JOSEPH MBONGE KYATHE VS JAMES MWALYO MWAU

1. On 20/2/2018 about 10:30 pm a road traffic accident took place along Wote Machakos road at Kavingo area between motor vehicle registration No. KAP 448Q driven by Joseph Mbonge Kyathe (the defendant) and motor cycle registration No. KMDS 981X ridden by Onesmus Makau Mutisya (Makau) whose pillion passenger was James Mwalyo Mwau (Mwalyo). These two (plaintiffs) each filed their own suit – Mwalyo filed Makueni CMCC 172 of 2019, and Makau filed Makueni CMCC 179 OF 2019.

2. The record will show that during in the proceedings in CMCC 176/2019 parties agreed that the testimonies of the motor cycle rider Makau, the Police Officer PW2 and of the defendant were to apply mutatis mutandis in CMCC 172 /2019.

3. The record in CMCC 172 of 2019 only has the testimony of the plaintiff, Mwalyo.

4. The pleadings by each of the plaintiffs and those of the defendant were the similar save for the specific claims for special damages for each of the plaintiffs.

5. Each of the plaintiff’s claim was that on the material date the defendant so negligently drove motor vehicle registration No. KAP 448Q that it lost control and rammed into their motor cycle KMDS 981X causing each of the plaintiffs to suffer injuries loss and damage.

6. In the statement of defence the defendant denied all the particulars of negligence and accused the rider (Makau) of negligence in the manner of riding the motor cycle and causing the accident. The pillion passenger (Mwalyo) was accused of negligence for failing to wear a reflective jacket and helmet.

7. The defendant denied all the averments and put plaintiffs to strict proof thereof.

a)  Makau pleaded particulars of injuries, general and, special damages: the particulars of injuries were set out as follows. Fracture of right femur

b) Compound (open) fractures of right tibia

c) Compound (open) fracture of right fibula

d) Traumatic loss of two right toes

e) Dental injuries with breakages and loss of upper front teeth

f) Blunt injuries and bruises on the right hand fingers.

And at the time of filing the plaintiff had the following complaints:

a) Difficulties of getting up and about

b) He cannot kneel or squat

c) Not able to work gainfully

d) Pain on the right leg

e) An inability to walk without crutches

f) Short right leg by 5 cm

g) Permanent incapacity of about 30% - 60%

The Particulars of special damages were set out thus:

a) Medical legal report  (Dr. Wokabi)  Ksh. 2,500.00

b) Medical legal report  (Dr. Kavuli)  Ksh. 3,000.00

c) Medical legal report  (Dr. Okere)  Ksh. 2,000.00

d) Transport expenses     Kshs.102.300.00

e) Treatment and medical expenses  Ksh. 410,802.00

Total       Ksh. 520,602.00

8. Makau pleaded further that he needed Ksh. 100,000/= to remove metal implants, and Ksh. 20,000/= to acquire teeth prosthesis

9. He sought judgment against the defendant for: -

a) Special damages aforesaid of Ksh. 520,602/=

b) General damages for pain, suffering and loss of amenities

c) General damages for reduced/diminished earning capacity

d) Cost of removal of implants estimated at Ksh. 100,000/=

e) Cost of teeth prosthesis estimated at Ksh. 20,000/=

f) Cost of this suit

g) Interest on a, b. c. d, e and f above at court rate; and

h) Any other or further relief that his honorable court may deem just to grant.

10. Mwalyo pleaded particulars of injuries, general and special damages: Particulars of injuries were

a) Major blunt soft tissue injuries on the right foot

b) Fracture of 3 right foot metatarsals

c) Cut wounds on the right heel

d) Low back tenderness

At the time of filing he had the following complaints

a) Pain on the right foot

b) He cannot stand for long hours

c) Permanent incapacity of about 5%

The Particulars of special damages were:

a) Medical legal report (Dr. Wokabi)  Ksh. 2,500.00

b) Medical legal report (Dr. Kavuli)   Ksh. 3,000.00

Total   Ksh. 5,500.000

11. Mwalyo sought judgment against the defendant for:

a) Special damages aforesaid of Kshs.5500/=

b) General damages for pain, suffering and loss of amenities

c) General damages for reduced/diminished earning capacity

d) Costs of this suit

e) Interest on a, b, c and d above at court rates and

f) Any other or further relief that the honourable court may deem just to grant.

