JUDGMENT
Introduction
1) This is a first appeal arising from the judgment of Hon. P. Y. Kulecho, Senior Resident Magistrate ("the trial court"), delivered on 7th November 2023 in Webuye CMCC No. E049 of 2021. The trial court apportioned liability for a road traffic accident equally between the Respondent and the Appellant, at 50% each, and awarded general damages of Kshs. 1,500,000 and special damages of Kshs. 7,050. After deducting the Respondents 50% contribution, the net award was Ksh.753,525/= plus costs and interest.
2) Aggrieved by both liability and quantum, the Appellant lodged this appeal raising seven grounds. By direction of this Court, the appeal was canvassed by way of written submissions, which were filed by the Appellant on 3rd April 2025 and by the Respondent on 24th February 2025.
Background
3) The Respondent's case, as pleaded and as testified to by him, was that on 27th February 2021 at about 11.00 a.m. he was riding motorcycle registration number KMET 832T along the Eldoret–Webuye road at Panpaper, on his correct lane. The Appellant's motor vehicle registration number KCB 882R, a Mercedes Benz Axor prime mover hauling trailer registration number ZF 3270 and driven by the Appellant's employee, approached from the opposite direction at speed, lost control and veered onto the Respondent's lane, ramming into the motorcycle and causing the Respondent to sustain serious bodily injury.
4) The Appellant's case, pleaded in its statement of defence dated 28th June 2021 and supported by the evidence of its driver, Ali Adam Mwinyinguti, was a denial of negligence and, in the alternative, an averment that the accident was wholly or substantially caused or contributed to by the Respondent's own negligence. The appellant contended that instead the respondent was riding an overloaded motorcycle and attempted to overtake into the path of, or into the rear of, the Appellant's trailer thereby contributing to or causing the accident.
5) At trial the Respondent testified as (PW1) and called the investigating officer, Corporal James Kegicha as (PW2). The Appellant called a police officer who produced the police abstract and OB extract it had procured, and its driver, Ali Adam Mwinyinguti. Medical evidence was tendered by way of a discharge summary from Webuye County Referral Hospital, a medical report of Dr. Joseph C. Sokobe dated 1st March 2021 (a Plaintiff's exhibit), and a further medico-legal report of Dr. Z. Gaya dated 5th October 2022 (appellant's exhibit).
6) Upon considering the evidence, the trial court found that the parties' accounts of how the accident occurred were irreconcilable and that liability could not be resolved wholly in favour of either party. Applying Wanjiru Nganga & Another v Paul Kinuthia Muigai (2015) eKLR, the trial court apportioned liability at 50% each. On quantum, the trial court awarded Kshs. 1,500,000 as general damages and Kshs. 7,050 as special damages.
Appeal
7) The Memorandum of Appeal dated 20th November 2023 raises the following seven grounds:
I. THAT the learned trial magistrate erred in law and fact in holding the appellant 50% liable without taking into account the evidence adduced and/or on record.
II. THAT the learned trial magistrate erred in law and fact by allowing the respondent's claim which was not proved on a balance of probabilities as required by law.
III. THAT the learned trial magistrate erred in law and fact in failing to dismiss the respondent's suit with costs.
IV. THAT the learned trial magistrate erred in law and fact in adopting the wrong principles in assessment of damages payable to the respondent.
V. THAT the learned trial magistrate erred in law and fact by failing to consider the appellant's written submissions on the issue of quantum while assessing damages payable to the respondent.
VI. THAT the learned trial magistrate erred in law and fact by awarding damages which were excessive in the circumstances in view of the injuries sustained by the respondent.
VII. THAT the learned trial magistrate erred in law and fact by awarding the respondent Kshs. 1,500,000/= for fracture of the right mandible and right clavicle together with soft tissue injuries which is inordinately high.
Submissions
8) The Appellant submits, in summary, that neither the Respondent's testimony nor that of the investigating officer established negligence on the part of its driver. It submits that the investigating officer's own evidence was that he could not establish the point of impact, that the scene had been tampered with, and that he did not blame the Appellant's driver. The appellant further argues that its driver's account of the accident was corroborated by the police abstract (Dexh 1) and by the evidence of PC Paul Owino.
9) The appellant further posits that the trial court ignored the Respondent's admission that his motorcycle was overloaded with three pillion passengers, in contravention of section 60 of the Traffic Act and regulation 7(1)(a) and (b) of the National Transport and Safety Authority (Operation of Motorcycles) Regulations, 2015.
