[1] This appeal arises from the judgment and decree passed in Homa Bay Chief Magistrate’s Civil Case No. 75 of 2022: Yuvinalis Ogenche Omonywa v Dennis Okisore and George Ouko Atuya , in which the respondent had sued the appellants for compensation in respect of injuries sustained in a road traffic accident. The respondent had alleged before the lower court that he was lawfully travelling aboard Motor Vehicle Registration No. KCT 264M on the 1 st December 2021 when it was so negligently driven that it lost control, veered off the road and caused an accident in which he suffered bodily injuries. The accident was alleged to have occurred along the Mbita-Homa Bay Road.
[2] The record of the lower court shows that, although the 1 st appellant entered appearance and filed his Statement of Defence, the 2 nd appellant did not. Consequently, default judgment was entered against the 2 nd appellant on 22 nd March 2023. The matter thereafter proceeded to hearing and the parties presented their evidence. The respondent called three witnesses while the 1 st appellant availed two witnesses in support of his case. Upon hearing the parties, the lower court found the appellants 100% liable and awarded the plaintiff compensation by way of general damages in the sum of Kshs. 1,000,000/= and special damages of Kshs. 114,276/= together with interest and costs.
[3] Being aggrieved by the decision of the lower court, the appellants filed the instant appeal on the following grounds:
[a] That the learned magistrate erred in law and in fact by failing to consider and appreciate the applicable principles in assessment of damages and thereby arrived at an excessive and unjustified award.
[b] The learned magistrate erred in law and fact by awarding general damages of Kshs. 1,000,000/= for pain and suffering, an award which was so excessive as to amount to an erroneous estimate of loss or damage suffered by the respondent.
[c] The learned magistrate erred in law and fact in awarding special damages of Kshs. 114,276/= an amount which was not pleaded or strictly proved.
[d] The learned magistrate erred in fact and in law in relying on extraneous circumstances not supported by the evidence on record.
[e] The learned magistrate erred in law and fact by overly relying on the respondent’s submissions which were not relevant.
[f] The learned magistrate erred in law and fact by failing to take into account the appellant’s submissions which were duly filed electronically.
[g] The learned magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.
[4] Accordingly, the appellants prayed that their appeal be allowed with costs and the judgment delivered on 23 rd February 2024 by Hon. B. Toroitich , Resident Magistrate, in Homa Bay CMCC No. 75 of 2022 be set aside and substituted with the judgment of this Court dismissing the respondent’s case with costs. In the alternative, the appellants prayed that this Court be pleased to re-assess quantum downwards in line with the evidence on record.
[5] The appeal was urged by way of written submissions, pursuant to the directions given herein on 29 th September 2025. The appellants complied and filed written submissions dated 9 th February 2026. They proposed the following issues for determination:
[a] Whether the respondent proved his case on a balance of probabilities in the light of the allegations of fraud.
[b] Whether the award of damages was excessive and unsupported by credible medical evidence.
[6] The appellants submitted that the respondent failed to adduce credible evidence in proof of his case. They contended that, although the respondent stated that after the accident he was rushed to Tabaka Mission Hospital where he was admitted for two weeks, he did not present treatment notes from Tabaka Mission Hospital where he was first treated. They also faulted the respondent for relying on documents allegedly issued at Kisii Teaching and Referral Hospital and Bosongo Medical Centre; which documents were not consistent with the dates of the alleged accident. For instance, they pointed out that the Discharge Summary from Bosongo Medical Centre was issued on 18 th December 2022; about two weeks after the accident.
[7] The appellants further submitted that, from the documents exhibited, it is indicated that he was admitted for abdominal pain and inguinal swelling and the diagnosis made was traumatic abdominal inguinal hernia. They also urged the Court to note that the name of the patient as contained in the records at Kisii Teaching and Referral Hospital was Yuve Charles. They pointed out that they called the Records Officer at Kisii Teaching and Referral Hospital who testified before the lower court and denied that the respondent was treated at their facility as alleged by him because he could not trace any treatment records relating to him. They also urged the Court to note that the P3 Form issued by Homa Bay Police Station and addressed to Kisii Teaching and Referral Hospital did not have the rubber stamp of Kisii Teaching and Referral Hospital. Consequently, the Hospital issued a revocation letter dated 29 th July 2022 disowning the Radiology Report relied on by the respondent.