12. Each of the plaintiffs testified adopting his written statement as evidence in chief

13. Makau told the court that he sustained three fractures of his right leg and lost two teeth and two toes. He told the court that he was undergoing physiotherapy awaiting the removal of the metal plates. That his leg had shortened by 6 inches, he could not bend it – that he operated a bar, a kiosk and M-pesa shop before the accident and he could no longer do the same. On cross examination he told the court that he did not have a driving licence at the material time and his motor cycle did not have insurance. He said he did not produce evidence to prove the existence of his business. He said the lack of licence and insurance did not cause the accident.

14. Mwalyo on his part also adopted his written statement and produced his documents – he said he was a pillion passenger and saw how the motor vehicle was driven.

15. No. 70935 CPL Paul Migego testified that the accident was reported in OB 2/20/2/2018, the report being that the motor vehicle registration No. KAP 448Q was heading towards Machakos but on reaching Kavingo area the driver failed to keep on his lane, entered that of the motor cycle hit it. The rider and pillion passengers sustained injuries. He produced the police abstract on behalf of both plaintiffs. He testified that the OB did not indicate the point of impact, neither did the abstract indicate whether or not the driver of the motor vehicle was charged. It stated that the matter was pending under investigations. That the motor cycle was not insured and the motor cycle rider was riding without licence.

16. The plaintiff’s each closed his case.

17. The defence called the defendant – Joseph Mbonge Kyathe. He too adopted his written statement dated 21/10/2021. He denied that he was overtaking. He testified that the motorcycle was going downhill and was headed towards a head on collision with his motor vehicle which he avoided. He denied causing the accident.

18.  Parties filed submissions which the trial court considered.

19. On liability the court analysed the evidence given in CMCC 176/2019 and apportioned liability at 10%:90% in favour of the plaintiff. This was applied in CMCC 172/2019.

20.  On Damages the following awards were made:

21. For Makau: -Final judgment in the sum of Ksh. 3,096,541.80/= made up as follows:

General damages   2,500,000.00/=

Diminished earning capacity   300,000.00/=

Future medical costs       120,000.00/=

Add special damages         520,602.00/=

Sub – total        3,440,602.00/=

Less 10% contribution          344,060.20/=

Total          3,096,541.80/=

The plaintiff was also awarded costs and interest at court rates.

For Mwalyo: Final judgment in the sum of Ksh. 454,995/= made up as follows: -

General damages   5,000,00.00

Add special damages          5,500.00

Sub-total        505,550.00

Less 10% contribution          50,550.00

Total        454,995.00

22. Aggrieved by these awards the defendant filed two separate appeals: HCCA 12/2023 (CMCC 176/2019 Makau); HCCA 11/2023(CMCC 172/19(Mwalyo)

23. In HCCA 12/2023 (CMCC 176/2019 Makau) the appellant contends in the Memorandum of Appeal that:

1) That the honourable learned magistrate erred in law and in fact by making a finding on that the appellant was 90% liable while the evidence on record clearly demonstrated that the respondent was solely liable for the occurrence. Or in the alternative, ought to have borne the higher percentage on liability.

2) That the honourable learned magistrate erred in law and in fact by holding the appellant 90% liable despite the appellant’s uncontroverted evidence imputing liability on the plaintiff; disregarding the evidence adduced in court specifically the police officer who could not apportion blame and / or negligence on the appellant.

3) That the honourable learned magistrate erred in law and in fact by holding the appellants 90% liable despite the appellants uncontroverted evidence imputing liability on the plaintiff; disregarding the evidence adduced in court as the point of impact is unknown.

