Josiah Isika Kisangu v Kennedy Omondi Kungu

in such a careless manner that it lost control and collided with the motorcycle. Particulars of negligence were supplied at paragraph 3 of the Plaint along with the particulars of the respondent’s injuries; hence the lower court suit. [3] The appellant denied the respondent’s allegations vide his Statement of Defence dated 18th March 2022. In the alternative, the appellant averred that, if the respondent was ever injured as pleaded then such was as a design of his own or his own outright negligence. The appellant supplied particulars of the respondent’s negligence at paragraph 7 of his Defence. [4] Upon hearing the parties, the learned magistrate apportioned liability at 80:20 and assessed general damages payable at Kshs. 2,000,000/= and awarded Kshs. 200,000/= for diminished earning capacity and Kshs. 11,964/= under the head of special damages. [5] Being aggrieved by the decision of the lower court, the appellant filed this appeal on the following grounds: [a] The learned magistrate erred in law and in fact by awarding general damages that were inordinately high. [b] The learned magistrate erred in law and in fact by failing to appreciate the testimony of the defence witness. [c] The trial magistrate erred in law and in fact by failing to appreciate the appellant’s submissions and the authorities quoted therein. [d] The judgment was against the weight of the evidence offered before the lower court. 2|Page HCCA NO. E028 OF 2023 JUDGMENT

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[6] The appeal was canvassed by way of written submissions pursuant to the directions given herein on 30th September 2025. The appellant relied on his written submissions dated 27 th October 2025 on the issue of quantum. He relied on Butt v Khan, Civil Appeal No. 40 of 1977 for the proposition that an appellate court ought not to disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. Contending that damages must be within reasonable limits that the Kenyan economy can afford, the appellant urged the Court to take into account the injuries suffered by the respondent in the light of comparable awards. Accordingly, the appellant proposed an award of general damages of between Kshs. 500,000/= and Kshs. 550,000/= on the basis of the following comparable authorities: [a] Zoa Taka Limited & another v Kyalo (Civil Appeal E011 of 2022) [2025] KEHC 1606 (KLR) (Civ) (27 February 2025) (Judgment) in which the plaintiff was awarded general damages in the sum of Kshs. 850,000/= for fracture of right malleolus bone and soft tissue injuries. The award was reduced on appeal to Kshs. 500,000/=. [b] Menengai Oil Refineries Limited v Bundi (Civil Appeal E039 of 2022) [2024] KEHC 11122 (KLR) (23 September 2024) (Judgment) in which the plaintiff sustained left medial malleolus fracture along with soft tissue injuries and the appellate court awarded Kshs. 550,000/= as general damages. 3|Page HCCA NO. E028 OF 2023 JUDGMENT

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[7] The appellant also took issue with the award of Kshs. 200,000/= for diminished earning capacity. He submitted that the lower court ought to have considered the disadvantage the respondent would suffer in future for not working because of the injuries and taken into account such factors as the age and qualification of the respondent. The appellant further submitted that although the respondent testified that he was a farmer, businessman and a pastor, he failed to prove that his daily earnings was Kshs. 500/=. The appellant placed reliance on Paul Njoroge v Abdul Saburi Sabonyo [2015] eKLR where the Court of Appeal declined to consider a claim for loss of earning capacity because the claimant, a police officer, was still in office and had not shown that his employment was affected. [8] Accordingly, the appellant prayed that his appeal be allowed with costs and that the general damages payable be reduced to between Kshs. 500,000/= or Kshs. 550,000/=. He equally prayed for the award for diminished earning capacity to be set aside. [9] The respondent relied on his written submissions dated 20 th November 2025. He defended the decision of the lower court on both liability and quantum. He however pointed out that the instant appeal only targets the aspect of the lower court’s judgment on liability. Therefore, the respondent proposed the following issues for determination: [a] Whether damages awarded by the trial court were based on wrong consideration and/or without sufficient evidence. 4|Page HCCA NO. E028 OF 2023 JUDGMENT

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[b] Whether the general damages awarded are excessive in the circumstances of this case. [10] Like the appellant, the respondent relied on Butt v Khan [1981] KLR 349, to support his submission that this Court, in its appellate jurisdiction, can only interfere with discretion of the lower court in awarding damages if it satisfied that the award was based on wrong principles of law or is manifestly excessive or low. The respondent also submitted that in awarding general damages, the most important consideration is the nature and extent of the injuries sustained. He relied on the case of Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR. [11] The respondent drew the Court’s attention to the Medical Report by Dr. Peter Morebu, which confirmed that he sustained the following injuries: [a] Right linear fracture of the Medial Malleolus bone (tibia); [b] Right hemarthrosis; [c] Deep cut wounds on the right leg; [d] Blunt trauma to the right knee; [e] Chest contusion [12] The respondent underscored Dr. Morebu’s prognosis that he needed funds for future medical attention and submitted that it was upon the appellant to demonstrate his assertion that the award made by the lower court for the above-mentioned injuries was inordinately 5|Page high. He urged the Court HCCA NO. E028 OF 2023 to take into JUDGMENT

