Anne Adhiambo Nyombago v Kennedy Onyango Otieno

KENNEDY OCHIENG ODIYO….……..………….………2ND DEFENDANT AYAN AUTOMOBILE LIMITED…....……………….……3RD DEFENDANT JUDGMENT 1. The appeal herein arises from the judgment of Hon. J.P. Nandi (SPM) in Bondo PMCC No. E097 of 2022 wherein he held the 1st and 2nd Appellants vicariously liable at 100% for an accident which took place on 7/7/2022 involving the Appellants vehicle reg. No. KDE 994T make Toyota Hiace matatu and entered judgement for the 1 st Respondent who was then a fare- paying passenger in the said vehicle and awarded her general damages (Kshs350, 000/=), future medical expenses (Kshs440,000/=) as well as costs and interest from the date of judgment until payment in full. 2. The two Appellants herein were aggrieved by the said judgment and lodged their Memorandum of Appeal dated 16/12/2024 wherein they raised the following grounds of appeal namely: SIAYA HCCA E070 OF 2024 JUDGMENT 2

page 2 of 18

1) That the learned trial magistrate erred in law and fact in awarding future medical expenses of Kshs440, 000/= which award was not proved. 2) That the learned trial magistrate erred in law and in fact in awarding future medical expenses of Kshs 440,000/ which award excessive. 3) That the learned trial magistrate erred in law and in fact in failing to consider the medical report by the Appellants’ doctor. 4) That the learned trial magistrate’s exercise of discretion in assessment of liability and quantum was injudicious. 5) That the learned trial magistrate erred in law and fact in failing to consider the Appellant’s submissions on the awards of future medical expenses and as a result arrived at an unjustified decision on future medical expenses. The Appellants therefore prayed that the appeal be allowed and the decree of the trial court be set aside and that the court do re-assess the award on future medical expenses and come up with its own award. That the Appellant be awarded the costs of the appeal. SIAYA HCCA E070 OF 2024 JUDGMENT 3

page 3 of 18

3. This being the first appellate court, its duty is well cut out namely to re-evaluate the evidence and come up with its own independent conclusion as to whether or not to uphold the decision of the trial court. The court must also take into account the fact that it did not see or hear the witnesses as they testified and thus it should make due allowance for that. See Selle Vs. Associated Motor Boat Co. Ltd [1968] EA 123. 4. The record of the trial court indicates that the 1 st Respondent had lodged suit before Bondo Law Courts vide plaint dated 21/9/2022 and amended on 11/1/2023 wherein she sought for both special damages for injuries sustained in a road traffic accident which took place on 7/7/2022 involving the Appellants’ motor vehicle Registration No. KDE No. 994T Toyota Hiace and the 1 st Respondent who was a fare paying passenger aboard the said motor vehicle registration number KDE No. 994T when the driver or agent in control of the said motor vehicle carelessly and recklessly controlled the same and which hit motor cycle registration number KMFE 702N Make Boxer as a result of which the 1 st Respondent sustained serious injuries. The 1st Respondent blamed the SIAYA HCCA E070 OF 2024 JUDGMENT 4

page 4 of 18

driver of the motor vehicle KDE 994 T. The Appellants and the 2nd Respondent denied the claim and contended that the accident occurred due to the negligence of the 1 st Respondent and rider of the motor cycle. 5. The hearing began in earnest on 8/2/2024. 6. No. 23 5864 IP Sebastian Maloba (PW1) testified that he was based at Bondo Police Traffic Base wherein he was the Base Commander. That the 1 st Respondent was issued with a police abstract after she was injured while travelling as a passenger in motor vehicle KDE 994 T. That the accident occurred on 7/7/2022 within Bondo Shell Petrol Station along Bondo- Kisumu road. That a motor cycle registration number KMFE 702N Boxer was being ridden from Kisumu towards Bondo and when it reached the petrol station, it slowed down and indicated to enter the said petrol station on his right. That the matatu was travelling from behind the motor cyclist and which hit the motor cycle that had closed the yellow line. That the rider and his two pillion passengers sustained serious injuries and were rushed to hospital. That he proceeded to the hospital to visit the victims. That he later booked the OB report for the 1st Respondent and that he issued her with SIAYA HCCA E070 OF 2024 JUDGMENT 5

