Introduction
1. This appeal arises from the judgment of the Chief Magistrate’s Court at Homa Bay (Hon. C.A.S. Mutai, C.M) delivered on 5th April 2024 in Homa Bay CMCC No. E101 of 2022.
2. The appeal challenges only the award of general damages of Kshs. 420,000/=, less 20% contributory negligence, awarded to the Respondent for injuries sustained in a road traffic accident that occurred on 1st June 2022.
3. Liability was apportioned at 80% against the Appellant and 20% against the Respondent, and that finding is not contested.
Background
4. The Respondent was a pillion passenger on a motorcycle along the Kendu Bay–Homa Bay Road when motor vehicle registration number KDE 747H (Toyota Matatu) collided with the motorcycle from behind.
5. She sustained injuries and instituted a suit seeking general damages for pain and suffering.
6. Upon hearing the parties, the trial court awarded Kshs. 420,000/= as general damages, subject to 20% contributory negligence.
Grounds of Appeal
7. The Appellant contended that the learned trial magistrate:
a. Awarded damages that were manifestly excessive;
b. Failed to properly evaluate medical evidence, particularly the defence medical and radiology reports;
c. Failed to consider comparable awards in similar cases; and
d. Relied on irrelevant considerations.
Submissions
8. The Appellant submitted that the Respondent ultimately proved moderate soft tissue injuries, as the alleged fracture was not confirmed by the X-ray examination conducted on 24th November 2022, which revealed normal findings.
9. The Appellant urged this Court to interfere with the award and reassess damages to a range of Kshs. 70,000/= to Kshs. 100,000/=.
10. The Respondent opposed the appeal, arguing that the injuries were serious, classified as grievous harm in the P3 Form, and that the award was reasonable.
Role of the First Appellate Court
15. As a first appellate court, this Court is duty-bound to re-evaluate the evidence afresh and draw its own conclusions, bearing in mind that it did not see or hear the witnesses testify as was held in the case of Selle & another v Associated Motor Boat co. Ltd.& others {1968} EA 123 and in Peters v Sunday Post Limited (1958) EA 424
Burden of proof.
16. The burden of proof in Civil cases is on a balance of probability. In James Muniu Mucheru v National Bank of Kenya Lt d 120191 eKLR, the Court stated as follows: "Indeed, it is settled law that in civil cases the standard of proof is on a balance of probability. This is in effect to say that the Courts will make a finding based on which party's version of the story is more believable."
Lord Denning J. in Miller —vs- Minister of Pensions (1947) 2 ALL ER 372, discussing that burden of proof had this to say-
"That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'We think it more probable than not', the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties' explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained."
17. It also trite law that an appellate court will not lightly interfere with findings of fact by a trial court unless they are shown to be based on no evidence, a misapprehension of evidence, or wrong principles of law . In the case of Mbogo & Another V. Shah [1968] EA 98 it was held thawt decision as follow:
18. “…….a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”
Issue for Determination
11. I have re-evaluated the entire the record of the lower court and the issue for determination is ;
a. Whether the award of Kshs. 420,000/= as general damages was so inordinately high as to warrant interference by this Court.
Re-evaluation of Evidence
14. In the amended plaint dated 6th September 2024, the Respondent pleaded injuries including:
• Cut wound on the forehead;
• Head injury;
• Cut wound to the left knee; and
• Soft tissue injuries.
15. The medical evidence before the trial court comprised:
• A P3 Form classifying the injuries as grievous harm;
• A discharge summary from Homa Bay County Teaching and Referral Hospital;
• X-ray films produced by the Respondent; and
• A defence medical and radiology report dated 24th November 2022, indicating no fracture.
16. Although treatment notes initially suggested a fracture of the ulna bone in the amended plaint only fracture of left knee Joint was pleaded. It is settled law that parties are bound by their pleadings. The treatment notes thus proved that the respondent sustained deep cut wound on the left side of the face, laceration to the posterior neck region , cut wound on the left hand and tender/ swollen left hand.
