Introduction and Background
1. Before the subordinate court, the Respondent filed a suit against the Appellants, the owner and driver of motor vehicle registration number KCT ***S. The Respondent claimed that on or about 8 th December 2019, at about 12:30 p.m., he was lawfully crossing the road at a pedestrian crossing along Mombasa Road at Mlolongo Area when the 2 nd Appellant negligently drove Motor Vehicle and knocked down the Respondent as he was crossing. That as a result, the Respondent suffered serious injuries and reported the accident to Athi River Police Station, where he was issued a P3 form and a police abstract.
2. The Respondent claimed to have sustained a fracture of the right medial condyle and blunt injuries with bruises to the right elbow and right hip and therefore prayed for general damages for pain, suffering and loss of amenities, special damages in the sum of Kshs 3,750.00m, costs of the suit and interest. On 31 st March 2022, the parties recorded a consent judgment on liability, which was adopted by the trial court and thus, liability was apportioned at 80:20 in favor of the Respondent against the Appellants.
3. On quantum, the trial court rendered a judgment on 18 th May 2023 stating that the main dispute was on the nature of injuries, specifically whether the fracture of the right medial condylar was sustained in the subject accident or was an old injury from 2015 as advanced by the Appellants. Dr. Titus Ndeti testified on behalf of the Respondent that he suffered blunt injuries and a fractured right medial condylar. Dr. Ashwin Madhiwala testified on behalf of the Appellants that the Respondent had an old fracture from 2015 visible on X-ray with a plate and screw and the knee deformity was due to that old injury and that the only injuries from the 2019 accident were the blunt injuries.
4. The learned magistrate found that the Appellants did not successfully challenge the fracture as the Appellants did not provide medical evidence proving the fracture was from 2015. The trial court relied on the P3 form and medical reports confirming the fracture and blunt injuries and it made the following award:
General Damages: Kshs 650,000/-
Special Damages: Kshs 3,750/-
Less 20%: Kshs 130,750/-
Total : Kshs 523,000/-
5. The Respondent was also awarded costs and interest on the suit to run from the date of filing the suit until payment in full. The Appellants are dissatisfied with these findings and they have now appealed to the court through the Memorandum of Appeal dated 23 rd October 2023. They contend that the learned magistrate erred in finding that the Appellants did not successfully challenge the fracture sustained by the Respondent, a finding that was against the weight of evidence. That he ignored the authorities cited in the Appellants’ written submissions when assessing damages, that the award of general damages is so manifestly excessive as to amount to an erroneous estimate of the loss suffered by the Respondent and that the award of special damages was also erroneous as the same was not strictly proved as required by law.
6. As such, the Appellants pray that the court sets aside the trial court’s finding and award of damages as a whole and substitutes it with an order dismissing the claim on the fracture. In the alternative, that the judgment and award on general and special damages be set aside and/or substituted with an assessment thereof at a much lower amount commensurate with the injuries actually sustained by the Respondent. Additionally, the Appellants pray for interest on the reduced award to run from the date of this appeal's judgment and; costs of both this appeal and the subordinate court proceedings. The appeal has been canvassed by way of written submissions which are on record and I have considered the same together with the record and I will make relevant references in my analysis and determination below.
Analysis and Determination
7. As submitted by the Appellants, in determining this appeal, I am cognizant of the role of this court as a first appellate court which is to re-evaluate and re-assess the evidence before the court of first instance. At the same time, I also need to keep in mind the fact that the trial court interacted first hand with the parties (see Selle v. Associated Motor Boat Co. [1968] EA 123 )
8. Since the appeal is only on the quantum of damages awarded, it should not be lost that an assessment of damages is within the discretion of the trial court and an appellate court will only interfere where trial court, in assessing damages, either took into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is not based on any evidence (See Imanyara & 2 others v Attorney General [2022] KESC 78 (KLR) , Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) and Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5)
9. The parties have also rightly submitted that a court should also be mindful to make fair and consistent awards in line with the principle that similar injuries must attract similar awards (see Nyamete & another v Ogutu [2024] KEHC 2639 (KLR) . The most contentious issue between the parties was whether the Respondent suffered a fractured right medial condylar. From the record, both Dr. Ndeti and Dr. Machiwala examined the Respondent just over one year after the accident. Dr. Ndeti concluded there was a fracture and he stated that he relied on the medical P3 form which was also filled over one year after the accident. He admitted that he did not conduct an X-ray on the Respondent and that the Respondent had completely healed.
