[1] This appeal arises from the judgment and decree dated 24 th May 2024 in Kapsabet Chief Magistrate’s Civil Case No. E116 of 2019 . The respondent was the plaintiff in that case. She sued the appellants herein, Joseph Bungei and Kiptunoi Wenditai Self Help Group for compensation in damages for injuries sustained by her in a road traffic accident that occurred on or about 23 rd January 2018 along Kabujoi-Kimalen murrum road. The respondent was one of the passengers aboard Motor Vehicle Registration Number KBK 337B at the time of the accident.
[2] It was the contention of the respondent that she was travelling as a lawful passenger in the motor vehicle aforementioned when, at Chepturer junction, it lost control, veered off the road and hit the embankment by the roadside. The respondent supplied particulars of negligence at paragraph 5 of her Plaint dated 26 th July 2019, contending, inter alia , that the motor vehicle was being driven without due care or attention and at a speed that was too fast in the circumstances. She likewise supplied particulars of her injuries as well as particulars of special damages suffered. Thus the respondent prayed for the following reliefs:
[a] General damages
[b] Special damages of Kshs. 6,000/=
[c] Costs of the suit
[d] Interest on the above at court rates
[3] The appellants denied the respondent’s allegations vide their Defence dated 10 th September 2019. In particular, they denied not only the occurrence of the alleged accident but also that the respondent was injured as alleged by her in her Plaint. In the alternative, the appellants contended that, if indeed an accident occurred as alleged, then the same was caused by the negligence of the respondent, particulars whereof were supplied at paragraph 8 of the Defence. They also pleaded the maxim of volenti non fit injuria and inevitable accident. Accordingly, the appellants prayed for the dismissal of the suit.
[4] Upon hearing the parties, the lower court found the appellants 100% liable for the accident. The court then proceeded to assess general damages payable at Kshs. 286,000/= inclusive of special damages of Kshs. 6,000/=. Accordingly, judgment was entered in the respondent’s favour for that sum of Kshs. 286,000/= together with interest and costs.
[5] Being aggrieved by the decision of the lower court, the appellants filed this appeal vide their Memorandum of Appeal dated 5 th June 2024 on the following grounds:
[a] That the learned magistrate erred in law and in fact by awarding 100% liability as against the appellants and failed to take into account the evidence adduced by the appellants herein.
[b] That the learned magistrate erred in law and in fact by awarding the respondent damages despite the appellants advancing evidence that injuries were not proved.
[c] That the learned magistrate erred in law and in fact by awarding Kshs. 280,000/= as general damages which award is inordinately high in view of the injuries sustained by the respondent.
[d] That the learned magistrate misdirected himself by failing to take into account the well-established principle requiring comparable awards to be made for comparable injuries thereby falling into an error by awarding a manifestly excessive amount of Kshs. 280,000/=.
[e] That the learned trial magistrate erred in law and in fact by awarding Kshs. 280,000/= as general damages which award is excessive in view of the injuries sustained by the respondent thereby deviating from the principle of stare decisis requiring comparable awards being made for comparable injuries sustained.
[f] That the learned trial magistrate erred in law and in fact by disregarding and failing to appreciate the judicial authorities on quantum cited by the appellants in their written submissions thereby making an award on general damages that is unreasonably high in the circumstances and connotes an erroneous estimate of the award on general damages in view of the injuries sustained by the respondent.
[6] In the premises, the appellants prayed that their appeal be allowed and orders granted as follows:
[a] That the judgment delivered on the 24 th May 2024 in Kapsabet CMCC No. 116 of 2019 by Hon. S.M Mokua (CM) on the issue of quantum be set aside and an order re-assessing the award on quantum downwards be made.
[b] That the judgment delivered on the 24 th May 2024 in Kapsabet CMCC No. 116 of 2019 by Hon. S.M Mokua (CM) on the issue of liability be set aside and an order re-assessing liability be made.
[c] The appellants be awarded the costs of the appeal.
[7] The appeal was canvassed by way of written submissions. The appellants filed written submissions dated 10 th April 2026 in which they proposed two issues for determination, namely:
[a] Whether the lower court erred in fact and in law by relying on the respondent’s revoked treatment notes.
[b] Whether the trial magistrate erred in awarding Kshs. 280,000/= as damages for the injuries suffered.
[8] The appellants submitted, and rightly so, that having alleged negligence and injuries, the burden of proof was on the respondent to avail evidence in proof thereof. They relied on Sections 107, 108 and 109 of the Evidence Act and pointed out that no evidence was availed to support the respondent’s allegation. They contended that, to the contrary, they called a witness, Elisha Kemboi Kiptanui (DW1), who confirmed that the treatment notes relied on by the respondent were revoked by Kapsabet County Referral Hospital. They urged the Court to find that the respondent was never attended to at the facility as alleged by her. They relied on M’Imbula Charles Mwalimu v Coast Broadway Company Limited [2012] eKLR, among other authorities, and submitted that the respondent utterly failed to discharge the burden of proving negligence or the alleged injuries.