4) That the honourable learned magistrate erred in law and in fact in finding that the appellant was wholly liable for the occurrence of the alleged accident by failing to consider the defence evidence tendered to find the deceased liable.

5) That the honourable learned magistrate erred in law and fact by awarding the respondent a sum of Kenyan shillings two million four hundred and six hundred thousand Ksh. 2,600,000/= in general damages, diminished earning capacity, Ksh. 300,000/= future medicals at Ksh. 120,000/=, Ksh. 100,000/= which award was manifestly excessive considering the nature of the injuries sustained by the respondent the evidence tendered in court and the authorities cited in the rival submissions.

6) That the honourable learned magistrate erred stating that the appellants failed to submit on diminished earning capacity contrary to the evidence on record as per the appellant’s submission.

7) That the honourable learned magistrate erred in fact and in awarding diminished earning capacity when there was no proof of earnings.

8) That the honourable learned magistrate erred stating awarding the future medical at Ksh. 120,000/= which was contrary to the evidence on record.

9) That the honourable learned magistrate erred in law and f act by awarding the respondent general damages at a sum of Ksh. 2,600,000/= which award was manifestly excessive considering the nature of the injuries sustained by the respondent, the evidence tendered in court and the authorities cited in the rival submissions.

10) That the honorable learned magistrate failed to apply himself judicially and to adequately evaluate the evidence and exhibits tendered on quantum and thereby arrived at a decision unsustainable in law.

11) That the honourable learned magistrate erred in law and fact by arriving at his decision based on the wrong principles of law governing the burden of proof of negligence and liability as well as the assessment of quantum of damages, in that he failed to consider the pertinent issues of law and facts raised by the appellant’s counsel during the cross examination of the respondent’s witnesses and also in the appellant’s submissions.

12) The trial magistrate erred in law and fact in neglecting to consider the whole of the appellant’s submissions.

13) That the learned trial magistrate erred in law and in fact in her judgment by failing to totally appreciate the gravity of the issue raised by the appellant and the submissions filed by the appellant.

14) That the decision of the learned trial magistrate is against settled principles of law.

24. In HCCA 11/2023(CMCC 172/19(Mwalyo) the appellant contends in the memorandum of appeal;

1) That the honourable learned magistrate erred in law and in fact by making a finding on that the appellant was 90% liable while the evidence on record clearly demonstrated that the respondent was solely liable for the occurrence, or in the alternative, ought to have borne the higher percentage on liability.

2) That the honourable learned magistrate erred in law and in fact by holding the appellants 90% liable despite the appellants uncontroverted evidence imputing liability on the plaintiff, disregarding the evidence adduced in court specifically the police officer who could not apportion blame and/or negligence on the appellant.

3) That the honourable learned magistrate erred in law and in fact by holding the appellants 90% liable despite the appellants uncontroverted evidence imputing liability on the plaintiff; disregarding the evidence adduced in court as the point of impact is unknown.

4) That the honourable learned magistrate erred in law and in fact in finding that the appellant was wholly liable for the occurrence of the alleged accident by failing to consider the defence evidence tendered to find the deceased liable.

5) That the honourable learned magistrate erred in law and fact by awarding the respondent a sum of Kenya shillings five hundred thousand Ksh. 500,000/= which award was manifestly excessive considering the nature of the injuries sustained by the respondent, the evidence tendered in court and the authorities cited in the rival submissions.

6) That the learned trial magistrate erred in law and in fact in his ruling by failing to totally appreciate the gravity of the issue raised by the appellant and the submissions filed by the appellant.

7) That the decision of the learned trial magistrate is against settled principles of the law.

