REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. E196 OF 2025
BEATRICE MOREKA…………………………………APPELLANT
VERSUS
FESTUS OCHENGE………………………….………RESPONDENT
(Being an appeal from the Judgement and Decree of Hon. V.M.Moguche (RM) dated 26 th November, 2025 in Etago MCCC/34/2023)
JUDGEMENT
1. This Appeal arises from the judgement and decree of the Hon. V.M.Moguche (RM) dated 26th November, 2025 in Etago MCCC No.34 of 2023.
2. By a plaint dated 29 th July, 2021 the Respondent (Plaintiff in the lower court) sued the Appellant (Defendant in the lower court) for general and special damages for injuries sustained in an alleged road traffic accident that occurred on 11 th April, 2021 involving motorcycle registration number KMCG 960E whose rider was the respondent and motor-vehicle registration number KBZ 660J said to have been under the control of the appellant.
3. The Respondent blamed the occurrence of the said accident on the negligence of the Appellant and pleaded to have sustained the following injuries; whiplash injury on the neck, chest contusion, right radius fracture, fracture of the left tibia fibula and right thigh contusion.
4. The Appellant filed a statement of defence dated 26 th November, 2021 where she generally denied the occurrence of the accident and allegation of negligence on her part. She pleaded in the alternative that if the accident occurred as alleged, then the same was attributable to the negligence of the Respondent.
5. The trial court delivered its judgment on 26 th November, 2024 in favour of the Respondent and found the Appellant wholly liable for causing the accident. General and special damages were assessed at Ksh. 500, 000/= and Ksh. 6, 500/= respectively. The respondent was also awarded costs of the suit and interest on the aforesaid damages.
The Appeal
6. Being dissatisfied and aggrieved with the judgement, the Appellant preferred this appeal on the grounds that can be summarized as hereunder;
(a) That the trial court relied on forged and or fabricated medical evidence adduced by the respondent in support of his case showing that the respondent sustained far more serious injuries which was not the case in the circumstances,
(b) That the trial court disregarded the appellant’s expert testimony challenging the respondent’s expert testimony and demonstrating that the respondent had placed reliance on forged medical documents,
(c) That the trial court erred in law and fact by finding that the appellant was wholly to blame for causing the accident, and
(d) That the learned trail magistrate erred in law and fact in assessment of damages payable to the respondent and made an inordinately high and erroneous estimate in the compensation payable for the injuries suffered by the respondent.
7. The Appellant is seeking orders to have the appeal allowed and the judgement of the trial court set aside in its entirety with costs to the Appellant.
8. Directions were taken that the appeal be canvassed by way of written submissions with the Appellant filing written submissions dated 2 nd March, 2026 and the Respondent’s filing written submissions dated 4 th May, 2026 .
Appellant’s Submissions
9. Counsel for the Appellant submits that it is clear from the evidence presented before the trial court that the Respondent relied on forged medical documents to support his claim for compensation.
10. It is submitted that the evidence of Dr. Tobias Otieno (DW1) who is an orthopedic surgeon shows that the Respondent was subjected to a radiological examination to ascertain whether he sustained fractures as alleged and as shown in the X-ray films he presented but he was found to have suffered no fractures (see D. Exh. 1.)
11. It is also submitted that the trial court expunged from the record of the trial court a copy of a charge sheet which showed that the clinician who prepared the Respondent’s medical report, characterized by the appellant as false, was facing criminal charges related to forgery of medical documents to assist fraudulent claimants to lodge false insurance claims.
12. Counsel for the Appellant submits that making false statements in court to hide the truth amounts to perjury and contempt on the face of the court. The appellant submits that a party guilty of such breach is undeserving of the remedies sought. Reliance was placed on the case of Bia Tosha Distributors V Kenya Breweries & 4 Others [2016] KLR .
13. It is also submitted that the credibility of the treatment notes went to the very root of the Respondent’s claim and that courts have dismissed cases where the credibility of the treatment notes was in doubt. Reliance was placed on the case of Albert Avenga Vs Amisi Jomo Barongo, Civil Appeal No. E111 OF 2023, High Court of Kenya at Kisii , where Odera J found that there was overwhelming evidence supporting the appellant's contention that the case was based on fake treatment notes which went to the root of testimony of the respondent.
14. On the award of damages, Counsel for the Appellant submits that even though multiple injuries were pleaded, the Respondent was unable to prove the same. The appellant cited the testimony of Dr. Tobias Otieno who examined the Respondent and found that the Respondent did not suffer any fractures as alleged. The appellant has characterized the X-ray films produced by the respondent and sourced from Kisii Teaching and Referral Hospital as forgeries.
15. It is also submitted that the Respondent’s medical report prepared by one Daniel Nyameino who works at the above-mentioned facility was therefore unreliable since it was based on false and forged x-rays. The appellant points out that the clinician admitted that he failed to subject the respondent to an X-ray examination to establish if indeed he had sustained fractures or not.