[9] On whether the trial magistrate erred in awarding the respondent Kshs. 280,000/= as general damages, the appellants submitted that the respondent herein sustained soft tissue injuries to the chest, back and both legs; and that the medical report by Dr. Sokobe confirmed that she had healed. Accordingly, the appellants submitted that an award in the sum of Kshs. 80,000/= would have been sufficient in the circumstances. They based that proposal on several authorities, including the following:
[a] Guardian Coach Limited v Agani [2026] KEHC 2825 (KLR) in which an award of Kshs. 300,000/= for soft tissue injuries was set aside and substituted with Kshs. 60,000/=.
[b] Wilson Mboga Ondicho v Harrison Nyangau Mosigisi , Civil Appeal No. E054 of 2023 (26 th April 2025) where an award of Kshs. 300,000/= was set aside and substituted with Kshs. 80,000/= for soft tissue injuries.
[c] Boaz Obure and another v Samwel Kiyuka & another , Civil Appeal No. E088 of 2023) (5 th November 2024); a matter in which an award of Kshs. 250,000/= for soft tissue injuries was set aside on appeal and substituted with Kshs. 70,000/=.
[10] They otherwise prayed that their appeal be allowed with costs.
[11] On her part, the respondent filed written submissions dated 9 th March 2026 through the firm of M/s Mwinamo Lugonzo & Company Advocates. They submitted on the role of the first appellate court; on whether the treatment chits by the respondent were fraudulent; and on whether the respondent’s entire claim was fraudulent. The respondent also addressed the Court on liability and quantum of damages.
[12] The respondent urged the Court to note that the revocation letter relied on by the appellants to impugn her treatment notes, originated from the County Government of Nandi, whilst the treatment chits were generated by Kapsabet County Referral Hospital. She also submitted that DW1 was not a doctor and did not produce the alleged Outpatient Register; and therefore his evidence was of doubtful value. The respondent also contended that she availed, as an exhibit, a letter dated 2 nd August 2023 from Kapsabet County Referral Hospital which confirmed that she was indeed treated at the Kapsabet County Referral Hospital after being involved in a road traffic accident on 23 rd January 2018. She added that, unlike the revocation letter, her letter had the stamp of the Medical Superintendent and bore the Letter Head of the Kapsabet County Referral Hospital.
[13] The respondent further urged the Court to taken into account the evidence of the treating doctor, who confirmed having personally attended to her at the Emergency Unit after the accident. Accordingly, the respondent asserted that liability was proved on a balance of probabilities.
[14] On quantum of damages, the respondent cited various persuasive authorities in support of her arguments that the lower court’s award was reasonable in the circumstances. The authorities included:
[a] Catherine W. Kingori v Gibson T. Gichubi , Nyeri HCCC No. 320 of 1988 in which the plaintiff was awarded Kshs. 350,000/= for soft tissue injuries.
[b] Nairobi HCCA No. 791 of 1999: Martin M. Mugi v Attorney General in which the plaintiff sustained a deep extensive cut on the face, mild concussion and generalized soft tissue injuries and was awarded Kshs. 300,000/= as general damages.
[c] Eldoret HCCA No. 32 of 2017: Jyoti Structures Limited & another v Charles Ogada Ochola where the plaintiff was awarded Kshs. 300,000/= for blunt injury to the neck, head, chest and right shoulder, which award was upheld on appeal.
[d] Eldoret HCCA No. 51A of 2018: Edson Converters & another v Robert Khaemba Khamala in which the respondent sustained blunt injury to the chest, abdomen and both lower limbs. The lower court’s award of Kshs. 300,000/= was upheld on appeal.
[e] Bungoma HCCA No. 17 of 2019: Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo in which the plaintiff sustained blunt injury to the chest, and bruises to the lower abdomen, right hip joint and the thigh and was awarded Kshs. 350,000/= which was upheld on appeal.
[15] Hence, according to the respondent the decision of the lower court was not only sound but was also based on credible evidence. She prayed for the dismissal of the appeal.
