[1] This appeal arises from the Judgment and Decree passed in Homa Bay Principal Magistrate’s Civil Case No. E004 of 2022: Fredrick Ogweno (suing as the next friend of Carolly Owino Okoth, minor) v Kennedy Ochieng Owuor . The respondent had alleged before the lower court that on or about the 24 th November 2021, the minor was a lawful passenger in Motor Vehicle Registration No. KDD 617X, Toyota Matatu, along Homa Bay-Rongo Road when a road traffic accident occurred at Sophia area involving the said motor vehicle. The respondent alleged that the motor vehicle was driven so carelessly that it lost control and rolled, thereby occasioning the minor serious bodily injuries.
[2] The respondent supplied the particulars of negligence as well as injuries suffered at paragraphs 5 of the Plaint dated 30 th December 2021. On account thereof the respondent claimed general damages, costs of the suit and interest thereon at court rates.
[3] The appellant denied the respondent’s allegations vide his Defence dated 20 th July 2022. He denied that an accident occurred as alleged or that the minor was a lawful passenger in Motor Vehicle Registration No. KDD 617X, Toyota Matatu. The appellant also denied the respondent’s allegations of negligence in the driving of the subject motor vehicle and put him to strict proof thereof. In the alternative, the appellant alleged negligence on the part of the respondent.
[4] Upon hearing the parties, the lower court found the appellant 100% liable for the accident in its Judgment dated 8 th March 2024. The court then proceeded to assess general damages payable to the minor at Kshs. 350,000/= and entered judgment according for that sum together with costs and interest.
[4] Being aggrieved by the decision of the lower court, the appellant filed this appeal vide the Memorandum of Appeal dated 13 th March 2024 on the following grounds:
[a] That the learned magistrate erred in law and in fact by failing to consider and appreciate the applicable principles in assessment of damages and thereby arrived at an excessive and unjustified award.
[b] That the learned magistrate erred in law and fact by awarding general damages of Kshs. 350,000/= for pain and suffering; an award which was so excessive as to amount to an erroneous estimate of loss or damages suffered by the plaintiff.
[c] That the learned magistrate erred in fact and in law in relying on extraneous circumstances not supported by the evidence on record.
[d] The learned magistrate erred in law and fact by overly relying on the respondent’s submissions which were not relevant.
[e] The learned magistrate erred in law and fact by failing to take into account the appellant’s submissions.
[f] The learned magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.
[5] The appellant therefore prayed that the appeal be allowed with costs; that the judgment delivered in Homa Bay Chief Magistrate’s Civil Case No. E004 of 2022 on 8 th March 2024 be set aside and substituted with the judgment of this Court dismissing the suit against the appellant with costs. The appellant also prayed, in the alternative, that the Court be pleased to re-assess quantum downwards in line with the evidence on record; and that the costs of the appeal and that of the trial court be awarded to him.
[6] The appeal was canvassed by way of written submissions, pursuant to the directions given herein on 13 th October 2025. The appellant complied and filed written submissions dated 13 th November 2025. He reiterated that his appeal is on quantum and urged the Court to take into account the evidence adduced before the lower court on the nature of the minor’s injuries. In particular, the appellant referred to the evidence adduced on his behalf by Dr. Jennipher Kahuthu and Dr. Kouko , both of whom were of the opinion that the primary x-ray taken at Homa Bay County Referral Hospital did not reveal any pelvic fracture or dislocation.
[7] Accordingly, the appellant proposed an award of Kshs. 70,000/= for the soft tissue injuries sustained by the minor. He relied on the following authorities:
[a] Nyamira HCCA No. 54 of 2023: Wilson Mboga Ondicho v Harrison Nyangau Mosigisi in which an award of Kshs. 300,000/= by the trial court was reduced on appeal to Kshs. 80,000/= for similar injuries.
[b] Kisii HCCA No. 88 of 2023: Boaz Obure & Bethuel Gichonga Muthami v Samuel Kiyuka Timothy in which the respondent suffered soft tissue injuries to the chest and lower limbs. The lower court’s award of Kshs. 250,000/= was reduced to Kshs. 70,000/=.
[8] Therefore, the appellant prayed that the appeal be allowed and the orders prayed for in his Memorandum of Appeal dated 13 th March 2024 be granted as prayed.
[9] The respondent relied on his written submissions dated 25 th February 2026. He proposed the following issues for determination:
[a] Whether the learned magistrate erred in law and fact by relying on extraneous issues as the basis of his determination on liability.