16. Counsel for the Appellant also submits that the Respondent is not entitled to any award for general and special damages. That the award of Kshs 506, 500/= made by the trial court was therefore wrong and undeserved, the appellant suggests that the respondent likely suffered soft tissue injuries which could not attract such exorbitant award. Reliance was placed on the cases of Ondicho V Mosigi [2025] КЕНС 5140 KLR , Murungi V Kailunga [2024] КЕНС 14660 KLR, Adembesa & Another V Gweno (Civil Appeal E192 of 2023) КЕНС 5379 (KLR) & Nyambati Nyaswabu Erick Vs. Toyota Kenya Limited & 2 Others [2019] eKLR.
Respondent’s Submissions.
17. Counsel for the Respondent submits that the Appellant’s primary attack on the trial court’s judgement is that the Respondent’s suit is “rooted in forgery” of medical documents, relying heavily on the evidence of DW1, Dr. Tobias Otieno, and an expunged charge sheet.
18. Counsel submits that this contention is misconceived and was rightly rejected by the trial court for the reasons that the trial Magistrate had the benefit of seeing and hearing both expert witnesses, Daniel Nyameino (PW3) who was the treating clinician and Dr. Tobias (DW1). That the trial court evaluated the two sets of X-rays and medical reports and found no manipulation or forgery.
19. It was also submitted that discrepancies in medical opinions between treating and examining doctors are common and do not equate to forgery. Further that courts routinely prefer the evidence of the treating clinician who attend to patients immediately post-accident as compared with medics who examine patients after some passage of time. Counsel argues that the charge sheet against the clinician was properly expunged as it related to unrelated cases and constituted hearsay and irrelevant prejudice. That the Appellant failed to prove that the respondent’s documents were forged, it is submitted that the appellant relied on mere allegations based on suspicion but failed to proof the same.
20. It is submitted that the present case is distinguishable from the case relied on by the Appellant, Albert Avenga v Amisi Jomo Barongo (Civil Appeal E111 of 2023), that it is distinguishable for the reason that in the latter case, there was overwhelming independent evidence (police abstract discrepancies, hospital confirmation of no treatment records, and new evidence post-judgment) which proved the claim was fake but that no such conclusive evidence exists in the instant case.
21. It is submitted that the Respondent produced consistent treatment notes from Kisii Teaching & Referral Hospital, a P3 form, a police abstract (OB No. 18/11/4/2021) besides the testimonies of PW1, Inspector Opondo (PW2) and PW3.
22. Counsel for the Respondent submits that the trial court correctly held that the medical documents were genuine and that this first appellate court should not disturb credible findings based on testimony of witnesses whose demeanor the trial court took into account.
23. On the issue of liability, counsel for the Respondent submits that (PW1) gave clear, consistent evidence that the Appellant’s vehicle emerged from a feeder road without due care, failed to give way to traffic on the main Kisii-Rongo road and collided with the respondent’s motorcycle. That this testimony was corroborated by PW2 who produced the police abstract.
24. Counsel for the Respondent argues that the Appellant led no evidence from the driver or any independent witness to prove contributory negligence on the part of the Respondent and that raising the defence in pleadings is insufficient as it must be proved on a balance of probabilities. That the learned trial Magistrate properly found the Appellant wholly liable for causing the accident and there was no basis for apportionment of liability between the appellant and the respondent.
25. On the injuries sustained, Counsel for the Respondent argues that while the Appellant alleges that the trial court erred in finding that the Respondent sustained fractures despite “undisputed expert evidence” to the contrary. This was incorrect for the following reasons; that PW3 (treating clinician) and initial X-rays supported the fracture of the left tibia/fibula area. That the Respondent underwent plaster immobilization and appellant’s doctor examined the Respondent later and noted no current fracture but did not categorically rule out healed fractures from the initial trauma.
26. It is submitted by the Counsel for the Respondent that the trial Magistrate acknowledged the differences in the expert opinions but accepted that the Respondent sustained significant injuries, including those consistent with the accident, that is, soft tissue injuries, pain, chest complications, and mobility issues. The finding that the Respondent sustained fractures, or injuries of equivalent severity, is supported by the evidence on record and were based on X-rays films, clinical findings and immediate post-accident treatment and hospitalization which are strong evidence of genuine injury.
27. On quantum, counsel for the Respondent submits that the award of Kshs. 506,500/= as general and special damages was not inordinately high as the Respondent suffered fractures, soft tissue injuries, chest complications and had persistent pain coupled with inability to perform strenuous labour. It is argued that the trial court’s award was within range of comparable awards. Reliance was placed on the case Kairithia v Achieng [2026] KEHC.