[16] This being a first appeal, this Court is under a duty to re-evaluate and assess the evidence and make its own conclusions thereon. It must, however, keep at the back of its mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. Hence, in Selle and another v Associated Motor Board Company and 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 re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
[17] The respondent testified before the lower court on 21 st July 2021 and adopted her witness statement dated 26 th July 2019. Her evidence was that on the 23 rd January 2018 at about 9.00 a.m., she was travelling from Kapsabet to Chepsiria as a fare paying passenger in Motor Vehicle Registration No. KBK 337B, Matatu. She further stated that while at Chepsirer on the Kobujoi-Kimalen murram road, the driver started driving at a very high speed and thereby lost control of the motor vehicle; causing it to hit the embankment of the road.
[18] In her evidence, the motor vehicle reversed before coming to a sudden stop. She was injured in the process and was assisted by a member of the public who took her to Kapsabet Hospital where she was treated and discharged. She blamed the driver of the motor vehicle she was travelling for the accident. The respondent produced several documents as exhibits, including treatment notes and P3 Form in support of her testimony and added that she had not fully healed as at the time she gave her evidence.
[19] The respondent called Dr. Joseph Sokobe , a medical practitioner based at Eldoret Hospital, as PW2. He testified that he examined the respondent on 18 th June 2019 and prepared a Medical Report for which he charged the respondent Kshs. 6,000/=. He produced the Medical Report and a receipt for Kshs. 6,000/= as exhibits before the lower court. He confirmed that the respondent sustained mainly soft tissue injuries and had fully healed by the time of examination.
[20] The respondent’s third witness was Benard Lagat (PW3) of Kapsabet County Referral Hospital. He confirmed that he attended to the respondent who had been involved in a road traffic accident. He produced treatment documents as Exhibits 3a and 3b before the lower court.
[21] The appellants called one witness, Elisha Kemboi Kiptanui (DW1) He testified on 6 th November 2023 and introduced himself as an employee of Kapsabet County Referral Hospital and the officer in charge of registration, admissions as well as the filing and retrieval of files. He testified that he was in charge of records at the hospital in 2019 when Directline Insurance wrote to them requiring confirmation as to whether the respondent, Jackline Chepkoech, was treated at their facility. His testimony was that upon checking their records he did not find the name of the respondent. He accordingly responded to the request by writing the revocation letter dated 12 th September 2019 which he produced before the lower court as Defence Exhibit No. 1.
[22] In the light of the foregoing summary of the evidence presented before the lower court and the submissions made herein by learned counsel for the parties, the issues for determination are:
[a] Whether the lower court erred in fact and in law in finding the appellants 100% liable to the respondent.
[b] Whether the trial magistrate erred in awarding the respondent Kshs. 280,000/= as general damages.
[23] In determining the two issues, it is vital to bear in mind the principles discussed in the case of Mbogo and another v Shah [1968] EA 93 the Court by the Court of Appeal that:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
[24] Similarly, in Peters v Sunday Post Limited [1958] EA 424 it was pointed out that:
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion …”
A. On Liability:
[25] It is settled law that the burden of proof lies upon the party who alleges. Section 107(1) of the Evidence Act, Cap 80, is explicit that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .
[26] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) the Court of Appeal held:
“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
[27] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, restated that:
“ The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[28] Consequently, having alleged negligence at paragraph 4 of her Plaint, it was for the respondent to prove her allegations on a balance of probabilities and demonstrate the nexus between her injuries and the negligence of the appellants. As aptly stated in Statpack Industries v James Mbithi Munyao [2005] eKLR:
“…it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same…”
[29] The respondent testified and explained that the accident occurred as she was travelling in Motor Vehicle Registration No. KBK 337B. She explained that the driver of the motor vehicle was over speeding when he lost control and caused the vehicle to veer off the road and hit the embankment of the road. That sufficiently demonstrated the respondent’s allegations of negligence as set out in her Plaint. As the appellants did not call the driver of the said motor vehicle on any eye witness for that matter, the learned magistrate cannot be faulted for believing the respondent’s witness.
[30] Further to the foregoing, the respondent adduced credible evidence that she was injured in the road traffic accident aforementioned for which she was treated by PW3 at Kapsabet County Referral Hospital. PW3 presented the treatment documents and confirmed that he personally attended to the respondent. In addition, the respondent was examined by Dr. Sokobe (PW2) and he confirmed that the respondent had injuries consistent with the history presented by her, namely, that she was injured in a road traffic accident.
[31] I have similarly considered the letter relied on by the appellants before the lower court to prove their assertion that the respondent was never treated at Kapsabet County Referral Hospital. It is significant that the document did not originate from the Hospital, but was purportedly generated by the Department of Health and Sanitation of the County Government of Nandi. The author, DW1 conceded in cross-examination that he is not a medical practitioner and could not have had an opportunity to treat the respondent. Accordingly, the specific allegations of fraud and misrepresentation on the part of the respondent, as set out at paragraph 8A of the appellants’ Defence as amended on 27 th November 2020 cannot be said to have been proved.
