of the cited cases, and inflationary effects, he contends that the award of Ksh.500,000/- was reasonable. He urges the Court to uphold the trial court’s award, as it was neither inordinately high nor based on wrong principles or misapprehension of the evidence.
31. Having considered the grounds of appeal, the record of the trial court, the submissions of the parties and the applicable law, I will proceed to set out the issues that I am now required to determine.
32. The first issue for determination is whether the Respondent sustained a hairline fracture of the proximal radius of the right elbow as a result of the road traffic accident on 1st October, 2021.
33. The second issue for determination is whether the general damages awarded by the trial court, amounting to Ksh.500,000/-, were excessive and if this appellate court should exercise its discretion to adjust the award.
34. A related issue is whether the trial court properly applied legal principles and precedent in assessing the quantum of damages, taking into account the nature and extent of the injuries, the evidence adduced by the parties and comparable awards in previous cases.
35. I will proceed to address the three issues.
36. The first issue for determination is whether the Respondent sustained a hairline fracture of the proximal radius of the right elbow as a result of the road traffic accident on 1st October, 2021.
37. Upon a careful review of the evidence, it is noted that the Respondent produced an orthopaedic trauma review report dated 18th October, 2025, which confirms the presence of a hairline fracture of the proximal radius.
38. This report was issued following the initial radiology report dated 12th April, 2025, which had not shown any fracture. The Respondent explained that the fracture was not observed in the initial examination but was identified upon a subsequent review by a different doctor, based on his continuing symptoms and clinical assessment.
39. Contrary to the Appellant’s contention that the document indicating the fracture was never produced, the record shows that the orthopaedic review report was in fact produced in evidence and forms part of the trial court’s record. The Appellant was aware of its existence and had the opportunity to challenge it.
40. The explanation that the fracture was noted only upon review is in my view medically sound, as hairline fractures can be subtle and sometimes only detectable upon repeat assessment or careful clinical evaluation.
41. It is instructive from the record of the trial court that the Appellant was granted leave to produce counter evidence, including a second medical opinion, but failed to call any witness or adduce any documentary evidence to contradict the Respondent’s claim. In the absence of any contrary evidence, the Respondent’s proof stands unchallenged.
42. Having considered the evidence, including the orthopaedic review report and the consistent testimony of the Respondent, this court finds that the Respondent proved, on a balance of probabilities, that he sustained a hairline fracture of the proximal radius of the right elbow. The first issue is therefore determined in favour of the Respondent.
43. The second and third issues for determination, which I will now consider together, are whether the general damages awarded by the trial court in the sum of Ksh.500,000/- were excessive, and whether the trial court correctly applied legal principles and precedent in assessing the quantum of damages.
44. It is settled law that assessment of general damages for personal injury is a matter of judicial discretion. An appellate court will only interfere with such an award if it is so inordinately high or low as to represent an entirely erroneous estimate, or if the trial court proceeded on wrong principles or misapprehended the evidence (Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR; Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR; Shabani v City Council of Nairobi [1985] KLR 516).
45. In the present case, the trial court carefully considered the nature and extent of the injuries sustained by the Respondent, including a confirmed hairline fracture of the proximal radius of the right elbow, trauma on both elbow joints, swelling, painful exclusion of the limbs and bruising. These injuries, particularly the hairline fracture, were corroborated by the orthopaedic trauma review report dated 18th October, 2025 and the other medical treatment documents, which were produced with the consent of both parties.
46. The Appellant contends that the Respondent only sustained soft tissue injuries and that the award was excessive. However, the confirmed fracture, along with the associated pain and functional limitations, materially increased the severity of the harm suffered. The Appellant was granted leave to produce a second medical opinion to challenge this evidence but failed to do so. In the absence of any contrary evidence, the Respondent’s proof stands unchallenged.
47. The trial court also relied on a previous decision, Civil Appeal No. E050 of 21 Kiautha v Ntarangwi, where the injured party sustained comparable injuries, including a fracture and the award was adjusted to reflect the nature and severity of the harm. This demonstrates that the trial court applied the principle of awarding compensation based on comparable injuries and consistent with established precedent.
48. Further, the trial court’s award aligns with other authorities cited in the record, including Kirinyaga District Co-operative Union & Another v Eustace Macheru Wilson, H.C.C.A No. 23 of 2010, Judy Ngochi v Kamakia Ele Selelo Ledamoi, H.C.C.A No. 15 of 2017, and Lawrence Wairimu Wanyoike & Another v Joseph Letting, H.C.C.A No. 2 of 2020, where parties with injuries of similar or lesser severity were awarded comparable or higher sums.
49. Considering the nature and extent of the Respondent’s proven injuries, the consistent evidence, the absence of counter evidence from the Appellant and the reliance on decisions involving comparable injuries, this court finds that the trial court’s award of Ksh.500,000/- was neither inordinately high nor based on any misapprehension of the law or evidence.
50. Accordingly, the Court determines that the trial court acted judicially and in accordance with established legal principles in assessing the quantum of damages. The second and third issues are therefore resolved in favour of the Respondent and the award of Ksh.500,000/- is upheld.
51. In light of the foregoing determinations, this court finds that the instant appeal lacks merit and is hereby dismissed in its entirety.
52. On the issue of costs, Section 27 of the Civil Procedure Act dictates that costs follow the event, unless for stated reasons the court orders otherwise. Accordingly, the Appellant is hereby condemned to pay the costs of this appeal to the Respondent, which I assess at Ksh25,000/-.
53. This file is hereby closed.
DELIVERED (virtually), DATED & SIGNED this 5th day of March, 2026.
JOE M. OMIDO
JUDGE
FOR APPELLANT: Ms. Turgutt.
FOR RESPONDENT: Ms. Aguko.
COURT ASSISTANTS: Mr. Ngoge & Mr. Juma.