Introduction
1. This appeal arises from the judgment delivered on 28th July 2023 by Hon. B. Toroitich (RM) in Homabay CMCC No. E113 of 2022.
2. The Appellants seek orders that:
a) The appeal be allowed with costs.
b) The judgment on liability and quantum be set aside and the Respondent’s suit be dismissed with costs.
c) In the alternative, this Court reassesses liability and quantum downwards.
d) Costs of the appeal and the lower court be awarded to the Appellants.
e) Such further orders as this Court may deem fit.
Background
3. The Respondent, a minor aged 8 years at the time of the accident, sued the Appellants for injuries sustained when motor vehicle KCX 819Y Toyota Wish, allegedly driven negligently, veered off the road and knocked him.
4. As a result of the accident, the Respondent sustained the following injuries:
o Open fracture of the right distal tibia
o Open fracture of the distal fibula
o Deep cut wound on the right lower distal medial aspect
o Cut wound on the forehead
5. The Appellants denied liability, and the Respondent was put to strict proof. The Respondent called five (5) witnesses. Medical evidence was tendered by both parties. The Respondent’s doctor assessed permanent disability at 50%, while the Appellants’ doctor assessed disability at 15%.
6. The trial court found the Appellants 100% liable and awarded Kshs. 900,000/= as general damages for pain, suffering, and loss of amenities.
Grounds of Appeal
7. The appeal is premised on the grounds that the Learned Trial Magistrate erred in law and fact by:
o Holding the Appellants 100% liable contrary to evidence.
o Failing to apply proper principles in assessment of damages.
o Awarding excessive general damages.
o Relying on extraneous matters and irrelevant submissions.
o Failing to consider comparable awards.
Submissions
8. The appeal was canvassed by way of written submissions. The Respondent filed submissions; while Appellants did not.
9. The Respondent relied on, inter alia:
o Nahashon Nyabaro Nyandega v Peter Omboga [2021] eKLR
o Daniel Otieno & another v Elizabeth Atieno Owuor [2020] eKLR
o Paulina Gesare Onami v Samuel Changamure & another [2017] eKLR
10. The Respondent further cited James Gathirwa Ngungi v Multiple Hauliers (EA) Ltd & another [2015] eKLR, where Kshs. 1,500,000/= was awarded for more severe injurie
Analysis
Duty of the First Appellate Court
11. This being a first appeal, this Court is duty-bound to re-evaluate the evidence and draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses, as held in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123.
Liability
12. The trial court found the Appellants 100% liable. The Appellants argue that the minor should have been held contributorily negligent.
13. Evidence on record shows that the accident occurred and that the Appellants’ motor vehicle knocked the minor. Ownership of the motor vehicle was not disputed.
14. Although PW4 gave inconsistent testimony on whether they were walking on the left or right side of the road, and the investigating officer stated that the child was crossing the road, these inconsistencies do not displace the higher duty of care owed by a motorist to other road users, especially children.
15. In Stapley v Gypsum Mines Ltd [1953] AC 663, Lord Reid emphasized that causation must be determined using common sense, bearing in mind proximate cause.
16. The Respondent was 8 years old, a child of tender years. The law is settled that a child of tender years cannot be held contributorily negligence.
17. In Edward Mariga (suing through Stanley Mobisa Mariga) v Nathaniel David Schulter & another [1997] eKLR, the Court of Appeal held that a child of tender age cannot be held liable for contributory negligence. It is trite law that a reasonable driver is supposed driver in a manner to allow him to control the vehicle any case of any emergency like in cases where children . mentally challenged persons or animals suddenly cross the road.
18. I find that the driver of the Appellants’ motor vehicle failed to exercise due care expected of a reasonable driver, particularly in an area where children were present. The proximate cause of the accident was the driver’s failure to control the vehicle as he was speeding
19. I therefore uphold the finding of the trial court on liability at 100% against the Appellant.
Quantum of Damages
20. The Respondent sustained serious fractures and soft tissue injuries. Medical evidence placed permanent disability at 15% according to the Appellants’ doctor.It is trite law that an appellate court will only interfere with an award of damages if it is shown that the trial court acted on wrong principles or that the award is so inordinately high or low as to represent an erroneous estimate. See Kemfro Africa Ltd t/a Meru Express Service v Lubia [1982–88] 1 KAR 727.In Simon Taveta v Mercy Mutitu Njeru [2014] eKLR, the Court of Appeal emphasized that comparable injuries should attract comparable awards, adjusted for inflation.
21. The trial court considered comparable authorities and the age of the Respondent, and all the necessary factors and awarded general damages in the sum of Kshs Kshs. 900,000/=.
22. Having re-evaluated the nature of injuries, degree of permanent disability, comparable awards, and the lapse of time with inflationary trends, I find that the award of Kshs. 900,000/= was reasonable in the circumstances .
23. There is no basis for this Court to interfere with the award.
Disposition
26. In the upshot:
a. The appeal lacks merit and is hereby dismissed.
b. Liability at 100% against the Appellants is upheld.
c. The award of Kshs. 900,000/= as general damages is upheld.
d. Costs of the appeal and the lower court are awarded to the Respondent.
Delivered virtually via Microsoft Teams on this 21st day of November 2025 in the presence of
Mr. Ongoro h/b for Miss Kuke for the Respondent.N/A for the appellant .
Court Assistant: Kipchirchir.