[b] Whether the award of general damages made by the learned magistrate was manifestly and inordinately excessive in the circumstances.
[c] Whether the learned magistrate acted in error by failing to properly evaluate the evidence on record thus reaching erroneous decision.
[d] Whether the learned magistrate erred by misapprehending the principles applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice.
[10] The respondent restated the injuries suffered by him in the subject accident, namely:
[a] Fracture of the pelvis bone
[b] Swelling and tenderness of left and right legs
[c] Swollen right hand
[11] He urged the Court to take into consideration the medical evidence presented before the lower court in support of the above injuries. He relied on Michael Maina Gitonga v Serah Njuguna [2012] KEHC 3808 (KLR) in which the plaintiff was awarded Kshs. 1,500,000/= for the following injuries:
[a] Multiple fracture of the pelvis
[b] Dislocation of the right hip with displaced fracture of the right acetabulum;
[c] comminuted fractures of the right tibia and fibula on the proximal end with fracture of the tibia plateau;
[d] Soft tissue injuries of the chest
[12] On the basis of the foregoing the respondent urged the Court uphold the lower court’s award on quantum and dismiss the appeal with costs.
[13] This being a first appeal, it is the duty of the Court to re-evaluate the evidence adduced before the lower court and come to its own conclusions thereon while bearing in mind that it did not see or hear the witnesses. In in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
[14] With the foregoing principles in mind, I have given careful consideration to the evidence placed before the lower court in the light of the pleaded injuries. The respondent testified on 2 nd March 2023 as PW1 and stated that the minor, who was then aged 16 years, is his first born son; and that he was involved in a road traffic accident on the 24 th November 2021 while on his way to school. PW1 adopted his witness statement dated 30 th December 2021.
[15] He essentially stated that he was at home when he received a telephone call that the minor had been injured in a road traffic accident while travelling as a lawful passenger in Motor Vehicle Registration No. KDD 617X, Toyota Matatu. On arrival at the scene he was told the victims had been rushed to Homa Bay County Teaching and Referral Hospital. He proceeded to the hospital and found his injured son crying in pain. He added that the minor was admitted for 5 days while undergoing treatment.
[16] The minor, Carolly Owino Okoth , also testified before the lower court as PW2. He likewise adopted his witness statement dated 30 th December 2021. He stated that he was travelling to school aboard Motor Vehicle Registration No. KDD 617X Toyota Matatu when the motor vehicle was involved in a road traffic accident along the Homa Bay-Rongo Road at as a place called Sophia. PW2 testified that the accident took place on 24 th November 2021 and that the said motor vehicle was being driven at a very high speed and as a result it lost control and rolled. He further stated that he suffered injuries in the accident and was rushed to Homa Bay County Teaching and Referral Hospital for treatment. He set out his injuries as follows:
[a] Fracture of the pelvic bone
[b] Swelling and tenderness of the left and right leg
[c] Swollen right hand
[17] It was the testimony of PW2 that he had not fully recovered by the time he testified before the lower court.
[18] The respondent also called Sgt. Alice Awino (PW3), a police officer then attached to the Traffic Base at Homa Bay Police Station. She confirmed that a fatal accident occurred on the 24 th November 2021 at about 12.00 noon along Homa Bay-Rongo road at Sophia area involving Motor Vehicle Registration No. KDD 617X, Toyota Matatu, Motor Vehicle Registration No. KCZ 629N, Toyota Probox and a Motor Cycle Registration No. KMEE 513E, Make Boxer. PW3 testified that from their investigations, they ascertained that the motor vehicles and the cyclist were headed in the same direction; and that the motorcyclist was ahead, followed by the Probox and the Matatu, in that order; and that the driver of the Matatu attempted to overtake but saw an oncoming motor vehicle; and that when he swerved back to its lane, it hit the Probox which in turn hit the motorcyclist. PW3 confirmed that several passengers in the Matatu sustained injuries; one of them being the minor herein, Carolly Owino Okoth . She produced the Police Abstract before the lower court as the Plaintiff’s Exhibit 2.
[19] The last witness for the respondent was Michael Ochola (PW4), a Chief Clinical Officer attached to Homa Bay Teaching and Referral Hospital. He confirmed that the minor was attended to at their facility; and that he was injured in a road traffic accident that occurred on 24 th November 2021. PW4 testified that the minor sustained the following injuries:
[a] Fracture of the pelvic bone
[b] Tenderness on the left and right leg
[c] Tenderness and swelling of the right hand
[20] In PW4’s opinion the minor sustained grievous harm for which he was admitted for treatment. He added that the injuries had negatively impacted on his health and productivity and pointed out that at the time of the examination, the minor was still experiencing pain on both legs as well as occasional headaches. PW4 produced the P3 Form, Discharge Summary and Medical Report prepared by him as exhibits before the lower court. He was categorical that he examined the minor and was satisfied that he had suffered a fracture of his pelvic bone.
