1. The Respondent’s claim, as set out in the Plaint dated 28th March 2022,
was that he was a fare-paying passenger in motor vehicle registration
number KDA 200L when the same was negligently driven along the
Keroka–Sotik road on 05th February 2022, lost control and was involved
in an accident, thereby occasioning him bodily injuries.
2. The Appellant entered appearance and filed a Defence dated
29th July 2022 denying liability and putting the Respondent to strict
proof, and in the alternative attributing negligence to the Respondent.
3. The Respondent testified and relied on his statement, producing
treatment notes from Keroka Sub County Hospital dated
05th February 2022 , a P3 form, a police abstract, receipts, and a medical
report by Dr. Morebu Peter Momanyi dated 10th February 2022, whichindicated multiple soft tissue injuries. The police abstract confirmed the
occurrence of the accident and that the driver was charged. The
Appellant did not call any witness, but a defence medical report by
Dr. Jenipher Kahuthu dated 29th September 2022 was produced by
consent, indicating that the Respondent had fully healed with no
permanent disability.
4. Upon evaluating the evidence, the trial court in a judgment delivered
on 07th October 2025 entered in favour of the Respondent awarded
general damages in the sum of KES. 400,000 and special damages of
KES. 97,560 together with costs and interest.
5. Aggrieved by that decision, the Appellant filed the present appeal
contending that the learned trial magistrate misdirected himself in law
and fact, failed to properly evaluate the evidence and the applicable
legal principles, and arrived at an award of general damages that was
manifestly excessive.
6. This being a first appeal, this Court is under a duty to reconsider and
re-evaluate the evidence on record and arrive at its own independent
conclusions, while bearing in mind that it did not have the advantage
of seeing or hearing the witnesses testify. This duty is well settled in
Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and Abok James
Odera t/a A.J. Odera & Associates v John Patrick Machira [2013] eKLR.
The Court must therefore subject the entire record to a fresh andexhaustive scrutiny and draw its own conclusions, while giving due
allowance to the findings of the trial court.
7. The appeal turns only on the issue of quantum, and specifically whether
the award of KES. 400,000 as general damages was inordinately high in
the circumstances of the case.
8. Upon consideration of the entire medical evidence, and in particular the
initial treatment notes dated 05th February 2022, which constitute the
primary and contemporaneous record, it is evident that the
Respondent’s injuries were confined to a soft tissue injury of the right
shoulder. Those notes, having been made at first presentation, carry the
greatest probative value and properly anchor any subsequent medical
opinion. While the report by Dr. Morebu Peter Momanyi alludes to
additional injuries, the same are not reflected in the initial treatment
records and must therefore be treated with circumspection. This
conclusion is further reinforced by the later report of Dr. Jenipher
Kahuthu which confirms that the Respondent had sustained a soft
tissue injury to the right shoulder and that, upon re-examination, he had
fully healed with no complaints, no residual findings, and no
permanent disability.
9. In the premises, the Court is satisfied that the Respondent sustained a
minor soft tissue injury to the right shoulder only, from which he made
a complete recovery.
10. The principles governing appellate interference with an award of
damages are settled. In Kemfro Africa Ltd t/a “Meru Express Services
(1976) & another v Lubia & another [1983] KECA 61 (KLR), the Court
of Appeal held that an appellate court will only interfere where the trial
court took into account irrelevant factors, failed to consider relevant
ones, or where the award is so inordinately high or low as to represent
an entirely erroneous estimate.
11. In assessing comparable awards, this Court is guided by persuasive
High Court decisions.
12. In Francis Ochieng & another v Alice Kajimba [2015] eKLR cited by
the Respondent at the trial, the respondent in that case had pleaded and
testified to multiple injuries including head trauma, soft tissue injuries,
and alleged loss of seven teeth; however, on appeal the High Court,
upon re-evaluating the contemporaneous medical records, found that
the initial treatment documents did not record any dental loss and
concluded that the alleged loss of teeth was not attributable to the
accident, thereby characterising the injuries as multiple soft tissue
injuries with head injury but no fractures; applying the settled
principles on appellate interference with quantum, the Court held that
the trial magistrate had misapprehended the extent of the injuries and
awarded excessive damages, and accordingly reduced the general
damages from KES. 500,000 to KES. 350,000 (subject to contribution). In
that case, therefore, even after discounting the exaggerated component
of injury, the Court was still dealing with multiple soft tissue injuries
accompanied by head injury, a combination plainly more serious than
the present case.
