Kenneth Dimosh Otieno v Nw (minor Suing Through Mother and Next Friend Sm)

5. i. That the Learned Trial Magistrate erred in Law and Fact in failing to appreciate the reasonable and sufficient evidence tendered by the Defendant in Court hence erroneously holding the defendant/Appellant 100% liable. ii. That the Learned Trial Magistrate erred in Law and Fact in treating the Plaintiff as juvenile hence arriving at an erroneous conclusion that he would not be held liable in contributory negligence. iii. That the Learned Trial Magistrate erred in Law and Fact in failing to consider the Appellant’s Statement of Defence and his evidence against the weight of evidence tendered by the Plaintiff hence arriving at wrong conclusion on liability. iv. The Learned Trial Magistrate erred in law and fact in failing to evaluate the evidence in its totality and in failing to take into consideration Submissions and Authorities submitted by the Appellant. v. That the Learned Trial Magistrate erred in Law and Fact in failing to appreciate the reasonable and sufficient evidence tendered in Court when assessing and awarding damages hence arriving at an award which award when viewed against the awards in comparable claims is manifestly excessive and inordinately high as to amount to a miscarriage of justice. vi. The said award of Damages is out of keep with other Kenyan awards for comparable/similar claims. vii. The Learned Trial Magistrate failed to exercise his discretion judiciously in awarding General Damages and failed to consider the Appellant’s submissions and authorities and/or apply the settled principles of law and thus there was no good or proper basis for the said Assessment of Damages. The duty of an appellate Court in civil proceedings is well known. In words of De Lestang V-P in the Court of Appeal for East Africa case of Selle V. Associated. Motor Boat Co. (1968) EA 123, 126: “ An appeal to this Court from a trial by the High 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. In particular this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally (Abdul Hameed Saif v. Ali Mohamed Shalom (1955), 22, E.A.C.A. 270).” Evidence 6. PW1, Elias Adoka, testified that he was a Clinician based at Bungoma County Referral Hospital and that he was in Court to produce the Respondent’s treatment notes, discharge summary dated 14th October 2020 (PEXH1) and P3 form filled on 21st October 2020(PEXH2). According to him, the Respondent was brought to the facility on 4th October 2020, with an open olecranon process fracture and protruding part of the elbow, and that the injuries were 3 weeks old. He was duly placed on analgesics and arm-sling He told the Court that he ascertained the degree of harm as grievous. He also produced in Court the payment receipts dated 14th October 2020 totaling to Kshs. 17,000/= as PEXH3(a). On cross-examination, he told the Court that he had noted that the discharge summary https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18150/eng@2025-11-27 2