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consideration Dr. Morebu’s assessment that he had suffered 40% disability and needed Kshs. 350,000/= for future medical expenses. [13] The respondent also urged the Court to find that the lower court had the opportunity to listen to and evaluate the evidence presented before it, including the Medical Report submitted which was not rebutted by the appellant. He pointed out that the appellant had the option of adducing medical evidence to counter the evidence presented by him in connection with the injuries suffered in the accident. The respondent urged the Court to disregard the second Medical Report presented by the appellant on the ground that the maker was not called for purposes of cross-examination. [14] In the premises, the respondent urged the Court to uphold the general damages award of Kshs. 2,000,000/= and relied on the following cases: [a] Terry Kanyua Marangu v Wells Fargo Ltd [2014] eKLR in which the plaintiff suffered injuries to the forehead, nose and eyes; lost two teeth, suffered injuries to the left arm, injuries to the right leg and general injuries to the head. She was awarded Kshs. 1,900,000/= as general damages for pain, suffering and loss of amenities. [b] Andrew Kimani Mwaura & Anor v Nyangute Moraa Verah alias Ferah Moraa [2021] eKLR in which an award by the lower court of Kshs. 3,200.000/= was upheld on appeal for multiple rib fractures, right clavicle fracture, 6|Page HCCA NO. E028 OF 2023 JUDGMENT

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fracture of both illac bones, pubic ramii and right sacrum as well as fracture of the 5th lumbar spine. [c] Dorcas Wangaithi Nderi v Samuel Kiburu Mwaura & Another [2015] eKLR where an award of Kshs. 2,000,000/= was upheld on appeal for multiple injuries, blunt injury to the head and multiple fractures, [d] Millicent Atieno Ochuonyo v Katola Richard [2015] eKLR, where the Plaintiff was awarded Kshs 2,000,000/= for injury to the pelvis involving fracture of ramus and diastasis of the symphysis pubis. [15] This being a first appeal, it is the duty of this Court to reconsider and re-evaluate the evidence adduced before the lower court with a view of making its own conclusions thereon. It is also imperative to bear in mind that this Court did not have the advantage of seeing or hearing the witnesses; and therefore that it must make an allowance for that in its re-evaluation. Hence, in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123 it was held that: "...this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this 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..." [16] I have given careful consideration to the evidence placed before the lower court in the light of the pleaded injuries. The respondent testified before the lower court on 27 th October 2022 as PW1. He stated that he was a small scale farmer, a 7|Page HCCA NO. E028 OF 2023 JUDGMENT

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businessman and a pastor. He adopted his witness statement dated 19th October 2021 in which he stated that on the 22 nd June 2021 at about 5.00 p.m. he was heading to Rangwe and was riding as a pillion passenger on Motor Cycle Registration No. KMEE 345Y. The respondent further stated that on nearing the AsumbiOyugis junction they were hit by Motor Vehicle Registration No. KDC 044N which was headed towards the Rangwe-Asumbi general direction. [17] The respondent explained that the driver of Motor Vehicle 044N never stopped, slowed down or showed any intention of branching onto Asumbi road, thereby hitting the motor cycle on the extreme left side of the road, thereby causing him serious injuries. He further stated that he was rushed to St. Lawrence Hospital in Rangwe where he was treated and thereafter referred to Matata Hospital for further attention. The respondent further testified that he was also treated as Homa Bay County Referral Hospital on account of the fractures which constrained his mobility. [18] It was further the evidence of the respondent that he incurred expenses towards his treatment and towards gathering evidence for his claim as follows: [a] Cost of treatment/medical expenses Kshs. 5,380/= [b] Taxi expenses 8|Page HCCA NO. E028 OF 2023 Kshs. 4,000/= JUDGMENT