[8] With regard to the Medical Report prepared by Dr. Peter Morebu , the appellants submitted that it lists exaggerated injuries which were never mentioned in the initial treatment notes. They relied on Daniel Odhiambo Ngesa v Daniel Otieno Owino & another [2020] eKLR and urged the Court to find that the respondent failed to prove that he was injured in the road traffic accident in question. They accordingly prayed for the dismissal of the appeal
[9] In the alternative, the appellants proposed that, should the Court find otherwise, the injuries should only attract a nominal award of Kshs. 200,000/=. They relied on the Medical Report prepared by Dr. Steve Ochieng and the cases of Butt v Khan [1981] KLR 349 and Lilian Anyango Otieno v Philip Mugoya Ogila [2022] eKLR, and urged the Court to find that the lower court’s award was not only excessive but was also unsupported by the evidence.
[10] The respondent, on his part, relied on his written submissions dated 26 th January 2026. He proposed a single issue for determination, namely, whether the learned magistrate based her award on general damages on the correct principles. He submitted that the award was not only commensurate with the nature of injuries suffered by him but was also consistent with precedent in similar cases. He reiterated the injuries suffered as set out in the Amended Plaint and urged the Court to find that those injuries were supported by the Medical Reports and relevant documents presented before the lower court; including the Medical Report of Dr. Steve Ochieng , presented by the appellants.
[11] The appellant submitted, on the authority of Actors Delta Haulage Services Ltd v James Njogu Chege & 3 others [2017] eKLR, that the lower court’s award was in fact on the lower side. In that case, the plaintiff sustained b ilateral comminuted fractures of the frontal bones involving the frontal sinuses, bilateral pneumocephalus as well as nasal bone fracture, and was awarded Kshs. 2,000,000/= by way of general damages. Consequently, the respondent urged for the dismissal of the appeal. He also relied on the following authorities:
[a] Naomi Momanyi v G4S Security Services Kenya Ltd & another [2018] eKLR
[b] Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55
[c] Jane Chelagat Bor v Andrew Otieno Onduu [1988-92] 2 KAR 288
[12] This being a first appeal, it is the duty of the Court to re-evaluate the evidence adduced before the lower court and come to its own conclusions thereon while bearing in mind that it did not see or hear the witnesses. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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..."
[13] Before the lower court, the respondent testified as PW2. He adopted his witness statement filed alongside the Plaint, dated 21 st April 2022. He testified that he had travelled to Mbita with a friend on the 1 st December 2021; and that on their way back to Suneka where he was then staying, they were involved in a road traffic accident. They had boarded Motor Vehicle Registration No. KCT 264N and the accident occurred on the Mbita-Homa Bay Road. He further told the lower court that he lost consciousness on impact and later found himself at Kisii Teaching and Referral Hospital where he was admitted and underwent treatment for 5 days.
[14] The respondent further testified that he suffered head injuries and was bleeding in the ear. He also mentioned that the seat belt had cut him in the abdomen. He added that, after discharge, he went home but his condition worsened. He was therefore taken back to Kisii Teaching and Referral Hospital for a CT scan. After that he went to Bosongo Medical Centre and was again admitted for two weeks. While there he underwent surgery and upon discharge was advised to go back for review. The respondent explained that he was given a colostomy bag and had to go back to Bosongo Medical Centre after 3 months for it to be removed.
[15] The respondent further testified that the surgery to reverse the colostomy did not go well; and that he had to go to Kijabe A I C Hospital and Tabaka Mission Hospital for further medical attention. He produced all the documents issued to him at the medical facilities he visited as exhibits before the lower court, including a bundle of receipts in proof of the medical expenses incurred. In his evidence he spent a total of Kshs. 107,226/= towards his treatment. He added that he had not fully healed by the time he testified before the lower court.
[16] It was the evidence of the respondent that the subject motor vehicle belonged to the 2 nd appellant; and was being driven by the 1 st appellant at the time of the accident. The respondent blamed the appellants for causation of the accident on account of over speeding and careless driving. He also explained that he is an artist and that his YouTube name is Yuve Charles , Charles being the name of his father. He added that because he was unconscious, the person who took him to Kisii Teaching and Referral Hospital gave his name as Yuve Charles.
[17] Dr. Morebu testified as PW1 before the lower court and stated that he is a Senior Medical Officer at Kisii Teaching and Referral Hospital. He confirmed that he examined and prepared a Medical Report in respect of the respondent who had been injured in a road traffic accident. He set out the injuries sustained as follows:
[a] head injuries with loss of consciousness
[b] Fracture of the left mastoid bone below the left ear
[c] Internal bleeding to the eardrum
[d] Bleeding around the left mastoid bone into the left eye
[e] Pneumocephalus (air trapped in the brain)
[f] Haemocynus (bleeding behind the nostrils)
[g] Traumatic abdominal inguinal hernia
[h] Lacerations on the anterior chest and abdomen
[i] Blunt injuries to the back and abdomen
[j] Internal bleeding into the abdomen
[k] Bruises on the left upper limb and right upper limb
[18] PW1 also confirmed that the respondent had been treated at Bosongo Medical Centre, Tabaka Mission Hospital and Kisii Level 6 Hospital and had undergone abdominal surgery. In his opinion, the injuries sustained by the respondent amounted to Grievous Harm. His prognosis was that permanent disability was anticipated and that the head injury may cause complications later in the respondent’s life such as epilepsy or psychosis. PW1 further noted that the respondent had suffered a raptured spleen which may also result in complications later in life. He explained that the mastoid bone which was fractured is part of the skull.
