(Being an appeal from the judgment of Hon. W. Kugwa (RM) delivered on 26th October 2023 in Kisii CMCC No. 110 of 2020)
A. INTRODUCTION
1. This appeal arises from the judgment of the Chief Magistrate’s Court at Kisii in Civil Suit No. 110 of 2020, wherein the Respondent was awarded:
o General damages: Kshs. 300,000/=
o Special damages: Kshs. 10,440/=
o Liability: 100% against the Appellant.
2. Being dissatisfied with both liability and quantum, the Appellant lodged the present appeal.
B. BACKGROUND
3. The Respondent instituted a claim for damages arising from a road traffic accident that occurred on 19th April 2019 along the Kisii–Nyamira Road.
4. The Respondent testified that she was a passenger in motor vehicle registration number KCQ 836F when the vehicle lost control and veered off the road, occasioning injuries.
5. The Respondent sustained the following injuries:
o Deep cut wounds on the right lower limb;
o Chest contusion;
o Bruises on both forearms;
o Blunt trauma to the neck and back.
6. The Appellant did not call any evidence before the trial court .
C. GROUNDS OF APPEAL
7. The appeal challenges:
a. The finding of liability at 100%;
b. The award of Kshs. 300,000/= as general damages as excessive.
D. DUTY OF THE FIRST APPELLATE COURT
8. This being a first appeal, this Court is obligated to re-evaluate the evidence afresh and draw its own conclusions while bearing in mind that it did not see or hear the witnesses: Selle v Associated Motor Boat Co. Ltd [1968] EA 123.
9. Further, as stated in Peters v Sunday Post Ltd [1958] EA 424, an appellate court should be slow to interfere with findings of fact unless they are based on no evidence or on a misapprehension of the evidence.
E. ISSUES FOR DETERMINATION
10. The appeal raises two issues:
i. Whether the trial court erred in finding the Appellant 100% liable;
ii. Whether the award of damages was inordinately high.
F. ANALYSIS AND DETERMINATION
(i) Liability
11. The Respondent’s evidence on the occurrence of the accident was clear and consistent. It was corroborated by the police officer who confirmed that the vehicle lost control and veered off the road.
12. Crucially, the Appellant did not adduce any evidence to rebut the Respondent’s account.
13. Where evidence is uncontroverted, a court is entitled to rely on it. In AUTAR SINGH BAHRA AND ANOTHER VS RAJU GOVINDJI HCCC NO. 548 of 1998(UR) Mbaluto J. held:
“Although the Defendant has denied liability in an amended Defence and counter-claim, no witness was called to give evidence on his behalf. That means that not only does the Defence rendered by the 1st Plaintiff in support of the Plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”
14. The doctrine of res ipsa loquitur applies in circumstances where a vehicle veers off the road without explanation. Such occurrence prima facie points to negligence.
15. The Respondent was a passenger and therefore bore no responsibility for the accident. In Paskalia Abuko Shibero v George Onyango Orodi [2020] eKLR, it was held that a passenger cannot ordinarily be blamed for an accident.
16. In the absence of any rebuttal evidence, the trial court cannot be faulted for finding the Appellant wholly liable.
17. Accordingly, the finding on liability is upheld.
(ii) Quantum of Damages
18. The principles guiding interference with quantum by appellate case are well settled. In Butt v Khan [1977] 1 KLR, the Court of Appeal held that an appellate court will only interfere if:
• The award is inordinately high or low; or
• The trial court acted on wrong principles.
19. Similarly, in Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55, the Court emphasized that assessment of damages is a matter of discretion.
20. The injuries sustained by the Respondent were soft tissue injuries, albeit involving multiple body regions.
21. Comparable recent authorities indicate awards of general damages of between Kshs 250,000-350,000/= for multiple soft tissue injuries . See ;
• Anthony Nyamwaya v Jackline Moraa Nyandemo [2022] eKLR – where genral damages in the sum of Kshs. 250,000/= upheld for soft tissue injuries;
• Poa Link Services Co. Ltd v Sindani Boaz Bonzemo [2021] eKLR – Kshs. 350,000/= upheld for soft tissue injuries ;
• Samwel Martin Njoroge Kamunyu v Mildred Okweya Barasa [2020] eKLR – where an award general damages in the sum of Kshs. 300,000/= found to be reasonable.
22. These authorities demonstrate that awards for comparable injuries range between Kshs. 250,000/= and Kshs. 350,000/=.
23. The award of Kshs. 300,000/= by the trial court falls squarely within this range.
24. Further, courts must consider inflation and the need for adequate compensation
25. I find no evidence that the trial court took into account irrelevant factors or ignored relevant ones.
26. The award cannot therefore be said to be inordinately high.
G. CONCLUSION
27. The Appellant has failed to demonstrate any error in the finding on liability; or misdirection in the assessment of damages.
H. DISPOSITION
28. The appeal is hereby dismissed in its entirety.
29. The judgment of the trial court is upheld as follows:
a. Liability: 100% against the Appellant;
b. General damages: Kshs. 300,000/=;
c. Special damages: Kshs. 10,440/=.
30. The Respondent shall have costs of the appeal and the that of the lower court matter .
31. 30 days Right of Appeal .