[21] On behalf of the appellant, Dr. Jennipher Kahutho , a general medical practitioner, testified as DW1. She stated that she examined the minor for purposes of a second medical opinion; and that he looked at the x-ray film presented by him but did not see any indication of a pelvic fracture. She added that she sought the opinion of a consultant radiologist, Dr. Kouko , but he too did not see any fracture. DW1 further stated that Dr. Kouko did a repeat x-ray but no fracture or dislocation was detected. Based on those findings she prepared a report with the conclusion that the minor only suffered soft tissue injuries.
[22] Dr. Kouko, a radiologist, also testified before the lower court. As DW2, he confirmed that he prepared an x-ray report for Carolly Owino dated 4 th April 2022 upon studying the x-ray film that he presented. DW2 explained that the x-ray had been taken on 24 th November 2021 at the Homa Bay Teaching and Referral Hospital. In his opinion the x-ray showed no pelvic fracture. DW1 further testified that he took another x-ray of the patient and the findings were the same. He produced the two reports as exhibits before the lower court.
[23] It was on the basis of the foregoing evidence that the learned magistrate assessed damages at Kshs. 350,000/= for the soft tissue injuries suffered by the minor. He accepted the defence evidence and found as a fact that the minor did not sustain pelvic fracture as alleged by him. That being the case, and the appellants having expressly conceded that the appeal is only on quantum, the single issue for determination is whether the learned magistrate erred in his assessment of the quantum of damages payable to the minor.
[24] In H. West & Son Ltd v Shephard [1964] AC 326, it was acknowledged 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."
[25] The Court of Appeal restated this principle thus in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR :
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages."
[26] The injuries as pleaded in the Plaint dated 30 th December 2021 were:
[a] Fracture of the pelvic bone
[b] Swelling and tenderness of left and right legs
[c] Swollen right hand
[27] The learned magistrate made reference to the P3 Form, Discharge Summary, Treatment Notes and Medical Reports produced by the parties and was satisfied that the minor suffered soft tissue injuries and that no fracture was proved. There being no cross-appeal I find no reason to interfere with that finding. As was observed by Sir Kenneth O'Connor in Peters v Sunday Post Limited [1958] EA 424:
"It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion..."
[28] The principle reiterated by the Court of Appeal in Stanley Maore v Geoffrey Mwenda [2004] eKLR, is that comparable injuries ought to be compensated by comparable awards. It expressed itself thus:
“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
[29] There can be no doubt that the authority relied on by the appellant, namely, Michael Maina Gitonga v Serah Njuguna (supra) was totally incomparable to the facts of this appeal. In that case, the plaintiff suffered much more serious injuries, namely:
[a] Multiple fractures of the pelvis
[b] Dislocation of the right hip with displaced fracture of the right acetabulum;
[c] Comminuted fractures of the right tibia and fibula on the proximal end with fracture of the tibia plateau;
[d] Soft tissue injuries of the chest.
[30] In my careful consideration, the authorities relied on by the appellant are more relevant. For instance, in Nyamira HCCA No. 54 of 2023: Wilson Mboga Ondicho v Harrison Nyangau Mosigisi , an award of Kshs. 300,000/= by the trial court was reduced on appeal to Kshs. 80,000/= for similar injuries. Similarly, in Kisii HCCA No. 88 of 2023: Boaz Obure & Bethuel Gichonga Muthami v Samuel Kiyuka Timothy in which the respondent suffered soft tissue injuries to the chest and lower limbs, the lower court’s award of Kshs. 250,000/= was reduced to Kshs. 70,000/=.
[31] Taking into account the effects of inflation, I find an award of Kshs. 100,000/= to be reasonable in the circumstances. Accordingly, the appeal is hereby allowed and orders made as hereunder:
[a] That the judgment delivered in Homa Bay Chief Magistrate’s Civil Case No. E004 of 2022 on 8 th March 2024 be and is hereby set aside and substituted with the judgment of this Court for general damages in the sum of Kshs. 100,000/= only.