[19] Daniel Nyaremo testified on behalf of the respondent before the lower court as PW3. He was then attached to Kisii Teaching and Referral Hospital as a Senior Clinical Officer. He was also deployed as the head of the Legal Department at the Hospital. He identified the documents issued at their facility, including a Radiological Report dated 1 st December 2021. He confirmed that the respondent was first seen at the Hospital on 1 st December 2021 under the name Yuve Charles ; and that later during his stay in the ward his correct name was noted before the discharge documents were given to him. PW1 confirmed that one of the injuries sustained by the respondent was fracture of the mastoid bone, among others.
[20] The respondent’s last witness was Lawrence Oriki Manyura (PW4), a Clinical Officer at Bosongo Hospital. He testified that the respondent was treated at their facility for abdominal injury following a road traffic accident after having been treated at Kisii Teaching and Referral Hospital. He confirmed that they conducted surgery for lobectomy and hernia repair. He further stated that the respondent was later re-admitted at their facility with serious abdominal pain for which he was again treated and discharged. PW4 produced the Discharge Summary documents issued at their facility as an exhibits before the lower court.
[21] The respondent also adopted the evidence of the police officer as presented in Homa Bay Chief Magistrate’s Civil Case No. E072 if 2022: which arose from the same road traffic accident.
[22] On behalf of the appellants, Everlyne Moraa Nyangau testified as DW1. She was the Health Records Officer at Kisii Teaching and Referral Hospital at the time. She attended court for the purposes of producing a letter dated 26 th July 2022 which she authored. She explained that the Hospital had received a letter seeking the confirmation of the authenticity of the treatment notes for Yuvinalis Ongoche from their records. In her evidence, she stated that according to the treatment notes attributed to their facility, the patient had been treated for abdominal distention and bloody diarrhea under the name of Yuve Charles and not Yuvenalis Omonywa.
[23] The appellants also called Dr. Steve Ochieng (DW2) a general medical practitioner based in Nairobi. He testified that he examined and prepared a Medical Report in respect of the respondent dated 13 th May 2023. He stated that he looked at the primary treatment documents which showed that the respondent was treated at Kisii Teaching and Referral Hospital for injuries on the head, abdomen and trunk, as well as multiple bruises. He also mentioned that the patient was unconscious when he was taken to hospital and that he had an inguinal swelling in the abdomen. A scan was done that revealed a fracture of the left mastoid bone with bleeding in the middle ear and around the mastoid bone.
[24] DW2 conceded basically that, based on the documents he was given, the respondent was admitted at Kisii Teaching and Referral Hospital on 1 st December 2021; that he was readmitted to the same hospital on 11 th December 2021, that the respondent later developed distention of the abdomen with bloody diarrhea and was on the 18 th December 2022 admitted at Bosongo Medical Centre for management of the traumatic inguinal swelling in the groin area. He confirmed that the respondent was taken to the theatre for the repair of the inguinal swelling and a colostomy was done.
[25] DW2 further testified that the respondent was discharged but had to go back to Bosongo Medical Centre on 23 rd March 2022 for reversal of the colostomy. He added that because the respondent still felt unwell he sought further treatment at Kijabe Mission Hospital where he was admitted on 28 th March 2022 for reversal of the colostomy. He was attended to and discharged on 31 st March 2022.
[26] On examining the respondent, he noted that he had a surgical wound on the abdomen that was still undergoing cleaning and dressing daily. He looked at the CT scan of the head that was done on 1 st December 2021 as well as the x-ray done on the 13 th April 2021 but could not see any fracture. He sent the initial CT scan for reporting by a consultant radiologist and the same report was given, namely, that no fracture of the skull was seen. He therefore formed the opinion that the respondent only suffered head injury with loss of consciousness as well as traumatic inguinal hernia. He testified that raptured spleen and soft sub-conjunctival hemorrhage mentioned in the Medical Report of Dr. Morebu were not mentioned in the initial treatment notes; and added that no surgical intervention was indicated in the treatment notes.
