Background
1. This is an appeal from the judgment of the trial court in the Kisumu CMCCC No. 42 of 2018, arising from a road traffic accident in which the trial court on 10th May 2022, rendered its decision apportioning liability in the ratio of 80:20 in favour of the Respondent and awarded sums of Kshs. 800,000/= in general damages and Kshs. 6,560/= in special damages.
2. The dispute originates from a road traffic accident that occurred on 26th July 2015 along Ring Road, Nyalenda, near Kachok, involving the Appellant’s motor vehicle registration number KAU 863A and the Respondent, who was then riding motorcycle registration number KMDL 235U.
3. The Respondent, William Omondi Onyango, filed a suit against the Appellant, Equator Bottlers Limited, seeking general damages, special damages amounting to Kshs. 6,560/=, costs of the suit, and interest, claiming that the Appellant’s driver (for which it was vicariously liable) negligently and recklessly drove motor vehicle KAU 863A, causing it to swerve into his lane, leading to a collision that resulted in severe bodily injuries.
4. On 10th May 20222, the trial court rendered its decision, apportioning liability on the ratio of 80:20 in favour of the Respondent. The Court also awarded the Respondent Kshs. 800,000/= in general damages, Kshs. 6,560/= in special damages, and costs of the suit.
5. Aggrieved by the trial court’s decision, the Appellant filed the present appeal challenging both liability and quantum, arguing that the magistrate erred by:-
i. Finding the Appellant liable without sufficient evidence and failing to consider the oral and documentary evidence supporting the Appellant’s defense.
ii. Failing to properly weigh the Plaintiff’s and Defence evidence on a balance of probabilities before determining liability.
iii. Disregarding the Defence submissions on both liability and quantum, leading to an unfair finding.
iv. Awarding excessive damages that were unsupported by the evidence on record.
6. The appeal was canvassed through written submissions, with the Appellant’s submissions dated 12th February 2024 and the Respondent’s submissions dated 3rd May 2024.
Appellant’s Submissions
7. The Appellant submitted that the trial court erred in apportioning liability in the ratio of 80:20 against the Appellant, arguing that the decision was not supported by the evidence on record. The Appellant contended that the trial magistrate failed to properly analyze the evidence, particularly the inconsistencies in the Respondent’s testimony and that of his witnesses, which should have led to a different finding on liability.
8. The Appellant argued that the trial magistrate wrongly disregarded the Defence evidence, which demonstrated that the Respondent was solely responsible for the accident. The Appellant maintained that the Respondent’s own evidence was inconsistent, as his account of the accident contradicted that of PW5 (the alleged eyewitness) and PW6 (the investigating officer). The Appellant further pointed out that the police abstract was issued three years after the accident, raising concerns about its credibility as evidence.
9. The Appellant submitted that the trial magistrate failed to consider that PW1 and PW5 gave conflicting accounts of the accident. While PW1 testified that a tuk-tuk had stopped abruptly, leading to the accident, PW5 never mentioned this in his evidence. Similarly, PW1 stated that a car had reversed suddenly, whereas PW5 made no reference to this. These contradictions, according to the Appellant, weakened the Respondent’s case and should have led to a finding that the Respondent failed to prove liability on a balance of probabilities.
10. The Appellant further submitted that the trial court erred in failing to consider Section 107 of the Evidence Act, which places the burden of proof on the party making a claim. The Appellant argued that the Respondent failed to discharge this burden since his evidence was contradictory, inconsistent, and uncorroborated.
11. On quantum, the Appellant submitted that the trial magistrate awarded excessive damages that were not justified by the injuries sustained by the Respondent. The Appellant argued that the trial court relied on authorities involving more severe injuries, whereas the Respondent’s injuries were not as serious as those in the cited cases, and that the trial magistrate failed to properly interrogate the basis of the doctor’s opinion.
12. Relying on Daniel Otieno Owino & Another v Elizabeth Atieno Owour (Siaya High Court Civil Appeal No. 18 of 2019), where the court awarded Kshs. 400,000 for injuries similar to those of the Respondent. The Appellant argued that the award of Kshs. 800,000/= by the trial court was excessive, given that the Respondent’s injuries had healed and did not lead to permanent incapacitation.