17. I therefore find that the Respondent proved moderate soft tissue injuries, and the trial court Role of the First Appellate Court
erred in treating the injuries as grievous .
18. On assessment of general damages ,Kshss. 420,000/= was awarded by the trial court and the appellant decried that this was excessive . In the case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini –vs- A M Lubia & Olive Lubia [1982-88] KLR 727 the Court of Appeal held: “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 wither that 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”.
19. In awarding the damages the trial court relied on Joseph Njuguna Gachie v Jacinter Kavuvi Kyengo (2019) eKLR, where Kshs. 600,000/= was awarded for more severe injuries.
20. The Appellant cited Nyamira HCCA no 54 of 2023 Wilson Mboga Ondicho Vs Harrison Nyangau Mosigisi , the Respondent sustained soft tissue injuries on the leg and a cut wound to the head., Appeal Justice Okwany reduced the trial court award of Ksh 300,000/- to Kshs. 80,000/= in 2025. Also Kisii HCCA no 88 of 2023 Boaz Obure and Bethuel Gichonga Muthami Vs Samwel Kiyuka Timothy Okwanyo , where the Respondent sustained soft tissue injuries to the chest and lower limbs only, where this court reduced the award of Ksh 250,000/- from the Trial Court to Kshs 70,000/= in 2024 .
21. The appellant submitted that general damages in the sum of kshs 70,000/= would be adequate herein considering he nature of the injuries sustained .
22. I have seen the case of Justine Nyamweya Ochoki &Anr vs Jumaa Karisa Kipingwa [2020] eKLR, the plaintiff suffered blunt injuries to the chest, left wrist and lower lip. The trial court awarded him Kshs 300,000/=, but on appeal the same was reduced to Kshs 150,000/=. Also in .Ndungu Dennis vs Ann Wangari Ndirangu & Another [2018] eKLR, wherein the plaintiff sustained soft tissue injuries to the lower right leg and to the back and on appeal, the award was reduced from Kshs 300,000/= to Kshs. 150,000/=. The said decisions are 5 & 7 years old respectively . In the case of Njoroge & another v Kimani [2023] KEHC 20758 (KLR) . The appellant sustained blunt injuries to the head, chest and both legs. injuries and was awarded Kshs. 380,000/= by the trial court but this was substituted by Kshs 200,000/= on appeal in 2023. The injuries in the case cited by the appellant were minor compared to the injuries herein while the injuries in the Njoroge case supra are comparable to the ones sustained by the respondent .
Determination
21. In this case , there was a misapprehension of the evidence in that the Trial Magistrate relied on injuries which were neither pleaded nor proved to arrive at the general damages which were inordinately high considering the nature of injuries sustained and the comparable awards for similar injuries.
22. There is thus a justification to interfere with the award in the impugned judgment of the lower court . Doing the best I can, and guided by nature of the injuries sustained by the respondent , recent awards for comparable injuries the case of Njoroge (supra) , inflation and all the necessary factors , I find that an award of Kshs. 200,000/= would be adequate in this case . This is to be subjected to the 20 % contributory negligence.
Disposition
23. The appeal succeeds.
a. The award of general damages in the sum of Kshs 420,000/= awarded by the lower court thus is set aside and substituted with an award of Kshs. 200,000/=, subject to 20% contributory negligence Kshs. 20,000/= . = Kshs. 180,000/=
b. Costs to the appellant .
c. 30 days Right of appeal
T.A ODERA
JUDGE
12.2.26
________________________________________
DELIVERED VIRTUALLY VIA TEAMS PLATFORM THIS 12TH DAY OF FEBRUARY 2026. IN THE PRESENCE OF MISS OGATO FOR THE APPELLANT & CA OGENDO . NO APPEARANCE FOR THE RESPONDENT
1. This appeal arises from the judgment of the Chief Magistrate’s Court at Homa Bay (Hon. C.A.S. Mutai, C.M) delivered on 5th April 2024 in Homa Bay CMCC No. E101 of 2022.