page 5 of 18

the P3 form. That he produced the police abstract for the 1st Respondent as well as pillion passengers. That he charged the driver of the matatu vide Traffic Case No. 093 of 2022 who pleaded guilty to a charge of careless driving and was fined Ksh10,000/= and in default to serve three months On cross examination, he stated inter alia; that he visited the scene immediately; that has not availed the sketch plan; that the 1st Respondent sustained serious injuries; that he did not witness the accident; that Kennedy Otieno Odiyo; that he could not confirm if the driver was employed by the 2nd Respondent; that he did not produce police file or the Traffic Case proceedings; that the owner of the vehicle was Kennedy Odiyo. 7. John Okidi Bunde (PW2) testified that he was a clinical officer based at Bondo Sub-County Hospital. That he had a medical report for the 1st Respondent. That on detailed examination, she sustained fracture of two lower canines, back pain along the spinal cord, pain with multiple bruises on right elbow joint. That the age of the injuries was six days and that he classified the degree of injuries as grievous harm. That the patient was given some dental SIAYA HCCA E070 OF 2024 JUDGMENT 6

page 6 of 18

medication. He produced the P3 form and dental prescription. On cross examination, he stated inter alia; that he did not have the treatment notes; that the initial treatment shows injuries on lower jaw with bruises on elbow left joint; that there was lower canine bleeding; that he has the treatment notes; that no loss of consciousness was indicated; that there was no medication for injury on right shoulder; that the treatment notes indicates that she sustained soft tissue injuries which have healed as at the time. 8. Anne Adhiambo Nyombago (PW3) testified and adopted her witness statement dated 21/9/2022 as her evidence in chief. That she sustained injuries on the right elbow. That her canines were injured as they were now loose and about to come out. That one tooth was removed. She produced her list of documents as per the list dated 21/9/2022. That she identified the medical report by Dr Oloo dated 2/11/2022. On cross-examination she stated inter alia; that the copy of records shows Ayan Automobiles Ltd. That one tooth was removed. That there was no injury on the head. That she does not know if the driver was employed or agent of the 3rd Defendant. SIAYA HCCA E070 OF 2024 JUDGMENT 7

page 7 of 18

9. Dr Paul Oloo (PW4) testified that he examined the Plaintiff who had lost consciousness, loss of teeth mobility and to use the right upper limb and bruises on right elbow. That at the time of examination, shr had right shoulder pain, lower back pain, pain on the right knee, missing teeth on both upper and lower jaw. That she had some unwanted range of infection of right shoulder and pain on the other left shoulder. That she need MRI of the right shoulder, lower back, dental check up and corrective surgery as mentioned in his report which he produced as exhibit 7. On cross-examination, he stated inter alia; that he relied on the treatment notes from Bondo Sub-county; that he does not have the treatment notes; that he did not see the CT Scan; that there was loss of teeth; that there was nee dfor MRI to check soft tissue injuries; that the corrective surgery will be based on the result of the MRI; that an X-ray will not show muscle and tenderness injuries; that the lower back requires MRI to be the best assessment; that he is not aware of the charges for physiotherapy at the public hospital. That the basis on the number of the sessions as there was no confirmation; that his assessment was based on assumption; that he has not SIAYA HCCA E070 OF 2024 JUDGMENT 8

page 8 of 18

seen the patient again to confirm again if the patient still needs the same or not. 10. The Plaintiff (1st Respondent) closed her case. The 1 st and 2nd Appellants closed their defence case after a consent was entered in which the 1st Respondent’s second medical report by Dr. Steve Ochieng was produced as DEXH – 1. 11. The 3rd Defendant (2nd Respondent herein) called one witness Nicholas Ngori Nyangala (DW1) testified that he was a sales representative at the 3rd Defendant’s company. That he adopted his statement dated 9/4/2024 as his evidence in chief. That he also produced the list of documents s exhibits 1- 6. That he identified the sale agreement dated 30/10/2024. On cross-examination, he stated that he did not have the deed of indemnity and consent. That at the time of the accident, the vehicle was still in the name of the company. That the authority to sell was given to Darson Trading Ltd. 12. The trial court considered the evidence and came up with the impugned judgement. 13. The appeal was canvassed by way of written submissions. Both parties duly complied. SIAYA HCCA E070 OF 2024 JUDGMENT 9