[32] In this regard, the determination in Njuwangu Holdings Ltd v Langata Kpa Nairobi & 5 others [2014] eKLR is apt:
“The standard of proving fraud in Civil cases, the courts have consistently held, is higher than on a balance of probability. An allegation of fraud is a serious indictment against a party to whom it is made and though the standard of proof is not beyond a reasonable doubt as in criminal cases it is no doubt near there but is certainly higher than on a balance of probability and thus when a party in a civil matter makes an allegation of fraud against a party he should be prepared to tender and adduce evidence to prove the allegation to the required standard. In the present case, I am afraid the fraud allegations against the plaintiff have been generalized and lack specificity and are generally unproved…”
[33] Therefore, taking into account the evidence presented before the lower court, the learned magistrate cannot be faulted for believing the respondent as opposed to the evidence of DW1. Moreover, it is noteworthy that, although the appellants alleged contributory negligence against the respondent, none of the allegations set out at paragraph 8 of their Defence was proved.
[34] In the premises, the lower court correctly found the appellants 100% liable for the accident.
B. On Quantum of Damages:
[35] It is trite that an appellate court will only interfere with an award of damages if it is shown that the trial court applied wrong principles or arrived at an inordinately high or low award. (See Kenya Oil Company Limited & another v Kenya Pipeline Company [2014] KECA 851 (KLR) para 43, and Bashir Ahmed Butt v Uwais Ahmed Khan [1982–88] KAR 5). Moreover, assessment of damages is at the discretion of the trial court . In Catholic Diocese of Kisumu vs. Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 , the Court of Appeal held that:
“ It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
[36] Moreover, in Taveta v Njeru (Civil Appeal 26 of 2013) [2014] KECA 755 (KLR) (5 February 2014) (Judgment) the court of appeal held as follows:
“…the context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past .”
[37] The respondent pleaded blunt injuries to the chest, back and multiple bruises and blunt injuries to the left leg and right knee and leg. Dr. Sokobe’s Medical Report as well as the P3 exhibited by the respondent confirmed those injuries. I have considered the authorities relied on by the parties and while I find the awards referred to by the appellants to be on the lower side, the respondent relied on decisions that appear to be higher than what was awarded by the lower court. I have instead opted to rely on the following comparable authorities:
[a] Surian Enterprises Ltd v Mary Bahati Peter (Civil Appeal No. E199 of 2021) [2023] KEHC 20426 (KLR) (5 July 2023) (Judgment) an award of Kshs. 300,000/= for soft tissue injuries, including deep cut on the forehead and blunt injury to the right knee, was considered inordinately high. Consequently, the award was reduced to Kshs. 150,000/=.
[b] Ogola v Ogangira & another (Civil Appeal E068 of 2023) [2026] KEHC 336 (KLR) (22 January 2026) (Judgment) an award of Kshs. 300,000/= for soft tissue injuries was, on appeal, reduced to Kshs. 150,000/=.
[38] It is trite that assessment of damages is a matter of discretion; and that an appellate court ought not to disturb an award simply on the ground that it would have arrived at a different outcome. In H. West & Son Ltd v Shephard [1964] AC 326, for instance, it was held 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."
[39] Guided by comparable awards and inflationary trends, I find that the award of Kshs. 280,000/= for general damages is on the higher side. The same is hereby reduced to Kshs. 150,000/=. The special damages component of Kshs. 6,000/= awarded by the trial court is not in dispute.
[40] In the result, the appeal is hereby allowed on quantum and orders made as hereunder:
[a] the judgment of the lower court is hereby set aside and substituted with an award of Kshs. 150,000/= for general damages.
[b] The special damages of Kshs. 6,000/= remains undisturbed together with interest and costs.
[c] Each party to bear own costs of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAPSABET THIS 9 TH DAY OF JULY 2026.
[2] It was the contention of the respondent that she was travelling as a lawful passenger in the motor vehicle aforementioned when, at Chepturer junction, it lost control, veered off the road and hit the embankment by the roadside. The respondent supplied particulars of negligence at paragraph 5 of her Plaint dated 26 th July 2019, contending, inter alia , that the motor vehicle was being driven without due care or attention and at a speed that was too fast in the circumstances. She likewise supplied particulars of her injuries as well as particulars of special damages suffered. Thus the respondent prayed for the following reliefs:
[a] General damages
[b] Special damages of Kshs. 6,000/=
[c] Costs of the suit
[d] Interest on the above at court rates
[3] The appellants denied the respondent’s allegations vide their Defence dated 10 th September 2019. In particular, they denied not only the occurrence of the alleged accident but also that the respondent was injured as alleged by her in her Plaint. In the alternative, the appellants contended that, if indeed an accident occurred as alleged, then the same was caused by the negligence of the respondent, particulars whereof were supplied at paragraph 8 of the Defence. They also pleaded the maxim of volenti non fit injuria and inevitable accident. Accordingly, the appellants prayed for the dismissal of the suit.