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[c] Cost of Medical Examination and Report Kshs. 6,500/= [d] Search at Registrar of Motor Vehicles Kshs. 550/= Total Kshs. 15,050/= [19] The respondent also testified that, as a result of the accident, he was unable to operate his business and therefore suffered loss of income for over five months. He therefore prayed for compensation not only for his injuries, but also for diminished earning capacity. The respondent availed several documents before the lower court in proof of his case. The documents included: [a] Treatment Notes from St. Lawrence Hospital (Exhibit 3) [b] X-ray films from Matata Nursing Home (Exhibit 4) [c] Patient Card issued at Rangwe Sub-County Hospital (Exhibit 6) [d] Discharge Summary issued at Homa Bay County Referral Hospital (Exhibit 7) [e] P3 Form (Exhibit 8) [f] Receipts for Kshs. 15,050/= (Exhibit 11) [g] Medical Report by Dr. Morebu (Exhibit 12a) [h] Receipt for Kshs. 6,500/= (Exhibit 12b) 9|Page HCCA NO. E028 OF 2023 JUDGMENT

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[20] The respondent called Dr. Morebu (PW2), Sgt. Alice Awino (PW3) and David Otieno (DW4) as his witnesses. PW2 confirmed that he examined the respondent in respect of injuries sustain in a road traffic accident that occurred on 22nd June 2021. He confirmed that the respondent was attended to at St. Lawrence Hospital in Rongo, Matata Nursing Home, Homa Bay County Referral Hospital and Kisii Level 6 Hospital. He made reference to the medical documents the respondent was issued with at those institutions. In his assessment the respondent suffered grievous harm, including fracture of right tibia, deep cut wounds on the right leg and blunt injuries on the right knee and chest. [21] PW3 was then attached to Homa Bay Traffic Office. She confirmed that a road traffic accident occurred on the 22 nd June 2021 at about 5.00 p.m. along the Rangwe-Oyugis Road at the Oyugis-Asumbi junction. She further confirmed that the accident involved Motor Vehicle Registration No. KBC 044N Toyota Harrier which was being driven by Isika Kisangu (the appellant) and Motor Cycle Registration No. KMEC 345Y which was being ridden by Charles Omollo Kungu. He confirmed that Kennedy Omondi Kungu, the respondent herein was a pillion passenger in the motor cycle aforementioned. [22] PW3 further explained that, from the investigations conducted by their office, the motor vehicle was from Rangwe direction while the motor cycle was from Oyugis side heading to Rangwe; and that on reaching the Rangwe-Asumbi junction, the motor vehicle joined Asumbi road without due care or attention, 10 | P a g e HCCA NO. E028 OF 2023 JUDGMENT

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thereby hitting the motor cycle and his pillion passenger. PW3 further testified that the pillion passenger, the respondent herein, sustained injuries and was therefore issued with a Police Abstract in respect of OB No. 64/22/6/2021. [23] PW4 testified that, as a pastor and community nurse aid, he provided the respondent with home-based care following his injuries in a road accident. He identified the attendance card issued by Patanisho Roho Israel Fellowship for home-based care as an exhibit before the lower court. [24] The appellant testified as DW1. He adopted his witness statement dated 6th July 2021 as his evidence in chief. He conceded that he was driving the subject motor vehicle at the material time, and that an accident occurred at the Asumbi junction on Oyugis-Rangwe road. He explained that he saw the motor cycle at a distance of about 100 metres away and gave an indication of his intention to branch towards Asumbi. According to the appellant, the motorcyclist turned into the junction and since he (DW1) was coming at a high speed, the rider failed to negotiate the corner and knocked his right head lamps. The rider lost control of the motorcycle causing it to roll. [25] According to the appellant, the motorcyclist was to blame for the accident. He added that he was never charged with any offence. [26] In the light of the grounds of appeal and the submissions made by the parties, the issue for determination is whether the 11 | P a g e HCCA NO. E028 OF 2023 JUDGMENT

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learned magistrate erred in assessing the general damages payable to the respondent. [27] In H. West & Son Ltd v Shephard [1964] AC 326, that: "...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment." [28] The Court of Appeal restated this principle thus in Hellen Waruguru Waweru (Suing as the legal representative of Peter Waweru Mwenja vs. Kiarie Shoe Stores Limited [2015] eKLR: "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." [29] As has been noted herein above, the lower court awarded the respondent Kshs. 2,000,000/= as general damages for his injuries along with special damages in the sum of Kshs. 15,050/=. There is no doubt that the respondent justified her claim for special damages by producing supporting documents. As such, there is no contention about that aspect of her claim. The dispute is in respect of the general damages component. The award, 12 | P a g e HCCA NO. E028 OF 2023 JUDGMENT