Issues for determination
28. Taking into consideration the submissions of the parties, the following issues arise for determination:
i. Whether the Respondent's medical evidence adduced before the trial court was credible.
ii. Whether the assessment of the quantum of damages was properly done.
iii. Whether the trial court properly assessed the liability between the parties.
29. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123 :
“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has 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 demeanor of a witness is inconsistent with the evidence in the case generally.”
i) Whether the Respondent's medical evidence adduced before the trial court was credible.
30. The court of Appeal in Ratilal Gordhanbhai Patel v Lalji Makanji [1957] EA 314, 317 which was cited with approval in the case of In re Estate of Dedan Kabiru Kihonge (Deceased) [2021] KEHC 5951 (KLR) stated as follows regarding fraud;
“There is one preliminary observation which we must take on the learned judge’s treatment of this evidence: he does not anywhere… expressly direct himself on the burden of proof or on the standard of proof required. Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required. There is no specific indication that the learned judge had this in mind: there are some indications which suggest he had not.”
31. This appeal turns on the central issue of whether the Respondent's claim is rooted in forgery as posited by the Appellant. It is anchored on the evidence of DW1, Dr. Tobias Otieno Ondieki, and an expunged charge sheet said to implicate the clinician who prepared the Respondent's medical report in alleged fabrication of claims for other litigants. It is apparent that the case had not been heard and determined, otherwise, the appellant would have stated the outcome of the criminal trial.
32. Allegations of forgery and fraud, even when raised in a civil suit, must be strictly proved. This heightened threshold applies with equal force to an allegation that a party's medical evidence has been forged or fabricated.
33. On that basis the Appellant's forgery allegation was correctly rejected by the trial court. The charge sheet said to implicate the clinician, Daniel Nyameino, related to matters and claimants distinct from the suit between the appellant and the respondent. It went, at best, to the clinician's general credibility and propensity, not to whether the specific documents produced in this suit were forged. That is, that the treatment notes, P3 form, and medical report (P. Exh. 2, P. Exh. 4 and P. Exh. 6A) were themselves forged. A charge sheet, of itself, in a case whose outcome is unknown and considering the constitutional principle of presumption of innocence, cannot be taken as proof that the clinician is guilty of the allegations of forgery.
34. In the absence of a demonstrated nexus between the unrelated charges and the documents actually relied upon in this suit, the trial court was correct to treat that material as of limited probative value and to expunge it because it was irrelevant to the facts in issue.
35. DW1's opinion that the Respondent's X-ray was forged was, in his own evidence, an inference drawn from the absence of scars on X-ray films taken during the respondent’s re-examination. It is worth noting that the re-examination was done on 6 th May, 2025, more than four years from the date of the accident. There is no assertion that the appellant’s doctor found alterations in the X-ray films nor any corroboration by any document examiner or independent forensic analyst to the effect that the films are forged.
36. It is more of a divergence in opinion between two experts which goes into what is to be considered in weighing who between the two experts is to be believed but not an inference of forgery.
37. Acting on the material placed before it, the trial court found that the Appellant had not strictly proved that the Respondent's medical documents were forged, and this court is not persuaded to disturb the trial court's finding on that specific allegation.
(ii) Whether the assessment of the quantum of damages was properly done.
38. The Evidence Act, Section 107 on the burden of proof provides that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
39. It falls for determination the question of whether the Respondent proved, in the ordinary standard of a balance of probabilities, that he sustained fractures of the tibia and fibula and the right radius.
40. On a re-evaluation of the medical evidence adduced, PW3 who was the treating clinician, admitted in cross-examination that he did not personally cause the X-ray of the respondent to be taken, that the X-ray was presented to him by the Respondent, and that he did not know the circumstances under which it was taken.
41. DW1, an orthopedic surgeon, examined the Respondent on 6 th May 2025, some four years after the accident and found no radiological evidence of healed fractures as was expected of someone who had a history of having suffered fractures. His evidence, that a genuine bone fracture leaves a detectable scar on subsequent X-rays even after passage of time and indeed PW3's own concession that a fracture can heal with evident scarring confirms DW1's conclusion that the respondent had not suffered fractures as alleged.
42. The Respondent's own evidence that a plaster cast was applied and that a subsequent Kisumu review found no fracture is, if anything, corroborative of DW1's position rather than the Respondent's pleaded case.
43. On the evidence presently before this court, I find that the Respondent did not discharge his burden of proving, on a balance of probabilities, that he sustained fractures of the tibia fibula and the right radius. Fractures, by their very nature, are serious injuries which may require admission of the affected patient or prolonged hours of medical intervention. Other than stating the injuries that he suffered, the respondent does not mention how he was managed in hospital and whether or not he was admitted.
44. The trial court's finding to the contrary is accordingly set aside. However, the finding that the Respondent sustained soft tissue injuries in the accident involving chest contusion, right thigh contusion, and associated soft-tissue trauma to the neck and limbs, which are supported by the treatment records and were not seriously contested by the appellant on the same footing as the alleged fractures are not to be disturbed.