1. This appeal arises from the judgment delivered on 28th July 2023 by Hon. B. Toroitich (RM) in Homabay CMCC No. E113 of 2022.
2. The Appellants seek orders that:
a) The appeal be allowed with costs.
b) The judgment on liability and quantum be set aside and the Respondent’s suit be dismissed with costs.
c) In the alternative, this Court reassesses liability and quantum downwards.
d) Costs of the appeal and the lower court be awarded to the Appellants.
e) Such further orders as this Court may deem fit.
Background
3. The Respondent, a minor aged 8 years at the time of the accident, sued the Appellants for injuries sustained when motor vehicle KCX 819Y Toyota Wish, allegedly driven negligently, veered off the road and knocked him.
4. As a result of the accident, the Respondent sustained the following injuries:
o Open fracture of the right distal tibia
o Open fracture of the distal fibula
o Deep cut wound on the right lower distal medial aspect
o Cut wound on the forehead
5. The Appellants denied liability, and the Respondent was put to strict proof. The Respondent called five (5) witnesses. Medical evidence was tendered by both parties. The Respondent’s doctor assessed permanent disability at 50%, while the Appellants’ doctor assessed disability at 15%.
6. The trial court found the Appellants 100% liable and awarded Kshs. 900,000/= as general damages for pain, suffering, and loss of amenities.
Grounds of Appeal
7. The appeal is premised on the grounds that the Learned Trial Magistrate erred in law and fact by:
o Holding the Appellants 100% liable contrary to evidence.
o Failing to apply proper principles in assessment of damages.
o Awarding excessive general damages.
o Relying on extraneous matters and irrelevant submissions.
o Failing to consider comparable awards.
Submissions
8. The appeal was canvassed by way of written submissions. The Respondent filed submissions; while Appellants did not.
9. The Respondent relied on, inter alia:
o Nahashon Nyabaro Nyandega v Peter Omboga [2021] eKLR
o Daniel Otieno & another v Elizabeth Atieno Owuor [2020] eKLR
o Paulina Gesare Onami v Samuel Changamure & another [2017] eKLR
10. The Respondent further cited James Gathirwa Ngungi v Multiple Hauliers (EA) Ltd & another [2015] eKLR, where Kshs. 1,500,000/= was awarded for more severe injurie
Analysis
Duty of the First Appellate Court
11. This being a first appeal, this Court is duty-bound to re-evaluate the evidence and draw its own conclusions, bearing in mind that it neither saw nor heard the witnesses, as held in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123.
Liability
12. The trial court found the Appellants 100% liable. The Appellants argue that the minor should have been held contributorily negligent.
13. Evidence on record shows that the accident occurred and that the Appellants’ motor vehicle knocked the minor. Ownership of the motor vehicle was not disputed.
14. Although PW4 gave inconsistent testimony on whether they were walking on the left or right side of the road, and the investigating officer stated that the child was crossing the road, these inconsistencies do not displace the higher duty of care owed by a motorist to other road users, especially children.
15. In Stapley v Gypsum Mines Ltd [1953] AC 663, Lord Reid emphasized that causation must be determined using common sense, bearing in mind proximate cause.
16. The Respondent was 8 years old, a child of tender years. The law is settled that a child of tender years cannot be held contributorily negligence.
17. In Edward Mariga (suing through Stanley Mobisa Mariga) v Nathaniel David Schulter & another [1997] eKLR, the Court of Appeal held that a child of tender age cannot be held liable for contributory negligence. It is trite law that a reasonable driver is supposed driver in a manner to allow him to control the vehicle any case of any emergency like in cases where children . mentally challenged persons or animals suddenly cross the road.
18. I find that the driver of the Appellants’ motor vehicle failed to exercise due care expected of a reasonable driver, particularly in an area where children were present. The proximate cause of the accident was the driver’s failure to control the vehicle as he was speeding
19. I therefore uphold the finding of the trial court on liability at 100% against the Appellant.
Quantum of Damages
20. The Respondent sustained serious fractures and soft tissue injuries. Medical evidence placed permanent disability at 15% according to the Appellants’ doctor.It is trite law that an appellate court will only interfere with an award of damages if it is shown that the trial court acted on wrong principles or that the award is so inordinately high or low as to represent an erroneous estimate. See Kemfro Africa Ltd t/a Meru Express Service v Lubia [1982–88] 1 KAR 727.In Simon Taveta v Mercy Mutitu Njeru [2014] eKLR, the Court of Appeal emphasized that comparable injuries should attract comparable awards, adjusted for inflation.
21. The trial court considered comparable authorities and the age of the Respondent, and all the necessary factors and awarded general damages in the sum of Kshs Kshs. 900,000/=.
22. Having re-evaluated the nature of injuries, degree of permanent disability, comparable awards, and the lapse of time with inflationary trends, I find that the award of Kshs. 900,000/= was reasonable in the circumstances .
23. There is no basis for this Court to interfere with the award.
Disposition
26. In the upshot:
a. The appeal lacks merit and is hereby dismissed.
b. Liability at 100% against the Appellants is upheld.
c. The award of Kshs. 900,000/= as general damages is upheld.
d. Costs of the appeal and the lower court are awarded to the Respondent.
Delivered virtually via Microsoft Teams on this 21st day of November 2025 in the presence of
Mr. Ongoro h/b for Miss Kuke for the Respondent.N/A for the appellant .
Court Assistant: Kipchirchir.