page 9 of 18

14. I have considered the record of the trial court and submissions filed herein. It is not in dispute that from the Appellants Memorandum of Appeal, their grievances is in regard to the trial court’s determination on two issues namely liability and assessment of future medical expenses. I find the issue for determination is whether the appeal has merit. 15. As regards the aspect of liability, it came out from the pleadings and evidence of the 1 st Respondent that she had been a fare-paying passenger in the Appellants motor vehicle registration number KDE 994T make Toyota Hiace and hence she had no control in the manner in which the vehicle was responsibility driven and of driver the or managed. It to that ensure was all the his passengers arrive safely at their destinations. The traffic officer (PW1) confirmed that the driver hit a motorcycle near Shell petrol station in Bondo town and that the said driver was later charged with an offence of careless driving vide Bondo Traffic Case No. E093 of 2022 wherein he was fined Ksh100,000/= and in default to serve six months imprisonment. SIAYA HCCA E070 OF 2024 From the facts as stated by the JUDGMENT 10

page 10 of 18

prosecutor in the traffic proceedings, it is clear that the Appellant’s motor vehicle KDE 994 T had smashed onto the motor cycle forcing the rider and pillion passenger to fall down and sustain injuries. The rider had already indicated his intention to enter Shell Petrol station and thus the Appellants’ driver (1st Appellant) ought to have a proper look out and to observe the Highway Code of traffic and to give way to the motorcyclist but instead threw caution to the wind and drove onto and smashed the motor cycle. It is noted that the 1 st Respondent herein was a fare-paying passenger in the matatu and thus had no control over the manner in which the motor vehicle was being controlled and likewise the motorcycle. I find that the 1st Respondent did not contribute to the accident in any way. In any event, the Appellant’s driver was later found to be responsible and was duly charged with a traffic offence apportionment and of Appellants herein duly liability convicted. at 100 % I find the against both by the trial court was quite sound and must be upheld. Hence, the appeal on liability lacks merit and is dismissed. SIAYA HCCA E070 OF 2024 JUDGMENT 11

page 11 of 18

16. As regards the award of future medical expenses, it is noted that the 1st Respondent vide her Plaint dated 21/9/2022 and amended on 11/1/2023 did plead specifically for future medical expenses. The trial court upon consideration of the evidence and documents allowed the 1st Respondent’s claim for Kshs440,000/= comprising of MRI scan of shoulder, corrective surgery, MRI Scan of lumbar sacrum spine and physiotherapy of the shoulder and lower back. Again, the Appellant’s doctor, Dr. Steve Ochieng who had examined the 1 st Respondent confirmed that she had suffered the injuries complained of. That being the position, the 1st Respondent could not be denied an opportunity to undergo corrective surgery so as to regain full function of the affected areas of her body. The Appellants have urged this court to interfere with the said award as it is excessive in the circumstances. In the case of Kemfro Africa Limited t/a Meru Express Services & Another Vs Lubia & Another [1985] KECA 137 (KLR) the Court of Appeal held as follows: SIAYA HCCA E070 OF 2024 JUDGMENT 12

page 12 of 18

“The principles to be observed by an appellate court in deciding whether it is justified in distributing the quantum of damages awarded by a trial judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took factor, or left out of account or 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 the damage.” As the claim for future medical expenses is in the nature of special damages, the 1st Respondent was under obligation to specifically plead and prove the same on a balance of probabilities. In the case of Kenya Bus Service Ltd vs Gituma [2004] EA 91 it was held: “And as regards future medication (physiotherapy) the law is also well established that although an award of damages to meet the cost thereof is made under the rubric of general damages, care is itself special damage and is a fact that must be SIAYA HCCA E070 OF 2024 JUDGMENT 13