45. The only credible evidence as can be discerned is that the respondent suffered soft tissue injuries and nothing more. The assessment of damages inclusive of fractures is therefore erroneous.
ii) Liability
46. The Court of Appeal in the case of Kiema Mutuku vs Kenya Cargo Hauling Services Ltd [1991]2 KAR 258 held;
“There is yet no liability without fault in the legal system in Kenya, and the plaintiff must prove some negligence against the defendant where the claim is based on negligence.”
47. On liability, the unchallenged evidence of PW1 (the Respondent) and PW2 (the investigating police officer) was that the Appellant's motor vehicle emerged from a feeder road onto the main Kisii–Rongo highway without giving way to the Respondent's motorcycle, which had the right of way on the major road. This account was corroborated through the production of the police abstract and was not displaced by any independent evidence from the Appellant.
48. It is settled that a plea of contributory negligence raised in a defence is not, without evidence in proof thereof, sufficient. The burden of proving contributory negligence lies on the party who asserts it, and pleading alone, without evidence in proof thereof, does not discharge that burden.
49. A review of the material on the record, shows that the Appellant did not lead any evidence to rebut the Respondent’s testimony regarding how the accident occurred, as corroborated by the police witness's account, nor any evidence from which contributory fault on the part of the Respondent could be inferred. This court finds persuasion in the case of Mutai & another v Mburugu [2025] KEHC 3750 (KLR) where it was held;
“Section 107 of the Evidence Act provides that the burden rests on the party who alleges. The Respondent, as Plaintiff, discharged that burden through his sworn testimony and corroborating documents. Once this was done, the evidentiary burden shifted to the Appellants to rebut that evidence. They failed to do so. The trial court did not err in this regard.”
50. This court, re-evaluating the evidence, is not persuaded that the trial court's finding on liability, apportioned wholly against the appellant, was against the weight of evidence. That finding is affirmed.
iii) What is the appropriate quantum of damages?
51. The principles guiding an appellate court in determining whether to interfere with an award of damages were set out in the celebrated case of Butt v Khan {1981} KLR 470 where the court pronounced itself as follows;
“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”.
52. In that regard, an appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles. That was the holding of the Court of Appeal in Mkube v Nyamuro [1983] LLR at 403 , where Kneller JA & Hancox Ag JJA held that-
“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”
53. Having found that the claim that the respondent suffered fracture(s) was not proved, the award of general damages must be revisited, since it is evident from the trial court's judgment that the alleged fracture injuries materially informed the assessment of the quantum of damages awarded.
54. General damages are awarded on a case-by-case basis and no two injuries are identical, but comparable injuries should attract comparable awards for consistency. Where a claimant's injuries are shown to be soft-tissue in nature, without proved fractures, awards have been assessed markedly lower than where a fracture is established. In Ondicho v Mosigisi (Civil Appeal E054 of 2023) [2025] KEHC 5140 (KLR) , the appellate court reduced a trial court's award for a head cut and soft-tissue leg injuries from Kshs. 300,000 to Kshs. 80,000 on the basis that no fracture had been proved and the injuries were less severe than in the comparable authorities cited.
55. The Respondent's proved injuries here are chest contusion, right thigh contusion, and soft-tissue trauma with continuing complaints of coughing and joint discomfort are more extensive than the single soft-tissue leg injury in Ondicho (supra), involving multiple body regions and a degree of continuing symptomatology.
56. The special damages award of Kshs. 6,500/=, having been specifically pleaded and strictly proved, is not to be disturbed.
57. For the reasons set out above, this court makes the following orders:
a) The appeal is allowed in part.
b) The finding of 100% liability against the Appellant is upheld.
c) The finding that the Respondent sustained fractures of the tibia fibula and right radius is set aside.
d) The general damages award of Kshs. 500,000/= is set aside and substituted with an award of Kshs 230, 000/= (in words Kenya shillings two hundred and thirty thousand only .)
e) The special damages award of Kshs. 6,500/= is affirmed.
f) Each party shall bear its own costs.
Judgment read, dated and delivered virtually at Bungoma this 17 th day of September, 2026
S. K.Koech
JUDGE
In the presence of:
Mr. Nyasimi appearing virtually for the Appellant
Mr. Enock Wakhu, C.A.
But in the absence of the Respondent and his counsel.
Right of appeal within 30 days, stay of execution for 30 days.
Page 1Page 1KISII HCCA/E196/2025
IN THE HIGH COURT OF KENYA AT KISII
CIVIL APPEAL NO. E196 OF 2025
BEATRICE MOREKA…………………………………APPELLANT
VERSUS
FESTUS OCHENGE………………………….………RESPONDENT
(Being an appeal from the Judgement and Decree of Hon. V.M.Moguche (RM) dated 26 th November, 2025 in Etago MCCC/34/2023)
JUDGEMENT
1. This Appeal arises from the judgement and decree of the Hon. V.M.Moguche (RM) dated 26th November, 2025 in Etago MCCC No.34 of 2023.