10. Dr. Machiwala on his part stated that the Respondent had a fracture but it was from an old accident in 2015. However, he admitted that he had no evidence to prove that the Respondent had an accident in 2015. It is common ground that after the accident, the Respondent was taken to Athi River Shalom Hospital whose report of 17 th February 2021 indicates that "The above named client presented to our facility on 08/12/2019 with allegation of having been involved in a road traffic accident... X-ray done showed fracture medial condyle ..." I find this evidence to be crucial and contemporaneous as the report is in respect of the very day of the accident, that is, 8 th December 2019 which is significantly more reliable than the reports of Dr. Ndeti or Dr. Madhiwala, who examined the Respondent months later. The report was made by the hospital that actually treated him, based on an X-ray taken at that time and directly refutes the Appellants' argument that there were no X-rays from the date of the accident.
11. It follows that the learned magistrate was correct to note that there was contemporaneous medical evidence supporting the fracture. Dr. Madhiwala claimed the fracture was from a 2015 accident, however, he did not produce any medical records from 2015 to substantiate this claim. As the parties have submitted, it was incumbent upon the Respondent to prove his averments as sections 107 and 108 of the Evidence Act (Chapter 80 of the Laws of Kenya) provides that he who asserts must prove and that a person has the burden of proving facts that are peculiarly within its knowledge as provided by section 112 of the Evidence Act which states that, “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
12. Since it is the Appellants who introduced the issue of a 2015 accident, the burden of proof was thus on them to prove the same. As Dr. Madhiwala stated that he had no evidence of this accident, the trial court could not conclude that the fracture was from the claimed 2015 accident. The trial court was therefore correct to conclude that the Respondent’s injuries included the fracture of the medial condyle.
13. As to whether the sum of Kshs. 650,000.00 awarded was commensurate to the injuries, I note that the trial court considered the authorities put forth by the parties. I note that the authorities had more serious injuries of multiple fractures hence the awards of Kshs. 600,000.00 and Kshs. 800,000.00. In my view, the trial magistrate's award of Kshs. 650,000 appears to be overly generous, especially considering the lack of evidence of permanent disability or severe long-term impairment as indicated by Dr. Ndeti. I find that an award of Kshs. 400,000.00 as proposed by the Appellants would be more appropriate and will be in line with the decision they cited, that is, Agroline Hauliers Limited & another v Michael Abongo Kisemba [2015] KEHC 5014 (KLR) which actually involved a more complex knee injury.
14. In the end, I find that the trial magistrate's finding on the fracture is supported by the contemporaneous Shalom Hospital Report. However, the award of Kshs. 650,000 is on the higher side for this type of fracture with no permanent disability. I therefore reduce it to a figure of Kshs. 400,000.00 that I find reasonable in the circumstances.
Conclusion and Disposition
15. The upshot is that the appeal succeeds but only to the extent that the judgment of the subordinate court in respect of the award of Kshs. 650,000.00 is set aside and substituted with an award of Kshs. 450,000.00. Since the error of the award was by the trial court itself, there is no order as to costs in respect of this appeal.
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Ndegwa for the Appellant
2. Ms. Miya holding brief for Mr. Obwoge for the Respondent
3. Abdisalan- Court Assistant
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1. Before the subordinate court, the Respondent filed a suit against the Appellants, the owner and driver of motor vehicle registration number KCT ***S. The Respondent claimed that on or about 8 th December 2019, at about 12:30 p.m., he was lawfully crossing the road at a pedestrian crossing along Mombasa Road at Mlolongo Area when the 2 nd Appellant negligently drove Motor Vehicle and knocked down the Respondent as he was crossing. That as a result, the Respondent suffered serious injuries and reported the accident to Athi River Police Station, where he was issued a P3 form and a police abstract.
