The High Court in Siaya has dismissed an appeal by a matatu owner and driver challenging a Sh790,000 award given to an injured passenger.
Anne Adhiambo Nyombago was a fare‑paying passenger in a matatu when the driver hit a motorcycle on the Bondo‑Kisumu road on July 7, 2022.
She suffered fractures of two lower canines, back pain along the spinal cord and multiple bruises on her right elbow. One tooth was later removed, she told the trial court, adding that she had not fully healed from her injuries.
Nyombago sued Kennedy Otieno Onyango and Kennedy Ochieng Odiyo, demanding compensation for her suffering and subsequent healthcare needs
Onyango (the first appellant) who was the driver of the matatu, was charged with careless driving, pleaded guilty and was fined.
Odiyo, the second appellant, was sued alongside the driver because he was identified as the owner of the vehicle.
The trial magistrate in Bondo held the appellants liable and awarded general damages of Sh350,000, future medical expenses of Sh440,000, plus costs and interest.
The future medical award covered an MRI scan of the shoulder, corrective surgery, an MRI of the lumbar sacrum spine and physiotherapy for the shoulder and lower back.
But the two were opposed to the ruling and lodged an appeal arguing that the future medical expenses were not proved and excessive.
They also argued the accident was caused by the negligence of the motorcyclist and the passenger themselves.
The appellants contended that the trial magistrate had failed to consider their own doctor’s report, who “confirmed the injuries but that the issue of the MRI was not needed” and that he dismissed the recommendation of the respondent’s doctor.
They asked the High Court to set aside the decree and reassess the award.
Delivering the judgment on May 22, Justice David Kemei dismissed the appeal in its entirety.
The judge upheld the finding on liability, noting that the traffic officer who testified confirmed that the matatu driver was convicted for careless driving.
“As regards the aspect of liability, it came out from the pleadings and evidence of the first 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 driven and or managed,”Justice Kemei ruled.
“It was the responsibility of the driver to ensure that all his passengers arrive safely at their destinations.”
“I find the apportionment of liability at 100 per cent against both appellants herein by the trial court was quite sound and must be upheld.”
On the disputed future medical expenses, the judge noted that the appellants failed to call their doctor to the stand to back up his written report.
“It was not enough for the appellants’ doctor to just dismiss the recommendation of the first respondent’s doctor. Indeed, the injuries on the first respondent had 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 that of the first respondent’s doctor.”
The appellants had also challenged the compensation of future medical expenses as inordinately high, but the judge found no basis to interfere.
Justice Kemei also emphasised that economic realities could not be ignored when calculating medical costs.
He concluded that the proposed amounts were reasonable, accounting for inflation and that the trial court had not taken into account any irrelevant factors.
“The finding of the trial court was proper and must be upheld.”