2. By a plaint dated 29 th July, 2021 the Respondent (Plaintiff in the lower court) sued the Appellant (Defendant in the lower court) for general and special damages for injuries sustained in an alleged road traffic accident that occurred on 11 th April, 2021 involving motorcycle registration number KMCG 960E whose rider was the respondent and motor-vehicle registration number KBZ 660J said to have been under the control of the appellant.
3. The Respondent blamed the occurrence of the said accident on the negligence of the Appellant and pleaded to have sustained the following injuries; whiplash injury on the neck, chest contusion, right radius fracture, fracture of the left tibia fibula and right thigh contusion.
4. The Appellant filed a statement of defence dated 26 th November, 2021 where she generally denied the occurrence of the accident and allegation of negligence on her part. She pleaded in the alternative that if the accident occurred as alleged, then the same was attributable to the negligence of the Respondent.
5. The trial court delivered its judgment on 26 th November, 2024 in favour of the Respondent and found the Appellant wholly liable for causing the accident. General and special damages were assessed at Ksh. 500, 000/= and Ksh. 6, 500/= respectively. The respondent was also awarded costs of the suit and interest on the aforesaid damages.
The Appeal
6. Being dissatisfied and aggrieved with the judgement, the Appellant preferred this appeal on the grounds that can be summarized as hereunder;
(a) That the trial court relied on forged and or fabricated medical evidence adduced by the respondent in support of his case showing that the respondent sustained far more serious injuries which was not the case in the circumstances,
(b) That the trial court disregarded the appellant’s expert testimony challenging the respondent’s expert testimony and demonstrating that the respondent had placed reliance on forged medical documents,
(c) That the trial court erred in law and fact by finding that the appellant was wholly to blame for causing the accident, and
(d) That the learned trail magistrate erred in law and fact in assessment of damages payable to the respondent and made an inordinately high and erroneous estimate in the compensation payable for the injuries suffered by the respondent.
7. The Appellant is seeking orders to have the appeal allowed and the judgement of the trial court set aside in its entirety with costs to the Appellant.
8. Directions were taken that the appeal be canvassed by way of written submissions with the Appellant filing written submissions dated 2 nd March, 2026 and the Respondent’s filing written submissions dated 4 th May, 2026 .
Appellant’s Submissions
9. Counsel for the Appellant submits that it is clear from the evidence presented before the trial court that the Respondent relied on forged medical documents to support his claim for compensation.
10. It is submitted that the evidence of Dr. Tobias Otieno (DW1) who is an orthopedic surgeon shows that the Respondent was subjected to a radiological examination to ascertain whether he sustained fractures as alleged and as shown in the X-ray films he presented but he was found to have suffered no fractures (see D. Exh. 1.)
11. It is also submitted that the trial court expunged from the record of the trial court a copy of a charge sheet which showed that the clinician who prepared the Respondent’s medical report, characterized by the appellant as false, was facing criminal charges related to forgery of medical documents to assist fraudulent claimants to lodge false insurance claims.
12. Counsel for the Appellant submits that making false statements in court to hide the truth amounts to perjury and contempt on the face of the court. The appellant submits that a party guilty of such breach is undeserving of the remedies sought. Reliance was placed on the case of Bia Tosha Distributors V Kenya Breweries & 4 Others [2016] KLR .
13. It is also submitted that the credibility of the treatment notes went to the very root of the Respondent’s claim and that courts have dismissed cases where the credibility of the treatment notes was in doubt. Reliance was placed on the case of Albert Avenga Vs Amisi Jomo Barongo, Civil Appeal No. E111 OF 2023, High Court of Kenya at Kisii , where Odera J found that there was overwhelming evidence supporting the appellant's contention that the case was based on fake treatment notes which went to the root of testimony of the respondent.
14. On the award of damages, Counsel for the Appellant submits that even though multiple injuries were pleaded, the Respondent was unable to prove the same. The appellant cited the testimony of Dr. Tobias Otieno who examined the Respondent and found that the Respondent did not suffer any fractures as alleged. The appellant has characterized the X-ray films produced by the respondent and sourced from Kisii Teaching and Referral Hospital as forgeries.
15. It is also submitted that the Respondent’s medical report prepared by one Daniel Nyameino who works at the above-mentioned facility was therefore unreliable since it was based on false and forged x-rays. The appellant points out that the clinician admitted that he failed to subject the respondent to an X-ray examination to establish if indeed he had sustained fractures or not.
