FREDRICK OWINO OTIENO..............................................RESPONDENT
(Being an appeal from the judgment and decree of Hon. B.O. Omwansa, Senior Principal Magistrate, delivered on 14th June 2023 in Oyugis CMCC No. 117 of 2020)
JUDGMENT
Introduction
1. This appeal arises from the judgment of the Senior Principal Magistrate’s Court at Oyugis in CMCC No. 117 of 2020, delivered on 14th June 2023. The Respondent, Fredrick Owino Otieno, had sued the Appellants for damages arising from a road traffic accident which occurred on or about 27th November 2019 along the Oyugis–Kisumu road. The trial court found the Appellants jointly and severally liable at 100% and awarded the Respondent Kshs. 250,000/= as general damages and Kshs. 8,850/= as special damages. The decree reflected judgment for general damages of Kshs. 250,000/= and special damages of Kshs. 8,850/=, plus costs and interest.
2. Being dissatisfied, the Appellants lodged this appeal. Although the Memorandum of Appeal raised grounds touching on both liability and quantum, the Appellants’ written submissions substantially narrowed the appeal to the question whether the award of Kshs. 250,000/= as general damages was excessive in the circumstances.
Background Before the Trial Court
3. The Respondent pleaded that he was lawfully travelling as a passenger in motor vehicle registration number KCN 631T Toyota Matatu when the said vehicle was involved in an accident with motor vehicle registration number KBL 270A Mitsubishi Lorry. He attributed the accident to the negligence of the Appellants and/or their driver, servant or agent.
4. The Respondent pleaded the following injuries: a cut wound on the left ear lobe; blunt injury to the left temporal scalp; blunt injury to the right eye; blunt injury to the chest; blunt injury to the left shoulder; blunt injury to the lower back; dislocation of the left shoulder; and blunt injury to the left knee. These injuries were also the basis of the claim for general damages.
5. At the hearing, the Respondent testified that he was a passenger in the matatu and blamed the driver of the lorry for hitting the matatu. The police officer who testified stated that the lorry hit the matatu from behind after its brakes failed. The medical evidence included the reports and treatment notes which classified the injuries as soft tissue injuries, with no permanent disability.
6. In its judgment, the trial court found that the Appellants were 100% liable. On quantum, the court awarded Kshs. 250,000/= as general damages and Kshs. 8,850/= as special damages.
Grounds of Appeal
7. The Memorandum of Appeal faulted the learned trial magistrate for, inter alia, failing to consider the Appellants’ submissions, finding the Appellants 100% liable, failing to appreciate the provisions of the Traffic Act, awarding damages said to be excessive, and venturing into issues not pleaded.
8. In their written submissions before this Court, however, the Appellants submitted that the appeal could be resolved on one broad issue: whether the award on quantum was inordinately high. They urged the Court to reduce the award to a sum between Kshs. 50,000/= and Kshs. 80,000/=, relying on comparable awards for soft tissue injuries.
Duty of the First Appellate Court
9. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. The principle was stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held that a first appellate court must re-evaluate the evidence, assess it and make its own conclusions, though it must give allowance for the fact that the trial court had the advantage of seeing and hearing witnesses.
10. Similarly, in Peters v Sunday Post Ltd [1958] EA 424, the Court emphasized that while an appellate court has jurisdiction to review the evidence and reach its own conclusion, it should exercise caution before departing from findings of fact made by the trial court, particularly where such findings turn on credibility.
Issues for Determination
11.Having re-evaluated the Record of Appeal, the judgment of the trial court, the Memorandum of Appeal, and the Appellants’ submissions, the issues falling for determination are:
a. Whether this Court should interfere with the trial court’s finding on liability;
b. Whether the award of Kshs. 250,000/= as general damages was excessive and warrants interference; and
c. Who should bear the costs of the appeal.
Whether the Trial Court Erred on Liability
12. The Appellants pleaded that the Respondent’s claim was not proved and that he bore responsibility for the accident. However, the evidence before the trial court showed that the Respondent was a passenger in the matatu. There was no evidence that he had control over either motor vehicle or that he contributed to the occurrence of the accident.
13. The police officer’s evidence was that the lorry hit the matatu from behind after its brakes failed. The fact that the traffic matter had not been concluded, or that no conviction had been produced, did not bar the civil court from determining liability on a balance of probabilities. A civil claim is not dependent on a prior criminal conviction.. The standard is proof on a balance of probabilities.
14. In Statpack Industries v James Mbithi Munyao [2005] eKLR, the Court held that negligence must be proved and that a plaintiff must show a causal link between the defendant’s conduct and the injury. In the present case, the Respondent’s evidence, supported by police evidence, established that he was an innocent passenger and that the collision occurred when the lorry hit the matatu from behind.