T.A ODERA
JUDGE
24.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS AT THIS 24TH DAY OF MARCH 2026, IN THE PRESENCE OF CA -MR OGENDO - PARTIES ABSENT
A. INTRODUCTION
1. This appeal arises from the judgment of the Chief Magistrate’s Court at Kisii in Civil Suit No. 110 of 2020, wherein the Respondent was awarded:
o General damages: Kshs. 300,000/=
o Special damages: Kshs. 10,440/=
o Liability: 100% against the Appellant.
2. Being dissatisfied with both liability and quantum, the Appellant lodged the present appeal.
B. BACKGROUND
3. The Respondent instituted a claim for damages arising from a road traffic accident that occurred on 19th April 2019 along the Kisii–Nyamira Road.
4. The Respondent testified that she was a passenger in motor vehicle registration number KCQ 836F when the vehicle lost control and veered off the road, occasioning injuries.
5. The Respondent sustained the following injuries:
o Deep cut wounds on the right lower limb;
o Chest contusion;
o Bruises on both forearms;
o Blunt trauma to the neck and back.
6. The Appellant did not call any evidence before the trial court .
C. GROUNDS OF APPEAL
7. The appeal challenges:
a. The finding of liability at 100%;
b. The award of Kshs. 300,000/= as general damages as excessive.
D. DUTY OF THE FIRST APPELLATE COURT
8. This being a first appeal, this Court is obligated to re-evaluate the evidence afresh and draw its own conclusions while bearing in mind that it did not see or hear the witnesses: Selle v Associated Motor Boat Co. Ltd [1968] EA 123.
9. Further, as stated in Peters v Sunday Post Ltd [1958] EA 424, an appellate court should be slow to interfere with findings of fact unless they are based on no evidence or on a misapprehension of the evidence.
E. ISSUES FOR DETERMINATION
10. The appeal raises two issues:
i. Whether the trial court erred in finding the Appellant 100% liable;
ii. Whether the award of damages was inordinately high.
F. ANALYSIS AND DETERMINATION
(i) Liability
11. The Respondent’s evidence on the occurrence of the accident was clear and consistent. It was corroborated by the police officer who confirmed that the vehicle lost control and veered off the road.
12. Crucially, the Appellant did not adduce any evidence to rebut the Respondent’s account.
13. Where evidence is uncontroverted, a court is entitled to rely on it. In AUTAR SINGH BAHRA AND ANOTHER VS RAJU GOVINDJI HCCC NO. 548 of 1998(UR) Mbaluto J. held:
“Although the Defendant has denied liability in an amended Defence and counter-claim, no witness was called to give evidence on his behalf. That means that not only does the Defence rendered by the 1st Plaintiff in support of the Plaintiff’s case stand unchallenged but also that the claims made by the Defendant in his Defence and Counter-claim are unsubstantiated. In the circumstances, the Counter-claim must fail.”
14. The doctrine of res ipsa loquitur applies in circumstances where a vehicle veers off the road without explanation. Such occurrence prima facie points to negligence.
15. The Respondent was a passenger and therefore bore no responsibility for the accident. In Paskalia Abuko Shibero v George Onyango Orodi [2020] eKLR, it was held that a passenger cannot ordinarily be blamed for an accident.
16. In the absence of any rebuttal evidence, the trial court cannot be faulted for finding the Appellant wholly liable.
17. Accordingly, the finding on liability is upheld.
(ii) Quantum of Damages
18. The principles guiding interference with quantum by appellate case are well settled. In Butt v Khan [1977] 1 KLR, the Court of Appeal held that an appellate court will only interfere if:
• The award is inordinately high or low; or
• The trial court acted on wrong principles.
19. Similarly, in Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55, the Court emphasized that assessment of damages is a matter of discretion.
20. The injuries sustained by the Respondent were soft tissue injuries, albeit involving multiple body regions.
21. Comparable recent authorities indicate awards of general damages of between Kshs 250,000-350,000/= for multiple soft tissue injuries . See ;
• Anthony Nyamwaya v Jackline Moraa Nyandemo [2022] eKLR – where genral damages in the sum of Kshs. 250,000/= upheld for soft tissue injuries;
• Poa Link Services Co. Ltd v Sindani Boaz Bonzemo [2021] eKLR – Kshs. 350,000/= upheld for soft tissue injuries ;
• Samwel Martin Njoroge Kamunyu v Mildred Okweya Barasa [2020] eKLR – where an award general damages in the sum of Kshs. 300,000/= found to be reasonable.
22. These authorities demonstrate that awards for comparable injuries range between Kshs. 250,000/= and Kshs. 350,000/=.
23. The award of Kshs. 300,000/= by the trial court falls squarely within this range.
24. Further, courts must consider inflation and the need for adequate compensation
25. I find no evidence that the trial court took into account irrelevant factors or ignored relevant ones.
26. The award cannot therefore be said to be inordinately high.
G. CONCLUSION
27. The Appellant has failed to demonstrate any error in the finding on liability; or misdirection in the assessment of damages.
H. DISPOSITION
28. The appeal is hereby dismissed in its entirety.
29. The judgment of the trial court is upheld as follows:
a. Liability: 100% against the Appellant;
b. General damages: Kshs. 300,000/=;
c. Special damages: Kshs. 10,440/=.
30. The Respondent shall have costs of the appeal and the that of the lower court matter .
31. 30 days Right of Appeal .
T.A ODERA
JUDGE
24.3.26
DELIVERED, VIRTUALLY VIA TEAMS PLATFORM ON THIS AT THIS 24TH DAY OF MARCH 2026, IN THE PRESENCE OF CA -MR OGENDO - PARTIES ABSENT