page 13 of 18

pleaded if evidence thereof is to be led and the court is to make an award in respect thereof. that follows from the general principle that all issues other than those which the law does contemplate as raising naturally from the infringement of a person’s legal right should be pleaded.” The issue of award of damages must be handled by courts in a judicious manner. In the case of Kigaraari vs. Aya 1982 – 1988] KAR 768 the court held as follows: “Damages must be within the limits set out by decided cases and also within the limits the Kenyan economy can afford as large awards are inevitably passed on to members of public, the vast majority of whom cannot afford the burden in the form of increased insurance and increased fees.” Also, in Tayib vs Kinanyu [1983] KLR 14 it was held as follows: “By common consent awards must be reasonable and must be assessed with moderation. Furthermore, it is essentially desirable so far as SIAYA HCCA E070 OF 2024 JUDGMENT 14

page 14 of 18

possible comparable injuries should be compensated by comparable awards. When all this is said and done, it still must be that amounts which are awarded are to a reasonable extent conventional.” It is noted that the 1st Respondent herein was first attended to at Bondo sub County hospital by John Okidi Bunde (PW2) who noted on detailed examination that she sustained fracture of two lower canines, back pain along the spinal cord, pain with multiple bruises on right elbow joint. That the age of the injuries was six days and that he classified the degree of injuries as grievous harm. That the patient was given some dental medication. He produced the P3 form and dental prescription. She was also examined by Dr. Paul Aloo (PW4) who prepared a medical report and that he noted injuries inter alia; that there was limited abduction of the right shoulder at ninety degrees with tenderness on the active motion; she had missing teeth on both lower and upper jaw.; that the right shoulder injury needed to undergo MRI Scan by corrective surgery and physiotherapy; that the lower back pain needs to be assessed using an MRI Scan followed by physiotherapy; that SIAYA HCCA E070 OF 2024 JUDGMENT 15

page 15 of 18

she needs a dental check- up by a dentist to assess and cost any corrective procedures. The said doctor went ahead to assess the amounts to take care of the future medical expenses for the 1st Respondent. The 1st Respondent was also examined by the Appellant’s doctor Steve Ochieng who confirmed the injuries but that the issue of the MRI was not needed. It is noted that the 1st Respondent was first examined by Dr. Paul Aloo (PW4) of Acela Medical Centre who assessed the injuries sustained which were confirmed by the Appellants’ doctor Steve Ochieng when he later examined the 1 st Respondent. Indeed, the second medical examination of the 1 st Respondent took place much later after the first examination and that the injuries could have healed somewhat. However, it is instructive that the Appellants’ doctor was not called to testify so that he could be cross examined just like the 1 st Respondent’s doctor and that the amounts sought for the future medical expenses could be properly established. It was not enough for the Appellants’ doctor to just dismiss the recommendation of the 1st Respondent’s doctor. Indeed, the injuries on the 1st Respondent was a huge impact on her health and hence the need for the said future medical expenses. The assessment by the Appellant’s Dr. Steve Ochieng is close to SIAYA HCCA E070 OF 2024 JUDGMENT 16

page 16 of 18

that of the 1st Respondent’s doctor. Indeed, the 1 st Respondent during her testimony stated that she had not fully healed and hence her request for future medical expenses was quite valid. It is not in dispute that inflation on the economy must be taken into account and thus the proposed amounts appear to me to be reasonable in the circumstances. I find the said amounts are not excessive and that the trial court did not take into account irrelevant factors when awarding the sums. Hence, the finding of the trial court was proper and must be upheld. 17. As there was no dispute on the other heads of damages namely general damages and special damages, the same shall remain undisturbed. 14. In view of the foregoing observation, it is my finding that the Appellants’ appeal lacks merit. The same is dismissed with costs to the 1st Respondent. Dated and delivered at Siaya, this 22nd day of May 2026 D.KEMEI JUDGE SIAYA HCCA E070 OF 2024 JUDGMENT 17

page 17 of 18

In the presence of : M/s Ngome.........................................for Appellants Mr Ndichu for Mukoya...............................for 1st Respondent N/A........................................................for 2nd Respondent Mourine......................................Court Assistant SIAYA HCCA E070 OF 2024 JUDGMENT 18

page 18 of 18