2. The appeal challenges only the award of general damages of Kshs. 420,000/=, less 20% contributory negligence, awarded to the Respondent for injuries sustained in a road traffic accident that occurred on 1st June 2022.
3. Liability was apportioned at 80% against the Appellant and 20% against the Respondent, and that finding is not contested.
Background
4. The Respondent was a pillion passenger on a motorcycle along the Kendu Bay–Homa Bay Road when motor vehicle registration number KDE 747H (Toyota Matatu) collided with the motorcycle from behind.
5. She sustained injuries and instituted a suit seeking general damages for pain and suffering.
6. Upon hearing the parties, the trial court awarded Kshs. 420,000/= as general damages, subject to 20% contributory negligence.
Grounds of Appeal
7. The Appellant contended that the learned trial magistrate:
a. Awarded damages that were manifestly excessive;
b. Failed to properly evaluate medical evidence, particularly the defence medical and radiology reports;
c. Failed to consider comparable awards in similar cases; and
d. Relied on irrelevant considerations.
Submissions
8. The Appellant submitted that the Respondent ultimately proved moderate soft tissue injuries, as the alleged fracture was not confirmed by the X-ray examination conducted on 24th November 2022, which revealed normal findings.
9. The Appellant urged this Court to interfere with the award and reassess damages to a range of Kshs. 70,000/= to Kshs. 100,000/=.
10. The Respondent opposed the appeal, arguing that the injuries were serious, classified as grievous harm in the P3 Form, and that the award was reasonable.
Role of the First Appellate Court
15. As a first appellate court, this Court is duty-bound to re-evaluate the evidence afresh and draw its own conclusions, bearing in mind that it did not see or hear the witnesses testify as was held in the case of Selle & another v Associated Motor Boat co. Ltd.& others {1968} EA 123 and in Peters v Sunday Post Limited (1958) EA 424
Burden of proof.
16. The burden of proof in Civil cases is on a balance of probability. In James Muniu Mucheru v National Bank of Kenya Lt d 120191 eKLR, the Court stated as follows: "Indeed, it is settled law that in civil cases the standard of proof is on a balance of probability. This is in effect to say that the Courts will make a finding based on which party's version of the story is more believable."
Lord Denning J. in Miller —vs- Minister of Pensions (1947) 2 ALL ER 372, discussing that burden of proof had this to say-
"That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: 'We think it more probable than not', the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties' explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained."
17. It also trite law that an appellate court will not lightly interfere with findings of fact by a trial court unless they are shown to be based on no evidence, a misapprehension of evidence, or wrong principles of law . In the case of Mbogo & Another V. Shah [1968] EA 98 it was held thawt decision as follow:
18. “…….a Court of Appeal should not interfere with the exercise of the discretion of a judge unless it is satisfied that the judge in exercising his discretion has misdirected himself in some matter and as a result has arrived at a wrong decision, or unless it is manifest from the case as a whole that the judge has been clearly wrong in the exercise of his discretion and that as a result there has been misjustice.”
Issue for Determination
11. I have re-evaluated the entire the record of the lower court and the issue for determination is ;
a. Whether the award of Kshs. 420,000/= as general damages was so inordinately high as to warrant interference by this Court.
Re-evaluation of Evidence
14. In the amended plaint dated 6th September 2024, the Respondent pleaded injuries including:
• Cut wound on the forehead;
• Head injury;
• Cut wound to the left knee; and
• Soft tissue injuries.
15. The medical evidence before the trial court comprised:
• A P3 Form classifying the injuries as grievous harm;
• A discharge summary from Homa Bay County Teaching and Referral Hospital;
• X-ray films produced by the Respondent; and
• A defence medical and radiology report dated 24th November 2022, indicating no fracture.
16. Although treatment notes initially suggested a fracture of the ulna bone in the amended plaint only fracture of left knee Joint was pleaded. It is settled law that parties are bound by their pleadings. The treatment notes thus proved that the respondent sustained deep cut wound on the left side of the face, laceration to the posterior neck region , cut wound on the left hand and tender/ swollen left hand.