15. The Appellants did not call evidence to rebut that account. They did not tender evidence showing that the Respondent contributed to the accident or that the trial court misapprehended the evidence on liability. The respondent proved that the proximate cause of the accident was the lorry hitting the matatu from behind . It is trite law that hitting another vehicle from behind is prima facie evidence of negligence. The finding that the Appellants were 100% liable cannot be faulted.
16. I therefore find no basis for interfering with the trial court’s finding on liability.
Whether the Award of Kshs. 250,000/= Was Excessive
17. The principles governing appellate interference with an award of damages are settled. In Butt v Khan [1981] KLR 349, the Court of Appeal held that an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or unless it is shown that the trial court proceeded on wrong principles or misapprehended the evidence in some material respect.
18. The same principle was restated in Kemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia & Another [1982–88] 1 KAR 727, where the Court held that an appellate court may interfere where the trial court took into account an irrelevant factor, left out a relevant factor, or made an award so high or so low as to amount to an erroneous estimate.
19. The Court of Appeal in Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR further stated that in assessing damages, comparable injuries should, as far as possible, be compensated by comparable awards, while keeping in mind the correct level of awards in similar cases.
20. In the present case, the Respondent’s injuries were principally soft tissue injuries. The medical report by Dr. Joseph Sokobe indicated that the Respondent had soft tissue injuries from which he had recovered, with no residual permanent disability. The report also cast doubt on the alleged dislocation of the left shoulder, noting that the initial treatment notes did not include such an injury and that the available x-ray material did not support that allegation.
21. The trial court awarded Kshs. 250,000/= as general damages. The award must be considered against the nature of the injuries proved. The Respondent suffered multiple soft tissue injuries involving the head, eye, chest, shoulder, lower back and knee. He also sustained a cut wound on the left ear lobe. However, there was no permanent incapacity, no future medical expenses, and no proved fracture or confirmed dislocation.
22. The Appellants relied on authorities where awards for soft tissue injuries ranged between Kshs. 40,000/= and Kshs. 90,000/=, including HB (Minor suing through mother and next friend DKM) v Jasper Nchonga Magari & Another [2021] eKLR, Eva Karemi & 5 Others v Koskei Kieng & Another [2020] eKLR, and decisions of this Court in Homa Bay Civil Appeal No. E111 of 2021 and Homa Bay Civil Appeal No. E113 of 2021, where awards of Kshs. 80,000/= were made for soft tissue injuries.
23. In (Minor suing through mother and next friend DKM) v Jasper Nchonga Magari & Another [2021] eKLR concerned a minor who sustained blunt object injuries to the head and neck, thorax, abdomen and limbs. The injuries were found to be soft tissue/superficial in nature. The trial court awarded Kshs. 60,000/= as general damages and the High Court declined to interfere with that award. The case is therefore authority for the proposition that where the injuries are multiple but superficial soft tissue injuries, and there is no fracture or permanent disability, a modest award is appropriate.
24. In Eva Karemi & 5 Others v Koskei Kieng & Another [2020] eKLR the High Court upheld an award of Kshs. 70,000/= for general damages in respect of soft tissue injuries. It therefore falls within the same range as HB v Jasper Nchonga Magari and supports the view that minor soft tissue injuries should not attract exaggerated awards.
25. In Homa Bay Civil Appeal No. E113 of 2021, James Kwanya Rege v Loice Mbone Cweya, the claimant sustained blunt trauma to the neck, chest and abdomen. The High Court set aside the trial court’s award of Kshs. 300,000/= and substituted it with Kshs. 80,000/=.
26. Similarly,in Homa Bay Civil Appeal No. E111 of 2021, James Kwanya Rege v Lizzy Awuor (minor suing through father and next friend George Adhiambo Arao) has been cited together with E113 of 2021 for the same proposition: that an award of Kshs. 80,000/= is reasonable compensation for soft tissue injuries of modest severity.