10) Finally, the appellants maintain that the general damages awarded, of Kshs. 1,500,000, are manifestly excessive and inconsistent with comparable authorities. It urgues that it’s list of authorities and submissions support an award of between Kshs. 500,000 and Kshs. 700,000.
11) The Respondent on the other hand supported the trial court's apportionment of liability at 50:50 as a fair reflection of evidence that both the driver of the suit motor vehicle and the rider of the motorcycle failed to exercise reasonable care. He supports and defends the award of Kshs. 1,500,000 by way of general damages as falling within the range disclosed by the authorities relied upon, some of which disclosed awards of up to Kshs. 1,200,000 for injuries said to be comparable to the ones sustained by himself.
12) The grounds of appeal and the rival submissions accordingly resolve into two issues for determination:
a) whether the trial court erred in its finding on liability (Grounds 1, 2 and 3); and
b) whether the general damages awarded were excessive (Grounds 4, 5, 6 and 7).
Analysis and Determination
13) Both counsels proceed, correctly, on the footing that this being a first appeal, this Court is enjoined to reconsider and re-evaluate the evidence on the record and to draw its own conclusions, while bearing in mind that, unlike the trial court, it has neither seen nor heard the witnesses testify.
14) The duty of a first appellate court is settled. In Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123, the Court of Appeal held:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.”
15) Similarly, in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the Court of Appeal emphasized:
“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly, the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”
16) This Court adopts and proceeds as guided by those principles. I note, however, that unlike the position on quantum, which turned substantially on documentary medical evidence, the finding on liability was made after the trial court heard PW1, PW2 and the Appellant's witnesses. They all testified and were cross-examined, an advantage this Court does not share, and to which I give appropriate weight in what follows.
17) The Respondent's account, given as PW1, was that he was riding on his correct lane when the Appellant's driver, approaching from the opposite direction, lost control and veered onto his lane. Under cross-examination, PW1 conceded that he could not recall the registration particulars of the suit motor vehicle, that he was not privy to the police abstract or OB extract procured by the Appellant, and materially that he had three pillion passengers aboard the motorcycle at the time, stating in terms: "I confirm I had overloaded the motorcycle."
18) That is an admission of a contravention of regulation 7(1)(a) and (b) of the National Transport and Safety Authority (Operation of Motorcycles) Regulations, 2015, which restricts a motorcycle to the rider and a single pillion passenger.
19) PW2, Corporal James Kegicha, the investigating officer, testified that he did not witness the accident and further that he arrived at the scene roughly thirty minutes later. He testified that the motorcycle had already been removed from the scene "to pave way for passing motorists," that the scene had by then "been tampered with," that he did not recover a sketch plan, that he "could not establish the point of impact,"
20) PW2, expressly stated that he "did not blame the driver of the suit motor vehicle." He confirmed that investigations remained pending. This is significant because the one witness with no direct stake in the outcome was, on his own evidence, unable to attribute fault to either driver. (emphasis mine)
21) The Appellant's driver on the other hand testified as DW2. He gave an account attributing the collision to the Respondent's motorcycle overtaking into the rear wheel of the Appellant's trailer.
22) I note that the account in his written witness statement on the record which describes the motorcycle as having been following, and then overtaking, a separate oncoming trailer before striking the Appellant's own trailer is not on its face identical to the account of his oral testimony as characterized in the Appellant's submissions, namely that the Respondent was overtaking "a stationary trailer that was ahead of them" when a pillion passenger jumped off in fear of a collision with the Appellant's vehicle.
23) Whichever version is preferred, it remains the Appellant's own witness's account, unconfirmed by any independent witness; and the police abstract on which the Appellant relies (Dexh 1, dated 1st March 2021) was, on PW2's own evidence, issued while investigations remained open and before any finding of guilt had been made.
24) The Court of Appeal has consistently held that where evidence is inconclusive, apportionment may be the fairest course. In Wanjiru Nganga & Another v Paul Kinuthia Muigai (2015) eKLR, the Court stated:
“Where the evidence does not clearly establish negligence on one side, but shows that both parties failed to exercise reasonable care, the court is entitled to apportion liability equally.”
25) On this state of the evidence, I am not persuaded that the trial court erred in finding that the rival versions of how the accident occurred could not be resolved in favour of either party on a balance of probabilities. Both drivers gave accounts favourable to themselves.
