George Orina Ondieki v Frankline Morara Ogero

3. The Appellant did not enter appearance or file a Defence thereby prompting the trial court to enter an interlocutory judgment against him after which the case proceeded to formal proof. At the close of the trial, judgment was on 15th December 2020 entered in favour of the Plaintiff as follows: Liability at 100% against the Defendant General Damages – Kshs. 1,000,000/= Special Damages – Kshs. 12,050/= Costs and Interests on all the above at court rates. 4. The Appellant’s motor vehicle registration No. KCP 700N Toyota Harrier was thereafter attached by the Auctioneers in execution of the decree, thus precipitating the filing of an Application dated 15th March 2021 for orders to stay the execution of the decree, set aside the judgment and for leave to file a defence. 5. On 15th June 2021 parties recorded a consent to set aside the interlocutory judgment. 6. The Appellant subsequently filed a Statement of Defence in which he denied all the averments made in the Plaint. He attributed the accident in question to the negligence to the Plaintiff. 7. The matter thereafter proceeded to a full hearing in which the Plaintiff called a total of 3 witnesses, namely; No. 65548 Cpl. Albert Micha who produced the Police Abstract, PW2, Timothy Mokua Ombati, the medical officer and the Plaintiff (PW3). 8. At the close of the Plaintiff’s case, the Appellant/Defendant adopted his witness statement dated 13th September 2023 as his evidence in chief. 9. At the close of the trial. judgment was once again entered in favour of the Plaintiff as follows: Liability at 100% against the Defendant General Damages – Kshs. 500,000/= Special Damages – Kshs. 8,050/= Total – Kshs. 508,050/= Costs and Interests on all the above at court rates. The Appeal 10. Aggrieved by trial courts said decision, the Appellant filed the present Appeal wherein he seeks orders to set aside the trial court’s judgment and a fresh assessment on liability and quantum together. He listed the following grounds of appeal in the Memorandum of Appeal: 1. That the Learned Magistrate erred in fact and in law by finding the Appellant 100% liable on liability and totally disregarding the Appellant’s evidence on circumstances leading to the Respondent’s injuries. 2. That the Learned Magistrate erred in law and in fact and thereby awarding manifestly excessive quantum of damages payable by the Appellant to the Respondent. 3. That the Learned Magistrate erred in law and in fact by basing his decision on irrelevant matters and failing to base his said decision on the facts and evidence on record and thereby making an award in general damages that was not supported by law. https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19381/eng@2025-10-30 2

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11. The Appeal was canvassed by way of written submissions which I have considered. 12. The duty of the first appellate court was stated in the case of Selle vs. Associated Motor Boat Company (1968) EA 123, per Sir Clement who held that: “ This court must consider the evidence, evaluate itself and draw its own conclusions. Though in doing so it should always bear in mind that it neither heard 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 had 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.” Analysis and Determination 13. Having considered the record of appeal and the parties’ respective written submissions, I find that the main issue for determination is whether the trial court arrived at the correct finding on liability and quantum. Liability 14. PW3, the Respondent herein testified that the Appellant’s vehicle hit a bump, lost control, veered off the road and hit him and his pillion passenger at a parking area. The Appellant, on the other hand, testified that he was driving on his lane at Ekerenyo area when the Respondent joined the road from a petrol station without observing the traffic rules and hit his vehicle on the head lamp and bumper. 15. I note that PW1 confirmed that he was not the investigating officer and that he did not have the sketch plan of the accident scene that could have assisted the court in determining the exact point of impact. 16. From the rival accounts of the Appellant and Respondent on how the accident occurred, this court is not able to determine, with certainty, how the accident occurred, which party was to blame and to what extent. My view is that both parties had a duty duty of care towards other road users. 17. In the circumstances of the case and based on the evidence on record, I find that the Appellant was 60% liable while the Plaintiff/Respondent ought to be held 40% liable for the accident. Quantum 18. The principles governing the assessment of quantum of damages were restated in the case of Catholic Diocese of Kisumu vs. Sophia Achieng Tete Civil Appeal No. 284 of 2001 [2004] 2 KLR 55 where the Court of Appeal held that: “ It is trite law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.” https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19381/eng@2025-10-30 3

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19. 20. I have considered the nature of injuries that the Respondent sustained in the accident as shown in the Treatment Notes and the P3 Form together with the medical report. He suffered the following injuries: i. Red eye ii. Intermittent headaches iii. Chest tenderness with bruises on the right lower back iv. Fracture of the left index finger metacarpal v. Healing cut wound on the right lumbar region vi. Deep cut wound that is sutured on the right hip region vii. Multiple bruises on the knees viii. Fracture of right bimalleolar that is stabilized by POP It is trite that when assessing damages, courts are guided by comparable awards made for similar injuries in decided cases. In Stanley Maore vs. Geoffrey Mwenda NYR CA Civil Appeal No. 147 of 2002 [2004] eKLR the Court of Appeal stated that:“ Having so said, 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.” 21. I have therefore considered the following authorities: a. In Miriam Njeri Murimi vs. Kenya Broadcasting Corporation Nairobi HCCC No. 1127 of 1993 (2009) eKLR the plaintiff was awarded Kshs. 450,000/= for cut wounds on the head and right forearm, bruising on both head and right forearm, fractured ribs L1-6 and R11-12, right haemothorax, fracture dislocation of the right hip and fracture dislocations of right shoulder joints. b. In Civicon Limited vs. Richard Njomo Omwancha & 2 Others [2019] KEHC 8373 (KLR), one of the claimants, Richard Omwancha, sustained a swollen lacerated iliac region, bruises on the left knee joint, swollen and tender left knee, bruised and tender left ankle joint, bruises on the left foot and pelvic fractures. He was awarded Kshs. 1,000,000/= which was reduced to Kshs. 450,000/= by the Court on Appeal. 22. I have considered the age of the above cited cases and the inflationary trends that have reduced the value of the Kenyan shilling since the above cited cases were decided and I find that the trial court correctly assessed the general damages. I find no reason to interfere with the said award. 23. In the final analysis, I find that this appeal is merited and I therefore allow it, albeit only in part, in respect to the finding on liability. Consequently, I make the following final orders: Liability at 60:40% in favour of the Respondent/Plaintiff General Damages – Kshs. 500,000/= Less contributory negligence – (Kshs. 200,000/=) https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19381/eng@2025-10-30 4

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Total Award – Kshs. 300,000/= Special Damages – Kshs. 8,050/= Total – Kshs. 308,050/= I award the Respondent the costs of this appeal and Interests on all the above awards at court rates till payment in full. 24. Orders accordingly. JUDGMENT DATED, SIGNED AND DELIVERED AT NYAMIRA VIRTUALLY VIA MICROSOFT TEAMS THIS 30TH DAY OF OCTOBER 2025. W. A. OKWANY JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19381/eng@2025-10-30 5

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