The High Court at Kisumu has
partially allowed an appeal by Easy Coach Limited and its driver, reducing the
general damages awarded to a passenger injured in a 2020 road accident.
It, however, upheld the trial court’s
finding of full liability against the appellants.
Justice Alfred Mabeya delivered the
judgment arising from a lower court decision in which Edward Odwaro Ondhoro was
awarded Sh1,200,000 in general damages.
He was also awarded Sh46,057 in
special damages following a collision involving an Easy Coach bus and a lorry
near Awasi on February 1, 2020.
Ondhoro, who was a passenger at the
time, sustained a fractured jaw, lost four upper teeth and suffered soft tissue
injuries to his tongue, forehead and lower limbs.
He filed suit in 2021, and the trial
court found the appellant 100 per cent liable for the accident.
In their appeal, Easy Coach and the driver Omondi challenged the award of general damages, arguing that the respondent
failed to produce initial treatment notes and that the amount awarded was
excessive.
They contended that the injuries
were not sufficiently proven and proposed a lower award of Sh 300,000, citing
comparable case law.
The appellant did not at any point dispute
the fact that the respondent was injured as a result of the accident, as the
injuries were in tandem and corroborated by the respondent’s oral evidence and
police abstract produced in court.
However, the High Court found that
the respondent had adequately proved his injuries through a P3 form and a
dental treatment report, both admitted by consent.
The court noted that the appellants
did not present any evidence to rebut the respondent’s claims or file a medical
report from a second examination they had arranged.
“The failure to produce the initial treatment
notes was not fatal,” Justice Mabeya ruled.
“It did not water down the effectiveness
of the P3 form and the Dental Treatment Report that were produced in evidence.”
Nonetheless, the court agreed that
the general damages awarded were inordinately high.
After reviewing comparable
precedents, the judge reduced the general damages to Sh1,000,000.
“Accordingly, this Court reduces the award of Sh1,200,000
to Sh1 million, considering the nature of the injuries sustained. The award of costs
and interest remain undisturbed,” the judge stated.
The award of special damages
remained unchanged, and each party was ordered to bear its own costs.
“The appeal is successful. I set aside the award by the trial court on general damages and substitute therefor with an award of Sh1 million. The award of special damages remains undisturbed. Each party shall bear its own costs.”