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bore the Bungoma Referral Hospital’s letter head but they did not bear the doctors signature, stamps or seals as it was not the practice at the hospital to stamp discharge summaries. He stated that he could not tell if the Respondent suffered any permanent incapacitation as he had not been able to see him thereafter and was not sure if his injuries had healed. 7. PW2, No. 81xxx PC Woman Jackline Were, testified that she was attached to the Traffic Department at Bungoma Police station and she was in Court to avail the Police Abstract of the Respondent, Newton Wafula, dated 22nd October 2020. She testified that a road traffic accident had occurred on 4th October 2020 along Bungoma-Chwele road involving motor vehicle registration number KBD 173Q Toyota Saloon and a juvenile pedestrian. She told the Court that the accident was reported on the same day vide OB N0. 43. She produced in Court the Police Abstract as PEXH4. On cross-examination, she told the Court that she was not the investigating officer in that matter as the investigating officer was on transfer and that she had been able to peruse the Police file and sketch map of the scene and the advice from the ODPP, and that the outcome of the investigations could not be confirmed as the Police Abstract indicated that investigations were still pending. 8. PW3, Dr. Joseph Sokobe, testified that he was before the Court to produce the medical-legal report of the Respondent minor dated 21st October 2020. According to him, the injuries sustained had been noted in the report and that he had charged Kshs. 6,000/= for the said report. He produced in Court the medical-legal report dated 21st October 2020 as PEXH5(a) and the receipt of payment of Kshs. 6,000/= dated 21st October 2020 as PEXH5 (b). On cross-examination, he averred that the age of the injuries on the minor were 17 days old and at the point of his examination of the minor the injuries had not yet to fully healed. He also told the Court that he had not had the opportunity to re-examine the minor and that if he had been given the opportunity to do so at that point the injuries would have been fully healed. He confirmed that the minor did not suffer any possible residual effects. On reexamination, he told the Court that he had not re-examined the victim in the past and he could not ascertain full recovery because there were no residual effects on the Respondent. He reiterated that at the time he examined the Respondent he had noted that he had a fracture of the ……………. 9. PW4, NW, testified that he was the claimant in that matter and that he was at the material time a student at [Particulars Withheld] University. He recalled on 4th October 2020, he was involved in a road traffic accident and that he recorded his statement on 2nd December 2020, which he relied upon as his examination-in-chief. He told the Court that he was treated at Bungoma County Referral Hospital and was later on examined by PW3. He testified that he had conducted a search on motor vehicle KBD 173Q and learnt that the owner of the said vehicle was the Appellant herein. He told the Court that he had been charged 550/= for the search and he produced a copy of the receipt in Court. He told the Court that he had not been crossing the road at the time of the accident and that it was due to the Appellant driving at high speed that caused him to loose control of his vehicle and as a result he knocked him off the road. On cross-examination, he testified that he was knocked on the right side of the road and that he was on the side of the road when the accident occurred. On re-examination, he reiterated that he was neither on the road or in the middle of the road when the accident occurred. 10. At the close of the Respondent’s case, the Appellant rendered his evidence in Court as DW1. He told the Court that he was an automotive engineer by profession and he relied on his recorded statement dated 6th February 2022, as his evidence in chief. He told the Court that on the day of the accident he was headed to Chwele via Kamukuywa. On arriving at T-Junction, the Respondent herein crossed the road suddenly from his right side to the left side where he was and that he attempted to apply the brakes but the Respondent bumped onto his bonnet and fell on the tarmac. He said that he was the owner of motor vehicle registration number KBD 173Q. He told the court that since it was a market area, if one lost control, it was not possible to just knock down one person. He told the Court that https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18150/eng@2025-11-27 3

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he was the one who had rushed the Respondent to the hospital and that he was not to blame for the accident. He revealed that he had sent the Respondent’s mother over Kshs. 30,000/= via M-Pesa but he did not avail the M-Pesa statements. On cross-examination, he told the Court that he had channeled the money straight to the Respondent’s mother. He testified that he was headed to Kamukuywa from Bungoma town when the accident occurred while driving at a speed of 50 Km/h or less. He told the Court that there were people at the scene who witnessed the accident, but he did intend to call any eye witness. He maintained that he had not been driving at high speed as alleged and that the damages on his motor vehicle were on the bonnet and windscreen. He told the Court that an inspection was done but he did not avail the motor vehicle inspection report. On re-examination, he noted that the only damage that his vehicle sustained was on the bonnet and that he had never been charged for any traffic offence subsequent to the said accident. 11. After considering the evidence before him and the submissions of both parties, the trial magistrate found the Respondent had proved his case on a balance of probabilities and he apportioned 100% liability on the Appellant. On quantum, he proceeded to award the Respondents as follows: general damages-Kshs. 900,000/=, Special damages- Kshs. 23,550/= plus costs and interest at Court rate. Appeal 12. This appeal challenges the trial magistrate’s judgment on the twin issues of liability and quantum. 13. Vide Court directions, this appeal was canvassed by way of written submissions. Both parties complied with the Court directives. Appellant’s submissions 14. The Appellant disputes both the liability and the quantum of damages awarded. 15. In the issue of liability, the Appellant argues that the trial Court failed to consider the circumstances of the accident and relied on emotional reasoning rather than evidence. The Appellant claims the Respondent was reckless in crossing the road at an undesignated pedestrian crossing and contributed to the accident. The Appellant disputes the trial Court's finding of 100% liability, asserting that there were conflicting versions of the accident and no independent witnesses to corroborate either party's account. The Appellant relies on legal precedents, such as Kiema Mutuku v Kenya Hauliers Service Limited and Barclay-Steward Limited & Another v Waiyaki 1982-88) to argue that liability should be shared equally between parties due to the lack of conclusive evidence. 16. On the issue of Quantum of Damages, the Appellant contends that the award of Kshs. 900,000/= in general damages was inordinately high and based on wrong principles. The Appellant compares the injuries sustained by the Respondent (fractured left ulna and degloving injury to the left elbow) to injuries in other cases, arguing that the award should be reduced to Kshs. 300,000/=. The Appellant criticizes the trial Court for relying on a precedent involving more severe injuries and for increasing the award beyond what the Respondent had requested. The Appellant relies on Shabani v City Council of Nairobi (1985) KLR 516 at 518-9, Lawrence Musyoka Mulonzi & Another v Daniel John Kato Ndambuki (Civil Appeal 32 of 2018) (2020) KEHC 4749 (KLR) and Moraa Maangi v Kerumbe Tea Estate & Another (Civil Appeal 41 of 2008) (2011) KEHC 3231 (KLR) to argue for a lower award based on the severity of injuries. The Appellant argue that an award of Kshs. 100,000/= will be sufficient based on the injuries sustained by the Respondent. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18150/eng@2025-11-27 4