25. Parties agreed to dispose of the appeal by way of written submissions.

Submissions for the appellant:

26. In both files the submissions were similar.

27. On liability – submissions were made with respect to a witness named as Nichodemus Mulwa Muli whose testimony was to be found at page 111 of the Record of Appeal. However, a perusal of the Record of Appeal does not reveal such a name. The name of the witness is Onesmus Makau Mutisya – the plaintiff in HCCA 176 of 2023. He testified he was riding the motorbike that night and that at Ukia junction he was negotiating a corner while heading towards Kilala market – that there were three motor vehicles heading to Ukia Market (the opposite direction) the 1st motor vehicle passed, as he was passing the 2nd one, the 3rd motor vehicle overtook it and in the process lost control veered off its lane and into his lane and rammed into his motor cycle.

28. It is submitted that the appellant clearly described how the accident happened that it was the motor cycle that was coming at a high speed in the opposite direction while trying to negotiate the sharp and bend in the process it hit his motor vehicle at the front right side damaging the front right indicator – that he was driving uphill while the rider was driving downhill. He denied overtaking any m/vehicle. He attached the certificate of examination of the motor vehicle he was driving together with a photograph showing the part of the m/vehicle that was damaged by the accident.

29. The certificate of examination and test of motor vehicle – by motor vehicle inspection unit Machakos states that the motor vehicle on examination had no pre-accident defects – but post-accident it shows damage to the offside fender, offside mirror offside part of the front bumper, offside front indicator, scratched front windscreen. The photograph confirms that the motor vehicle sustained the damages on the driver’s side – front light, windscreen, side mirror.

30. It is submitted that there was no evidence of the point of impact and therefore no proof that the appellant had veered into the lane of the motor cycle. That there is also no evidence that any of the drivers were blamed for the accident. It is submitted that the damages on the motor vehicle indicate that the appellant would not have been overtaking as the impact on the motor vehicle was on the driver’s side

31. It was submitted that it was up to the respondent to prove the particulars of negligence otherwise the court would proceed as was stated in Hussein Omar Farah –vs- Lento Agencies [2006] e KLR where the Court of Appeal stated:

“In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs, the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.”

32. The appellant also relied on Sally Kibii and Another –vs- Francis Ogaro [2012] e KLR where it was stated: “

The plaintiff in the trial court only produced two witnesses who admitted they did not witness the accident and could not tell how it happened. The police abstract showed that the accident was by collusion of two vehicles and investigations were underway. The failure of the police to determine from the scene of the accident which motor vehicle was to be blamed and the absence of an eye witness evidence diminishes the appellant’s chance to prove a case for negligence against the defendant”.

And on Felista Wanjiku Gichu –vs- Akamba Public Service & Another (2011 e KLR where the court found a defendant who had failed to maintain a vehicle on its lane 100% liable for the collision that ensued.

Submissions for the Respondents

33. For the respondents, counsel summed up the evidence before the subordinate court and pointed out that the learned trial court found respondents’ testimony more believable hence her finding the appellant was 90% to blame for the accident.

34. It is submitted that the appellant’s evidence on how the accident happened was not uncontroverted, that it is not correct to submit that the point of impact was unknown, that the point is ascertainable from the evidence of the police officer, from the OB, that the appellant veered off the road and entered the respondent’s lane; that the appellant’s evidence was considered by the trial court.

35. It is further argued that PW2 (the police officer) visited the scene and they confirmed that the motor vehicle veered from its lane – hence the appellant’s testimony cannot be believed. Relying on the Court of Appeal in Mwai Kabuthi vs Karimi Kabuthu (2017) e KLR the respondents urge the court to find the appellant’s evidence to be untruthful, and to find him 100% liable for the road traffic accident. The respondents also rely on; Agnes Akinyi Okeyo –vs- Marie Stopes – Kenya (2004) e KLR where the court found a driver had done nothing to avoid the accident 100% liable for the ensuing accident; Nicodemus Osoro & Another –vs- Jane Gatwiri (2019) e KLR where the court held thus: But Dw1 decided to overtake the probox and at a corner. This was sheer negligence on his part. Dw3 produced the police abstract and investigation places the blame squarely on Dw1. As a result, in the upshot Dw1 was largely to blame for the accident.

