REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYAMIRA (CHERERE-J) HCCA E065 OF 2025 BETWEEN THE GUARDIAN COACH LIMITED.........................................APPELLANT AND SERFHINE ATIENO OWUOR.................................................RESPONDENT (Being an appeal from the Judgment and Decree in Keroka MCCC E015 OF 2021 by Hon. E.K.Nyutu (CM) on 21st October 2025) JUDGMENT 1. The Respondent instituted Keroka MCCC E015 OF 2021 seeking damages for injuries sustained in a road traffic accident that occurred on 31st January 2020 while she was travelling as a passenger in the Appellant’s motor vehicle. 2. The Appellant denied liability in its defence but did not call any evidence at the trial, and the trial court ultimately found it wholly liable. Although liability was raised in the memorandum of appeal, the Appellant expressly abandoned that ground in submissions, with the result that the appeal is confined to the issues of proof of injuries and quantum. 3. As a first appellate court, this Court is required to reconsider and re-evaluate the evidence on record and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. That duty is well settled in Selle v Associated Motor Boat Co. Ltd [1968] EA 123, and has been reiterated in decisions such as Abok James Odera t/a
page 1 of 5
A.J. Odera & Associates v John Patrick Machira t/a Machira & Co. Advocates [2013] eKLR and Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR. 4. The determination of the appeal turns, firstly, on the nature of the injuries proved and, secondly, on whether the award of KES. 300,000 was commensurate with those injuries when considered against comparable authorities. 5. The medical evidence placed before the trial court comprised treatment notes dated 31st January 2020, a P3 form dated 15th February 2020, and two medical reports prepared by Dr. Morebu on 25th February 2020 and by Dr. Ichamwenge on 06th September 2021. 6. The treatment notes, being the earliest record, indicate that the Respondent sustained a cut wound to the left supra-orbital region and tenderness of the left shoulder, while the P3 form confirms a cut wound to the head and expressly records that there were no injuries to the thorax, upper limbs or lower limbs. Although Dr. Morebu’s report introduced a wider range of injuries including chest contusion and blunt trauma to several parts of the body, those injuries do not find support in the contemporaneous treatment notes or in the P3 form, and the later report by Dr. Ichamwenge is consistent only with soft tissue injuries to the head and shoulder together with residual scarring. 7. Upon a re-evaluation of that evidence, and giving due weight to the contemporaneous medical records, I am satisfied that the injuries proved on a
page 2 of 5
balance of probabilities were limited to a cut wound to the head, a soft tissue injury to the left shoulder, and residual scarring with keloid formation. The broader catalogue of multiple injuries reflected in Dr. Morebu’s report is not borne out by the primary records and cannot properly form the basis of assessment of damages. 8. Turning to quantum, it is evident from the judgment that the trial magistrate relied on authorities which were not cited by the parties in their submissions. A court is bound to determine a dispute on the basis of the material and authorities placed before it by the parties, and the introduction of extraneous authorities without affording parties an opportunity to address the court thereon amounts to a misdirection. The proper course is therefore to evaluate the award against the authorities that were actually cited at the trial. 9. Among those authorities are Ondicho v Mosigisi (Civil Appeal E054 of 2023) [2025] KEHC 5140 (KLR), in which an award of KES. 300,000 for soft tissue injuries was reduced on appeal to KES. 80,000, and Obure and Bethuel Githonga Muthami v Samuel Kiyuka Timothy Okwanyo [2024] KEHC 13333 (KLR), where an award of KES. 250,000 was similarly reduced to KES. 70,000 for soft tissue injuries. In both decisions, the Court emphasized that awards for uncomplicated soft tissue injuries must remain moderate and that awards in the range of KES. 250,000 to KES. 300,000 for such injuries are excessive and liable to interference. 10. When the injuries in those authorities are compared with the injuries proved in the present case, it is apparent that they fall within the same general category of soft tissue injuries without fracture or permanent disability. In the
page 3 of 5
present case, however, there is the additional factor of residual scarring on the head, which, though not amounting to permanent disability, is a relevant consideration in assessing damages. 11. The trial court, by adopting an expanded injury profile not supported by the primary evidence and by relying on authorities not cited by the parties, inevitably arrived at an award that exceeded the range justified by the injuries actually proved. Once the injuries are properly confined to those supported by the contemporaneous records, the award of KES.300,000 cannot be sustained when measured against the authorities cited at the trial, where comparable soft tissue injuries attracted significantly lower awards on appellate review. 12. At the same time, the injuries in the present case are not trivial, particularly in light of the cut wound to the head and the residual keloid scarring, and therefore warrant an award that reflects that distinguishing feature while remaining within the range established by comparable decisions. 13. While the injuries in Ondicho and Obure were confined to soft tissue trauma without any noted residual effects, the present case includes a visible keloid scar on the head, which, though not amounting to permanent incapacity, constitutes a distinguishing feature justifying a higher award. 14. Doing the best I can in the circumstances, and guided strictly by the authorities cited at the trial and the injuries proved, I am satisfied that an award of KES. 150,000 constitutes fair and reasonable compensation for the Respondent’s pain, suffering and loss of amenities.
page 4 of 5
15. The award of special damages in the sum of KES. 6,000 was specifically proved and is not contested, and is therefore upheld. 16. In the result, the appeal succeeds on quantum. The award of general damages of KES. 300,000 is set aside and substituted with an award of KES. 150,000, while the award of special damages is upheld. Each party shall bear its own costs of the appeal. DELIVERED AT NYAMIRA THIS 2026 07th DAY OF May WAMAE.T. W. CHERERE JUDGE Appearances Court Assistant - Hilda For Appellant - Ms. Ongwacho for KRK Advocates LLP For Respondent – Mr. Godia hb for Cheloti for Cheloti & Co. Advocates
page 5 of 5