Akothe v Busolo (Civil Appeal E071 of 2022) [2025] KECA 1155 (KLR)
The bottom line
#Kenya's Court of Appeal upheld a Kshs.2,000,000 injury award, confirming second appeals only address legal errors, not factual re-evaluation.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether the learned Judge properly exercised his role as a first appellate court in re-evaluating the evidence
- 2.Whether the trial court erred in preferring one medical report over the other without giving reasons
- 3.Whether the award of Kshs.2,000,000 general damages was inordinately high and/or excessive
- 4.Whether the award of damages should have been made as a lumpsum rather than 'after contribution' (subject to apportionment of liability)
- 5.Whether the award of costs to the respondent was proper
Key legal issues
#Scope of second appeal
The Court's jurisdiction on a second appeal is confined to matters of law under Section 72(1) of the Civil Procedure Act; it will only intervene where the courts below considered matters they should not have, failed to consider matters they should have, or where the decision is perverse.
Relying on Kenya Breweries Ltd v Godfrey Odoyo, the Court held that a second appellate court must not re-evaluate facts. Liability having been settled by consent at 40:60, the appeal was limited to quantum. The Court found the Judge had properly re-evaluated the evidence as first appellate court and identified no error of law.
Weight of conflicting medical reports
Where two medical reports agree on the injuries sustained, they are of equal probative value and the choice between them lies within the trial court's discretion; the appellant who did not impugn the expertise of either doctor cannot complain of the preference shown.
Both Dr. Ndegwa's and Dr. Sheth's reports confirmed the same serious injuries to the right femur, tibia and fibula. Dr. Sheth, whose report the appellant favoured, had been appointed by the appellant himself. No suggestion of incompetence was made; hence no error of law arose from the trial court's selection of one report.
Interference with quantum of damages
The award of Kshs.2,000,000 was neither excessive nor based on a wrong principle; comparable awards must be adjusted for the passage of time and inflation, making the appellant's proposed Kshs.500,000 unreasonable.
The Court applied the settled principles in Kitavi v Coastal Bottles and Arrow Car Ltd: appellate courts interfere only where the award is an erroneous estimate or a wrong principle was applied. The comparable authority cited by the appellant (David Kiplangat Sang) was 12 years old, so its award of Kshs.500,000 could not stand as a benchmark. The trial court's award fell within the range sought by the respondent.
Assessment of damages 'after contribution'
It is proper for a trial court to apportion liability first and award damages payable subject to the apportionment; however, the court should expressly pronounce that the award is payable less the agreed percentage of contributory negligence.
The Court rejected the appellant's contention that assessment after apportionment was unknown in law, holding it a proper sequence. But it found a curable defect: the Magistrate should have specifically stated that the Kshs.2,000,000 was payable less 40% contributory negligence, an omission the Judge also failed to correct. The Court corrected this by upholding the award subject to the contributory negligence.
Legal principles established
#- On a second appeal, the Court of Appeal is confined to matters of law only and must resist delving into matters of fact.
- An appellate court will only disturb a trial court's assessment of damages where the trial judge took into account a factor he ought not to have, or where the award is so high or so low that it amounts to an erroneous estimate.
- In assessing damages, comparable injuries should, as far as possible, be compensated by comparable awards, keeping in mind the correct level of awards in similar cases and the passage of time (inflation).
- Where a finding of contributory negligence is made, the trial court must first apportion liability and then award damages payable subject to that apportionment.
Court orders
#- 1.Appeal dismissed with costs to the respondent
- 2.Judgment of the High Court at Malindi (Nyakundi, J.) delivered on 15th April 2020 upheld
- 3.Award of Kshs.2,000,000 general damages upheld subject to 40% contributory negligence
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya at Malindi
- Malindi Civil Appeal No. E071 of 2022 (referred to elsewhere as Malindi High Court Civil Appeal No. 41 of 2018)
- Jurisdiction invoked
- Section 72(1) of the Civil Procedure Act - second appeal confined to matters of law
Relief refused
#Substitution of the award with Kshs.500,000 general damages
Comparable injuries must be compensated by comparable awards adjusted for inflation; the 12-year lapse since the comparable authority made Kshs.500,000 unreasonable
Interference with the trial court's reliance on one of the two medical reports
Both medical reports were of equal probative value and agreed on the injuries sustained
Costs
Appeal dismissed with costs to the respondent
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
In a second appeal however, such as this one before us, we have to resist the temptation of delving into matters of facts. This Court, on second appeal, confines itself to matters of law
in assessment of damages the general method of 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.
It is trite law that, in assessing award of damages, the court should take into account, so far as possible, comparable injuries and the passage of time from when the award was made, that is the rate of infiation.
All matters considered, both medical reports were of equal probative value.
We find that the appeal lacks merit and is hereby dismissed with costs to the respondent. We accordingly uphold the Judgment in the High Court at Malindi [Nyakundi, J.] delivered on 15th April, 2020.
Issues in the judgment
#Inconsistent case number for the first appeal: paragraph 1 refers to Malindi Civil Appeal No. E071 of 2022, while paragraph 14 refers to Malindi High Court Civil Appeal No. 41 of 2018 for the same appeal
Internally inconsistent dates for trial exhibits: documents dated 2025 (P3 Form dated 14th April 2025; Police Abstract dated 28th April 2025; Motor Vehicle Search dated 6th May 2025) are described as produced in a suit arising from a 2015 accident and a 2016 plaint, while the same medical report is elsewhere dated 28th April 2015 and a Dr. Sheth report is dated 30th July 2014 though he examined the respondent on 21st April 2016
The judgment is described as a second appeal from Malindi Civil Appeal No. E071 of 2022, yet that judgment is stated to be dated 15th April 2020, predating the case number year 2022
The case citation for 'Kimatu Mbuvi t/a' is truncated and incomplete in the judgment text
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Akothe v Busolo (Civil Appeal E071 of 2022) [2025] KECA 1155 (KLR)", Case Analysis (2025). Second Appeal from Malindi Civil Appeal No. E071 of 2022 (also referred to as Malindi High Court Civil Appeal No. 41 of 2018). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2025/1155/eng@2025-06-20
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.