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naturally, was premised on the nature of the respondent’s injuries. The injuries as pleaded and proved were: [a] Right linear fracture of the Medial Malleolus bone (tibia); [b] Right hemarthrosis; [c] Deep cut wounds on the right leg; [d] Blunt trauma to the right knee; [e] Chest contusion [30] The learned magistrate made reference to the P3 Form, Discharge Summary, Treatment Notes and Medical Reports produced before the lower court on behalf of the appellant. The learned magistrate also put into consideration the second Medical Report prepared by Dr. Kahuthu and produced as Defence Exhibit 1. [31] The principle reiterated by the Court of Appeal in Stanley Maore v Geoffrey Mwenda [2004] eKLR, is that comparable injuries ought to be compensated by comparable awards. It expressed itself thus: “…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.” [32] Having given due consideration to the nature and extent of the respondent’s injuries, it is manifest that the authorities relied on by the respondent involved far more serious injuries. On the 13 | P a g e HCCA NO. E028 OF 2023 JUDGMENT

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other hand the appellant relied on much more comparable authorities as follows: [a] Zoa Taka Limited & another v Kyalo (Civil Appeal E011 of 2022) [2025] KEHC 1606 (KLR) (Civ) (27 February 2025) (Judgment) in which the plaintiff was awarded general damages in the sum of Kshs. 850,000/= for fracture of right malleolus bone and soft tissue injuries. The award was reduced on appeal to Kshs. 500,000/=. [b] Menengai Oil Refineries Limited v Bundi (Civil Appeal E039 of 2022) [2024] KEHC 11122 (KLR) (23 September 2024) (Judgment) in which the plaintiff sustained left medial malleolus fracture along with soft tissue injuries and the appellate court awarded Kshs. 550,000/= as general damages. [33] Thus guided by the two decisions above, it is plain that the award made by the lower court was so high as to amount to an incorrect award. I consider an award of Kshs. 650,000/= to be fair and reasonable in the circumstances. Indeed, in Charles Oriwo Odeyo v Appollo Justus Andabwa & Another [2017] eKLR, the Court of Appeal held: “The assessment of damages in personal injury case by a court is guided by the following principles: An award of damages is not meant to enrich the victim but to compensate such victim for the injuries sustained The award should be commensurable with the injuries sustained Previous awards in similar injuries sustained are a mere guide but each case be treated on its own facts Previous awards to be taken into account to maintain the stability of awards but factors such as inflation should be taken into account The awards should not be inordinately low or high.” [34] In his submissions, the respondent made mention that the learned magistrate erred in not taking into account the 14 | P a g e HCCA NO. E028 OF 2023 JUDGMENT

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prognosis of Dr. Morebu that he needed to undergo future medical treatment. The guidance by the Court of Appeal in such matters was reiterated in the case of Tracom Limited & Another v Hasssan Mohamed Adan [2009] eKLR thus: “…We readily agree that the claim for future medical expenses is a special claim though within general damages, and needs to be specifically pleaded and proved before a court of law can award it. In the case of Kenya Bus Services Ltd vs. Gituma (2004) 1 EA 91, this Court, stated: - “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, the need for future medical care is itself special damage and is a fact that must be 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 losses other than those which the law does contemplate as arising naturally from infringement of a person’s legal right should be pleaded.” [35] It is noted that the figure mentioned by the respondent in this regard of Kshs. 350,000/= was not pleaded in his Plaint. In the same vein, the respondent’s assertion that the was entitled to diminished earning capacity of Kshs. 200,000/= needed to be pleaded as a special damage item and proved. The respondent did not either plead or prove any such amount. In Cecilia W. Mwangi & Another v Ruth W. Mwangi [1997] eKLR, the Court of Appeal pointed out that: “Loss of earnings is a special damage claim. It must be specifically pleaded and strictly proved. The damages under the head of ‘loss of earning capacity’ can be classified as general damages but these have also to be proved on a balance of probability…” [36] In the premises, I find merit in the appeal on quantum. The same is hereby allowed. The Judgment and Decree of the lower 15 | P a g e HCCA NO. E028 OF 2023 JUDGMENT

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court is hereby set aside and substituted with the following orders: [a] That the award by the lower court on general damages be and is hereby set aside, and is substituted with an award of Kshs. 650,000/=. [b] That the award of the lower court on special damages and costs of the lower court be and is hereby upheld. [c] That costs of the appeal be and are hereby awarded to the respondent. It is so ordered. DATED, SIGNED AND DELIVERED VIRTUALLY THIS 15TH DAY OF MAY, 2026 ………………………… OLGA SEWE JUDGE 16 | P a g e HCCA NO. E028 OF 2023 JUDGMENT

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