[27] From the appellants’ grounds of appeal, it is manifest that their appeal is on quantum. I have looked at the judgment of the lower court dated 22 nd February 2024 and noted that the learned magistrate considered the issue of liability and noted that she had rendered herself in a similar suit, namely, Homa Bay Chief Magistrate’s Civil Case No. 072 of 2022: Fred Mapoa Asiago v Dennis Okisore Mosoti & George Ouko Atuya in respect of the same accident. She further noted that she had found the appellants 100% liable; and that the respondent had relied on that decision.
[28] She further noted that in the prior suit, the owner of the subject motor vehicle was proved to be the 2 nd appellant, George Ouko Atuya ; and that it was being driven at the time by Dennis Okisore Mosoti (the 1 st appellant). It is also notable that the 2 nd appellant opted to not defend the suit before the lower court and the Request for Judgment dated 8 th March 2023 was accordingly allowed and endorsed on the record. It was not set aside. It is also noteworthy that the 1 st appellant did not testify before the lower court. Accordingly, the allegations of negligence by the appellants against the respondent as set out in paragraph 4 of the Amended Defence were not proved.
[29] It is noteworthy too that, although the appellants alleged fraud against the respondent at paragraph 6A of the Amended Defence, none of those particulars were proved. Credible evidence was adduced before the lower court to the effect that the respondent was unconscious when he arrived at Kisii Teaching and Referral Hospital and that third parties may have given information on his behalf as to his identity and other particulars. The mere fact therefore that the treatment documents were in respect of Yuve Charles or Juvenalis did not mean that he was an imposter. In fact, PW3, a Senior Clinical Officer at Kisii Teaching and Referral Hospital mentioned that the respondent’s name was corrected and used afterwards, after he gained consciousness. He explained that such occurrences are normal at their facility; and that some patients are brought is as “unknown”.
[30] In the premises, I am satisfied that the evidence adduced before the lower court was sufficient to support the finding of 100% liability by the learned magistrate.
[31] On liability, it was acknowledged in H. West & Son Ltd v Shephard [1964] AC 326, that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[32] The Court of Appeal restated this principle in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR as follows:
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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. The Court 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 high that it must be a wholly erroneous estimate of the damages."
[33] Therefore, as far as possible, comparable injuries ought to attract the same award for purposes of uniformity. The Court of Appeal made this point in Stanley Maore v Geoffrey Mwenda [2004] eKLR, and held:
“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
[34] In this instance, the respondent pleaded the following injuries in his Amended Plaint:
[a] head injuries with loss of consciousness
[b] Fracture of the left mastoid bone below the left ear
[c] Internal bleeding to the eardrum
[d] Bleeding around the left mastoid bone into the left eye
[e] Pneumocephalus (air trapped in the brain)
[f] Haemocynus (bleeding behind the nostrils)
[g] Traumatic abdominal inguinal hernia
[h] Lacerations on the anterior chest and abdomen
[i] Blunt injuries to the back and abdomen
[j] Internal bleeding into the abdomen
[k] Bruises on the left upper limb and right upper limb
[35] In addition to the respondent’s own evidence in proof of the injuries sustained. He also called Dr. Morebu (PW1) and two Clinical Officers, Daniel Nyaremo (PW3) and Lawrence Oriki Manyura (PW4). On the basis of the evidence of these witness and the documents produced before the lower court, it is my finding that the respondent proved his injuries to the requisite standard. I am further satisfied that the injuries were of a grievous nature with serious repercussions as pointed out by PW1. They were not simply soft tissue injuries as posited by the appellants.
[36] The learned magistrate took into consideration the nature of the respondent’s injuries, and in particular sought guidance from the case of G A (minor suing thro’ her father and next friend B Z) v Paul Muthiku [2020] eKLR in which the minor suffered multiple fractures on the left orbital roof, right temporal bones, bleeding in the skull airspaces, cut on the head and on the chin and was awarded Kshs. 700,000/= in 2020. In this instance, the respondent also suffered other injuries in the abdomen such as traumatic hernia, and had to undergo corrective surgery. Taking into account the effect of inflation, the award of Kshs. 1,000,000/= cannot be said to be excessive.
[37] Indeed, in Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR, the Court of Appeal held:
“The assessment of damages in personal injury case by a court is guided by the following principles: An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained The award should be commensurable with the injuries sustained Previous awards in similar injuries sustained are a mere guide but each case be treated on its own facts Previous awards to be taken into account to maintain the stability of awards but factors such as inflation should be taken into account The awards should not be inordinately low or high.”
