REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAKURU HCCA NO. E311 OF 2023 CHARLES MOROGO CHERUIYOT ......................................... APPELLANT VERSUS KEVIN MASINDE OMUCHENI ..................................... 1ST RESPONDENT VITALIS OMOLLO ODUOL ......................................... 2ND RESPONDENT (Being an appeal from the judgement and decree of Bernard Kipyegon Rugut (PM) in Molo CMCC No. 1077 of 2021 delivered on 28th September 2023) JUDGEMENT 1. In his plaint dated 1st march, 2021 the appellant averred that on 15th January 2021 or thereabout while the he was lawfully walking but completely off Nakuru – Eldoret road at Kamara area, the 2nd appellant so negligently drove, managed and or controlled motor vehicle registration number KBY 181D owned by the 1st plaintiff as a result which it knocked the appellant and caused him serious injuries. 2. By reason of the accident, the appellant filed the lower court suit seeking general damages, costs of the suit and interest. 3. On 8/6/2023, by consent the parties of the parties, judgement and liability was extended in favour of the appellant against the respondent in the ratio 85:15. HCCA CASE NO. E311 OF2023 JUDGEMENT (Charles Morogo Cheruiyot -vs- Kevin Masinde Omucheni & Another) 1|Page
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4. The parties also by consent agreed to produce their respective documents and to file written submission on quantum payable. 5. In its judgement, the trial court awarded the appellant general damages of Ksh. 500,000 and special damages of Ksh. 10,075 plus costs of the suit and interest. 6. Being dissatisfied with the judgement and decree of the trial court, the appellant preferred this appeal seeking enhancement of the general damages awarded. The appeal is based on the ground that the trial magistrate erred in law and fact by awarding the appellant damages that were inordinately low in the circumstances. 7. In the case of Selle -vs- Associated Motor Boat (1968)EA123 the court held: “An appeal to this court from the trial by the High Court is by way of retrial and the principles upon which the 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 judges’ findings of facts if it appears either that he has failed on some point to take into account of particular circumstances or probabilities materially to estimate the evidence of if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 8. As a result of the subject accident herein the appellant sustained the following injuries: a) Undisplaced fracturs of the neck of the left fibula. b) Severe soft tissue injuries of the left knee joint. HCCA CASE NO. E311 OF2023 JUDGEMENT (Charles Morogo Cheruiyot -vs- Kevin Masinde Omucheni & Another) 2|Page
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9. c) Blunt injuries to the pelvis leading to soft tissue injuries. d) Blunt injuries to the anterior chest wall leading to soft tissue injuries. e) Soft tissue injuries to the forehead. f) Deep cut wound on the left supraorbital region leading to soft tissue injuries. g) Loose 2 upper and 2 lower incisor teeth. h) Cut wound on the upper lip leading to soft tissue injuries. i) Soft tissue injuries of the nasal bridge. j) Dislocation of the left shoulder joint. k) Soft tissue injuries of the left hand. l) Blunt injuries to the right knee joint leading to subluxation of the right knee joint. The above injuries were confirmed by Dr. Omuyome who examined the appellant and was of the opinion that appellant suffered 5% disability. The injuries were also confirmed by Dr. Mugenye who re-examined the appellant and opined that the appellant suffered 7 % liability. 10. The appellant relied on the case of John Kuria Mbure vs. Magai Hire Purchase Limited & 2 others (2019) e KLR. In the above case the plaintiff suffered a fracture of the tibia and fracture of the medial and literal malleolus and dislocation of right ankle and was awarded Ksh.2,000,000 as damages. 11. It is noted that in the above case the plaintiff suffered 35 – 45% disability and more servere injuries. 12. The appellant herein is asking general damages of Kshs.500,000 awarded by the trial court to upscaled to Ksh.5,000,000. Considering the injuries suffered by the plaintiff, the award of Ksh.500,000 as general damages is adequate HCCA CASE NO. E311 OF2023 JUDGEMENT (Charles Morogo Cheruiyot -vs- Kevin Masinde Omucheni & Another) 3|Page
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13. The upshot of my above is that this appeal lacks merit and therefore, the same is dismissed. The court, however, makes no order as to costs since this appeal was not defended. Dated, signed and delivered on line via Ms team on 23rd July, 2026 Hon. P. K. Rotich JUDGE In the presence of: Sitati for Appellant Peter Karanja for the Respondent – Absent HCCA CASE NO. E311 OF2023 JUDGEMENT (Charles Morogo Cheruiyot -vs- Kevin Masinde Omucheni & Another) 4|Page
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