13. At the trial, the Appellant cited Ondicho v Mosigisi (Civil Appeal E054
of 2023) [2025] KEHC 5140 (KLR) where an award of KES. 300,000 for
soft tissue injuries was reduced to KES. 80,000. Appellant similarly cited
Obure and Bethuel Githonga Muthami v Samuel Kiyuka Timothy
Okwanyo [2024] KEHC 13333 (KLR) where an award of KES. 250,000
was reduced to KES. 70,000 for soft tissue injuries. These authorities
demonstrate that soft tissue injuries, particularly where confined to a
single anatomical region and without residual disability, attract
relatively modest awards. When juxtaposed with Francis Ochieng &
another v Alice Kajimba it becomes evident that higher awards are
sustained only where there are multiple injuries or aggravating features
such as head trauma, which are absent here.
14. In light of the finding that the Respondent’s injury was limited to a soft
tissue injury of the right shoulder with full recovery, the award of KES.
400,000 was manifestly excessive and not supported by comparable
jurisprudence. The learned trial magistrate appears to have been
influenced by the broader injuries contained in the later medical report,
without reconciling the same with the primary treatment notes, a misdirection akin to that identified in Francis Ochieng & another v Alice
Kajimba (supra). However, unlike that case where multiple injuries
including head trauma justified a higher residual award, the present
case involves a single, localized soft tissue injury with no residual
disability, thereby placing it within the lower range demonstrated in
Ondicho v Mosigisi (supra) and Obure and Bethuel Githonga Muthami
v Samuel Kiyuka Timothy Okwanyo (supra). Doing the best I can in the
circumstances, and taking into account comparable awards and
inflationary trends, an award of KES. 100,000 is fair and reasonable
compensation and properly reflects the nature and extent of the injury
sustained
15. Accordingly, it is hereby ordered:
1) The award of general damages in the sum of KES. 400,000 is
hereby set aside and substituted with an award of KES. 100,000.
2) The award of special damages in the sum of KES. 97,560 having
been specifically pleaded and strictly proved, is hereby upheld.
3) Appellant is awarded the costs of the appeal, while the
Respondent shall retain the costs awarded in the lower court.
was that he was a fare-paying passenger in motor vehicle registration
number KDA 200L when the same was negligently driven along the
Keroka–Sotik road on 05th February 2022, lost control and was involved
in an accident, thereby occasioning him bodily injuries.
2. The Appellant entered appearance and filed a Defence dated
29th July 2022 denying liability and putting the Respondent to strict
proof, and in the alternative attributing negligence to the Respondent.
3. The Respondent testified and relied on his statement, producing
treatment notes from Keroka Sub County Hospital dated
05th February 2022 , a P3 form, a police abstract, receipts, and a medical
report by Dr. Morebu Peter Momanyi dated 10th February 2022, whichindicated multiple soft tissue injuries. The police abstract confirmed the
occurrence of the accident and that the driver was charged. The
Appellant did not call any witness, but a defence medical report by
Dr. Jenipher Kahuthu dated 29th September 2022 was produced by
consent, indicating that the Respondent had fully healed with no
permanent disability.
4. Upon evaluating the evidence, the trial court in a judgment delivered
on 07th October 2025 entered in favour of the Respondent awarded
general damages in the sum of KES. 400,000 and special damages of
KES. 97,560 together with costs and interest.
5. Aggrieved by that decision, the Appellant filed the present appeal
contending that the learned trial magistrate misdirected himself in law
and fact, failed to properly evaluate the evidence and the applicable
legal principles, and arrived at an award of general damages that was
manifestly excessive.
6. This being a first appeal, this Court is under a duty to reconsider and
re-evaluate the evidence on record and arrive at its own independent
conclusions, while bearing in mind that it did not have the advantage
of seeing or hearing the witnesses testify. This duty is well settled in
Selle v Associated Motor Boat Co. Ltd [1968] EA 123 and Abok James
Odera t/a A.J. Odera & Associates v John Patrick Machira [2013] eKLR.
The Court must therefore subject the entire record to a fresh andexhaustive scrutiny and draw its own conclusions, while giving due
allowance to the findings of the trial court.
7. The appeal turns only on the issue of quantum, and specifically whether
the award of KES. 400,000 as general damages was inordinately high in
the circumstances of the case.