[38] As no serious challenge was mounted by the appellants in respect of the special damages awarded by the lower court, I find no basis for interfering therewith, noting that the respondent backed them up by producing receipts in support of the expenditures.
[39] In the premises, I find merit no merit in the appeal. The same is hereby dismissed in its entirety with costs
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25 TH DAY OF JUNE, 2026
[2] The record of the lower court shows that, although the 1 st appellant entered appearance and filed his Statement of Defence, the 2 nd appellant did not. Consequently, default judgment was entered against the 2 nd appellant on 22 nd March 2023. The matter thereafter proceeded to hearing and the parties presented their evidence. The respondent called three witnesses while the 1 st appellant availed two witnesses in support of his case. Upon hearing the parties, the lower court found the appellants 100% liable and awarded the plaintiff compensation by way of general damages in the sum of Kshs. 1,000,000/= and special damages of Kshs. 114,276/= together with interest and costs.
[3] Being aggrieved by the decision of the lower court, the appellants filed the instant appeal on the following grounds:
[a] That the learned magistrate erred in law and in fact by failing to consider and appreciate the applicable principles in assessment of damages and thereby arrived at an excessive and unjustified award.
[b] The learned magistrate erred in law and fact by awarding general damages of Kshs. 1,000,000/= for pain and suffering, an award which was so excessive as to amount to an erroneous estimate of loss or damage suffered by the respondent.
[c] The learned magistrate erred in law and fact in awarding special damages of Kshs. 114,276/= an amount which was not pleaded or strictly proved.
[d] The learned magistrate erred in fact and in law in relying on extraneous circumstances not supported by the evidence on record.
[e] The learned magistrate erred in law and fact by overly relying on the respondent’s submissions which were not relevant.
[f] The learned magistrate erred in law and fact by failing to take into account the appellant’s submissions which were duly filed electronically.
[g] The learned magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.
[4] Accordingly, the appellants prayed that their appeal be allowed with costs and the judgment delivered on 23 rd February 2024 by Hon. B. Toroitich , Resident Magistrate, in Homa Bay CMCC No. 75 of 2022 be set aside and substituted with the judgment of this Court dismissing the respondent’s case with costs. In the alternative, the appellants prayed that this Court be pleased to re-assess quantum downwards in line with the evidence on record.
[5] The appeal was urged by way of written submissions, pursuant to the directions given herein on 29 th September 2025. The appellants complied and filed written submissions dated 9 th February 2026. They proposed the following issues for determination:
[a] Whether the respondent proved his case on a balance of probabilities in the light of the allegations of fraud.
[b] Whether the award of damages was excessive and unsupported by credible medical evidence.
[6] The appellants submitted that the respondent failed to adduce credible evidence in proof of his case. They contended that, although the respondent stated that after the accident he was rushed to Tabaka Mission Hospital where he was admitted for two weeks, he did not present treatment notes from Tabaka Mission Hospital where he was first treated. They also faulted the respondent for relying on documents allegedly issued at Kisii Teaching and Referral Hospital and Bosongo Medical Centre; which documents were not consistent with the dates of the alleged accident. For instance, they pointed out that the Discharge Summary from Bosongo Medical Centre was issued on 18 th December 2022; about two weeks after the accident.
[7] The appellants further submitted that, from the documents exhibited, it is indicated that he was admitted for abdominal pain and inguinal swelling and the diagnosis made was traumatic abdominal inguinal hernia. They also urged the Court to note that the name of the patient as contained in the records at Kisii Teaching and Referral Hospital was Yuve Charles. They pointed out that they called the Records Officer at Kisii Teaching and Referral Hospital who testified before the lower court and denied that the respondent was treated at their facility as alleged by him because he could not trace any treatment records relating to him. They also urged the Court to note that the P3 Form issued by Homa Bay Police Station and addressed to Kisii Teaching and Referral Hospital did not have the rubber stamp of Kisii Teaching and Referral Hospital. Consequently, the Hospital issued a revocation letter dated 29 th July 2022 disowning the Radiology Report relied on by the respondent.
[8] With regard to the Medical Report prepared by Dr. Peter Morebu , the appellants submitted that it lists exaggerated injuries which were never mentioned in the initial treatment notes. They relied on Daniel Odhiambo Ngesa v Daniel Otieno Owino & another [2020] eKLR and urged the Court to find that the respondent failed to prove that he was injured in the road traffic accident in question. They accordingly prayed for the dismissal of the appeal
[9] In the alternative, the appellants proposed that, should the Court find otherwise, the injuries should only attract a nominal award of Kshs. 200,000/=. They relied on the Medical Report prepared by Dr. Steve Ochieng and the cases of Butt v Khan [1981] KLR 349 and Lilian Anyango Otieno v Philip Mugoya Ogila [2022] eKLR, and urged the Court to find that the lower court’s award was not only excessive but was also unsupported by the evidence.
