(Being an appeal from the Judgement delivered by Hon. Mugendi Nyaga in Etago PMCC No. 13 of 2023 delivered on 27 th of March 2025)
Background of the appeal
1. This appeal emanates from a suit filed in the Subordinate Courts with regards to a road accident that occurred on 19 th of September 2020 involving motor vehicle registration number KAR 127R where the Respondent was a passenger and motor vehicle registration number KCC 241 C belonging to the Appellant and in which accident the Respondent allegedly sustained injuries.
2. At the trial court, the Respondent relied on three witnesses: PW1 the Respondent who adopted her statement as evidence in chief and produced the clinical appointment card, the treatment notes, the demand note, the P3 form, the police abstract, a medical report and receipts: PW2, No. 67035 Sgt. Robert Moseti who testified as to how the accident occurred and blamed the Appellant’s driver and produced the police abstract; and PW3 Dr. Daniel Nyamieno who testified as to the injuries sustained by the Respondent and produced the clinical appointment card, treatment notes from KTRH, medical report, and receipts.
3. The Appellant who was the defendant in the suit at the trial court relied on one witness DW1 Bernard Too, the driver of the Appellant’s motor vehicle who testified as to how the accident occurred and blamed the driver of motor vehicle KAR 127R.
4. The learned trial magistrate delivered a judgement on 27 th of March 2025 attributing liability at a ratio of 90:10 in favour of the Respondent, awarding general damages of Kshs 650,000/= and special damages of Kshs. 6,620/= plus costs and interest.
5. Aggrieved with the decision of the trial court Magistrate, the Appellant filed this instant appeal on the following summarized grounds: That the learned trial Magistrate erred in law and fact by awarding general damages that were inordinately high, going against the rule of law that similar injuries ought to be awarded similar general damages, failing to appreciate the Appellant’s submissions and authorities cited and that judgement was against the weight of evidence offered.
6. The Appellant therefore prayed for the appeal to be allowed with costs and the judgment of the trial court be set aside.
7. The appeal was canvassed by way of written submissions.
Appellant’s Submissions
8. The Appellant supported his appeal with written submissions dated 12 th March 2026, highlighting that the trial court erred in stating that evidence was not produced to refute the fracture and dislocation evidence yet the second medical report concluded that the Appellant suffered only soft tissue injuries.
9. The Appellant further cited authorities proposing an award between Kshs. 80,000/= to 100,000/=.
Respondent’s Submissions
10. The Respondent in written submissions dated 12 th of March 2026 opposed the appeal arguing that the injuries pleaded by the Respondent were proved by the first medical report. The Respondent averred that the injuries were not challenged by the Appellant at the trial stage.
Analysis and Determination
11. The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. ( See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I).
12. I have carefully analyzed the appeal and trial record in its entirety as well as the evidence adduced and submissions by both parties. There is no contention that an accident did occur on 19 th September 2020. The liability apportioned by the trial court of 90: 10 in favour of the Respondent has also not been contested in this appeal.
13. This appeal has challenged the nature of injuries sustained by the Respondent and the resultant quantum award by the trial court which can be categorized as the following issues for determination by this court;
a) Whether the evidence was properly applied in ascertaining the injuries claimed by the Respondent
b) What is the comparable quantum for injuries sustained
Whether the evidence was properly applied in ascertaining the injuries claimed by the Respondent
14. The Respondent claims he sustains the following injuries: Scalp contusion with haematoma formation, chest contusion, fracture right radius and ulna, left knee contusion and abrasions and left ankle dislocation.
15. The Respondent claim is corroborated by Dr. Nyameino’s Medical report upon examination on the 30 th of September 2020. The Dr. in his testimony at the trial indicated that he relied on the treatment notes, x-ray films, p3 form and his own examination.
16. The Appellant’s medical report by Dr. Malik upon re-examination on 22 nd July 2022, indicated that on clinical examination, there were no signs of any old fractures on the right forearm and left ankle, that the radius and ulna are straight and solidly united. Upon a second x ray there was no evidence of any fracture in the past.
17. The Appellant’s doctor further discredited the medical documents adduced as evidence including the hospital card that was printed on 29.9.2020, ten days after her accident, discrepancy between the treatment notes and the Respondent’s testimony on the nature of treatment given particularly the reduction of the ankle as well as the x-ray presented that contradicted that taken during the re-examination which indicated no signs of a past fracture.
18. The Appellant’s doctor further disputed the disability assessment of 20% stating that the Respondent showed no signs of disability. The doctor concluded that the injuries were grossly exaggerated and only possible that she sustained soft tissue injuries.
19. I am not persuaded by the Respondent’s contention that the injuries were not challenged at trial. The trial record indicates that the nature and extent of the injuries were directly put in issue. The counsel for the Appellant during cross examination of both the Respondent and the Respondent’s doctor raised the issue of null records appearing on the treatment notes on the diagnosis and treatment for the fracture and this was not sufficiently addressed.