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Respondent’s submissions 17. Opposing the appeal, the Respondent submits on both the liability and the quantum of damages awarded. 18. On the issue of liability, the Respondent argues that the trial Court’s holding on liability was correct and the same ought to be upheld. The Respondent argued that the trial magistrate correctly found the Appellant 100% liable for the accident based on the following: 19. a. The Appellant was the registered owner of the vehicle involved (Reg. No. KBD 173Q). b. The Appellant's driver (DW1) admitted to driving the vehicle and knocking the Respondent, who was lawfully on the left side of the road. c. The accident was caused by the Appellant's negligence, as evidenced during the trial. On the issue of quantum, the Respondent submitted that the trial magistrate's award of damages was proper and based on sound legal principles. The Respondent relied on the case of Butt vs. Khan (1981) KLR 198, which established that an appellate Court should not interfere with an award of damages unless it is inordinately high or low, or based on wrong principles. The Respondent argues that he suffered a fracture of the left ulna (olecranon process open) and was hospitalized for 10 days, incurring medical expenses of Kshs. 17,000/=. The trial Court relied on judicial precedents cited in the Respondent's lower Court submissions, which involved similar injuries and comparable awards. The Respondent insists that the award of Kshs. 923,550/= was reasonable and within the range of awards in similar cases. The Respondent urges this Court to find that the Appellant’s appeal lacks merit as the Appellant failed to prove any error in the trial Court's findings on liability or quantum. Further, that the trial Court's judgment should be upheld, and the appeal dismissed with costs to the Respondent. Determination 20. Having considered the grounds of appeal, the respective parties’ submissions and the entire record, it is my opinion that the two issues for determination are: who was liable for the accident and whether the damages awarded by the trial Court are sufficient. Liability 21. In the premises, the Appellant owed a duty of care to pedestrians who were using the street not to drive his vehicle in a manner that could cause injury to the other users of the road. It would appear to me that the Appellant was driving without due care and attention as a result of which he knocked down the Respondent. The driver was partly to blame for causing the accident. 22. A pedestrian owes a duty of care to be on the look-out when using a road. In this case the Respondent was standing along Bungoma-Chwele road on the left-hand side facing Bungoma general direction when he was hit by the Respondent. On my analysis of the availed evidence the Respondent was not walking on the road but was stoic. The level of damage incurred by the Respondent and the damage on the Respondent’s bonnet clearly indicate one thing, which is, the Respondent was not driving at 50Km/Hr as alleged in his evidence. The Respondent was a child when the accident occurred and the level of duty of care that the Respondent owed to drive carefully was very high. This Court cannot apportion liability on the Respondent as the Appellant did not avail any contrary evidence to challenge the evidence availed by the Respondent that he was to blame for the accident. It is clear that both the pedestrians and motorists are expected to be mindful of other road users. In Kennedy Macharia Njeru https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18150/eng@2025-11-27 5