[10] The respondent, on his part, relied on his written submissions dated 26 th January 2026. He proposed a single issue for determination, namely, whether the learned magistrate based her award on general damages on the correct principles. He submitted that the award was not only commensurate with the nature of injuries suffered by him but was also consistent with precedent in similar cases. He reiterated the injuries suffered as set out in the Amended Plaint and urged the Court to find that those injuries were supported by the Medical Reports and relevant documents presented before the lower court; including the Medical Report of Dr. Steve Ochieng , presented by the appellants.
[11] The appellant submitted, on the authority of Actors Delta Haulage Services Ltd v James Njogu Chege & 3 others [2017] eKLR, that the lower court’s award was in fact on the lower side. In that case, the plaintiff sustained b ilateral comminuted fractures of the frontal bones involving the frontal sinuses, bilateral pneumocephalus as well as nasal bone fracture, and was awarded Kshs. 2,000,000/= by way of general damages. Consequently, the respondent urged for the dismissal of the appeal. He also relied on the following authorities:
[a] Naomi Momanyi v G4S Security Services Kenya Ltd & another [2018] eKLR
[b] Catholic Diocese of Kisumu v Sophia Achieng Tete [2004] 2 KLR 55
[c] Jane Chelagat Bor v Andrew Otieno Onduu [1988-92] 2 KAR 288
[12] This being a first appeal, it is the duty of the Court to re-evaluate the evidence adduced before the lower court and come to its own conclusions thereon while bearing in mind that it did not see or hear the witnesses. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this 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..."
[13] Before the lower court, the respondent testified as PW2. He adopted his witness statement filed alongside the Plaint, dated 21 st April 2022. He testified that he had travelled to Mbita with a friend on the 1 st December 2021; and that on their way back to Suneka where he was then staying, they were involved in a road traffic accident. They had boarded Motor Vehicle Registration No. KCT 264N and the accident occurred on the Mbita-Homa Bay Road. He further told the lower court that he lost consciousness on impact and later found himself at Kisii Teaching and Referral Hospital where he was admitted and underwent treatment for 5 days.
[14] The respondent further testified that he suffered head injuries and was bleeding in the ear. He also mentioned that the seat belt had cut him in the abdomen. He added that, after discharge, he went home but his condition worsened. He was therefore taken back to Kisii Teaching and Referral Hospital for a CT scan. After that he went to Bosongo Medical Centre and was again admitted for two weeks. While there he underwent surgery and upon discharge was advised to go back for review. The respondent explained that he was given a colostomy bag and had to go back to Bosongo Medical Centre after 3 months for it to be removed.
[15] The respondent further testified that the surgery to reverse the colostomy did not go well; and that he had to go to Kijabe A I C Hospital and Tabaka Mission Hospital for further medical attention. He produced all the documents issued to him at the medical facilities he visited as exhibits before the lower court, including a bundle of receipts in proof of the medical expenses incurred. In his evidence he spent a total of Kshs. 107,226/= towards his treatment. He added that he had not fully healed by the time he testified before the lower court.
[16] It was the evidence of the respondent that the subject motor vehicle belonged to the 2 nd appellant; and was being driven by the 1 st appellant at the time of the accident. The respondent blamed the appellants for causation of the accident on account of over speeding and careless driving. He also explained that he is an artist and that his YouTube name is Yuve Charles , Charles being the name of his father. He added that because he was unconscious, the person who took him to Kisii Teaching and Referral Hospital gave his name as Yuve Charles.
[17] Dr. Morebu testified as PW1 before the lower court and stated that he is a Senior Medical Officer at Kisii Teaching and Referral Hospital. He confirmed that he examined and prepared a Medical Report in respect of the respondent who had been injured in a road traffic accident. He set out the injuries sustained as follows:
[a] head injuries with loss of consciousness
[b] Fracture of the left mastoid bone below the left ear
[c] Internal bleeding to the eardrum
[d] Bleeding around the left mastoid bone into the left eye
[e] Pneumocephalus (air trapped in the brain)
[f] Haemocynus (bleeding behind the nostrils)
[g] Traumatic abdominal inguinal hernia
[h] Lacerations on the anterior chest and abdomen
[i] Blunt injuries to the back and abdomen
[j] Internal bleeding into the abdomen
[k] Bruises on the left upper limb and right upper limb
[18] PW1 also confirmed that the respondent had been treated at Bosongo Medical Centre, Tabaka Mission Hospital and Kisii Level 6 Hospital and had undergone abdominal surgery. In his opinion, the injuries sustained by the respondent amounted to Grievous Harm. His prognosis was that permanent disability was anticipated and that the head injury may cause complications later in the respondent’s life such as epilepsy or psychosis. PW1 further noted that the respondent had suffered a raptured spleen which may also result in complications later in life. He explained that the mastoid bone which was fractured is part of the skull.