26) I find that neither account was corroborated by an independent eyewitness and more importantly, the sole relatively neutral witness expressly declined, for want of a determinable point of impact, to assign fault to either side.
27) The Respondent's admitted overloading of the motorcycle is a proven fact adverse to him, properly weighed in the trial court's apportionment of liability. However, the same does not, without more, establish on a balance of probabilities that the Respondent alone or predominantly caused the collision, nor does it undermine the trial court's assessment that fault was fairly shared.
28) This being a finding that turned substantially on the trial court's assessment of witnesses it saw, heard them testify and cross-examined, an advantage this Court does not enjoy. I decline to disturb it. I am not satisfied, that the trial court misapprehended the evidence, took into account an irrelevant factor, left out a relevant one, or arrived at a conclusion that is plainly wrong.
29) Consequently, grounds 1, 2 and 3 of the appeal accordingly fail, and the apportionment of liability at 50% as between the Respondent and the Appellant is upheld.
Determination on Quantum (Grounds 4, 5, 6 and 7)
30) The principles applicable to appellate interference with an award of general damages are settled and are not, in truth, in dispute between the parties.
31) In Lynn Kambua Enterprises v Edith Vaati Simon Kasika (2021) eKLR, Odunga J, citing Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55, restated the applicable test in these terms:
"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 different 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, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent erroneous estimate."
32) The Court of Appeal expressed the same threshold in Sheikh Mustaq Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457, also cited in Lynn Kambua Enterprises (supra):
"The appellate court is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the Judge proceeded on a wrong principle or misapprehended the evidence in some material respect ... A member of an appellate court when naturally and reasonably says to himself “what figure would I have made?” and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other Judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own ..."
33) And in Jane Chelagat Bor v Andrew Otieno Onduu [1988–92] 2 KAR 288; [1990–1994] EA 47, likewise cited in Lynn Kambua Enterprises (supra):
"In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency."
34) As to method, the guiding principle remains that comparable injuries attract comparable awards. In Gerald Muhuthia Mwangi v John Mburugu & Another (2022) eKLR, the High Court at Meru, quoting the Court of Appeal in Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR, held:
"Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases."
35) To the same effect, the Court of Appeal for East Africa held in Bhogal v Burbridge & Another (1975) E.A 285 that:
“some degree of uniformity must be sought in the award of general damages and recent awards in comparable cases in local courts may be looked at,”
36) While in Kigaraari v Aya (1982–88) 1 KAR 768 the Court of Appeal cautioned:
"Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford as large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees."
37) The Respondent's pleaded injuries were head injury with mild loss of consciousness, fracture of the right mandible, fracture of the right clavicle, bruising to the chest, and lacerations to the left hand/forearm. The injuries were confirmed by the discharge summary from Webuye County Referral Hospital and the report of Dr. Joseph C. Sokobe dated 1st March 2021, who assessed both soft-tissue and bony (fracture) injuries not then resolved, requiring open reduction and internal fixation at an estimated cost of Kshs. 150,000.
38) The later medico-legal report of Dr. Z. Gaya dated 5th October 2022, procured by the Appellant, records that the right clavicle fracture malunited with a visible, palpable callus, that the mandible likewise shows malunion at the fracture site with a permanent scar, that there are five further permanent scars on the dorsal aspect of the right wrist and hand, and assesses overall permanent disability at five per cent (5%).
39) There is no evidence of any permanent neurological or cognitive sequela from the head injury, which was, on the pleadings and the medical evidence, mild, and the fractures were in the event treated conservatively rather than by the open reduction and internal fixation originally contemplated.
40) On the Appellant's authorities, in Gerald Muhuthia Mwangi v John Mburugu & Another (2022) eKLR the High Court at Meru affirmed a trial award of Kshs. 280,000 for a distal right clavicle fracture with superior displacement, bruising to the shoulder and soft-tissue injury to the back whereas In Lynn Kambua Enterprises v Edith Vaati Simon Kasika (2021) eKLR the High Court at Machakos affirmed an award of Kshs. 350,000 for a fracture of the left clavicle with multiple soft-tissue injuries, itself noting comparator awards of Kshs. 500,000 to Kshs. 700,000 where the injuries were “slightly more serious.”