[b] The costs of the appeal and of the lower court suit to be borne by the appellant.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22 ND DAY OF MAY, 2026
[2] The respondent supplied the particulars of negligence as well as injuries suffered at paragraphs 5 of the Plaint dated 30 th December 2021. On account thereof the respondent claimed general damages, costs of the suit and interest thereon at court rates.
[3] The appellant denied the respondent’s allegations vide his Defence dated 20 th July 2022. He denied that an accident occurred as alleged or that the minor was a lawful passenger in Motor Vehicle Registration No. KDD 617X, Toyota Matatu. The appellant also denied the respondent’s allegations of negligence in the driving of the subject motor vehicle and put him to strict proof thereof. In the alternative, the appellant alleged negligence on the part of the respondent.
[4] Upon hearing the parties, the lower court found the appellant 100% liable for the accident in its Judgment dated 8 th March 2024. The court then proceeded to assess general damages payable to the minor at Kshs. 350,000/= and entered judgment according for that sum together with costs and interest.
[4] Being aggrieved by the decision of the lower court, the appellant filed this appeal vide the Memorandum of Appeal dated 13 th March 2024 on the following grounds:
[a] That the learned magistrate erred in law and in fact by failing to consider and appreciate the applicable principles in assessment of damages and thereby arrived at an excessive and unjustified award.
[b] That the learned magistrate erred in law and fact by awarding general damages of Kshs. 350,000/= for pain and suffering; an award which was so excessive as to amount to an erroneous estimate of loss or damages suffered by the plaintiff.
[c] That the learned magistrate erred in fact and in law in relying on extraneous circumstances not supported by the evidence on record.
[d] The learned magistrate erred in law and fact by overly relying on the respondent’s submissions which were not relevant.
[e] The learned magistrate erred in law and fact by failing to take into account the appellant’s submissions.
[f] The learned magistrate erred in fact and in law in failing to consider conventional awards in cases of similar nature.
[5] The appellant therefore prayed that the appeal be allowed with costs; that the judgment delivered in Homa Bay Chief Magistrate’s Civil Case No. E004 of 2022 on 8 th March 2024 be set aside and substituted with the judgment of this Court dismissing the suit against the appellant with costs. The appellant also prayed, in the alternative, that the Court be pleased to re-assess quantum downwards in line with the evidence on record; and that the costs of the appeal and that of the trial court be awarded to him.
[6] The appeal was canvassed by way of written submissions, pursuant to the directions given herein on 13 th October 2025. The appellant complied and filed written submissions dated 13 th November 2025. He reiterated that his appeal is on quantum and urged the Court to take into account the evidence adduced before the lower court on the nature of the minor’s injuries. In particular, the appellant referred to the evidence adduced on his behalf by Dr. Jennipher Kahuthu and Dr. Kouko , both of whom were of the opinion that the primary x-ray taken at Homa Bay County Referral Hospital did not reveal any pelvic fracture or dislocation.
[7] Accordingly, the appellant proposed an award of Kshs. 70,000/= for the soft tissue injuries sustained by the minor. He relied on the following authorities:
[a] Nyamira HCCA No. 54 of 2023: Wilson Mboga Ondicho v Harrison Nyangau Mosigisi in which an award of Kshs. 300,000/= by the trial court was reduced on appeal to Kshs. 80,000/= for similar injuries.
[b] Kisii HCCA No. 88 of 2023: Boaz Obure & Bethuel Gichonga Muthami v Samuel Kiyuka Timothy in which the respondent suffered soft tissue injuries to the chest and lower limbs. The lower court’s award of Kshs. 250,000/= was reduced to Kshs. 70,000/=.
[8] Therefore, the appellant prayed that the appeal be allowed and the orders prayed for in his Memorandum of Appeal dated 13 th March 2024 be granted as prayed.
[9] The respondent relied on his written submissions dated 25 th February 2026. He proposed the following issues for determination:
[a] Whether the learned magistrate erred in law and fact by relying on extraneous issues as the basis of his determination on liability.
[b] Whether the award of general damages made by the learned magistrate was manifestly and inordinately excessive in the circumstances.
[c] Whether the learned magistrate acted in error by failing to properly evaluate the evidence on record thus reaching erroneous decision.
[d] Whether the learned magistrate erred by misapprehending the principles applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice.