13. In conclusion, the Appellant urged the Court to allow the appeal with costs and set aside the trial court’s findings on liability. The Appellant also seeks to have the award of Kshs. 800,000 in general damages substituted with a lower award not exceeding Kshs. 400,000.
Respondent’s Submissions
14. The Respondent supported the trial court’s findings, both on liability and quantum, and urged this Court to dismiss the instant appeal with costs in his favour. According to the Respondent, the trial court’s decision was sound and based on the evidence on record.
15. On liability, the Respondent submitted that the trial court's decision to assign the same in the ratio of 80:20 in favour of the Respondent was entirely justified and was supported by the evidence tendered by the eyewitness PW5, David Ouma Okwero, whose account placed the Appellant's vehicle, registration number KAU 863A, in the incorrect lane, thereby directly causing the collision.
16. The Respondent further argued that the Appellant's defense, as presented by DW1, Michael Nyakwaka, was not only unsubstantiated but also directly contradicted by the consistent and credible testimonies of PW1, William Omondi Onyango, and PW5. The Respondent therefore asserted that he had proved his case on a balance of probabilities as highlighted in the case of Kanyungu Njogu vs Daniel Kimani Maingi [2000] eKLR and Kirugi & Ano. -VS- Kabiya & 3 Others [1987] KLR 347.
17. On the quantum of damages awarded, the Respondent contended that the trial court's assessment was reasonable and proportionate to the severe injuries sustained. They reiterated the comprehensive medical evidence, which included detailed reports from Jaramogi Oginga Teaching and Referral Hospital and Dr. L.W. Okombo, documenting significant injuries that resulted in a 50% permanent incapacitation.
18. The Respondent further emphasized that the trial court had properly considered the evidence and cited relevant authorities before arriving at its decision. He refuted the Appellant's claim that the trial court had failed to accord due regard to their submissions and authorities.
19. The Respondent therefore urged the Court to dismiss the appeal with costs, and the trial court's judgment, both liability and quantum, be upheld.
Analysis And Determination
20. The duty of this court as a first appellate court is well established. The Court of Appeal in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 set out the principles governing a first appeal as follows:-
“An appeal to this Court from a trial by the High Court is by way of a 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.”
21. Similarly, in Peters v Sunday Post Ltd [1958] EA 424, the court held that:
“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction must be exercised with caution: if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, then an appellate court will not hesitate so to decide.”
22. Having reviewed the submissions by the parties, the Court finds that this appeal raises two key issues for determination:
i. Whether the trial magistrate erred in apportioning liability at 80% against the Appellant and 20% against the Respondent.
ii. Whether the award of Kshs. 800,000/= as general damages was excessive and unsupported by the evidence on record.
Whether the Trial Court Erred in Apportioning Liability at 80:20 against the Appellant
23. The trial magistrate in the present case apportioned liability at 80:20 in favour of the appellant. The Appellant contends that this finding was erroneous as it was not supported by the evidence on record. The Respondent, on the other hand, supports the trial court’s findings.
24. In determining who was responsible for the accident, the court must consider the evidence adduced by both parties, including eyewitness accounts, police reports, and expert testimony. The Court of Appeal in Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR held that: -
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows: -
“ To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it………………………
The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
27. Having reviewed the evidence in this case, I note that the Respondent testified as PW1, stating that he was riding his motorcycle on the correct lane when the Appellant’s motor vehicle swerved into his lane while overtaking two motor tricycles, leading to a head-on collision. The eyewitness (PW5) corroborated this version, testifying that the Appellant’s vehicle overtook recklessly and entered the Respondent’s lane, causing the accident. The investigating officer (PW6) further confirmed that the accident occurred and that both the Respondent and the Appellant’s driver were involved.
28. The Appellant, through its driver (DW1), denied liability and claimed that the Respondent overtook dangerously and hit the front right wheel of the Appellant’s vehicle. However, DW1 did not call any independent witnesses to support this claim. The trial court, therefore, found PW1 and PW5’s testimonies more credible, noting that they were consistent, corroborated by physical evidence, and unshaken in cross-examination.