16. Counsel for the Appellant also submits that the Respondent is not entitled to any award for general and special damages. That the award of Kshs 506, 500/= made by the trial court was therefore wrong and undeserved, the appellant suggests that the respondent likely suffered soft tissue injuries which could not attract such exorbitant award. Reliance was placed on the cases of Ondicho V Mosigi [2025] КЕНС 5140 KLR , Murungi V Kailunga [2024] КЕНС 14660 KLR, Adembesa & Another V Gweno (Civil Appeal E192 of 2023) КЕНС 5379 (KLR) & Nyambati Nyaswabu Erick Vs. Toyota Kenya Limited & 2 Others [2019] eKLR.
Respondent’s Submissions.
17. Counsel for the Respondent submits that the Appellant’s primary attack on the trial court’s judgement is that the Respondent’s suit is “rooted in forgery” of medical documents, relying heavily on the evidence of DW1, Dr. Tobias Otieno, and an expunged charge sheet.
18. Counsel submits that this contention is misconceived and was rightly rejected by the trial court for the reasons that the trial Magistrate had the benefit of seeing and hearing both expert witnesses, Daniel Nyameino (PW3) who was the treating clinician and Dr. Tobias (DW1). That the trial court evaluated the two sets of X-rays and medical reports and found no manipulation or forgery.
19. It was also submitted that discrepancies in medical opinions between treating and examining doctors are common and do not equate to forgery. Further that courts routinely prefer the evidence of the treating clinician who attend to patients immediately post-accident as compared with medics who examine patients after some passage of time. Counsel argues that the charge sheet against the clinician was properly expunged as it related to unrelated cases and constituted hearsay and irrelevant prejudice. That the Appellant failed to prove that the respondent’s documents were forged, it is submitted that the appellant relied on mere allegations based on suspicion but failed to proof the same.
20. It is submitted that the present case is distinguishable from the case relied on by the Appellant, Albert Avenga v Amisi Jomo Barongo (Civil Appeal E111 of 2023), that it is distinguishable for the reason that in the latter case, there was overwhelming independent evidence (police abstract discrepancies, hospital confirmation of no treatment records, and new evidence post-judgment) which proved the claim was fake but that no such conclusive evidence exists in the instant case.
21. It is submitted that the Respondent produced consistent treatment notes from Kisii Teaching & Referral Hospital, a P3 form, a police abstract (OB No. 18/11/4/2021) besides the testimonies of PW1, Inspector Opondo (PW2) and PW3.
22. Counsel for the Respondent submits that the trial court correctly held that the medical documents were genuine and that this first appellate court should not disturb credible findings based on testimony of witnesses whose demeanor the trial court took into account.
23. On the issue of liability, counsel for the Respondent submits that (PW1) gave clear, consistent evidence that the Appellant’s vehicle emerged from a feeder road without due care, failed to give way to traffic on the main Kisii-Rongo road and collided with the respondent’s motorcycle. That this testimony was corroborated by PW2 who produced the police abstract.
24. Counsel for the Respondent argues that the Appellant led no evidence from the driver or any independent witness to prove contributory negligence on the part of the Respondent and that raising the defence in pleadings is insufficient as it must be proved on a balance of probabilities. That the learned trial Magistrate properly found the Appellant wholly liable for causing the accident and there was no basis for apportionment of liability between the appellant and the respondent.
25. On the injuries sustained, Counsel for the Respondent argues that while the Appellant alleges that the trial court erred in finding that the Respondent sustained fractures despite “undisputed expert evidence” to the contrary. This was incorrect for the following reasons; that PW3 (treating clinician) and initial X-rays supported the fracture of the left tibia/fibula area. That the Respondent underwent plaster immobilization and appellant’s doctor examined the Respondent later and noted no current fracture but did not categorically rule out healed fractures from the initial trauma.
26. It is submitted by the Counsel for the Respondent that the trial Magistrate acknowledged the differences in the expert opinions but accepted that the Respondent sustained significant injuries, including those consistent with the accident, that is, soft tissue injuries, pain, chest complications, and mobility issues. The finding that the Respondent sustained fractures, or injuries of equivalent severity, is supported by the evidence on record and were based on X-rays films, clinical findings and immediate post-accident treatment and hospitalization which are strong evidence of genuine injury.
27. On quantum, counsel for the Respondent submits that the award of Kshs. 506,500/= as general and special damages was not inordinately high as the Respondent suffered fractures, soft tissue injuries, chest complications and had persistent pain coupled with inability to perform strenuous labour. It is argued that the trial court’s award was within range of comparable awards. Reliance was placed on the case Kairithia v Achieng [2026] KEHC.
Issues for determination
28. Taking into consideration the submissions of the parties, the following issues arise for determination:
i. Whether the Respondent's medical evidence adduced before the trial court was credible.
ii. Whether the assessment of the quantum of damages was properly done.
iii. Whether the trial court properly assessed the liability between the parties.
29. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of Selle –vs- Associated Motor Boat Co. [1968] EA 123 :
“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon which the Court of Appeal acts are that the 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 this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has 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 demeanor of a witness is inconsistent with the evidence in the case generally.”
i) Whether the Respondent's medical evidence adduced before the trial court was credible.
30. The court of Appeal in Ratilal Gordhanbhai Patel v Lalji Makanji [1957] EA 314, 317 which was cited with approval in the case of In re Estate of Dedan Kabiru Kihonge (Deceased) [2021] KEHC 5951 (KLR) stated as follows regarding fraud;
“There is one preliminary observation which we must take on the learned judge’s treatment of this evidence: he does not anywhere… expressly direct himself on the burden of proof or on the standard of proof required. Allegations of fraud must be strictly proved: although the standard of proof may not be so heavy as to require proof beyond reasonable doubt, something more than a mere balance of probabilities is required. There is no specific indication that the learned judge had this in mind: there are some indications which suggest he had not.”
31. This appeal turns on the central issue of whether the Respondent's claim is rooted in forgery as posited by the Appellant. It is anchored on the evidence of DW1, Dr. Tobias Otieno Ondieki, and an expunged charge sheet said to implicate the clinician who prepared the Respondent's medical report in alleged fabrication of claims for other litigants. It is apparent that the case had not been heard and determined, otherwise, the appellant would have stated the outcome of the criminal trial.
32. Allegations of forgery and fraud, even when raised in a civil suit, must be strictly proved. This heightened threshold applies with equal force to an allegation that a party's medical evidence has been forged or fabricated.
33. On that basis the Appellant's forgery allegation was correctly rejected by the trial court. The charge sheet said to implicate the clinician, Daniel Nyameino, related to matters and claimants distinct from the suit between the appellant and the respondent. It went, at best, to the clinician's general credibility and propensity, not to whether the specific documents produced in this suit were forged. That is, that the treatment notes, P3 form, and medical report (P. Exh. 2, P. Exh. 4 and P. Exh. 6A) were themselves forged. A charge sheet, of itself, in a case whose outcome is unknown and considering the constitutional principle of presumption of innocence, cannot be taken as proof that the clinician is guilty of the allegations of forgery.
34. In the absence of a demonstrated nexus between the unrelated charges and the documents actually relied upon in this suit, the trial court was correct to treat that material as of limited probative value and to expunge it because it was irrelevant to the facts in issue.
35. DW1's opinion that the Respondent's X-ray was forged was, in his own evidence, an inference drawn from the absence of scars on X-ray films taken during the respondent’s re-examination. It is worth noting that the re-examination was done on 6 th May, 2025, more than four years from the date of the accident. There is no assertion that the appellant’s doctor found alterations in the X-ray films nor any corroboration by any document examiner or independent forensic analyst to the effect that the films are forged.
36. It is more of a divergence in opinion between two experts which goes into what is to be considered in weighing who between the two experts is to be believed but not an inference of forgery.
37. Acting on the material placed before it, the trial court found that the Appellant had not strictly proved that the Respondent's medical documents were forged, and this court is not persuaded to disturb the trial court's finding on that specific allegation.
(ii) Whether the assessment of the quantum of damages was properly done.
38. The Evidence Act, Section 107 on the burden of proof provides that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.
39. It falls for determination the question of whether the Respondent proved, in the ordinary standard of a balance of probabilities, that he sustained fractures of the tibia and fibula and the right radius.
40. On a re-evaluation of the medical evidence adduced, PW3 who was the treating clinician, admitted in cross-examination that he did not personally cause the X-ray of the respondent to be taken, that the X-ray was presented to him by the Respondent, and that he did not know the circumstances under which it was taken.
41. DW1, an orthopedic surgeon, examined the Respondent on 6 th May 2025, some four years after the accident and found no radiological evidence of healed fractures as was expected of someone who had a history of having suffered fractures. His evidence, that a genuine bone fracture leaves a detectable scar on subsequent X-rays even after passage of time and indeed PW3's own concession that a fracture can heal with evident scarring confirms DW1's conclusion that the respondent had not suffered fractures as alleged.
42. The Respondent's own evidence that a plaster cast was applied and that a subsequent Kisumu review found no fracture is, if anything, corroborative of DW1's position rather than the Respondent's pleaded case.
43. On the evidence presently before this court, I find that the Respondent did not discharge his burden of proving, on a balance of probabilities, that he sustained fractures of the tibia fibula and the right radius. Fractures, by their very nature, are serious injuries which may require admission of the affected patient or prolonged hours of medical intervention. Other than stating the injuries that he suffered, the respondent does not mention how he was managed in hospital and whether or not he was admitted.