2. The Respondent claimed to have sustained a fracture of the right medial condyle and blunt injuries with bruises to the right elbow and right hip and therefore prayed for general damages for pain, suffering and loss of amenities, special damages in the sum of Kshs 3,750.00m, costs of the suit and interest. On 31 st March 2022, the parties recorded a consent judgment on liability, which was adopted by the trial court and thus, liability was apportioned at 80:20 in favor of the Respondent against the Appellants.
3. On quantum, the trial court rendered a judgment on 18 th May 2023 stating that the main dispute was on the nature of injuries, specifically whether the fracture of the right medial condylar was sustained in the subject accident or was an old injury from 2015 as advanced by the Appellants. Dr. Titus Ndeti testified on behalf of the Respondent that he suffered blunt injuries and a fractured right medial condylar. Dr. Ashwin Madhiwala testified on behalf of the Appellants that the Respondent had an old fracture from 2015 visible on X-ray with a plate and screw and the knee deformity was due to that old injury and that the only injuries from the 2019 accident were the blunt injuries.
4. The learned magistrate found that the Appellants did not successfully challenge the fracture as the Appellants did not provide medical evidence proving the fracture was from 2015. The trial court relied on the P3 form and medical reports confirming the fracture and blunt injuries and it made the following award:
General Damages: Kshs 650,000/-
Special Damages: Kshs 3,750/-
Less 20%: Kshs 130,750/-
Total : Kshs 523,000/-
5. The Respondent was also awarded costs and interest on the suit to run from the date of filing the suit until payment in full. The Appellants are dissatisfied with these findings and they have now appealed to the court through the Memorandum of Appeal dated 23 rd October 2023. They contend that the learned magistrate erred in finding that the Appellants did not successfully challenge the fracture sustained by the Respondent, a finding that was against the weight of evidence. That he ignored the authorities cited in the Appellants’ written submissions when assessing damages, that the award of general damages is so manifestly excessive as to amount to an erroneous estimate of the loss suffered by the Respondent and that the award of special damages was also erroneous as the same was not strictly proved as required by law.
6. As such, the Appellants pray that the court sets aside the trial court’s finding and award of damages as a whole and substitutes it with an order dismissing the claim on the fracture. In the alternative, that the judgment and award on general and special damages be set aside and/or substituted with an assessment thereof at a much lower amount commensurate with the injuries actually sustained by the Respondent. Additionally, the Appellants pray for interest on the reduced award to run from the date of this appeal's judgment and; costs of both this appeal and the subordinate court proceedings. The appeal has been canvassed by way of written submissions which are on record and I have considered the same together with the record and I will make relevant references in my analysis and determination below.
Analysis and Determination
7. As submitted by the Appellants, in determining this appeal, I am cognizant of the role of this court as a first appellate court which is to re-evaluate and re-assess the evidence before the court of first instance. At the same time, I also need to keep in mind the fact that the trial court interacted first hand with the parties (see Selle v. Associated Motor Boat Co. [1968] EA 123 )
8. Since the appeal is only on the quantum of damages awarded, it should not be lost that an assessment of damages is within the discretion of the trial court and an appellate court will only interfere where trial court, in assessing damages, either took into account an irrelevant factor or left out a relevant factor or that the award was too high or too low as to amount to an erroneous estimate or that the assessment is not based on any evidence (See Imanyara & 2 others v Attorney General [2022] KESC 78 (KLR) , Kemfro Africa Limited t/a “Meru Express Services (1976)” & another v Lubia & another (No 2) [1985] KECA 137 (KLR) and Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5)
9. The parties have also rightly submitted that a court should also be mindful to make fair and consistent awards in line with the principle that similar injuries must attract similar awards (see Nyamete & another v Ogutu [2024] KEHC 2639 (KLR) . The most contentious issue between the parties was whether the Respondent suffered a fractured right medial condylar. From the record, both Dr. Ndeti and Dr. Machiwala examined the Respondent just over one year after the accident. Dr. Ndeti concluded there was a fracture and he stated that he relied on the medical P3 form which was also filled over one year after the accident. He admitted that he did not conduct an X-ray on the Respondent and that the Respondent had completely healed.