29. The principles guiding the appellate court’s power to interfere with the trial court’s finding on liability are well settled. In Khambi & Another vs Mahithi & Another [1968] EA 70 it was held that:-
‘’It is well settled that where a trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional circumstances, as where there is some error in principle or the apportionment is manifestly erroneous and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.’’
30. Where there is a clear conflict of evidence, the trial court must weigh the credibility of witnesses and prefer the version that is more consistent with the facts and circumstances of the case.
31. In this case, this Court is of the view that the trial magistrate properly analyzed the testimonies and found that the Appellant’s driver was substantially to blame for the accident. The finding that the Respondent bore 20% contributory negligence was reasonable, given that the trial court noted that he may have failed to take adequate evasive action.
32. Based on the evidence, this court finds no reason to interfere with the trial court’s finding on liability. The apportionment of liability in the ratio of 80:20 against the Appellant is hereby accordingly upheld.
Whether the Award of Kshs. 800,000 in General Damages was Excessive
33. The Appellant contends that the award of Kshs. 800,000 was excessive and not supported by the evidence on record. The Respondent, on the other hand, maintains that the injuries should attract a maximum of Kshs. 400,000/- in general damages.
34. It is well established law that an appellate court will only interfere with an award of damages if it is demonstrated that the trial court applied the wrong principles of law, considered irrelevant factors or failed to take into account relevant factors, or made an award that is so inordinately high or low as to amount to an erroneous estimate.
35. In Butt v Khan [1981] KLR 349, the Court of Appeal held that:-
“An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the trial judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect.”
36. The trial court awarded Kshs. 800,000 in damages, taking into account the nature and severity of the injuries sustained by the Respondent. These injuries included a comminuted fracture of the distal tibia shaft (right leg), a transverse fracture of the distal fibula shaft (right leg), as well as multiple soft tissue injuries, bruises, and lacerations.
37. The medical report produced by Dr. L.W. Okombo assessed the Respondent’s permanent disability at 50%, indicating that the injuries had long-term effects on mobility. The award was presumably guided by the extent of pain, suffering, and the long-term impact of the injuries, aligning with comparable cases and established legal principles.
38. In determining the reasonableness of the trial court’s award, this Court has considered the following three comparable cases:-
i. Board of Trustees Anglican Church of Kenya Diocese of Marsabit v Adano Isacko [2019] eKLR The appellate court upheld an award of Kshs. 700,000 where the respondent, a police officer, suffered a fracture of the right clavicle, which affected his ability to shoot his rifle.
ii. Lawrence Wairimu Wainyoike & Another v Joseph Letting [2021] eKLR The court upheld an award of Kshs. 800,000 where the respondent suffered a deep cut wound on the forehead, fracture of the left clavicle, blunt injury to the chest, and blunt injury to the shoulder.
iii. Lucy Muthoni Mucaki v Fridah Nyaguthii [2015] eKLR – The respondent suffered bruises at the base of the left big toe, spiral fracture of the tibia at the left ankle joint, and dislocation of the left ankle joint. The appellate court reduced the trial court’s award from Kshs. 650,000 to Kshs. 450,000.
39. From these decisions, it is evident that awards for fractures of major weight-bearing bones such as the tibia and fibula fall within a range of Kshs. 450,000 to Kshs. 1,000,000, with the precise figure being guided by the severity of the injury, the degree of permanent disability, and the overall impact on mobility. The award of Kshs. 800,000/- in general damages in the circumstances of this case was therefore justified and within range.
40. It is also noteworthy that the accident occurred in 2015, and the Respondent has remained uncompensated for over nine years. Courts have recognized inflation as a material factor in assessing damages, as observed in Channan Agricultural Contractors Ltd v Fred Barasa Mulwa [2019] eKLR, where the court stated: -
“An award of damages should reflect current economic conditions, and inflation must be taken into account to ensure that compensation remains just and fair over time.”
41. The upshot of the above is that the appeal is dismissed with costs to the Respondent. The trial court’s finding on both liability and quantum is therefore accordingly upheld.
42. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
7TH DAY OF AUGUST 2025
ADO MOSES
JUDGE
1. This is an appeal from the judgment of the trial court in the Kisumu CMCCC No. 42 of 2018, arising from a road traffic accident in which the trial court on 10th May 2022, rendered its decision apportioning liability in the ratio of 80:20 in favour of the Respondent and awarded sums of Kshs. 800,000/= in general damages and Kshs. 6,560/= in special damages.
2. The dispute originates from a road traffic accident that occurred on 26th July 2015 along Ring Road, Nyalenda, near Kachok, involving the Appellant’s motor vehicle registration number KAU 863A and the Respondent, who was then riding motorcycle registration number KMDL 235U.
3. The Respondent, William Omondi Onyango, filed a suit against the Appellant, Equator Bottlers Limited, seeking general damages, special damages amounting to Kshs. 6,560/=, costs of the suit, and interest, claiming that the Appellant’s driver (for which it was vicariously liable) negligently and recklessly drove motor vehicle KAU 863A, causing it to swerve into his lane, leading to a collision that resulted in severe bodily injuries.
4. On 10th May 20222, the trial court rendered its decision, apportioning liability on the ratio of 80:20 in favour of the Respondent. The Court also awarded the Respondent Kshs. 800,000/= in general damages, Kshs. 6,560/= in special damages, and costs of the suit.
5. Aggrieved by the trial court’s decision, the Appellant filed the present appeal challenging both liability and quantum, arguing that the magistrate erred by:-
i. Finding the Appellant liable without sufficient evidence and failing to consider the oral and documentary evidence supporting the Appellant’s defense.
ii. Failing to properly weigh the Plaintiff’s and Defence evidence on a balance of probabilities before determining liability.
iii. Disregarding the Defence submissions on both liability and quantum, leading to an unfair finding.
iv. Awarding excessive damages that were unsupported by the evidence on record.
6. The appeal was canvassed through written submissions, with the Appellant’s submissions dated 12th February 2024 and the Respondent’s submissions dated 3rd May 2024.
Appellant’s Submissions
7. The Appellant submitted that the trial court erred in apportioning liability in the ratio of 80:20 against the Appellant, arguing that the decision was not supported by the evidence on record. The Appellant contended that the trial magistrate failed to properly analyze the evidence, particularly the inconsistencies in the Respondent’s testimony and that of his witnesses, which should have led to a different finding on liability.
8. The Appellant argued that the trial magistrate wrongly disregarded the Defence evidence, which demonstrated that the Respondent was solely responsible for the accident. The Appellant maintained that the Respondent’s own evidence was inconsistent, as his account of the accident contradicted that of PW5 (the alleged eyewitness) and PW6 (the investigating officer). The Appellant further pointed out that the police abstract was issued three years after the accident, raising concerns about its credibility as evidence.
9. The Appellant submitted that the trial magistrate failed to consider that PW1 and PW5 gave conflicting accounts of the accident. While PW1 testified that a tuk-tuk had stopped abruptly, leading to the accident, PW5 never mentioned this in his evidence. Similarly, PW1 stated that a car had reversed suddenly, whereas PW5 made no reference to this. These contradictions, according to the Appellant, weakened the Respondent’s case and should have led to a finding that the Respondent failed to prove liability on a balance of probabilities.
10. The Appellant further submitted that the trial court erred in failing to consider Section 107 of the Evidence Act, which places the burden of proof on the party making a claim. The Appellant argued that the Respondent failed to discharge this burden since his evidence was contradictory, inconsistent, and uncorroborated.
11. On quantum, the Appellant submitted that the trial magistrate awarded excessive damages that were not justified by the injuries sustained by the Respondent. The Appellant argued that the trial court relied on authorities involving more severe injuries, whereas the Respondent’s injuries were not as serious as those in the cited cases, and that the trial magistrate failed to properly interrogate the basis of the doctor’s opinion.
12. Relying on Daniel Otieno Owino & Another v Elizabeth Atieno Owour (Siaya High Court Civil Appeal No. 18 of 2019), where the court awarded Kshs. 400,000 for injuries similar to those of the Respondent. The Appellant argued that the award of Kshs. 800,000/= by the trial court was excessive, given that the Respondent’s injuries had healed and did not lead to permanent incapacitation.