44. The trial court's finding to the contrary is accordingly set aside. However, the finding that the Respondent sustained soft tissue injuries in the accident involving chest contusion, right thigh contusion, and associated soft-tissue trauma to the neck and limbs, which are supported by the treatment records and were not seriously contested by the appellant on the same footing as the alleged fractures are not to be disturbed.
45. The only credible evidence as can be discerned is that the respondent suffered soft tissue injuries and nothing more. The assessment of damages inclusive of fractures is therefore erroneous.
ii) Liability
46. The Court of Appeal in the case of Kiema Mutuku vs Kenya Cargo Hauling Services Ltd [1991]2 KAR 258 held;
“There is yet no liability without fault in the legal system in Kenya, and the plaintiff must prove some negligence against the defendant where the claim is based on negligence.”
47. On liability, the unchallenged evidence of PW1 (the Respondent) and PW2 (the investigating police officer) was that the Appellant's motor vehicle emerged from a feeder road onto the main Kisii–Rongo highway without giving way to the Respondent's motorcycle, which had the right of way on the major road. This account was corroborated through the production of the police abstract and was not displaced by any independent evidence from the Appellant.
48. It is settled that a plea of contributory negligence raised in a defence is not, without evidence in proof thereof, sufficient. The burden of proving contributory negligence lies on the party who asserts it, and pleading alone, without evidence in proof thereof, does not discharge that burden.
49. A review of the material on the record, shows that the Appellant did not lead any evidence to rebut the Respondent’s testimony regarding how the accident occurred, as corroborated by the police witness's account, nor any evidence from which contributory fault on the part of the Respondent could be inferred. This court finds persuasion in the case of Mutai & another v Mburugu [2025] KEHC 3750 (KLR) where it was held;
“Section 107 of the Evidence Act provides that the burden rests on the party who alleges. The Respondent, as Plaintiff, discharged that burden through his sworn testimony and corroborating documents. Once this was done, the evidentiary burden shifted to the Appellants to rebut that evidence. They failed to do so. The trial court did not err in this regard.”
50. This court, re-evaluating the evidence, is not persuaded that the trial court's finding on liability, apportioned wholly against the appellant, was against the weight of evidence. That finding is affirmed.
iii) What is the appropriate quantum of damages?
51. The principles guiding an appellate court in determining whether to interfere with an award of damages were set out in the celebrated case of Butt v Khan {1981} KLR 470 where the court pronounced itself as follows;
“An appellate court will not disturb an award for damages unless it is inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low”.
52. In that regard, an appellate court will only interfere with the judgment of the lower court, if the said decision is founded on wrong legal principles. That was the holding of the Court of Appeal in Mkube v Nyamuro [1983] LLR at 403 , where Kneller JA & Hancox Ag JJA held that-
“A Court on appeal will not normally interfere with the finding of fact by a trial court unless it is based on no evidence, or on a misapprehension of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching his conclusion.”
53. Having found that the claim that the respondent suffered fracture(s) was not proved, the award of general damages must be revisited, since it is evident from the trial court's judgment that the alleged fracture injuries materially informed the assessment of the quantum of damages awarded.
54. General damages are awarded on a case-by-case basis and no two injuries are identical, but comparable injuries should attract comparable awards for consistency. Where a claimant's injuries are shown to be soft-tissue in nature, without proved fractures, awards have been assessed markedly lower than where a fracture is established. In Ondicho v Mosigisi (Civil Appeal E054 of 2023) [2025] KEHC 5140 (KLR) , the appellate court reduced a trial court's award for a head cut and soft-tissue leg injuries from Kshs. 300,000 to Kshs. 80,000 on the basis that no fracture had been proved and the injuries were less severe than in the comparable authorities cited.
55. The Respondent's proved injuries here are chest contusion, right thigh contusion, and soft-tissue trauma with continuing complaints of coughing and joint discomfort are more extensive than the single soft-tissue leg injury in Ondicho (supra), involving multiple body regions and a degree of continuing symptomatology.
56. The special damages award of Kshs. 6,500/=, having been specifically pleaded and strictly proved, is not to be disturbed.
57. For the reasons set out above, this court makes the following orders:
a) The appeal is allowed in part.
b) The finding of 100% liability against the Appellant is upheld.
c) The finding that the Respondent sustained fractures of the tibia fibula and right radius is set aside.
d) The general damages award of Kshs. 500,000/= is set aside and substituted with an award of Kshs 230, 000/= (in words Kenya shillings two hundred and thirty thousand only .)
e) The special damages award of Kshs. 6,500/= is affirmed.
f) Each party shall bear its own costs.
Judgment read, dated and delivered virtually at Bungoma this 17 th day of September, 2026
S. K.Koech
JUDGE
In the presence of:
Mr. Nyasimi appearing virtually for the Appellant
Mr. Enock Wakhu, C.A.
But in the absence of the Respondent and his counsel.
Right of appeal within 30 days, stay of execution for 30 days.
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