36. With respect to the liability on the part of the pillion passenger, it is submitted that there is no evidence that he contributed to the accident in any way. That the existence of a traffic offence cannot be a ground for contributing negligence. See Joash Nyabicha –vs- Kenya Tea Development Authority & 2 Others (2013) eKLR; Oyugi Judith & Another –vs- Fredrick Odhiambo Ongong & 3 Others (2014) e KLR for the proposition that The fact of a criminal infraction does not in itself imply that the person is negligent. It must clear that the infraction is the cause or contributes to the accident; Gabriel Kamau vs Lawy Sutcliffe & Another (2014) e KLR.

37. It is further submitted that the appellant did not lay any nexus between the rider’s (Makau’s) lack of driving licence/insurance and the accident – see Synohydro Corporation Limited vs- Hellen Omondi [2016] e KLR.

38. I take guidance from the holding in Selle –vs- Associated Motor Boat Company ltd (1986) E.A 123 with respect to the duty of the first appellate court.

39. I have carefully considered the evidence and the rival submissions. The only issues for determination are between the rider and the driver (the two drivers) who was liable for the accident? Whether the awards were excessive.

On Liability

40. For the respondents it is submitted that their evidence is supported by the evidence of the police officer that indeed the appellant veered off his lane into the lane of the motor cycle.

41. I have looked at the evidence of the police officer (PW2):

42. There is no evidence on record that indeed this or any other officer visited the scene. He was not the investigating officer. He simply states that the OB states that the driver failed to keep to his near side. He did not indicate the point of impact. There is nothing in the record to support the submissions that the police visited the scene and confirmed from the scene that the appellant is the one who had veered off his lane.

43. What emerges from the evidence on record in that both the ‘drivers’ blame each other and there is no eye evidence to support either of the claim of one against the other. Secondly the police did not investigate the accident and there is no independent evidence to show that either party veered into the lane of the other causing the accident.

44.  It is my view that the trial court erred in finding that one of the driver’s bore a higher responsibility for the accident than the other yet there was no clear evidence on record pointing to that effect.

45. On the guidance of the Court of Appeal in Hussein Omar Farah –vs- Lento Agencies [2006] e KLR it is my view in the circumstances and supported by the evidence on record both drivers were equally responsible for the accident.

On quantum

46. In determining whether or not to interfere with the award the court must be guided by the set down principles in Kemfro Africa Ltd & Another –vs- Lubia & Another (1982 – 88) KLR, the Court of Appeal rendered itself thus:

47. In Catholic Dioceses of Kisumu –vs- Sophia Achieng Tete – Kisumu Civil Appeal No. 284 of 2001 held as follows:

48. With respect to Makau I considered the medical reports produced:

• Dr. Wokabi’s medical report dated 22nd May 2019 which confirms the injuries but places permanent disability at 35% and states that removal of the metal implant which will cost Ksh. 100,000/= the doctor indicates the missing upper left incisor tooth will not require to be replaced.

• Dr. Okere’s medical report dated 22nd May 2019 which confirms the injuries but places permanent disability at 60% and states that removal of the metal implants is not required. The doctor indicates the missing upper left incisor tooth which is not mandatory will require Ksh. 20,000/=

• Dr. Kavuli’s medical report dated 20th February 2018 which confirms the injuries but places permanent disability at 30% and states that removal of the metal implant and replacement of the missing upper left is not required.

49. It is evident that the decision on the future medical expense was founded on the doctor’s evidence. Except for that Ksh 20,0000 which they agreed was unnecessary, I find that there was no error in the award of Ksh 100,000.