13. In conclusion, the Appellant urged the Court to allow the appeal with costs and set aside the trial court’s findings on liability. The Appellant also seeks to have the award of Kshs. 800,000 in general damages substituted with a lower award not exceeding Kshs. 400,000.
Respondent’s Submissions
14. The Respondent supported the trial court’s findings, both on liability and quantum, and urged this Court to dismiss the instant appeal with costs in his favour. According to the Respondent, the trial court’s decision was sound and based on the evidence on record.
15. On liability, the Respondent submitted that the trial court's decision to assign the same in the ratio of 80:20 in favour of the Respondent was entirely justified and was supported by the evidence tendered by the eyewitness PW5, David Ouma Okwero, whose account placed the Appellant's vehicle, registration number KAU 863A, in the incorrect lane, thereby directly causing the collision.
16. The Respondent further argued that the Appellant's defense, as presented by DW1, Michael Nyakwaka, was not only unsubstantiated but also directly contradicted by the consistent and credible testimonies of PW1, William Omondi Onyango, and PW5. The Respondent therefore asserted that he had proved his case on a balance of probabilities as highlighted in the case of Kanyungu Njogu vs Daniel Kimani Maingi [2000] eKLR and Kirugi & Ano. -VS- Kabiya & 3 Others [1987] KLR 347.
17. On the quantum of damages awarded, the Respondent contended that the trial court's assessment was reasonable and proportionate to the severe injuries sustained. They reiterated the comprehensive medical evidence, which included detailed reports from Jaramogi Oginga Teaching and Referral Hospital and Dr. L.W. Okombo, documenting significant injuries that resulted in a 50% permanent incapacitation.
18. The Respondent further emphasized that the trial court had properly considered the evidence and cited relevant authorities before arriving at its decision. He refuted the Appellant's claim that the trial court had failed to accord due regard to their submissions and authorities.
19. The Respondent therefore urged the Court to dismiss the appeal with costs, and the trial court's judgment, both liability and quantum, be upheld.
Analysis And Determination
20. The duty of this court as a first appellate court is well established. The Court of Appeal in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 set out the principles governing a first appeal as follows:-
“An appeal to this Court from a trial by the High Court is by way of a 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.”
21. Similarly, in Peters v Sunday Post Ltd [1958] EA 424, the court held that:
“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction must be exercised with caution: if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, then an appellate court will not hesitate so to decide.”
22. Having reviewed the submissions by the parties, the Court finds that this appeal raises two key issues for determination:
i. Whether the trial magistrate erred in apportioning liability at 80% against the Appellant and 20% against the Respondent.
ii. Whether the award of Kshs. 800,000/= as general damages was excessive and unsupported by the evidence on record.
Whether the Trial Court Erred in Apportioning Liability at 80:20 against the Appellant
23. The trial magistrate in the present case apportioned liability at 80:20 in favour of the appellant. The Appellant contends that this finding was erroneous as it was not supported by the evidence on record. The Respondent, on the other hand, supports the trial court’s findings.
24. In determining who was responsible for the accident, the court must consider the evidence adduced by both parties, including eyewitness accounts, police reports, and expert testimony. The Court of Appeal in Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR held that: -
“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows: -
“ To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it………………………
The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”
27. Having reviewed the evidence in this case, I note that the Respondent testified as PW1, stating that he was riding his motorcycle on the correct lane when the Appellant’s motor vehicle swerved into his lane while overtaking two motor tricycles, leading to a head-on collision. The eyewitness (PW5) corroborated this version, testifying that the Appellant’s vehicle overtook recklessly and entered the Respondent’s lane, causing the accident. The investigating officer (PW6) further confirmed that the accident occurred and that both the Respondent and the Appellant’s driver were involved.
28. The Appellant, through its driver (DW1), denied liability and claimed that the Respondent overtook dangerously and hit the front right wheel of the Appellant’s vehicle. However, DW1 did not call any independent witnesses to support this claim. The trial court, therefore, found PW1 and PW5’s testimonies more credible, noting that they were consistent, corroborated by physical evidence, and unshaken in cross-examination.