27. In HB (Minor suing through mother and next friend DKM) v Jasper Nchonga Magari & Another [2021] eKLR, the claimant sustained blunt soft tissue injuries to the head and neck, thorax, abdomen and limbs, and the High Court upheld an award of Kshs. 60,000/=. In Eva Karemi & 5 Others v Koskei Kieng & Another [2020] eKLR, the court upheld an award of Kshs. 70,000/= for soft tissue injuries. I have also considered the decisions of this Court in Homa Bay Civil Appeal No. E111 of 2021 and Homa Bay Civil Appeal No. E113 of 2021, where awards of Kshs. 80,000/= were made for comparable soft tissue injuries. These authorities demonstrate that where the injuries are soft tissue in nature, with no fracture, no permanent incapacity and no evidence of prolonged complications, the courts have awarded general damages within the range of Kshs. 60,000/= to Kshs. 100,000/= is generally reasonable. Applying the principle that comparable injuries should attract comparable awards, and taking into account the passage of time and the injuries proved in the present case,
28. I have also borne in mind that no two cases are exactly alike and that past awards serve as guides only. The Court must also consider passage of time and inflation. The Appellants’ proposed figure of Kshs. 50,000/= would, in my view, be on the lower side given the number of body parts affected and the cut wound sustained.
29. On the other hand, the award of Kshs. 250,000/= was excessive for injuries which healed without permanent disability, and where the pleaded dislocation of the shoulder was not satisfactorily supported by the medical evidence. The trial court therefore made an award that was inordinately high in the circumstances.
30. Doing the best I can, and guided by comparable awards, the nature of the injuries sustained by the respondent , the inflation factor and other relevant factor , I find that a sum of Kshs. 120,000/= constitutes fair and reasonable compensation for pain, suffering and loss of amenities.
31. The special damages of Kshs. 8,850/= were specifically pleaded and proved. I find no basis to disturb that award.
Disposition
a. The finding of the trial court on liability at 100% against the Appellants jointly and severally is hereby upheld.
b. The award of Kshs. 250,000/= as general damages is hereby set aside and substituted with an award of Kshs. 120,000/=.
c. The award of Kshs. 8,850/= as special damages is hereby upheld.
d. Accordingly, judgment is entered for the Respondent against the Appellants, jointly and severally, as follows:
i. General damages: Kshs. 120,000/=
ii. Special damages: Kshs. 8,850/=
Total: Kshs. 128,850/=
e. The Respondent shall have the costs of the suit before the trial court.
f. The decretal sum shall attract interest at court rates from the date of the judgment of the lower court until payment in full.
g. Since the appeal has only partially succeeded, the Appellants shall have half of the costs of the appeal.
32. Orders accordingly.
T.A ODERA
JUDGE
29.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 29TH DAY OF MAY 2026 .PARTIES ABNSENT & CA BUSIENEI
.
(Being an appeal from the judgment and decree of Hon. B.O. Omwansa, Senior Principal Magistrate, delivered on 14th June 2023 in Oyugis CMCC No. 117 of 2020)
JUDGMENT
Introduction
1. This appeal arises from the judgment of the Senior Principal Magistrate’s Court at Oyugis in CMCC No. 117 of 2020, delivered on 14th June 2023. The Respondent, Fredrick Owino Otieno, had sued the Appellants for damages arising from a road traffic accident which occurred on or about 27th November 2019 along the Oyugis–Kisumu road. The trial court found the Appellants jointly and severally liable at 100% and awarded the Respondent Kshs. 250,000/= as general damages and Kshs. 8,850/= as special damages. The decree reflected judgment for general damages of Kshs. 250,000/= and special damages of Kshs. 8,850/=, plus costs and interest.
2. Being dissatisfied, the Appellants lodged this appeal. Although the Memorandum of Appeal raised grounds touching on both liability and quantum, the Appellants’ written submissions substantially narrowed the appeal to the question whether the award of Kshs. 250,000/= as general damages was excessive in the circumstances.
Background Before the Trial Court
3. The Respondent pleaded that he was lawfully travelling as a passenger in motor vehicle registration number KCN 631T Toyota Matatu when the said vehicle was involved in an accident with motor vehicle registration number KBL 270A Mitsubishi Lorry. He attributed the accident to the negligence of the Appellants and/or their driver, servant or agent.
4. The Respondent pleaded the following injuries: a cut wound on the left ear lobe; blunt injury to the left temporal scalp; blunt injury to the right eye; blunt injury to the chest; blunt injury to the left shoulder; blunt injury to the lower back; dislocation of the left shoulder; and blunt injury to the left knee. These injuries were also the basis of the claim for general damages.
5. At the hearing, the Respondent testified that he was a passenger in the matatu and blamed the driver of the lorry for hitting the matatu. The police officer who testified stated that the lorry hit the matatu from behind after its brakes failed. The medical evidence included the reports and treatment notes which classified the injuries as soft tissue injuries, with no permanent disability.
6. In its judgment, the trial court found that the Appellants were 100% liable. On quantum, the court awarded Kshs. 250,000/= as general damages and Kshs. 8,850/= as special damages.