50. On general damages for pain and suffering – the appellant submitted that the sum of Ksh. 800,000/= would suffice for the injuries sustained by Makau relying on:

a) Daneva Heavy trucks & Another v Chrispine Otieno [2022] e KLR – The plaintiff/respondent suffered fracture of the pelvis and fractures of the left tibia and fibula; he walked with a limping gait supporting himself on crutches: awarded Ksh. 800,000/=.

b) Godfrey Wamalwa Wamba & Anor v Kyalo Wambua [2018] e KLR where the appellant sustained a compound fracture of the right distal tibia/fibula, cut wounds on the scalp and chest and a cut on the lower lip, he was in hospital for three weeks, he underwent surgery for repair of the fibula. The doctor testified that is leg had shortened and needed corrective surgery. The trial court awarded him general damages at Ksh. 700,000.

c) SBI International Holdings (AG) Kenya b William Ambuga Ongeri [2018] e KLR the respondent suffered chronic dislocation of the left hip and a fracture of the femoral head, as well as bruises on the right thigh…. His leg was therefore significantly shortened due to bone loss, and he had permanent disability assessed at 40% - 45%. The court held that the amount of Ksh. 800,000/= awarded by the trial court was proper.

51. It is argued by the respondent that in the subordinate court the appellant submitted for Ksh. 600,000/= but now submits on Ksh. 800,000/= as general damages. It is also submitted that in the subordinate court appellant relied on different set of authorities hence creating a confusion – see Court of Appeal – Sila Tiren & Anor –vs- Simon Ombati Omambo [2014] e KLR the court is urged to disregard those authorities. It is submitted that before the subordinate court the respondent submitted for Ksh. 3,000,000/= relying on.

a) Nicodemus Osoro & Another vs- Jane Gatwiri: The respondent sustained multiple bruises with loss of two premolar teeth on the left side lower jaw, segmental fracture of the right femur, fracture mid shaft femur, and fracture left lateral malleolus with multiple bruises on the anterior aspect of the leg. The high court upheld an award of Ksh. 2,000,000/= as general damages for pain, suffering and loss of amenities on 13th July 2012.

b) Mackenzie Maritime K Ltd –vs- Juma Dzombo Juma & Another (2020) e KLR: The 1st respondent sustained a compound comminuted and displaced fracture of the right femur, comminuted and displaced fracture of the distal left femur, comminuted fracture of the upper right tibia, dislocation of the right acromio – clavicular joint, long and deep cut wound on the lower thigh, and cut wound above the right eye. The high court upheld an award of Ksh. 2,200,000/= on the 25/09/2020.

c) Real Tilak Enterprises Ltd –vs- Paul Muia Kilonzo (2019) e KLR: The respondent sustained a fracture of the right tibia fibula, fracture of the right femur, fracture of the left 2nd – 5th metatarsals, and soft tissue injuries to both legs. The high court upheld an award of Ksh. 2,500,000/= on the 31/5/2019.

d) Mohamed Hussein –vs- Mahat Kuno Roble (2019) e KLR: The plaintiff sustained a fracture of the right humerus, fracture dislocation of right elbow, fracture dislocation of distal phalanx right middle finger, crash injuries of left foot toes with traumatic amputation of left 3rd, 4th and 5th toes, and fracture of left tibia and fibula malleoli (bimaleolar fractures). The court awarded Ksh. 2,500,000/= as general damages for pain suffering, and loss of amenities on 25/04/2019.

52. That the trial court was guided by Nicodemus Osoro & Another in arriving at its award and the same is reasonable.

53. I have considered that fact there was no contest on the injuries sustained by Makau, or the opinions of the doctors. The learned trial magistrate exercised her discretion in choosing the medical report to go by and made an award that was supported by the authorities cited. I found the award on general damages for pain and suffering reasonable.

54. On the award on diminishing earning capacity Makau testified that he was a boda rider, had business of wines and spirit and M-pesa shop, and it was argued that he produced no evidence to support that and hence did not prove the same (see Cecilia W. Mwangi –vs- Ruth W. Mwangi, Nyeri Civil Appeal No. 251 of 1996.)