[10] The respondent restated the injuries suffered by him in the subject accident, namely:
[a] Fracture of the pelvis bone
[b] Swelling and tenderness of left and right legs
[c] Swollen right hand
[11] He urged the Court to take into consideration the medical evidence presented before the lower court in support of the above injuries. He relied on Michael Maina Gitonga v Serah Njuguna [2012] KEHC 3808 (KLR) in which the plaintiff was awarded Kshs. 1,500,000/= for the following injuries:
[a] Multiple fracture of the pelvis
[b] Dislocation of the right hip with displaced fracture of the right acetabulum;
[c] comminuted fractures of the right tibia and fibula on the proximal end with fracture of the tibia plateau;
[d] Soft tissue injuries of the chest
[12] On the basis of the foregoing the respondent urged the Court uphold the lower court’s award on quantum and dismiss the appeal with costs.
[13] This being a first appeal, it is the duty of the Court to re-evaluate the evidence adduced before the lower court and come to its own conclusions thereon while bearing in mind that it did not see or hear the witnesses. In in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that:
"...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court ... is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect..."
[14] With the foregoing principles in mind, I have given careful consideration to the evidence placed before the lower court in the light of the pleaded injuries. The respondent testified on 2 nd March 2023 as PW1 and stated that the minor, who was then aged 16 years, is his first born son; and that he was involved in a road traffic accident on the 24 th November 2021 while on his way to school. PW1 adopted his witness statement dated 30 th December 2021.
[15] He essentially stated that he was at home when he received a telephone call that the minor had been injured in a road traffic accident while travelling as a lawful passenger in Motor Vehicle Registration No. KDD 617X, Toyota Matatu. On arrival at the scene he was told the victims had been rushed to Homa Bay County Teaching and Referral Hospital. He proceeded to the hospital and found his injured son crying in pain. He added that the minor was admitted for 5 days while undergoing treatment.
[16] The minor, Carolly Owino Okoth , also testified before the lower court as PW2. He likewise adopted his witness statement dated 30 th December 2021. He stated that he was travelling to school aboard Motor Vehicle Registration No. KDD 617X Toyota Matatu when the motor vehicle was involved in a road traffic accident along the Homa Bay-Rongo Road at as a place called Sophia. PW2 testified that the accident took place on 24 th November 2021 and that the said motor vehicle was being driven at a very high speed and as a result it lost control and rolled. He further stated that he suffered injuries in the accident and was rushed to Homa Bay County Teaching and Referral Hospital for treatment. He set out his injuries as follows:
[a] Fracture of the pelvic bone
[b] Swelling and tenderness of the left and right leg
[c] Swollen right hand
[17] It was the testimony of PW2 that he had not fully recovered by the time he testified before the lower court.
[18] The respondent also called Sgt. Alice Awino (PW3), a police officer then attached to the Traffic Base at Homa Bay Police Station. She confirmed that a fatal accident occurred on the 24 th November 2021 at about 12.00 noon along Homa Bay-Rongo road at Sophia area involving Motor Vehicle Registration No. KDD 617X, Toyota Matatu, Motor Vehicle Registration No. KCZ 629N, Toyota Probox and a Motor Cycle Registration No. KMEE 513E, Make Boxer. PW3 testified that from their investigations, they ascertained that the motor vehicles and the cyclist were headed in the same direction; and that the motorcyclist was ahead, followed by the Probox and the Matatu, in that order; and that the driver of the Matatu attempted to overtake but saw an oncoming motor vehicle; and that when he swerved back to its lane, it hit the Probox which in turn hit the motorcyclist. PW3 confirmed that several passengers in the Matatu sustained injuries; one of them being the minor herein, Carolly Owino Okoth . She produced the Police Abstract before the lower court as the Plaintiff’s Exhibit 2.
[19] The last witness for the respondent was Michael Ochola (PW4), a Chief Clinical Officer attached to Homa Bay Teaching and Referral Hospital. He confirmed that the minor was attended to at their facility; and that he was injured in a road traffic accident that occurred on 24 th November 2021. PW4 testified that the minor sustained the following injuries:
[a] Fracture of the pelvic bone
[b] Tenderness on the left and right leg
[c] Tenderness and swelling of the right hand
[20] In PW4’s opinion the minor sustained grievous harm for which he was admitted for treatment. He added that the injuries had negatively impacted on his health and productivity and pointed out that at the time of the examination, the minor was still experiencing pain on both legs as well as occasional headaches. PW4 produced the P3 Form, Discharge Summary and Medical Report prepared by him as exhibits before the lower court. He was categorical that he examined the minor and was satisfied that he had suffered a fracture of his pelvic bone.