Grounds of Appeal
7. The Memorandum of Appeal faulted the learned trial magistrate for, inter alia, failing to consider the Appellants’ submissions, finding the Appellants 100% liable, failing to appreciate the provisions of the Traffic Act, awarding damages said to be excessive, and venturing into issues not pleaded.
8. In their written submissions before this Court, however, the Appellants submitted that the appeal could be resolved on one broad issue: whether the award on quantum was inordinately high. They urged the Court to reduce the award to a sum between Kshs. 50,000/= and Kshs. 80,000/=, relying on comparable awards for soft tissue injuries.
Duty of the First Appellate Court
9. This being a first appeal, this Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it did not see or hear the witnesses testify. The principle was stated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held that a first appellate court must re-evaluate the evidence, assess it and make its own conclusions, though it must give allowance for the fact that the trial court had the advantage of seeing and hearing witnesses.
10. Similarly, in Peters v Sunday Post Ltd [1958] EA 424, the Court emphasized that while an appellate court has jurisdiction to review the evidence and reach its own conclusion, it should exercise caution before departing from findings of fact made by the trial court, particularly where such findings turn on credibility.
Issues for Determination
11.Having re-evaluated the Record of Appeal, the judgment of the trial court, the Memorandum of Appeal, and the Appellants’ submissions, the issues falling for determination are:
a. Whether this Court should interfere with the trial court’s finding on liability;
b. Whether the award of Kshs. 250,000/= as general damages was excessive and warrants interference; and
c. Who should bear the costs of the appeal.
Whether the Trial Court Erred on Liability
12. The Appellants pleaded that the Respondent’s claim was not proved and that he bore responsibility for the accident. However, the evidence before the trial court showed that the Respondent was a passenger in the matatu. There was no evidence that he had control over either motor vehicle or that he contributed to the occurrence of the accident.
13. The police officer’s evidence was that the lorry hit the matatu from behind after its brakes failed. The fact that the traffic matter had not been concluded, or that no conviction had been produced, did not bar the civil court from determining liability on a balance of probabilities. A civil claim is not dependent on a prior criminal conviction.. The standard is proof on a balance of probabilities.
14. In Statpack Industries v James Mbithi Munyao [2005] eKLR, the Court held that negligence must be proved and that a plaintiff must show a causal link between the defendant’s conduct and the injury. In the present case, the Respondent’s evidence, supported by police evidence, established that he was an innocent passenger and that the collision occurred when the lorry hit the matatu from behind.
15. The Appellants did not call evidence to rebut that account. They did not tender evidence showing that the Respondent contributed to the accident or that the trial court misapprehended the evidence on liability. The respondent proved that the proximate cause of the accident was the lorry hitting the matatu from behind . It is trite law that hitting another vehicle from behind is prima facie evidence of negligence. The finding that the Appellants were 100% liable cannot be faulted.
16. I therefore find no basis for interfering with the trial court’s finding on liability.
Whether the Award of Kshs. 250,000/= Was Excessive
17. The principles governing appellate interference with an award of damages are settled. In Butt v Khan [1981] KLR 349, the Court of Appeal held that an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or unless it is shown that the trial court proceeded on wrong principles or misapprehended the evidence in some material respect.
18. The same principle was restated in Kemfro Africa Ltd t/a Meru Express Services & Another v A.M. Lubia & Another [1982–88] 1 KAR 727, where the Court held that an appellate court may interfere where the trial court took into account an irrelevant factor, left out a relevant factor, or made an award so high or so low as to amount to an erroneous estimate.
19. The Court of Appeal in Stanley Maore v Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR further stated that in assessing damages, comparable injuries should, as far as possible, be compensated by comparable awards, while keeping in mind the correct level of awards in similar cases.
20. In the present case, the Respondent’s injuries were principally soft tissue injuries. The medical report by Dr. Joseph Sokobe indicated that the Respondent had soft tissue injuries from which he had recovered, with no residual permanent disability. The report also cast doubt on the alleged dislocation of the left shoulder, noting that the initial treatment notes did not include such an injury and that the available x-ray material did not support that allegation.
21. The trial court awarded Kshs. 250,000/= as general damages. The award must be considered against the nature of the injuries proved. The Respondent suffered multiple soft tissue injuries involving the head, eye, chest, shoulder, lower back and knee. He also sustained a cut wound on the left ear lobe. However, there was no permanent incapacity, no future medical expenses, and no proved fracture or confirmed dislocation.
22. The Appellants relied on authorities where awards for soft tissue injuries ranged between Kshs. 40,000/= and Kshs. 90,000/=, including HB (Minor suing through mother and next friend DKM) v Jasper Nchonga Magari & Another [2021] eKLR, Eva Karemi & 5 Others v Koskei Kieng & Another [2020] eKLR, and decisions of this Court in Homa Bay Civil Appeal No. E111 of 2021 and Homa Bay Civil Appeal No. E113 of 2021, where awards of Kshs. 80,000/= were made for soft tissue injuries.