[4] Upon hearing the parties, the lower court found the appellants 100% liable for the accident. The court then proceeded to assess general damages payable at Kshs. 286,000/= inclusive of special damages of Kshs. 6,000/=. Accordingly, judgment was entered in the respondent’s favour for that sum of Kshs. 286,000/= together with interest and costs.
[5] Being aggrieved by the decision of the lower court, the appellants filed this appeal vide their Memorandum of Appeal dated 5 th June 2024 on the following grounds:
[a] That the learned magistrate erred in law and in fact by awarding 100% liability as against the appellants and failed to take into account the evidence adduced by the appellants herein.
[b] That the learned magistrate erred in law and in fact by awarding the respondent damages despite the appellants advancing evidence that injuries were not proved.
[c] That the learned magistrate erred in law and in fact by awarding Kshs. 280,000/= as general damages which award is inordinately high in view of the injuries sustained by the respondent.
[d] That the learned magistrate misdirected himself by failing to take into account the well-established principle requiring comparable awards to be made for comparable injuries thereby falling into an error by awarding a manifestly excessive amount of Kshs. 280,000/=.
[e] That the learned trial magistrate erred in law and in fact by awarding Kshs. 280,000/= as general damages which award is excessive in view of the injuries sustained by the respondent thereby deviating from the principle of stare decisis requiring comparable awards being made for comparable injuries sustained.
[f] That the learned trial magistrate erred in law and in fact by disregarding and failing to appreciate the judicial authorities on quantum cited by the appellants in their written submissions thereby making an award on general damages that is unreasonably high in the circumstances and connotes an erroneous estimate of the award on general damages in view of the injuries sustained by the respondent.
[6] In the premises, the appellants prayed that their appeal be allowed and orders granted as follows:
[a] That the judgment delivered on the 24 th May 2024 in Kapsabet CMCC No. 116 of 2019 by Hon. S.M Mokua (CM) on the issue of quantum be set aside and an order re-assessing the award on quantum downwards be made.
[b] That the judgment delivered on the 24 th May 2024 in Kapsabet CMCC No. 116 of 2019 by Hon. S.M Mokua (CM) on the issue of liability be set aside and an order re-assessing liability be made.
[c] The appellants be awarded the costs of the appeal.
[7] The appeal was canvassed by way of written submissions. The appellants filed written submissions dated 10 th April 2026 in which they proposed two issues for determination, namely:
[a] Whether the lower court erred in fact and in law by relying on the respondent’s revoked treatment notes.
[b] Whether the trial magistrate erred in awarding Kshs. 280,000/= as damages for the injuries suffered.
[8] The appellants submitted, and rightly so, that having alleged negligence and injuries, the burden of proof was on the respondent to avail evidence in proof thereof. They relied on Sections 107, 108 and 109 of the Evidence Act and pointed out that no evidence was availed to support the respondent’s allegation. They contended that, to the contrary, they called a witness, Elisha Kemboi Kiptanui (DW1), who confirmed that the treatment notes relied on by the respondent were revoked by Kapsabet County Referral Hospital. They urged the Court to find that the respondent was never attended to at the facility as alleged by her. They relied on M’Imbula Charles Mwalimu v Coast Broadway Company Limited [2012] eKLR, among other authorities, and submitted that the respondent utterly failed to discharge the burden of proving negligence or the alleged injuries.
[9] On whether the trial magistrate erred in awarding the respondent Kshs. 280,000/= as general damages, the appellants submitted that the respondent herein sustained soft tissue injuries to the chest, back and both legs; and that the medical report by Dr. Sokobe confirmed that she had healed. Accordingly, the appellants submitted that an award in the sum of Kshs. 80,000/= would have been sufficient in the circumstances. They based that proposal on several authorities, including the following:
[a] Guardian Coach Limited v Agani [2026] KEHC 2825 (KLR) in which an award of Kshs. 300,000/= for soft tissue injuries was set aside and substituted with Kshs. 60,000/=.
[b] Wilson Mboga Ondicho v Harrison Nyangau Mosigisi , Civil Appeal No. E054 of 2023 (26 th April 2025) where an award of Kshs. 300,000/= was set aside and substituted with Kshs. 80,000/= for soft tissue injuries.