41) In Elizaphen Mokaya Bogonko v Fredrick Omondi Ouna [2022] eKLR the High Court at Siaya reduced an award from Kshs. 850,000 to Kshs. 500,000 for a fracture of the right facial bone with head injury and loss of consciousness together with multiple soft-tissue injuries. In Nyota Tissue Products v Charles Wanga & 4 Others [2020] eKLR an award was reduced from Kshs. 1,200,000 to Kshs. 500,000 for a head injury with an open depressed frontal fracture an injury considerably graver than any suffered by the Respondent.
42) The Respondent's own authorities Kimathi Muturi Donald v Kevin Ochieng Aseso [2021] eKLR (Kshs. 1,200,000 for fracture of the upper right tibia requiring a metal implant together with fracture of the acetabulum) and Francis Ndung'u Wambui & 2 Others v VK [2019] eKLR (Kshs. 1,000,000 for a compound distal tibia-fibula fracture with soft-tissue injury and loss of consciousness for over thirty minutes) concern materially more severe orthopaedic trauma than that suffered by the Respondent and are not, with respect, close comparators.
43) I note that none of the authorities placed before the trial court, on either side, supports an award as high as Kshs. 1,500,000 for injuries of the kind and severity proved in the primary suit. Even allowing for the two fracture sites (mandible and clavicle, as against the single clavicle fracture in the closest comparators), the assessed 5% permanent disability and the permanent scarring recorded by Dr. Gaya.
44) The award is, in the language of Catholic Diocese of Kisumu v Tete and Jane Chelagat Bor v Andrew Otieno Onduu (both supra), so inordinately high as to represent a wholly erroneous estimate of the damage. It is also, on the Appellant's uncontested submission, an award for which the trial court did not specify the authorities relied upon in arriving at that particular figure, which is itself a material misdirection on the authority of Sheikh Mustaq Hassan (supra).
45) Having regard to the range disclosed by the comparable authorities Kshs. 280,000 to Kshs. 500,000 for single-fracture and comparable soft-tissue injuries, rising toward Kshs. 700,000 where somewhat more serious and mindful of the need identified in Bhogal v Burbridge (supra) for “some degree of uniformity” and in Kigaraari v Aya (supra) for awards to remain “within the limits set out by decided cases and also within the limits the Kenyan economy can afford,” I assess fair and adequate compensation for the Respondent's pain, suffering and loss of amenity at Kshs. 800,000.
46) This figure reflects the combination of two fracture sites with permanent malunion and the assessed 5% permanent disability and permanent scarring, set against injuries that were in the result managed conservatively and have left no permanent neurological deficit.
47) I have not disturbed the award of Kshs. 7,050 special damages, which was not the subject of any specific ground of appeal and which the trial court appears to have limited to the sums strictly proved by receipt.
Disposition
48) For the foregoing reasons, I find that the appeal succeeds in part and I make the following orders:
a) Grounds 1, 2 and 3 of the appeal, challenging the finding on liability, are dismissed. The apportionment of liability at 50% as between the Respondent and the Appellant made by the trial court is upheld.
b) Grounds 4, 5, 6 and 7 of the appeal, challenging the quantum of general damages, succeed to the extent set out below.
c) The award of Kshs. 1,500,000 general damages is set aside and is substituted with an award of Kshs. 800,000.
d) The award of Kshs. 7,050 special damages is confirmed.
e) The gross sum of Kshs. 807,050, less the Respondent's 50% contribution, yields a net award of Kshs. 403,525 in favour of the Respondent against the Appellant.
f) The said sum shall bear interest at court rates from the date of filing of the suit until payment in full.
g) The order for costs of the suit in the subordinate court is not disturbed.
h) As the Appellant has substantially succeeded on this appeal, it shall have the costs of the appeal.
It is so ordered.
DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 16TH DAY OF September 2026.
M. S. SHARIFF
JUDGE
In the presence of:
Ms Langat for the Appellant
Ms Momanyi for the Respondent
Aziza & Rose – Court Assistants
Introduction
1) This is a first appeal arising from the judgment of Hon. P. Y. Kulecho, Senior Resident Magistrate ("the trial court"), delivered on 7th November 2023 in Webuye CMCC No. E049 of 2021. The trial court apportioned liability for a road traffic accident equally between the Respondent and the Appellant, at 50% each, and awarded general damages of Kshs. 1,500,000 and special damages of Kshs. 7,050. After deducting the Respondents 50% contribution, the net award was Ksh.753,525/= plus costs and interest.