20. A second medical report was also produced as evidence and which refuted the allegations of the fracture and ankle dislocation as well as the treatment indicated on the reports which was inconsistent with the account of the Respondent particularly on the reduction of the ankle.
21. The evidential contest was therefore not merely on quantum but also on whether the alleged fracture and ankle dislocation was proved.
22. While the P3 form and medical report recorded a fracture of the right radius and ulna as well as a left ankle dislocation, those documents have to be weighed against the primary treatment documents. The treatment notes which were the earliest medical record made proximate to the accident indicate a null entry on these injuries. This coupled with the second x ray that refutes any past fracture seriously reduces the evidentiary threshold of the documents.
23. Expert medical evidence is opinion evidence. It assists the court, but does not bind it. Under Sections 48 and 49 of the Evidence Act , the court is entitled to consider facts which support or contradict an expert opinion.
24. Accordingly, the trial court was required to examine whether the conclusions in the medical report were supported by the contemporaneous treatment record.
25. On a whole, the fracture and ankle dislocation required cogent proof because they materially affected the assessment of damages. In light of the material contradictions, I am unable to be persuaded on the injury of fracture to the right radius and ulna and left ankle dislocation.
26. However, the soft tissue injuries have not been refuted by the Appellant and on a balance of probability, these have been proved through testimonies and medical documents adduced.
What is the comparable quantum for injuries sustained
27. Having concluded that the injuries proved are soft tissue in nature, this court will assess comparative awards issued by the other courts.
28. The authorities cited by both the Respondent and the trial court would not be helpful as they were for serious injuries of fractures and dislocation.
29. The Appellant has cited the following authorities ; LNK ( A minor suing through CNK as next friend) & 2 others v Simon Gatuni Njukia (2022) KEHC 2497 (KLR) where the courts awarded Kshs. 90,000/- for soft tissue injuries ; and Asad Motors Limited & 2 others v Yaa (2023) KEHC (KLR) where on appeal the Respondent was awarded Kshs. 100,000/= for soft tissue injuries.
30. In the case of Mulwa & Another v. Nzai (2024) KEHC 6898 (KLR) the courts substituted the award of Kshs. 400,000/= for 250,000/= considering the salvage of inflation as additional factor. In the case of Poa Link Service Co. Ltd, & Another v. Sindano Boaz Bonzeno the courts upheld a general damage of kshs. 350,000/= for multiple soft tissue injuries. In the case of Omondi v. Anzofu (2024) KEHC 2675 (KLR) the courts set aside the award of Kshs. 1,000,000 to Kshs 300,000/=. In the case of National Industrial Credit Ltd & 2 others v MNO (Minor Suing Thro’ Next of Friend and Mother (FNM) (2024) KEHC 3824 (KLR) the courts observed that the range for non-permanent soft tissue injuries is between Kshs. 250,000/= to Kshs. 300,000/=.
31. From the trial and appeal record, the Appellant suffered multiple soft tissue injuries in several regions on the body that must have undoubtedly caused pain and discomfort. While each case depends on its own facts, consistency in awards remains an important consideration.
32. I am guided by the principle that an appellate court will not interfere with findings unless it is shown that the trial court acted on no evidence, misapprehended the evidence or applied the wrong principles. This has further been elaborated in Kiruga v Kiruga & Another (1988) KLR 348 where the courts stated that:
“An appellate court cannot properly substitute its own factual findings for that of a trial court unless there is no evidence to support the findings or unless the trial court can be said to be plainly wrong”.
33. For this court to arrive at a determination, it is further guided by the trite principles on relooking into the quantum of general damages awarded as set out in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini v A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730 as follows:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
34. This court follows the same principles and from the above analysis, taking into consideration the nature of injuries sustained, and the medical assessment of recovery, I find that an award of Kshs. 250,000/= is commensurate to the injuries sustained.
35. As such, and guided accordingly by the range of awards given in the cited authorities for soft tissue injuries, the award of Kshs, 650,000/= by the trial court is hereby set aside and substituted with Kshs 250,000/=. which adequately reflects the injuries sustained by the Respondent.
Disposition
36. Accordingly, this court makes the following orders,
a) The appeal succeeds on quantum for general damages
b) The trial court’s award of Kshs. 650,000/= as general damages is hereby set aside and substituted with an award of Kshs, 250,000/= subject to the contributory liability.
c) The Appellant shall have the costs of this appeal.
It is so ordered.
DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 2 ND DAY OF JULY 2026
A.M. OKUTOYI
JUDGE
In the presence of:
Ms. Anyango for the Appellant
Mr. Karori for the Respondent
Ruth Mokeira-Court Assistant
Background of the appeal
1. This appeal emanates from a suit filed in the Subordinate Courts with regards to a road accident that occurred on 19 th of September 2020 involving motor vehicle registration number KAR 127R where the Respondent was a passenger and motor vehicle registration number KCC 241 C belonging to the Appellant and in which accident the Respondent allegedly sustained injuries.
2. At the trial court, the Respondent relied on three witnesses: PW1 the Respondent who adopted her statement as evidence in chief and produced the clinical appointment card, the treatment notes, the demand note, the P3 form, the police abstract, a medical report and receipts: PW2, No. 67035 Sgt. Robert Moseti who testified as to how the accident occurred and blamed the Appellant’s driver and produced the police abstract; and PW3 Dr. Daniel Nyamieno who testified as to the injuries sustained by the Respondent and produced the clinical appointment card, treatment notes from KTRH, medical report, and receipts.
3. The Appellant who was the defendant in the suit at the trial court relied on one witness DW1 Bernard Too, the driver of the Appellant’s motor vehicle who testified as to how the accident occurred and blamed the driver of motor vehicle KAR 127R.
4. The learned trial magistrate delivered a judgement on 27 th of March 2025 attributing liability at a ratio of 90:10 in favour of the Respondent, awarding general damages of Kshs 650,000/= and special damages of Kshs. 6,620/= plus costs and interest.
5. Aggrieved with the decision of the trial court Magistrate, the Appellant filed this instant appeal on the following summarized grounds: That the learned trial Magistrate erred in law and fact by awarding general damages that were inordinately high, going against the rule of law that similar injuries ought to be awarded similar general damages, failing to appreciate the Appellant’s submissions and authorities cited and that judgement was against the weight of evidence offered.
6. The Appellant therefore prayed for the appeal to be allowed with costs and the judgment of the trial court be set aside.
7. The appeal was canvassed by way of written submissions.
Appellant’s Submissions
8. The Appellant supported his appeal with written submissions dated 12 th March 2026, highlighting that the trial court erred in stating that evidence was not produced to refute the fracture and dislocation evidence yet the second medical report concluded that the Appellant suffered only soft tissue injuries.
9. The Appellant further cited authorities proposing an award between Kshs. 80,000/= to 100,000/=.
Respondent’s Submissions
10. The Respondent in written submissions dated 12 th of March 2026 opposed the appeal arguing that the injuries pleaded by the Respondent were proved by the first medical report. The Respondent averred that the injuries were not challenged by the Appellant at the trial stage.
Analysis and Determination
11. The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. ( See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I).
12. I have carefully analyzed the appeal and trial record in its entirety as well as the evidence adduced and submissions by both parties. There is no contention that an accident did occur on 19 th September 2020. The liability apportioned by the trial court of 90: 10 in favour of the Respondent has also not been contested in this appeal.
13. This appeal has challenged the nature of injuries sustained by the Respondent and the resultant quantum award by the trial court which can be categorized as the following issues for determination by this court;
a) Whether the evidence was properly applied in ascertaining the injuries claimed by the Respondent
b) What is the comparable quantum for injuries sustained
Whether the evidence was properly applied in ascertaining the injuries claimed by the Respondent
14. The Respondent claims he sustains the following injuries: Scalp contusion with haematoma formation, chest contusion, fracture right radius and ulna, left knee contusion and abrasions and left ankle dislocation.
15. The Respondent claim is corroborated by Dr. Nyameino’s Medical report upon examination on the 30 th of September 2020. The Dr. in his testimony at the trial indicated that he relied on the treatment notes, x-ray films, p3 form and his own examination.
16. The Appellant’s medical report by Dr. Malik upon re-examination on 22 nd July 2022, indicated that on clinical examination, there were no signs of any old fractures on the right forearm and left ankle, that the radius and ulna are straight and solidly united. Upon a second x ray there was no evidence of any fracture in the past.
17. The Appellant’s doctor further discredited the medical documents adduced as evidence including the hospital card that was printed on 29.9.2020, ten days after her accident, discrepancy between the treatment notes and the Respondent’s testimony on the nature of treatment given particularly the reduction of the ankle as well as the x-ray presented that contradicted that taken during the re-examination which indicated no signs of a past fracture.
18. The Appellant’s doctor further disputed the disability assessment of 20% stating that the Respondent showed no signs of disability. The doctor concluded that the injuries were grossly exaggerated and only possible that she sustained soft tissue injuries.
19. I am not persuaded by the Respondent’s contention that the injuries were not challenged at trial. The trial record indicates that the nature and extent of the injuries were directly put in issue. The counsel for the Appellant during cross examination of both the Respondent and the Respondent’s doctor raised the issue of null records appearing on the treatment notes on the diagnosis and treatment for the fracture and this was not sufficiently addressed.