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v Packson Githongo Njau & another (2019) eKLR, Gitari J held as follows on the issue of contributory negligence: “ In determining liability, the court must consider the facts of the case and come to a conclusion as to what mostly contributed to the cause of the accident. The Court will consider the manner of driving, identify the person who was at fault and place the blame on him. Where the facts and circumstances are such that it is not clear who was at fault and who was to blame, the court will apportion liability.” 23. In this case based on how the accident occurred, the damage on the Appellant’s car and the injuries incurred by the Respondent it is very clear that the Appellant did not exercise proper duty of care when he was on the road especially in an area where there is a market located close by and he was not operating his motor vehicle at 50 Km/Hr as he claims. 24. As it was clear as to who between the driver of the motor vehicle and the Respondent owed the other the highest level of duty of care. It is clear that the Appellant was to blame for the accident. I am of the view that the trial Court was correct in apportioning liability wholly on the Appellant. Quantum 25. As this is an appeal against an award of damages, the general principle applicable is that the appellate Court should be slow to interfere with the discretion of the trial Court to award damages except where the trial Court acted on wrong principles of the law, that is to say, it took into account an irrelevant factor or failed to take into account a relevant factor, or due to the above reasons or other reason, the award is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages see Butt v Khan [1982-88]1KAR 1 and Mariga v Musila [1982-88] 1 KAR 507). In Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja vs Kiarie Shoe Stores Limited [2015] eKLR, the Court of Appeal restated this principle as follows: “ 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 medical report prepared by Dr Joseph C. Sokobe dated 21st October 2020 noted that the Respondent had suffered fracture of the left ulna (olecranon process open) and degloving injury to the left elbow. That at the time of examination the Respondent complained of inability to use his upper limb. He also noted that the Respondent’s left upper limb was in a plaster of paris and suspended by an arm sling. 27. The Respondent had craved for an award of Ksh 800,000/= by way of general damages.He relied on the case of Lawrence Musyoka Mulonzi & Another v Daniel John Kato Ndambuki (Civil Appeal 32 of 2018) (2020) KEHC 4749 (KLR) where an award of Kshs. 750,000/= was made for fracture left olecranon process, injury to the chest, injury to the knee and bruises on the forehead. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18150/eng@2025-11-27 6

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28. On his part the Appellant submitted for an award of Ksh. 300,000/= and relied on the cases of Jubilee Haulier Limited & Another vs Mary Waithera Wanja (2019) eKLR and Gogni Construction Company Limkited vs Francis Ojuok Olewel (2015) eKLR. 29. The trial Court placed reliance on the authorities cited by the Respondent. 30. In the case of Kennedy Ago Lidweye v Steel Plus Limited [2012] KEHC 4671 (KLR), where the Respondent had sustained a compound fracture of the right distal radial ulna and the award of Kes. 600,000/= was upheld. 31. I have considered the authorities cited by the parties vis a viz the awards made by the trial court and I note that no one case is exactly similar to the other and all that courts do is to give a comparative analysis based on the nature of injuries, degree of temporary or permanent incapacity, the age of the authorities cited and inflationary trends. 32. In the case of Mbogo and Another v. Shah [1968] EA 93 the Court stated: “ … that this Court will not interfere with the exercise of judicial discretion by an inferior court unless it is satisfied that its decision is clearly wrong, because it has misdirected itself or because it has acted on matters on which is should not have acted or because it failed to take into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.” 33. In this instant appeal Respondent had suffered fracture of the ulna (olecranon process open) and degloving injury to the left elbow. The award of Kshs. 900,000/= was proper bearing in mind the parameters set forth hereinabove. The appellant has not demonstrated that the trial court misdirected itself by considering extraneous facts or by failing to consider relevant facts. I will therefore not disturb the award of general damages. 34. The lower Court’s award of Kes. 23,550/=as special damages were not impugned. 35. Accordingly, the appeal is not merited and is dismissed with costs to the Respondent. Orders accordingly. DELIVERED, SIGNED AND DATED AT BUNGOMA THIS 27TH DAY OF NOVEMBER,2025. MWANAISHA S. SHARIFF JUDGE In the presence of : Mr. Kurgat for the Appellant Mr. Shikhu h/b for Mr. Mukisu for the Respondent Peter Machoni, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/18150/eng@2025-11-27 7

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