2) Aggrieved by both liability and quantum, the Appellant lodged this appeal raising seven grounds. By direction of this Court, the appeal was canvassed by way of written submissions, which were filed by the Appellant on 3rd April 2025 and by the Respondent on 24th February 2025.
Background
3) The Respondent's case, as pleaded and as testified to by him, was that on 27th February 2021 at about 11.00 a.m. he was riding motorcycle registration number KMET 832T along the Eldoret–Webuye road at Panpaper, on his correct lane. The Appellant's motor vehicle registration number KCB 882R, a Mercedes Benz Axor prime mover hauling trailer registration number ZF 3270 and driven by the Appellant's employee, approached from the opposite direction at speed, lost control and veered onto the Respondent's lane, ramming into the motorcycle and causing the Respondent to sustain serious bodily injury.
4) The Appellant's case, pleaded in its statement of defence dated 28th June 2021 and supported by the evidence of its driver, Ali Adam Mwinyinguti, was a denial of negligence and, in the alternative, an averment that the accident was wholly or substantially caused or contributed to by the Respondent's own negligence. The appellant contended that instead the respondent was riding an overloaded motorcycle and attempted to overtake into the path of, or into the rear of, the Appellant's trailer thereby contributing to or causing the accident.
5) At trial the Respondent testified as (PW1) and called the investigating officer, Corporal James Kegicha as (PW2). The Appellant called a police officer who produced the police abstract and OB extract it had procured, and its driver, Ali Adam Mwinyinguti. Medical evidence was tendered by way of a discharge summary from Webuye County Referral Hospital, a medical report of Dr. Joseph C. Sokobe dated 1st March 2021 (a Plaintiff's exhibit), and a further medico-legal report of Dr. Z. Gaya dated 5th October 2022 (appellant's exhibit).
6) Upon considering the evidence, the trial court found that the parties' accounts of how the accident occurred were irreconcilable and that liability could not be resolved wholly in favour of either party. Applying Wanjiru Nganga & Another v Paul Kinuthia Muigai (2015) eKLR, the trial court apportioned liability at 50% each. On quantum, the trial court awarded Kshs. 1,500,000 as general damages and Kshs. 7,050 as special damages.
Appeal
7) The Memorandum of Appeal dated 20th November 2023 raises the following seven grounds:
I. THAT the learned trial magistrate erred in law and fact in holding the appellant 50% liable without taking into account the evidence adduced and/or on record.
II. THAT the learned trial magistrate erred in law and fact by allowing the respondent's claim which was not proved on a balance of probabilities as required by law.
III. THAT the learned trial magistrate erred in law and fact in failing to dismiss the respondent's suit with costs.
IV. THAT the learned trial magistrate erred in law and fact in adopting the wrong principles in assessment of damages payable to the respondent.
V. THAT the learned trial magistrate erred in law and fact by failing to consider the appellant's written submissions on the issue of quantum while assessing damages payable to the respondent.
VI. THAT the learned trial magistrate erred in law and fact by awarding damages which were excessive in the circumstances in view of the injuries sustained by the respondent.
VII. THAT the learned trial magistrate erred in law and fact by awarding the respondent Kshs. 1,500,000/= for fracture of the right mandible and right clavicle together with soft tissue injuries which is inordinately high.
Submissions
8) The Appellant submits, in summary, that neither the Respondent's testimony nor that of the investigating officer established negligence on the part of its driver. It submits that the investigating officer's own evidence was that he could not establish the point of impact, that the scene had been tampered with, and that he did not blame the Appellant's driver. The appellant further argues that its driver's account of the accident was corroborated by the police abstract (Dexh 1) and by the evidence of PC Paul Owino.
9) The appellant further posits that the trial court ignored the Respondent's admission that his motorcycle was overloaded with three pillion passengers, in contravention of section 60 of the Traffic Act and regulation 7(1)(a) and (b) of the National Transport and Safety Authority (Operation of Motorcycles) Regulations, 2015.
10) Finally, the appellants maintain that the general damages awarded, of Kshs. 1,500,000, are manifestly excessive and inconsistent with comparable authorities. It urgues that it’s list of authorities and submissions support an award of between Kshs. 500,000 and Kshs. 700,000.
11) The Respondent on the other hand supported the trial court's apportionment of liability at 50:50 as a fair reflection of evidence that both the driver of the suit motor vehicle and the rider of the motorcycle failed to exercise reasonable care. He supports and defends the award of Kshs. 1,500,000 by way of general damages as falling within the range disclosed by the authorities relied upon, some of which disclosed awards of up to Kshs. 1,200,000 for injuries said to be comparable to the ones sustained by himself.