[c] Boaz Obure and another v Samwel Kiyuka & another , Civil Appeal No. E088 of 2023) (5 th November 2024); a matter in which an award of Kshs. 250,000/= for soft tissue injuries was set aside on appeal and substituted with Kshs. 70,000/=.
[10] They otherwise prayed that their appeal be allowed with costs.
[11] On her part, the respondent filed written submissions dated 9 th March 2026 through the firm of M/s Mwinamo Lugonzo & Company Advocates. They submitted on the role of the first appellate court; on whether the treatment chits by the respondent were fraudulent; and on whether the respondent’s entire claim was fraudulent. The respondent also addressed the Court on liability and quantum of damages.
[12] The respondent urged the Court to note that the revocation letter relied on by the appellants to impugn her treatment notes, originated from the County Government of Nandi, whilst the treatment chits were generated by Kapsabet County Referral Hospital. She also submitted that DW1 was not a doctor and did not produce the alleged Outpatient Register; and therefore his evidence was of doubtful value. The respondent also contended that she availed, as an exhibit, a letter dated 2 nd August 2023 from Kapsabet County Referral Hospital which confirmed that she was indeed treated at the Kapsabet County Referral Hospital after being involved in a road traffic accident on 23 rd January 2018. She added that, unlike the revocation letter, her letter had the stamp of the Medical Superintendent and bore the Letter Head of the Kapsabet County Referral Hospital.
[13] The respondent further urged the Court to taken into account the evidence of the treating doctor, who confirmed having personally attended to her at the Emergency Unit after the accident. Accordingly, the respondent asserted that liability was proved on a balance of probabilities.
[14] On quantum of damages, the respondent cited various persuasive authorities in support of her arguments that the lower court’s award was reasonable in the circumstances. The authorities included:
[a] Catherine W. Kingori v Gibson T. Gichubi , Nyeri HCCC No. 320 of 1988 in which the plaintiff was awarded Kshs. 350,000/= for soft tissue injuries.
[b] Nairobi HCCA No. 791 of 1999: Martin M. Mugi v Attorney General in which the plaintiff sustained a deep extensive cut on the face, mild concussion and generalized soft tissue injuries and was awarded Kshs. 300,000/= as general damages.
[c] Eldoret HCCA No. 32 of 2017: Jyoti Structures Limited & another v Charles Ogada Ochola where the plaintiff was awarded Kshs. 300,000/= for blunt injury to the neck, head, chest and right shoulder, which award was upheld on appeal.
[d] Eldoret HCCA No. 51A of 2018: Edson Converters & another v Robert Khaemba Khamala in which the respondent sustained blunt injury to the chest, abdomen and both lower limbs. The lower court’s award of Kshs. 300,000/= was upheld on appeal.
[e] Bungoma HCCA No. 17 of 2019: Poa Link Services Co. Ltd & another v Sindani Boaz Bonzemo in which the plaintiff sustained blunt injury to the chest, and bruises to the lower abdomen, right hip joint and the thigh and was awarded Kshs. 350,000/= which was upheld on appeal.
[15] Hence, according to the respondent the decision of the lower court was not only sound but was also based on credible evidence. She prayed for the dismissal of the appeal.
[16] This being a first appeal, this Court is under a duty to re-evaluate and assess the evidence and make its own conclusions thereon. It must, however, keep at the back of its mind that the trial court had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand. Hence, in Selle and another v Associated Motor Board Company and 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 re-trial and the Court of Appeal is not bound to follow the trial Court’s finding of fact if it appears either that he failed to take account of particular circumstances or probabilities or if the impression of demeanour of a witness is inconsistent with the evidence generally.”
[17] The respondent testified before the lower court on 21 st July 2021 and adopted her witness statement dated 26 th July 2019. Her evidence was that on the 23 rd January 2018 at about 9.00 a.m., she was travelling from Kapsabet to Chepsiria as a fare paying passenger in Motor Vehicle Registration No. KBK 337B, Matatu. She further stated that while at Chepsirer on the Kobujoi-Kimalen murram road, the driver started driving at a very high speed and thereby lost control of the motor vehicle; causing it to hit the embankment of the road.
[18] In her evidence, the motor vehicle reversed before coming to a sudden stop. She was injured in the process and was assisted by a member of the public who took her to Kapsabet Hospital where she was treated and discharged. She blamed the driver of the motor vehicle she was travelling for the accident. The respondent produced several documents as exhibits, including treatment notes and P3 Form in support of her testimony and added that she had not fully healed as at the time she gave her evidence.
[19] The respondent called Dr. Joseph Sokobe , a medical practitioner based at Eldoret Hospital, as PW2. He testified that he examined the respondent on 18 th June 2019 and prepared a Medical Report for which he charged the respondent Kshs. 6,000/=. He produced the Medical Report and a receipt for Kshs. 6,000/= as exhibits before the lower court. He confirmed that the respondent sustained mainly soft tissue injuries and had fully healed by the time of examination.