29. The principles guiding the appellate court’s power to interfere with the trial court’s finding on liability are well settled. In Khambi & Another vs Mahithi & Another [1968] EA 70 it was held that:-
‘’It is well settled that where a trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional circumstances, as where there is some error in principle or the apportionment is manifestly erroneous and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.’’
30. Where there is a clear conflict of evidence, the trial court must weigh the credibility of witnesses and prefer the version that is more consistent with the facts and circumstances of the case.
31. In this case, this Court is of the view that the trial magistrate properly analyzed the testimonies and found that the Appellant’s driver was substantially to blame for the accident. The finding that the Respondent bore 20% contributory negligence was reasonable, given that the trial court noted that he may have failed to take adequate evasive action.
32. Based on the evidence, this court finds no reason to interfere with the trial court’s finding on liability. The apportionment of liability in the ratio of 80:20 against the Appellant is hereby accordingly upheld.
Whether the Award of Kshs. 800,000 in General Damages was Excessive
33. The Appellant contends that the award of Kshs. 800,000 was excessive and not supported by the evidence on record. The Respondent, on the other hand, maintains that the injuries should attract a maximum of Kshs. 400,000/- in general damages.
34. It is well established law that an appellate court will only interfere with an award of damages if it is demonstrated that the trial court applied the wrong principles of law, considered irrelevant factors or failed to take into account relevant factors, or made an award that is so inordinately high or low as to amount to an erroneous estimate.
35. In Butt v Khan [1981] KLR 349, the Court of Appeal held that:-
“An appellate court will not disturb an award for general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the trial judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect.”
36. The trial court awarded Kshs. 800,000 in damages, taking into account the nature and severity of the injuries sustained by the Respondent. These injuries included a comminuted fracture of the distal tibia shaft (right leg), a transverse fracture of the distal fibula shaft (right leg), as well as multiple soft tissue injuries, bruises, and lacerations.
37. The medical report produced by Dr. L.W. Okombo assessed the Respondent’s permanent disability at 50%, indicating that the injuries had long-term effects on mobility. The award was presumably guided by the extent of pain, suffering, and the long-term impact of the injuries, aligning with comparable cases and established legal principles.
38. In determining the reasonableness of the trial court’s award, this Court has considered the following three comparable cases:-
i. Board of Trustees Anglican Church of Kenya Diocese of Marsabit v Adano Isacko [2019] eKLR The appellate court upheld an award of Kshs. 700,000 where the respondent, a police officer, suffered a fracture of the right clavicle, which affected his ability to shoot his rifle.
ii. Lawrence Wairimu Wainyoike & Another v Joseph Letting [2021] eKLR The court upheld an award of Kshs. 800,000 where the respondent suffered a deep cut wound on the forehead, fracture of the left clavicle, blunt injury to the chest, and blunt injury to the shoulder.
iii. Lucy Muthoni Mucaki v Fridah Nyaguthii [2015] eKLR – The respondent suffered bruises at the base of the left big toe, spiral fracture of the tibia at the left ankle joint, and dislocation of the left ankle joint. The appellate court reduced the trial court’s award from Kshs. 650,000 to Kshs. 450,000.
39. From these decisions, it is evident that awards for fractures of major weight-bearing bones such as the tibia and fibula fall within a range of Kshs. 450,000 to Kshs. 1,000,000, with the precise figure being guided by the severity of the injury, the degree of permanent disability, and the overall impact on mobility. The award of Kshs. 800,000/- in general damages in the circumstances of this case was therefore justified and within range.
40. It is also noteworthy that the accident occurred in 2015, and the Respondent has remained uncompensated for over nine years. Courts have recognized inflation as a material factor in assessing damages, as observed in Channan Agricultural Contractors Ltd v Fred Barasa Mulwa [2019] eKLR, where the court stated: -
“An award of damages should reflect current economic conditions, and inflation must be taken into account to ensure that compensation remains just and fair over time.”
41. The upshot of the above is that the appeal is dismissed with costs to the Respondent. The trial court’s finding on both liability and quantum is therefore accordingly upheld.
42. It is so ordered.
SIGNED, DATED, and DELIVERED IN VIRTUAL COURT THIS
7TH DAY OF AUGUST 2025
ADO MOSES
JUDGE