12) The grounds of appeal and the rival submissions accordingly resolve into two issues for determination:
a) whether the trial court erred in its finding on liability (Grounds 1, 2 and 3); and
b) whether the general damages awarded were excessive (Grounds 4, 5, 6 and 7).
Analysis and Determination
13) Both counsels proceed, correctly, on the footing that this being a first appeal, this Court is enjoined to reconsider and re-evaluate the evidence on the record and to draw its own conclusions, while bearing in mind that, unlike the trial court, it has neither seen nor heard the witnesses testify.
14) The duty of a first appellate court is settled. In Selle & Another v Associated Motor Boat Co. Ltd & Others (1968) EA 123, the Court of Appeal held:
“An appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this Court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect.”
15) Similarly, in Abok James Odera T/A A.J Odera & Associates v John Patrick Machira T/A Machira & Co. Advocates [2013] eKLR, the Court of Appeal emphasized:
“On a first appeal from the High Court, the Court of Appeal should reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. Secondly, the responsibility of the court is to rule on the evidence on record and not to introduce extraneous matters not dealt with by the parties in the evidence.”
16) This Court adopts and proceeds as guided by those principles. I note, however, that unlike the position on quantum, which turned substantially on documentary medical evidence, the finding on liability was made after the trial court heard PW1, PW2 and the Appellant's witnesses. They all testified and were cross-examined, an advantage this Court does not share, and to which I give appropriate weight in what follows.
17) The Respondent's account, given as PW1, was that he was riding on his correct lane when the Appellant's driver, approaching from the opposite direction, lost control and veered onto his lane. Under cross-examination, PW1 conceded that he could not recall the registration particulars of the suit motor vehicle, that he was not privy to the police abstract or OB extract procured by the Appellant, and materially that he had three pillion passengers aboard the motorcycle at the time, stating in terms: "I confirm I had overloaded the motorcycle."
18) That is an admission of a contravention of regulation 7(1)(a) and (b) of the National Transport and Safety Authority (Operation of Motorcycles) Regulations, 2015, which restricts a motorcycle to the rider and a single pillion passenger.
19) PW2, Corporal James Kegicha, the investigating officer, testified that he did not witness the accident and further that he arrived at the scene roughly thirty minutes later. He testified that the motorcycle had already been removed from the scene "to pave way for passing motorists," that the scene had by then "been tampered with," that he did not recover a sketch plan, that he "could not establish the point of impact,"
20) PW2, expressly stated that he "did not blame the driver of the suit motor vehicle." He confirmed that investigations remained pending. This is significant because the one witness with no direct stake in the outcome was, on his own evidence, unable to attribute fault to either driver. (emphasis mine)
21) The Appellant's driver on the other hand testified as DW2. He gave an account attributing the collision to the Respondent's motorcycle overtaking into the rear wheel of the Appellant's trailer.
22) I note that the account in his written witness statement on the record which describes the motorcycle as having been following, and then overtaking, a separate oncoming trailer before striking the Appellant's own trailer is not on its face identical to the account of his oral testimony as characterized in the Appellant's submissions, namely that the Respondent was overtaking "a stationary trailer that was ahead of them" when a pillion passenger jumped off in fear of a collision with the Appellant's vehicle.
23) Whichever version is preferred, it remains the Appellant's own witness's account, unconfirmed by any independent witness; and the police abstract on which the Appellant relies (Dexh 1, dated 1st March 2021) was, on PW2's own evidence, issued while investigations remained open and before any finding of guilt had been made.
24) The Court of Appeal has consistently held that where evidence is inconclusive, apportionment may be the fairest course. In Wanjiru Nganga & Another v Paul Kinuthia Muigai (2015) eKLR, the Court stated:
“Where the evidence does not clearly establish negligence on one side, but shows that both parties failed to exercise reasonable care, the court is entitled to apportion liability equally.”
25) On this state of the evidence, I am not persuaded that the trial court erred in finding that the rival versions of how the accident occurred could not be resolved in favour of either party on a balance of probabilities. Both drivers gave accounts favourable to themselves.
26) I find that neither account was corroborated by an independent eyewitness and more importantly, the sole relatively neutral witness expressly declined, for want of a determinable point of impact, to assign fault to either side.