[20] The respondent’s third witness was Benard Lagat (PW3) of Kapsabet County Referral Hospital. He confirmed that he attended to the respondent who had been involved in a road traffic accident. He produced treatment documents as Exhibits 3a and 3b before the lower court.
[21] The appellants called one witness, Elisha Kemboi Kiptanui (DW1) He testified on 6 th November 2023 and introduced himself as an employee of Kapsabet County Referral Hospital and the officer in charge of registration, admissions as well as the filing and retrieval of files. He testified that he was in charge of records at the hospital in 2019 when Directline Insurance wrote to them requiring confirmation as to whether the respondent, Jackline Chepkoech, was treated at their facility. His testimony was that upon checking their records he did not find the name of the respondent. He accordingly responded to the request by writing the revocation letter dated 12 th September 2019 which he produced before the lower court as Defence Exhibit No. 1.
[22] In the light of the foregoing summary of the evidence presented before the lower court and the submissions made herein by learned counsel for the parties, the issues for determination are:
[a] Whether the lower court erred in fact and in law in finding the appellants 100% liable to the respondent.
[b] Whether the trial magistrate erred in awarding the respondent Kshs. 280,000/= as general damages.
[23] In determining the two issues, it is vital to bear in mind the principles discussed in the case of Mbogo and another v Shah [1968] EA 93 the Court by the Court of Appeal that:
“…that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”
[24] Similarly, in Peters v Sunday Post Limited [1958] EA 424 it was pointed out that:
“It is a strong thing for an appellate court to differ from the findings on a question of fact, of the judge who had the advantage of seeing and hearing the witnesses…But the jurisdiction to review the evidence should be exercised with caution: it is not enough that the appellate court might have come to a different conclusion …”
A. On Liability:
[25] It is settled law that the burden of proof lies upon the party who alleges. Section 107(1) of the Evidence Act, Cap 80, is explicit that:
Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist .
[26] Hence, in Antony Francis Wareham t/a AF Wareham & 2 others v Kenya Post Office Savings Bank (Civil Appeal 5 & 48 of 2002) [2004] KECA 166 (KLR) (2 July 2004) (Judgment) the Court of Appeal held:
“We have carefully considered the judgement of the superior court, the grounds of appeal raised against it and the submissions before us on those matters. Having done so we are impelled to state unequivocally that in our adversarial system of litigation, cases are tried and determined on the basis of the pleadings made and the issues of fact or law framed by the parties or the Court on the basis of those pleadings pursuant to the provisions of order XIV of the Civil Procedure Rules. And the burden of proof is on the plaintiff and the degree thereof is on a balance of probabilities. In discharging that burden, the only evidence to be adduced is evidence of existence or non existence of the facts in issue or facts relevant to the issue. It follows from those principles that only evidence of facts pleaded is to be admitted and if the evidence does not support the facts pleaded, the party with the burden of proof should fail…”
[27] Further, the Court of Appeal in the case of Palace Investments Limited v Geoffrey Kariuki Mwenda & another [2015] eKLR, restated that:
“ The burden of proof is placed upon the appellant and is to be discharged on a balance of probabilities. Denning J. in Miller –vs- Minister of Pensions [1947] 2 ALL ER 372 discussing the burden of proof had this to say: -
“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”
[28] Consequently, having alleged negligence at paragraph 4 of her Plaint, it was for the respondent to prove her allegations on a balance of probabilities and demonstrate the nexus between her injuries and the negligence of the appellants. As aptly stated in Statpack Industries v James Mbithi Munyao [2005] eKLR:
“…it is trite law that the burden of proof of any fact or allegation is on the Plaintiff. He must prove a causal link between someone’s negligence and his injury. The Plaintiff must adduce evidence from which, on a balance of probability, a connection between the two may be drawn. Not every injury is necessarily a result of someone’s negligence. An injury per se is not sufficient to hold someone liable for the same…”
[29] The respondent testified and explained that the accident occurred as she was travelling in Motor Vehicle Registration No. KBK 337B. She explained that the driver of the motor vehicle was over speeding when he lost control and caused the vehicle to veer off the road and hit the embankment of the road. That sufficiently demonstrated the respondent’s allegations of negligence as set out in her Plaint. As the appellants did not call the driver of the said motor vehicle on any eye witness for that matter, the learned magistrate cannot be faulted for believing the respondent’s witness.