[19] Daniel Nyaremo testified on behalf of the respondent before the lower court as PW3. He was then attached to Kisii Teaching and Referral Hospital as a Senior Clinical Officer. He was also deployed as the head of the Legal Department at the Hospital. He identified the documents issued at their facility, including a Radiological Report dated 1 st December 2021. He confirmed that the respondent was first seen at the Hospital on 1 st December 2021 under the name Yuve Charles ; and that later during his stay in the ward his correct name was noted before the discharge documents were given to him. PW1 confirmed that one of the injuries sustained by the respondent was fracture of the mastoid bone, among others.
[20] The respondent’s last witness was Lawrence Oriki Manyura (PW4), a Clinical Officer at Bosongo Hospital. He testified that the respondent was treated at their facility for abdominal injury following a road traffic accident after having been treated at Kisii Teaching and Referral Hospital. He confirmed that they conducted surgery for lobectomy and hernia repair. He further stated that the respondent was later re-admitted at their facility with serious abdominal pain for which he was again treated and discharged. PW4 produced the Discharge Summary documents issued at their facility as an exhibits before the lower court.
[21] The respondent also adopted the evidence of the police officer as presented in Homa Bay Chief Magistrate’s Civil Case No. E072 if 2022: which arose from the same road traffic accident.
[22] On behalf of the appellants, Everlyne Moraa Nyangau testified as DW1. She was the Health Records Officer at Kisii Teaching and Referral Hospital at the time. She attended court for the purposes of producing a letter dated 26 th July 2022 which she authored. She explained that the Hospital had received a letter seeking the confirmation of the authenticity of the treatment notes for Yuvinalis Ongoche from their records. In her evidence, she stated that according to the treatment notes attributed to their facility, the patient had been treated for abdominal distention and bloody diarrhea under the name of Yuve Charles and not Yuvenalis Omonywa.
[23] The appellants also called Dr. Steve Ochieng (DW2) a general medical practitioner based in Nairobi. He testified that he examined and prepared a Medical Report in respect of the respondent dated 13 th May 2023. He stated that he looked at the primary treatment documents which showed that the respondent was treated at Kisii Teaching and Referral Hospital for injuries on the head, abdomen and trunk, as well as multiple bruises. He also mentioned that the patient was unconscious when he was taken to hospital and that he had an inguinal swelling in the abdomen. A scan was done that revealed a fracture of the left mastoid bone with bleeding in the middle ear and around the mastoid bone.
[24] DW2 conceded basically that, based on the documents he was given, the respondent was admitted at Kisii Teaching and Referral Hospital on 1 st December 2021; that he was readmitted to the same hospital on 11 th December 2021, that the respondent later developed distention of the abdomen with bloody diarrhea and was on the 18 th December 2022 admitted at Bosongo Medical Centre for management of the traumatic inguinal swelling in the groin area. He confirmed that the respondent was taken to the theatre for the repair of the inguinal swelling and a colostomy was done.
[25] DW2 further testified that the respondent was discharged but had to go back to Bosongo Medical Centre on 23 rd March 2022 for reversal of the colostomy. He added that because the respondent still felt unwell he sought further treatment at Kijabe Mission Hospital where he was admitted on 28 th March 2022 for reversal of the colostomy. He was attended to and discharged on 31 st March 2022.
[26] On examining the respondent, he noted that he had a surgical wound on the abdomen that was still undergoing cleaning and dressing daily. He looked at the CT scan of the head that was done on 1 st December 2021 as well as the x-ray done on the 13 th April 2021 but could not see any fracture. He sent the initial CT scan for reporting by a consultant radiologist and the same report was given, namely, that no fracture of the skull was seen. He therefore formed the opinion that the respondent only suffered head injury with loss of consciousness as well as traumatic inguinal hernia. He testified that raptured spleen and soft sub-conjunctival hemorrhage mentioned in the Medical Report of Dr. Morebu were not mentioned in the initial treatment notes; and added that no surgical intervention was indicated in the treatment notes.
[27] From the appellants’ grounds of appeal, it is manifest that their appeal is on quantum. I have looked at the judgment of the lower court dated 22 nd February 2024 and noted that the learned magistrate considered the issue of liability and noted that she had rendered herself in a similar suit, namely, Homa Bay Chief Magistrate’s Civil Case No. 072 of 2022: Fred Mapoa Asiago v Dennis Okisore Mosoti & George Ouko Atuya in respect of the same accident. She further noted that she had found the appellants 100% liable; and that the respondent had relied on that decision.