27) The Respondent's admitted overloading of the motorcycle is a proven fact adverse to him, properly weighed in the trial court's apportionment of liability. However, the same does not, without more, establish on a balance of probabilities that the Respondent alone or predominantly caused the collision, nor does it undermine the trial court's assessment that fault was fairly shared.
28) This being a finding that turned substantially on the trial court's assessment of witnesses it saw, heard them testify and cross-examined, an advantage this Court does not enjoy. I decline to disturb it. I am not satisfied, that the trial court misapprehended the evidence, took into account an irrelevant factor, left out a relevant one, or arrived at a conclusion that is plainly wrong.
29) Consequently, grounds 1, 2 and 3 of the appeal accordingly fail, and the apportionment of liability at 50% as between the Respondent and the Appellant is upheld.
Determination on Quantum (Grounds 4, 5, 6 and 7)
30) The principles applicable to appellate interference with an award of general damages are settled and are not, in truth, in dispute between the parties.
31) In Lynn Kambua Enterprises v Edith Vaati Simon Kasika (2021) eKLR, Odunga J, citing Catholic Diocese of Kisumu v Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55, restated the applicable test in these terms:
"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 different 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, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent erroneous estimate."
32) The Court of Appeal expressed the same threshold in Sheikh Mustaq Hassan v Nathan Mwangi Kamau Transporters & 5 Others [1986] KLR 457, also cited in Lynn Kambua Enterprises (supra):
"The appellate court is only entitled to increase an award of damages by the High Court if it is so inordinately low that it represents an entirely erroneous estimate or the party asking for an increase must show that in reaching that inordinately low figure the Judge proceeded on a wrong principle or misapprehended the evidence in some material respect ... A member of an appellate court when naturally and reasonably says to himself “what figure would I have made?” and reaches his own figure must recall that it should be in line with recent ones in cases with similar circumstances and that other Judges are entitled to their views or opinions so that their figures are not necessarily wrong if they are not the same as his own ..."
33) And in Jane Chelagat Bor v Andrew Otieno Onduu [1988–92] 2 KAR 288; [1990–1994] EA 47, likewise cited in Lynn Kambua Enterprises (supra):
"In effect, the court before it interferes with an award of damages, should be satisfied that the Judge acted on wrong principle of law, or has misapprehended the fact, or has for these or other reasons made a wholly erroneous estimate of the damage suffered. It is not enough that there is a balance of opinion or preference. The scale must go down heavily against the figure attacked if the appellate court is to interfere, whether on the ground of excess or insufficiency."
34) As to method, the guiding principle remains that comparable injuries attract comparable awards. In Gerald Muhuthia Mwangi v John Mburugu & Another (2022) eKLR, the High Court at Meru, quoting the Court of Appeal in Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR, held:
"Having so said, we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases."
35) To the same effect, the Court of Appeal for East Africa held in Bhogal v Burbridge & Another (1975) E.A 285 that:
“some degree of uniformity must be sought in the award of general damages and recent awards in comparable cases in local courts may be looked at,”
36) While in Kigaraari v Aya (1982–88) 1 KAR 768 the Court of Appeal cautioned:
"Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford as large awards are inevitably passed on to members of the public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees."
37) The Respondent's pleaded injuries were head injury with mild loss of consciousness, fracture of the right mandible, fracture of the right clavicle, bruising to the chest, and lacerations to the left hand/forearm. The injuries were confirmed by the discharge summary from Webuye County Referral Hospital and the report of Dr. Joseph C. Sokobe dated 1st March 2021, who assessed both soft-tissue and bony (fracture) injuries not then resolved, requiring open reduction and internal fixation at an estimated cost of Kshs. 150,000.
38) The later medico-legal report of Dr. Z. Gaya dated 5th October 2022, procured by the Appellant, records that the right clavicle fracture malunited with a visible, palpable callus, that the mandible likewise shows malunion at the fracture site with a permanent scar, that there are five further permanent scars on the dorsal aspect of the right wrist and hand, and assesses overall permanent disability at five per cent (5%).
39) There is no evidence of any permanent neurological or cognitive sequela from the head injury, which was, on the pleadings and the medical evidence, mild, and the fractures were in the event treated conservatively rather than by the open reduction and internal fixation originally contemplated.