23. In (Minor suing through mother and next friend DKM) v Jasper Nchonga Magari & Another [2021] eKLR concerned a minor who sustained blunt object injuries to the head and neck, thorax, abdomen and limbs. The injuries were found to be soft tissue/superficial in nature. The trial court awarded Kshs. 60,000/= as general damages and the High Court declined to interfere with that award. The case is therefore authority for the proposition that where the injuries are multiple but superficial soft tissue injuries, and there is no fracture or permanent disability, a modest award is appropriate.
24. In Eva Karemi & 5 Others v Koskei Kieng & Another [2020] eKLR the High Court upheld an award of Kshs. 70,000/= for general damages in respect of soft tissue injuries. It therefore falls within the same range as HB v Jasper Nchonga Magari and supports the view that minor soft tissue injuries should not attract exaggerated awards.
25. In Homa Bay Civil Appeal No. E113 of 2021, James Kwanya Rege v Loice Mbone Cweya, the claimant sustained blunt trauma to the neck, chest and abdomen. The High Court set aside the trial court’s award of Kshs. 300,000/= and substituted it with Kshs. 80,000/=.
26. Similarly,in Homa Bay Civil Appeal No. E111 of 2021, James Kwanya Rege v Lizzy Awuor (minor suing through father and next friend George Adhiambo Arao) has been cited together with E113 of 2021 for the same proposition: that an award of Kshs. 80,000/= is reasonable compensation for soft tissue injuries of modest severity.
27. In HB (Minor suing through mother and next friend DKM) v Jasper Nchonga Magari & Another [2021] eKLR, the claimant sustained blunt soft tissue injuries to the head and neck, thorax, abdomen and limbs, and the High Court upheld an award of Kshs. 60,000/=. In Eva Karemi & 5 Others v Koskei Kieng & Another [2020] eKLR, the court upheld an award of Kshs. 70,000/= for soft tissue injuries. I have also considered the decisions of this Court in Homa Bay Civil Appeal No. E111 of 2021 and Homa Bay Civil Appeal No. E113 of 2021, where awards of Kshs. 80,000/= were made for comparable soft tissue injuries. These authorities demonstrate that where the injuries are soft tissue in nature, with no fracture, no permanent incapacity and no evidence of prolonged complications, the courts have awarded general damages within the range of Kshs. 60,000/= to Kshs. 100,000/= is generally reasonable. Applying the principle that comparable injuries should attract comparable awards, and taking into account the passage of time and the injuries proved in the present case,
28. I have also borne in mind that no two cases are exactly alike and that past awards serve as guides only. The Court must also consider passage of time and inflation. The Appellants’ proposed figure of Kshs. 50,000/= would, in my view, be on the lower side given the number of body parts affected and the cut wound sustained.
29. On the other hand, the award of Kshs. 250,000/= was excessive for injuries which healed without permanent disability, and where the pleaded dislocation of the shoulder was not satisfactorily supported by the medical evidence. The trial court therefore made an award that was inordinately high in the circumstances.
30. Doing the best I can, and guided by comparable awards, the nature of the injuries sustained by the respondent , the inflation factor and other relevant factor , I find that a sum of Kshs. 120,000/= constitutes fair and reasonable compensation for pain, suffering and loss of amenities.
31. The special damages of Kshs. 8,850/= were specifically pleaded and proved. I find no basis to disturb that award.
Disposition
a. The finding of the trial court on liability at 100% against the Appellants jointly and severally is hereby upheld.
b. The award of Kshs. 250,000/= as general damages is hereby set aside and substituted with an award of Kshs. 120,000/=.
c. The award of Kshs. 8,850/= as special damages is hereby upheld.
d. Accordingly, judgment is entered for the Respondent against the Appellants, jointly and severally, as follows:
i. General damages: Kshs. 120,000/=
ii. Special damages: Kshs. 8,850/=
Total: Kshs. 128,850/=
e. The Respondent shall have the costs of the suit before the trial court.
f. The decretal sum shall attract interest at court rates from the date of the judgment of the lower court until payment in full.
g. Since the appeal has only partially succeeded, the Appellants shall have half of the costs of the appeal.
32. Orders accordingly.
T.A ODERA
JUDGE
29.5.26
DELIVERED VIRTUALLY VIA TEAMS PLATFORM ON THIS 29TH DAY OF MAY 2026 .PARTIES ABNSENT & CA BUSIENEI
.