20. A second medical report was also produced as evidence and which refuted the allegations of the fracture and ankle dislocation as well as the treatment indicated on the reports which was inconsistent with the account of the Respondent particularly on the reduction of the ankle.
21. The evidential contest was therefore not merely on quantum but also on whether the alleged fracture and ankle dislocation was proved.
22. While the P3 form and medical report recorded a fracture of the right radius and ulna as well as a left ankle dislocation, those documents have to be weighed against the primary treatment documents. The treatment notes which were the earliest medical record made proximate to the accident indicate a null entry on these injuries. This coupled with the second x ray that refutes any past fracture seriously reduces the evidentiary threshold of the documents.
23. Expert medical evidence is opinion evidence. It assists the court, but does not bind it. Under Sections 48 and 49 of the Evidence Act , the court is entitled to consider facts which support or contradict an expert opinion.
24. Accordingly, the trial court was required to examine whether the conclusions in the medical report were supported by the contemporaneous treatment record.
25. On a whole, the fracture and ankle dislocation required cogent proof because they materially affected the assessment of damages. In light of the material contradictions, I am unable to be persuaded on the injury of fracture to the right radius and ulna and left ankle dislocation.
26. However, the soft tissue injuries have not been refuted by the Appellant and on a balance of probability, these have been proved through testimonies and medical documents adduced.
What is the comparable quantum for injuries sustained
27. Having concluded that the injuries proved are soft tissue in nature, this court will assess comparative awards issued by the other courts.
28. The authorities cited by both the Respondent and the trial court would not be helpful as they were for serious injuries of fractures and dislocation.
29. The Appellant has cited the following authorities ; LNK ( A minor suing through CNK as next friend) & 2 others v Simon Gatuni Njukia (2022) KEHC 2497 (KLR) where the courts awarded Kshs. 90,000/- for soft tissue injuries ; and Asad Motors Limited & 2 others v Yaa (2023) KEHC (KLR) where on appeal the Respondent was awarded Kshs. 100,000/= for soft tissue injuries.
30. In the case of Mulwa & Another v. Nzai (2024) KEHC 6898 (KLR) the courts substituted the award of Kshs. 400,000/= for 250,000/= considering the salvage of inflation as additional factor. In the case of Poa Link Service Co. Ltd, & Another v. Sindano Boaz Bonzeno the courts upheld a general damage of kshs. 350,000/= for multiple soft tissue injuries. In the case of Omondi v. Anzofu (2024) KEHC 2675 (KLR) the courts set aside the award of Kshs. 1,000,000 to Kshs 300,000/=. In the case of National Industrial Credit Ltd & 2 others v MNO (Minor Suing Thro’ Next of Friend and Mother (FNM) (2024) KEHC 3824 (KLR) the courts observed that the range for non-permanent soft tissue injuries is between Kshs. 250,000/= to Kshs. 300,000/=.
31. From the trial and appeal record, the Appellant suffered multiple soft tissue injuries in several regions on the body that must have undoubtedly caused pain and discomfort. While each case depends on its own facts, consistency in awards remains an important consideration.
32. I am guided by the principle that an appellate court will not interfere with findings unless it is shown that the trial court acted on no evidence, misapprehended the evidence or applied the wrong principles. This has further been elaborated in Kiruga v Kiruga & Another (1988) KLR 348 where the courts stated that:
“An appellate court cannot properly substitute its own factual findings for that of a trial court unless there is no evidence to support the findings or unless the trial court can be said to be plainly wrong”.
33. For this court to arrive at a determination, it is further guided by the trite principles on relooking into the quantum of general damages awarded as set out in Kemfro Africa Limited T/A Meru Express Services & Gathongo Kanini v A.M. Lubia & Olive Lubia (1982-88) I KAR 727 at page 730 as follows:
“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”
34. This court follows the same principles and from the above analysis, taking into consideration the nature of injuries sustained, and the medical assessment of recovery, I find that an award of Kshs. 250,000/= is commensurate to the injuries sustained.
35. As such, and guided accordingly by the range of awards given in the cited authorities for soft tissue injuries, the award of Kshs, 650,000/= by the trial court is hereby set aside and substituted with Kshs 250,000/=. which adequately reflects the injuries sustained by the Respondent.
Disposition
36. Accordingly, this court makes the following orders,
a) The appeal succeeds on quantum for general damages
b) The trial court’s award of Kshs. 650,000/= as general damages is hereby set aside and substituted with an award of Kshs, 250,000/= subject to the contributory liability.
c) The Appellant shall have the costs of this appeal.
It is so ordered.
DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 2 ND DAY OF JULY 2026
A.M. OKUTOYI
JUDGE
In the presence of:
Ms. Anyango for the Appellant
Mr. Karori for the Respondent
Ruth Mokeira-Court Assistant