40) On the Appellant's authorities, in Gerald Muhuthia Mwangi v John Mburugu & Another (2022) eKLR the High Court at Meru affirmed a trial award of Kshs. 280,000 for a distal right clavicle fracture with superior displacement, bruising to the shoulder and soft-tissue injury to the back whereas In Lynn Kambua Enterprises v Edith Vaati Simon Kasika (2021) eKLR the High Court at Machakos affirmed an award of Kshs. 350,000 for a fracture of the left clavicle with multiple soft-tissue injuries, itself noting comparator awards of Kshs. 500,000 to Kshs. 700,000 where the injuries were “slightly more serious.”
41) In Elizaphen Mokaya Bogonko v Fredrick Omondi Ouna [2022] eKLR the High Court at Siaya reduced an award from Kshs. 850,000 to Kshs. 500,000 for a fracture of the right facial bone with head injury and loss of consciousness together with multiple soft-tissue injuries. In Nyota Tissue Products v Charles Wanga & 4 Others [2020] eKLR an award was reduced from Kshs. 1,200,000 to Kshs. 500,000 for a head injury with an open depressed frontal fracture an injury considerably graver than any suffered by the Respondent.
42) The Respondent's own authorities Kimathi Muturi Donald v Kevin Ochieng Aseso [2021] eKLR (Kshs. 1,200,000 for fracture of the upper right tibia requiring a metal implant together with fracture of the acetabulum) and Francis Ndung'u Wambui & 2 Others v VK [2019] eKLR (Kshs. 1,000,000 for a compound distal tibia-fibula fracture with soft-tissue injury and loss of consciousness for over thirty minutes) concern materially more severe orthopaedic trauma than that suffered by the Respondent and are not, with respect, close comparators.
43) I note that none of the authorities placed before the trial court, on either side, supports an award as high as Kshs. 1,500,000 for injuries of the kind and severity proved in the primary suit. Even allowing for the two fracture sites (mandible and clavicle, as against the single clavicle fracture in the closest comparators), the assessed 5% permanent disability and the permanent scarring recorded by Dr. Gaya.
44) The award is, in the language of Catholic Diocese of Kisumu v Tete and Jane Chelagat Bor v Andrew Otieno Onduu (both supra), so inordinately high as to represent a wholly erroneous estimate of the damage. It is also, on the Appellant's uncontested submission, an award for which the trial court did not specify the authorities relied upon in arriving at that particular figure, which is itself a material misdirection on the authority of Sheikh Mustaq Hassan (supra).
45) Having regard to the range disclosed by the comparable authorities Kshs. 280,000 to Kshs. 500,000 for single-fracture and comparable soft-tissue injuries, rising toward Kshs. 700,000 where somewhat more serious and mindful of the need identified in Bhogal v Burbridge (supra) for “some degree of uniformity” and in Kigaraari v Aya (supra) for awards to remain “within the limits set out by decided cases and also within the limits the Kenyan economy can afford,” I assess fair and adequate compensation for the Respondent's pain, suffering and loss of amenity at Kshs. 800,000.
46) This figure reflects the combination of two fracture sites with permanent malunion and the assessed 5% permanent disability and permanent scarring, set against injuries that were in the result managed conservatively and have left no permanent neurological deficit.
47) I have not disturbed the award of Kshs. 7,050 special damages, which was not the subject of any specific ground of appeal and which the trial court appears to have limited to the sums strictly proved by receipt.
Disposition
48) For the foregoing reasons, I find that the appeal succeeds in part and I make the following orders:
a) Grounds 1, 2 and 3 of the appeal, challenging the finding on liability, are dismissed. The apportionment of liability at 50% as between the Respondent and the Appellant made by the trial court is upheld.
b) Grounds 4, 5, 6 and 7 of the appeal, challenging the quantum of general damages, succeed to the extent set out below.
c) The award of Kshs. 1,500,000 general damages is set aside and is substituted with an award of Kshs. 800,000.
d) The award of Kshs. 7,050 special damages is confirmed.
e) The gross sum of Kshs. 807,050, less the Respondent's 50% contribution, yields a net award of Kshs. 403,525 in favour of the Respondent against the Appellant.
f) The said sum shall bear interest at court rates from the date of filing of the suit until payment in full.
g) The order for costs of the suit in the subordinate court is not disturbed.
h) As the Appellant has substantially succeeded on this appeal, it shall have the costs of the appeal.
It is so ordered.
DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 16TH DAY OF September 2026.
M. S. SHARIFF
JUDGE
In the presence of:
Ms Langat for the Appellant
Ms Momanyi for the Respondent
Aziza & Rose – Court Assistants