Evans Onyancha Omwoyo v Watu Nominees Company Limited & 1 other

3. The Defendants/Respondents entered appearance and filed a Statement of Defence dated 08/08/2023 denying each and every allegation made by the Plaintiff in the Plaint and put him to strict proof thereof. The Defendant denied that there was an accident involving the motor cycle and if there was, it was not caused by the negligence of the Defendants, but caused or contributed by the Plaintiff. The Defendants therefore prayed that the suit be dismissed with costs. 4. The Plaintiff testified adopting his witness statement as his evidence in chief. The Plaintiff called the doctor and the traffic police officer as his witnesses. By consent, the defence produced its medical report as an exhibit. 5. After hearing the parties, Judgment was entered in favour of the Plaintiff against the Defendants for Kshs. 200,000, General Damages for pain and suffering, and Kshs. 3,000 being Special Damages and Kshs. 47,000 as future medical expenses. Costs and interest at court rates from the date of filing suit was also awarded. 6. Being dissatisfied with the Judgement, the Appellant filed the Memorandum of Appeal dated 18/10/2024 on grounds that the learned trial magistrate erred in law and fact by awarding General Damages that were inordinately low in the circumstances. 7. The Appellant prayed that the appeal be allowed, that the appellate court do set aside the learned trial magistrate judgment on quantum and replace it with its own assessment and/or finding, and that the costs of the appeal be borne by the Respondent. 8. The appeal was canvassed by way of written submissions. The Appellant in his submissions dated 07/05/2025 stated that the general damages that is commensurate to the injuries sustained as stated herein above is Kshs. 1,200,000. He prayed that the appeal be allowed same be awarded as general damages. He relied on authorities as listed in paragraph 24 to 26 of the submissions. 9. The Respondents filed their submissions dated 21/05/2025 submitting that the award of general damages was not inordinately law to warrant this court to interfere with the judgment of the lower court as it gave the right award. It was prayed that the appeal be dismissed with costs to the Respondents. Analysis 10. 11. Having perused through the pleadings and the submissions filed, the issues for determination are; a. Whether the appeal has merits to warrant this court interfere with the judgment of the lower court on general damages. b. Who bears the costs The role of the first appellate court to reexamine and to reevaluate evidence to come up with its own findings was set out in Selle v Associated Motor Boat Co. (1968) E.A 123 as follows: “ … 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 …” https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4265/eng@2026-02-12 2

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Quantum 12. The appeal was on quantum only. The Appellant submitted that the award for General Damages was inordinately low. He proposed an award of Kshs. 1,200,000/=. The Respondent submitted that the award by the trail court was not low and should not be interfered with. 13. The Court of Appeal, pronounced itself succinctly on the principles for disturbing award of damages in Kemfro Africa Ltd Vs Meru Express Service Vs. A.M Lubia & Another 1957 KLR 27 as follows: “ The principles to be observed by an appellate Court in deciding whether it is justified in distributing the quantum of damages awarded by the trial Judge were held in the Court of Appeal for the former East Africa to be that it must be satisfied that either the Judge in assessing the damages, took into account an irrelevant facts or left out of account a relevant one or that short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of damages.” 14. Further, the Court of Appeal in Odinga Jacktone Ouma V Maureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards” 15. The Respondent suffered injuries as per paragraph 2 above. The Doctor report showed that the Respondent had 5% permanent disability. The doctor recommended that future medical costs of Kshs. 47,000 which was awarded. I note that the same was not pleaded but the Respondents did not raise any issue on the award. I leave it at that. 16. In Ali Malik Brothers Motor (K) Limited and Another v Emmanuel Oduor Onyango NRB HCCA No. 252 of 2016 [2018] eKLR, the plaintiff sustained a fracture of the pelvic sprain hymen and cuts of the right knee and was awarded Kshs. 700,000/- which was affirmed by the High Court. 17. In Joseph Njeru Luke & 3 others v Stellah Muki Kioko [2020] eKLR, the Plaintiff sustained pelvic fractures and soft tissue injuries, the High Court reduced the Lower Court’s award of Kshs. 1,700,000 to Kshs. 750,000. 18. All these authorities pose similar and comparable injuries and suggest that the award by the Trial Court of Kshs. 200,000/= was inordinately low in the circumstances. Considering the lapse of time and inflation, an award of Kshs. 800,000/- for the Plaintiff herein is adequate compensation for General Damages. I therefore interfere with the award by the Trial Court to this extent. 19. On costs, the same follows the event. Costs are awarded to the Appellant. Determination 29. Following the foregone discourse, the upshot is that the following orders do hereby issue: a. That the appeal has merits. Judgment of General Damages is hereby set aside and substituted with an award of Kshs. 800,000/= as General Damages for pain and suffering. b. All the other items remain undisturbed. c. Costs to the Appellant. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY AT MOMBASA THIS 12TH DAY OF FEBRUARY, 2026 https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4265/eng@2026-02-12 3

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HON. F. WANGARI JUDGE In the presence of; Ms. Munene Advocate for the Appellant N/A by the Respondent Ms. Salwa, Court Assistant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/4265/eng@2026-02-12 4

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