[30] Further to the foregoing, the respondent adduced credible evidence that she was injured in the road traffic accident aforementioned for which she was treated by PW3 at Kapsabet County Referral Hospital. PW3 presented the treatment documents and confirmed that he personally attended to the respondent. In addition, the respondent was examined by Dr. Sokobe (PW2) and he confirmed that the respondent had injuries consistent with the history presented by her, namely, that she was injured in a road traffic accident.
[31] I have similarly considered the letter relied on by the appellants before the lower court to prove their assertion that the respondent was never treated at Kapsabet County Referral Hospital. It is significant that the document did not originate from the Hospital, but was purportedly generated by the Department of Health and Sanitation of the County Government of Nandi. The author, DW1 conceded in cross-examination that he is not a medical practitioner and could not have had an opportunity to treat the respondent. Accordingly, the specific allegations of fraud and misrepresentation on the part of the respondent, as set out at paragraph 8A of the appellants’ Defence as amended on 27 th November 2020 cannot be said to have been proved.
[32] In this regard, the determination in Njuwangu Holdings Ltd v Langata Kpa Nairobi & 5 others [2014] eKLR is apt:
“The standard of proving fraud in Civil cases, the courts have consistently held, is higher than on a balance of probability. An allegation of fraud is a serious indictment against a party to whom it is made and though the standard of proof is not beyond a reasonable doubt as in criminal cases it is no doubt near there but is certainly higher than on a balance of probability and thus when a party in a civil matter makes an allegation of fraud against a party he should be prepared to tender and adduce evidence to prove the allegation to the required standard. In the present case, I am afraid the fraud allegations against the plaintiff have been generalized and lack specificity and are generally unproved…”
[33] Therefore, taking into account the evidence presented before the lower court, the learned magistrate cannot be faulted for believing the respondent as opposed to the evidence of DW1. Moreover, it is noteworthy that, although the appellants alleged contributory negligence against the respondent, none of the allegations set out at paragraph 8 of their Defence was proved.
[34] In the premises, the lower court correctly found the appellants 100% liable for the accident.
B. On Quantum of Damages:
[35] It is trite that an appellate court will only interfere with an award of damages if it is shown that the trial court applied wrong principles or arrived at an inordinately high or low award. (See Kenya Oil Company Limited & another v Kenya Pipeline Company [2014] KECA 851 (KLR) para 43, and Bashir Ahmed Butt v Uwais Ahmed Khan [1982–88] KAR 5). Moreover, assessment of damages is at the discretion of the trial court . In Catholic Diocese of Kisumu vs. Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 , the Court of Appeal held that:
“ It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”
[36] Moreover, in Taveta v Njeru (Civil Appeal 26 of 2013) [2014] KECA 755 (KLR) (5 February 2014) (Judgment) the court of appeal held as follows:
“…the context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past .”
[37] The respondent pleaded blunt injuries to the chest, back and multiple bruises and blunt injuries to the left leg and right knee and leg. Dr. Sokobe’s Medical Report as well as the P3 exhibited by the respondent confirmed those injuries. I have considered the authorities relied on by the parties and while I find the awards referred to by the appellants to be on the lower side, the respondent relied on decisions that appear to be higher than what was awarded by the lower court. I have instead opted to rely on the following comparable authorities:
[a] Surian Enterprises Ltd v Mary Bahati Peter (Civil Appeal No. E199 of 2021) [2023] KEHC 20426 (KLR) (5 July 2023) (Judgment) an award of Kshs. 300,000/= for soft tissue injuries, including deep cut on the forehead and blunt injury to the right knee, was considered inordinately high. Consequently, the award was reduced to Kshs. 150,000/=.
[b] Ogola v Ogangira & another (Civil Appeal E068 of 2023) [2026] KEHC 336 (KLR) (22 January 2026) (Judgment) an award of Kshs. 300,000/= for soft tissue injuries was, on appeal, reduced to Kshs. 150,000/=.
[38] It is trite that assessment of damages is a matter of discretion; and that an appellate court ought not to disturb an award simply on the ground that it would have arrived at a different outcome. In H. West & Son Ltd v Shephard [1964] AC 326, for instance, it was held 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."
[39] Guided by comparable awards and inflationary trends, I find that the award of Kshs. 280,000/= for general damages is on the higher side. The same is hereby reduced to Kshs. 150,000/=. The special damages component of Kshs. 6,000/= awarded by the trial court is not in dispute.
[40] In the result, the appeal is hereby allowed on quantum and orders made as hereunder:
[a] the judgment of the lower court is hereby set aside and substituted with an award of Kshs. 150,000/= for general damages.
[b] The special damages of Kshs. 6,000/= remains undisturbed together with interest and costs.
[c] Each party to bear own costs of the appeal.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY AT KAPSABET THIS 9 TH DAY OF JULY 2026.