17. I therefore find that the Respondent proved moderate soft tissue injuries, and the trial court Role of the First Appellate Court
erred in treating the injuries as grievous .
18. On assessment of general damages ,Kshss. 420,000/= was awarded by the trial court and the appellant decried that this was excessive . In the case of Kemfro Africa Ltd t/a Meru Express Service Gathogo Kanini –vs- A M Lubia & Olive Lubia [1982-88] KLR 727 the Court of Appeal held: “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 wither that 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”.
19. In awarding the damages the trial court relied on Joseph Njuguna Gachie v Jacinter Kavuvi Kyengo (2019) eKLR, where Kshs. 600,000/= was awarded for more severe injuries.
20. The Appellant cited Nyamira HCCA no 54 of 2023 Wilson Mboga Ondicho Vs Harrison Nyangau Mosigisi , the Respondent sustained soft tissue injuries on the leg and a cut wound to the head., Appeal Justice Okwany reduced the trial court award of Ksh 300,000/- to Kshs. 80,000/= in 2025. Also Kisii HCCA no 88 of 2023 Boaz Obure and Bethuel Gichonga Muthami Vs Samwel Kiyuka Timothy Okwanyo , where the Respondent sustained soft tissue injuries to the chest and lower limbs only, where this court reduced the award of Ksh 250,000/- from the Trial Court to Kshs 70,000/= in 2024 .
21. The appellant submitted that general damages in the sum of kshs 70,000/= would be adequate herein considering he nature of the injuries sustained .
22. I have seen the case of Justine Nyamweya Ochoki &Anr vs Jumaa Karisa Kipingwa [2020] eKLR, the plaintiff suffered blunt injuries to the chest, left wrist and lower lip. The trial court awarded him Kshs 300,000/=, but on appeal the same was reduced to Kshs 150,000/=. Also in .Ndungu Dennis vs Ann Wangari Ndirangu & Another [2018] eKLR, wherein the plaintiff sustained soft tissue injuries to the lower right leg and to the back and on appeal, the award was reduced from Kshs 300,000/= to Kshs. 150,000/=. The said decisions are 5 & 7 years old respectively . In the case of Njoroge & another v Kimani [2023] KEHC 20758 (KLR) . The appellant sustained blunt injuries to the head, chest and both legs. injuries and was awarded Kshs. 380,000/= by the trial court but this was substituted by Kshs 200,000/= on appeal in 2023. The injuries in the case cited by the appellant were minor compared to the injuries herein while the injuries in the Njoroge case supra are comparable to the ones sustained by the respondent .
Determination
21. In this case , there was a misapprehension of the evidence in that the Trial Magistrate relied on injuries which were neither pleaded nor proved to arrive at the general damages which were inordinately high considering the nature of injuries sustained and the comparable awards for similar injuries.
22. There is thus a justification to interfere with the award in the impugned judgment of the lower court . Doing the best I can, and guided by nature of the injuries sustained by the respondent , recent awards for comparable injuries the case of Njoroge (supra) , inflation and all the necessary factors , I find that an award of Kshs. 200,000/= would be adequate in this case . This is to be subjected to the 20 % contributory negligence.
Disposition
23. The appeal succeeds.
a. The award of general damages in the sum of Kshs 420,000/= awarded by the lower court thus is set aside and substituted with an award of Kshs. 200,000/=, subject to 20% contributory negligence Kshs. 20,000/= . = Kshs. 180,000/=
b. Costs to the appellant .
c. 30 days Right of appeal
T.A ODERA
JUDGE
12.2.26
________________________________________
DELIVERED VIRTUALLY VIA TEAMS PLATFORM THIS 12TH DAY OF FEBRUARY 2026. IN THE PRESENCE OF MISS OGATO FOR THE APPELLANT & CA OGENDO . NO APPEARANCE FOR THE RESPONDENT