55. However, it is on record that Makau in his evidence, he produced an agreement for purchase of the bar (P. Exh.10). lease agreement for the bar premises (P. Exh.11) business permits (P. Exh.12) application for the grant or renewal of an alcoholic drinks retail license (P. Exh 13) and application form (P. Exh.14).and he had applied and paid for the 2018 license.

56. There was evidence therefore that he was running these businesses at the time of the accident,

57. Further that he had registered as a person with disability and produced his medical assessment and the disability card (EX 15 and 16), evidence that his life had changed as a result of the accident.

58. It was also argued that there is a difference between lost earnings and lost earning capacity. See SJ Vs Francesco DiNello & Another (2015) e KLR where the court stated

Claims under the heads of loss of future earnings and loss of earning capacity are distinctively different. Loss of income which may be defined as real actual loss is loss of future earnings. Loss of earning capacity may be defined as diminution in earning capacity. Loss of income or future earnings is compensated for or real assessable loss which is proved by evidence. On the other hand, loss of earning capacity is compensated by an award in general damages, once proved.

59. Evidently all Makau needed to establish was that he had a capacity to earn which had been lessened by the offending act. see Magdaline Nzilani Mutende vs- Kennedy Mutwii [2019] e KLR.

60. In the circumstances and on the evidence on record I found no reason to interfere with the finding of the trial court and the award of Ksh 300,000.

61. With respect to Mwalyo the appellant summed up the evidence and submitted that the sum of Ksh. 250,000/= was sufficient as general damages, and relied on:

• In Patrisia Adhiambo Omolo v Emily Mandala [2020] e KLR the appellant sustained injuries, fracture of the left forearm radius and ulna bones, colles fractures of the left forearm, swollen deformed distal aspect of the left forearm and multiple bodily injuries. The high court affirmed the decision of the lower court in awarding Ksh. 180,000/= as general damages.

• Odinga Jactone Ouma vs Moureen Achieng Odera (2016) e KLR where the court awarded Ksh. 180,000/= as general damages where the respondent lost consciousness and sustained multiple soft tissue injuries in the upper limb and neck. She had a fracture of the first and second ribs and shoulder dislocation on eh left and also a fracture on the left metatarsal.

•  Jane Warungurumiano v Jotham Nguri Magondu & Another ]2018] e KLR where the court awarded Ksh 250,000/= as general damages where the respondent the plaintiff sustained a headache, had huge haemotoma, had neck pain, left scapular fracture with tenderness, dislocation of right shoulder joint, fracture of 8th rib with tenderness, lumbar spine, pain and bruises of lower limbs.

62. It was argued that the appellant did not file submissions in CMCC 172/2019 and cannot file them on appeal The court was urged on the strength of Sila Tirene & Another above to ignore the submissions and cited authorities. The court has also been referred to Gitobu Imanyara & Others –vs- AG (2016) e KLR.

63. The respondent relied on –Grace Wamue –vs- Wicks Mwethi Njenga ([2020] e KLR where the respondent sustained blunt chest injury, bunt injury left lower limb, swollen and tender left foot and fractures left 3rd and 4th metatarsals. The court assessed general damages for pain, suffering and loss of amenities at Ksh. 500,000/= on 13/02/2020.

64. It was submitted that the trial court was guided by Grace Wamue above at arriving at the award.

65. It is evident that again in Mwalyo’s case there was no contest on the injuries sustained or on the doctor’s opinion.

66. The trial court awarded Ksh. 500,000/= general damages. Looking at the injuries and the authorities cited – it is evident that the injuries sustained were similar to those sustained in the case that the learned trial court relied on and hence I found no reason to interfere with the award. –

67. In the end the appeal succeeds in part.

68. The judgment of the subordinate court is set aside and substituted as follows:

Dated, Signed and Delivered, on 28th June 2024

Mumbua T Matheka

Judge

Mr. Mutua for Respondent in both appeals

Mr. Mogun for the appellants: – We seek 30 days stay of execution.

Order:  30 days stay of execution granted