10. Dr. Machiwala on his part stated that the Respondent had a fracture but it was from an old accident in 2015. However, he admitted that he had no evidence to prove that the Respondent had an accident in 2015. It is common ground that after the accident, the Respondent was taken to Athi River Shalom Hospital whose report of 17 th February 2021 indicates that "The above named client presented to our facility on 08/12/2019 with allegation of having been involved in a road traffic accident... X-ray done showed fracture medial condyle ..." I find this evidence to be crucial and contemporaneous as the report is in respect of the very day of the accident, that is, 8 th December 2019 which is significantly more reliable than the reports of Dr. Ndeti or Dr. Madhiwala, who examined the Respondent months later. The report was made by the hospital that actually treated him, based on an X-ray taken at that time and directly refutes the Appellants' argument that there were no X-rays from the date of the accident.
11. It follows that the learned magistrate was correct to note that there was contemporaneous medical evidence supporting the fracture. Dr. Madhiwala claimed the fracture was from a 2015 accident, however, he did not produce any medical records from 2015 to substantiate this claim. As the parties have submitted, it was incumbent upon the Respondent to prove his averments as sections 107 and 108 of the Evidence Act (Chapter 80 of the Laws of Kenya) provides that he who asserts must prove and that a person has the burden of proving facts that are peculiarly within its knowledge as provided by section 112 of the Evidence Act which states that, “In civil proceedings, when any fact is especially within the knowledge of any party to those proceedings, the burden of proving or disproving that fact is upon him.”
12. Since it is the Appellants who introduced the issue of a 2015 accident, the burden of proof was thus on them to prove the same. As Dr. Madhiwala stated that he had no evidence of this accident, the trial court could not conclude that the fracture was from the claimed 2015 accident. The trial court was therefore correct to conclude that the Respondent’s injuries included the fracture of the medial condyle.
13. As to whether the sum of Kshs. 650,000.00 awarded was commensurate to the injuries, I note that the trial court considered the authorities put forth by the parties. I note that the authorities had more serious injuries of multiple fractures hence the awards of Kshs. 600,000.00 and Kshs. 800,000.00. In my view, the trial magistrate's award of Kshs. 650,000 appears to be overly generous, especially considering the lack of evidence of permanent disability or severe long-term impairment as indicated by Dr. Ndeti. I find that an award of Kshs. 400,000.00 as proposed by the Appellants would be more appropriate and will be in line with the decision they cited, that is, Agroline Hauliers Limited & another v Michael Abongo Kisemba [2015] KEHC 5014 (KLR) which actually involved a more complex knee injury.
14. In the end, I find that the trial magistrate's finding on the fracture is supported by the contemporaneous Shalom Hospital Report. However, the award of Kshs. 650,000 is on the higher side for this type of fracture with no permanent disability. I therefore reduce it to a figure of Kshs. 400,000.00 that I find reasonable in the circumstances.
Conclusion and Disposition
15. The upshot is that the appeal succeeds but only to the extent that the judgment of the subordinate court in respect of the award of Kshs. 650,000.00 is set aside and substituted with an award of Kshs. 450,000.00. Since the error of the award was by the trial court itself, there is no order as to costs in respect of this appeal.
DATED SIGNED AND DELIVERED virtually this 3 rd DAY OF SEPTEMBER
2026
............................................................................
J W W MONGARE
JUDGE
IN THE PRESENCE OF
1. Mr. Ndegwa for the Appellant
2. Ms. Miya holding brief for Mr. Obwoge for the Respondent
3. Abdisalan- Court Assistant
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