[21] On behalf of the appellant, Dr. Jennipher Kahutho , a general medical practitioner, testified as DW1. She stated that she examined the minor for purposes of a second medical opinion; and that he looked at the x-ray film presented by him but did not see any indication of a pelvic fracture. She added that she sought the opinion of a consultant radiologist, Dr. Kouko , but he too did not see any fracture. DW1 further stated that Dr. Kouko did a repeat x-ray but no fracture or dislocation was detected. Based on those findings she prepared a report with the conclusion that the minor only suffered soft tissue injuries.
[22] Dr. Kouko, a radiologist, also testified before the lower court. As DW2, he confirmed that he prepared an x-ray report for Carolly Owino dated 4 th April 2022 upon studying the x-ray film that he presented. DW2 explained that the x-ray had been taken on 24 th November 2021 at the Homa Bay Teaching and Referral Hospital. In his opinion the x-ray showed no pelvic fracture. DW1 further testified that he took another x-ray of the patient and the findings were the same. He produced the two reports as exhibits before the lower court.
[23] It was on the basis of the foregoing evidence that the learned magistrate assessed damages at Kshs. 350,000/= for the soft tissue injuries suffered by the minor. He accepted the defence evidence and found as a fact that the minor did not sustain pelvic fracture as alleged by him. That being the case, and the appellants having expressly conceded that the appeal is only on quantum, the single issue for determination is whether the learned magistrate erred in his assessment of the quantum of damages payable to the minor.
[24] In H. West & Son Ltd v Shephard [1964] AC 326, it was acknowledged 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."
[25] The Court of Appeal restated this principle thus in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja v Kiarie Shoe Stores Limited [2015] eKLR :
"As a general principle, assessment of damages lies in the discretion of the trial court and an appellate Court will not disturb an award of damages unless it is so inordinately high or low as to represent an erroneous estimate. It must be shown that the Judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low. The Court must be satisfied that either the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one or that; short of this, the amount is so inordinately high that it must be a wholly erroneous estimate of the damages."
[26] The injuries as pleaded in the Plaint dated 30 th December 2021 were:
[a] Fracture of the pelvic bone
[b] Swelling and tenderness of left and right legs
[c] Swollen right hand
[27] The learned magistrate made reference to the P3 Form, Discharge Summary, Treatment Notes and Medical Reports produced by the parties and was satisfied that the minor suffered soft tissue injuries and that no fracture was proved. There being no cross-appeal I find no reason to interfere with that finding. As was observed by Sir Kenneth O'Connor in Peters v Sunday Post Limited [1958] EA 424:
"It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion..."
[28] The principle reiterated by the Court of Appeal in Stanley Maore v Geoffrey Mwenda [2004] eKLR, is that comparable injuries ought to be compensated by comparable awards. It expressed itself thus:
“…we must consider the award of damages in the light of the injuries sustained. It has been stated now and again that in assessment of damages, the general approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”
[29] There can be no doubt that the authority relied on by the appellant, namely, Michael Maina Gitonga v Serah Njuguna (supra) was totally incomparable to the facts of this appeal. In that case, the plaintiff suffered much more serious injuries, namely:
[a] Multiple fractures of the pelvis
[b] Dislocation of the right hip with displaced fracture of the right acetabulum;
[c] Comminuted fractures of the right tibia and fibula on the proximal end with fracture of the tibia plateau;
[d] Soft tissue injuries of the chest.
[30] In my careful consideration, the authorities relied on by the appellant are more relevant. For instance, in Nyamira HCCA No. 54 of 2023: Wilson Mboga Ondicho v Harrison Nyangau Mosigisi , an award of Kshs. 300,000/= by the trial court was reduced on appeal to Kshs. 80,000/= for similar injuries. Similarly, in Kisii HCCA No. 88 of 2023: Boaz Obure & Bethuel Gichonga Muthami v Samuel Kiyuka Timothy in which the respondent suffered soft tissue injuries to the chest and lower limbs, the lower court’s award of Kshs. 250,000/= was reduced to Kshs. 70,000/=.
[31] Taking into account the effects of inflation, I find an award of Kshs. 100,000/= to be reasonable in the circumstances. Accordingly, the appeal is hereby allowed and orders made as hereunder:
[a] That the judgment delivered in Homa Bay Chief Magistrate’s Civil Case No. E004 of 2022 on 8 th March 2024 be and is hereby set aside and substituted with the judgment of this Court for general damages in the sum of Kshs. 100,000/= only.
[b] The costs of the appeal and of the lower court suit to be borne by the appellant.
It is so ordered.
DATED, SIGNED AND DELIVERED VIRTUALLY THIS 22 ND DAY OF MAY, 2026