8. Upon consideration of the entire medical evidence, and in particular the
initial treatment notes dated 05th February 2022, which constitute the
primary and contemporaneous record, it is evident that the
Respondent’s injuries were confined to a soft tissue injury of the right
shoulder. Those notes, having been made at first presentation, carry the
greatest probative value and properly anchor any subsequent medical
opinion. While the report by Dr. Morebu Peter Momanyi alludes to
additional injuries, the same are not reflected in the initial treatment
records and must therefore be treated with circumspection. This
conclusion is further reinforced by the later report of Dr. Jenipher
Kahuthu which confirms that the Respondent had sustained a soft
tissue injury to the right shoulder and that, upon re-examination, he had
fully healed with no complaints, no residual findings, and no
permanent disability.
9. In the premises, the Court is satisfied that the Respondent sustained a
minor soft tissue injury to the right shoulder only, from which he made
a complete recovery.
10. The principles governing appellate interference with an award of
damages are settled. In Kemfro Africa Ltd t/a “Meru Express Services
(1976) & another v Lubia & another [1983] KECA 61 (KLR), the Court
of Appeal held that an appellate court will only interfere where the trial
court took into account irrelevant factors, failed to consider relevant
ones, or where the award is so inordinately high or low as to represent
an entirely erroneous estimate.
11. In assessing comparable awards, this Court is guided by persuasive
High Court decisions.
12. In Francis Ochieng & another v Alice Kajimba [2015] eKLR cited by
the Respondent at the trial, the respondent in that case had pleaded and
testified to multiple injuries including head trauma, soft tissue injuries,
and alleged loss of seven teeth; however, on appeal the High Court,
upon re-evaluating the contemporaneous medical records, found that
the initial treatment documents did not record any dental loss and
concluded that the alleged loss of teeth was not attributable to the
accident, thereby characterising the injuries as multiple soft tissue
injuries with head injury but no fractures; applying the settled
principles on appellate interference with quantum, the Court held that
the trial magistrate had misapprehended the extent of the injuries and
awarded excessive damages, and accordingly reduced the general
damages from KES. 500,000 to KES. 350,000 (subject to contribution). In
that case, therefore, even after discounting the exaggerated component
of injury, the Court was still dealing with multiple soft tissue injuries
accompanied by head injury, a combination plainly more serious than
the present case.
13. At the trial, the Appellant cited Ondicho v Mosigisi (Civil Appeal E054
of 2023) [2025] KEHC 5140 (KLR) where an award of KES. 300,000 for
soft tissue injuries was reduced to KES. 80,000. Appellant similarly cited
Obure and Bethuel Githonga Muthami v Samuel Kiyuka Timothy
Okwanyo [2024] KEHC 13333 (KLR) where an award of KES. 250,000
was reduced to KES. 70,000 for soft tissue injuries. These authorities
demonstrate that soft tissue injuries, particularly where confined to a
single anatomical region and without residual disability, attract
relatively modest awards. When juxtaposed with Francis Ochieng &
another v Alice Kajimba it becomes evident that higher awards are
sustained only where there are multiple injuries or aggravating features
such as head trauma, which are absent here.
14. In light of the finding that the Respondent’s injury was limited to a soft
tissue injury of the right shoulder with full recovery, the award of KES.
400,000 was manifestly excessive and not supported by comparable
jurisprudence. The learned trial magistrate appears to have been
influenced by the broader injuries contained in the later medical report,
without reconciling the same with the primary treatment notes, a misdirection akin to that identified in Francis Ochieng & another v Alice
Kajimba (supra). However, unlike that case where multiple injuries
including head trauma justified a higher residual award, the present
case involves a single, localized soft tissue injury with no residual
disability, thereby placing it within the lower range demonstrated in
Ondicho v Mosigisi (supra) and Obure and Bethuel Githonga Muthami
v Samuel Kiyuka Timothy Okwanyo (supra). Doing the best I can in the
circumstances, and taking into account comparable awards and
inflationary trends, an award of KES. 100,000 is fair and reasonable
compensation and properly reflects the nature and extent of the injury
sustained
15. Accordingly, it is hereby ordered:
1) The award of general damages in the sum of KES. 400,000 is
hereby set aside and substituted with an award of KES. 100,000.
2) The award of special damages in the sum of KES. 97,560 having
been specifically pleaded and strictly proved, is hereby upheld.
3) Appellant is awarded the costs of the appeal, while the
Respondent shall retain the costs awarded in the lower court.