[28] She further noted that in the prior suit, the owner of the subject motor vehicle was proved to be the 2 nd appellant, George Ouko Atuya ; and that it was being driven at the time by Dennis Okisore Mosoti (the 1 st appellant). It is also notable that the 2 nd appellant opted to not defend the suit before the lower court and the Request for Judgment dated 8 th March 2023 was accordingly allowed and endorsed on the record. It was not set aside. It is also noteworthy that the 1 st appellant did not testify before the lower court. Accordingly, the allegations of negligence by the appellants against the respondent as set out in paragraph 4 of the Amended Defence were not proved.
[29] It is noteworthy too that, although the appellants alleged fraud against the respondent at paragraph 6A of the Amended Defence, none of those particulars were proved. Credible evidence was adduced before the lower court to the effect that the respondent was unconscious when he arrived at Kisii Teaching and Referral Hospital and that third parties may have given information on his behalf as to his identity and other particulars. The mere fact therefore that the treatment documents were in respect of Yuve Charles or Juvenalis did not mean that he was an imposter. In fact, PW3, a Senior Clinical Officer at Kisii Teaching and Referral Hospital mentioned that the respondent’s name was corrected and used afterwards, after he gained consciousness. He explained that such occurrences are normal at their facility; and that some patients are brought is as “unknown”.
[30] In the premises, I am satisfied that the evidence adduced before the lower court was sufficient to support the finding of 100% liability by the learned magistrate.
[31] On liability, it was acknowledged in H. West & Son Ltd v Shephard [1964] AC 326, that:
"...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment."
[32] The Court of Appeal restated this principle in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR as follows:
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an 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. The Court 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 high that it must be a wholly erroneous estimate of the damages."
[33] Therefore, as far as possible, comparable injuries ought to attract the same award for purposes of uniformity. The Court of Appeal made this point in Stanley Maore v Geoffrey Mwenda [2004] eKLR, and held:
“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
[34] In this instance, the respondent pleaded the following injuries in his Amended Plaint:
[a] head injuries with loss of consciousness
[b] Fracture of the left mastoid bone below the left ear
[c] Internal bleeding to the eardrum
[d] Bleeding around the left mastoid bone into the left eye
[e] Pneumocephalus (air trapped in the brain)
[f] Haemocynus (bleeding behind the nostrils)
[g] Traumatic abdominal inguinal hernia
[h] Lacerations on the anterior chest and abdomen
[i] Blunt injuries to the back and abdomen
[j] Internal bleeding into the abdomen
[k] Bruises on the left upper limb and right upper limb
[35] In addition to the respondent’s own evidence in proof of the injuries sustained. He also called Dr. Morebu (PW1) and two Clinical Officers, Daniel Nyaremo (PW3) and Lawrence Oriki Manyura (PW4). On the basis of the evidence of these witness and the documents produced before the lower court, it is my finding that the respondent proved his injuries to the requisite standard. I am further satisfied that the injuries were of a grievous nature with serious repercussions as pointed out by PW1. They were not simply soft tissue injuries as posited by the appellants.
[36] The learned magistrate took into consideration the nature of the respondent’s injuries, and in particular sought guidance from the case of G A (minor suing thro’ her father and next friend B Z) v Paul Muthiku [2020] eKLR in which the minor suffered multiple fractures on the left orbital roof, right temporal bones, bleeding in the skull airspaces, cut on the head and on the chin and was awarded Kshs. 700,000/= in 2020. In this instance, the respondent also suffered other injuries in the abdomen such as traumatic hernia, and had to undergo corrective surgery. Taking into account the effect of inflation, the award of Kshs. 1,000,000/= cannot be said to be excessive.
[37] Indeed, in Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR, the Court of Appeal held:
“The assessment of damages in personal injury case by a court is guided by the following principles: An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained The award should be commensurable with the injuries sustained Previous awards in similar injuries sustained are a mere guide but each case be treated on its own facts Previous awards to be taken into account to maintain the stability of awards but factors such as inflation should be taken into account The awards should not be inordinately low or high.”
[38] As no serious challenge was mounted by the appellants in respect of the special damages awarded by the lower court, I find no basis for interfering therewith, noting that the respondent backed them up by producing receipts in support of the expenditures.
[39] In the premises, I find merit no merit in the appeal. The same is hereby dismissed in its entirety with costs
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 25 TH DAY OF JUNE, 2026