https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9663

**** **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. E081 OF 2025** **AWICH ACHIENG LILIAN ……………….………...…. APPELLANT** ***VERSUS*** **RIGAN MISAT ONDIEKI ……………………………..RESPONDENT** *(Being an appeal against the judgment and decree of Hon. E. K. Suter (PM) of the Chief Magistrate’s Court at Mavoko in CMCC No.E869 of 2023 delivered on* *11th March 2025.)* **JUDGMENT** 1. This is an appeal against liability and the quantum of damages awarded to the respondent in the court below. The grounds of appeal are: *“(1)* ***That the learned magistrate erred in law in awarding general damages that were inordinately high in the circumstances.*** ***(2) That the learned magistrate erred in law by finding the respondent had discharged the legal burden of proof.*** ***(3) That the learned magistrate erred by awarding future medical expenses which had not been substantiated.”*** 1. Briefly the respondent’s case in the court below was that on 31st March 2023 he was riding his motor cycle Reg. No. KMDF 329 Z along the Namanga – Nairobi Road when the appellants motor vehicle Reg. No. KCA 329 Z, which he alleges was being driven at a high speed, suddenly lost control and collided with his motor cycle causing him severe bodily injuries to wit:- 2. ***Deep bleeding cut wounds – lips – exposing teeth – right side.*** 3. ***Swollen, painful and tender face.*** 4. ***Loss of upper front (incisors).*** 5. The accident was reported to Athi River Police Station. Police officers went to the scene and after carrying out investigations, the appellant was blamed for the accident. In support of his evidence the respondent called a police officer (PW1) who produced a police abstract. The respondent also produced treatment notes, a P3 form and a medical report as proof of the injuries suffered. 6. The appellant did not adduce any evidence in the court below other than the 2nd medical report which was admitted by consent. 7. After considering the evidence and submissions before her, the learned magistrate found the appellant wholly liable for the accident and awarded the respondent damages as follows:- 8. **General damages – Kshs.500,000/-** 9. **Future medical expenses – Kshs.160,000/-** 10. The appellant being aggrieved by the finding on liability and quantum of damages contending that liability was not proved on a balance of probabilities; that the learned magistrate shifted the onus of proof to the appellant and that the damages awarded were excessive and not commensurate to the injuries sustained. Counsel for the appellant also submitted that the medical expenses were unsupported. Counsel urged this court to allow the appeal, set aside the judgment of the court below and award the costs of the appeal to the appellant. 11. For the respondent it was submitted that the issue of liability was proved to the required standard; that the appellant did not adduce evidence to rebut that of the respondent and hence the learned magistrate was correct in arriving at a finding of 100% liability against the appellant. In regard to the general damages, Counsel argued that the same were reasonable and supported by comparable cases. Counsel urged this court to be persuaded by the precedents cited and uphold the award for general damages. Counsel also argued that the prayer for future medical expenses was proved as it was supported by medical evidence and the prognosis of the doctor who did the medical report. Counsel urged this court to dismiss the appeal with costs. **Analysis and determination** 1. As the first appellate court, I have reconsidered and evaluated the evidence in the lower court so as to arrive at my own independent conclusion albeit bearing in mind that I did not see or hear the witnesses – see the case of **Selle & Another V Associated Motor Boat Company Limited & Others, [1968] EA 123.** 2. I have also considered the able submissions of learned counsel for the parties, the cases cited and the law. 3. The appellant did not adduce any evidence at the hearing save for a medical report produced by consent of the advocates for the parties. His learned advocate has however submitted that the respondent’s evidence fell short of proving the case on a balance of probabilities. I have perused the evidence in the court below. In his witness statement the respondent stated that the motor vehicle was driven negligently; that it was at a very high speed and that it lost control and collided with his motor cycle. He reiterated those facts in his oral testimony in court and called a police officer (PW1) who confirmed that the accident indeed occurred, that she was detailed to investigate the accident and when she did so, she concluded that the appellant was to blame. She however conceded that she did not go to the scene. She explained that the accident occurred as a result of the appellant’s motor vehicle joining the highway without giving way to the motor cycle as a result of which the motor cycle rammed into the rear of the motor vehicle. The respondent’s evidence discloses negligence on the part of the appellant. That evidence was not rebutted because as was stated in the case of **Trust Bank Limited vs. Paramount Universal Bank limited and 2 others [2009] eKLR**: ***“It is trite that where a party fails to call evidence in support of its case, that party’s pleadings remain mere statements of fact since in so doing the party fails to substantiate its pleadings. The 2nd Defendant and 3rd Defendant’s defence were unsubstantiated and remained mere statements. In the same vein failure to adduce any evidence meant that the evidence adduced by the Plaintiff against the 2nd and 3rd Defendants was uncontroverted and therefore unchallenged.”*** 1. Similarly, in the case of **Janet Kaphiphe Ouma & Another v Maries Stopes International (Kenya) Kisumu HCCC No.68 of 2007** the court held that: “***In this matter, apart from filing its statement of defence the defendant did not adduces any evidence in support of assertions made therein. The evidence of the 1st plaintiff and that of the witness remains uncontroverted and the statement in the defence therefore remains mere allegations………Section 107 and 108 of the Evidence Act are clear that he who asserts or pleads must support the same by way of evidence.”*** 1. In the premises, I find no merit in the appeal regarding liability and it is dismissed. 2. For the quantum of damages, this court is guided by the principle that as the assessment of damages is an exercise of discretion, this court can only interfere where it is shown that the learned magistrate misdirected themselves in principle, or took into account an irrelevant factor or failed to take into account a relevant factor or that the award was so inordinately low or inordinately high that it amounts to an erroneous estimate of the damages – see the case of **Shabani v City Council of Nairobi [1985] KLR 516**. The respondent sustained an open cut wounds on the right side of the mouth; bled profusely; teeth were exposed and the upper and lower cut. He lost his upper teeth. These were the injuries as per the P3 form and medical reports. The prognosis was that he sustained both grievous harm and soft tissue injuries and required denture application at a cost of Kshs.160,000/-. This evidence was not rebutted either and I am satisfied therefore that he suffered injuries. The extent of those injuries was also proved on a balance of probabilities. 3. I have also considered the cases the learned magistrate relied upon in assessing the damages and I see no reason to fault her for the award she arrived at. The future medical expenses were specifically pleaded and proved and I am therefore satisfied that they were properly awarded. 4. In the upshot, I find no merit in this appeal and the same is dismissed in its entirety with costs to the respondent. Orders accordingly. **Judgment signed, dated and delivered virtually via Microsoft teams on this 25th day of June, 2026.** **E. N. MAINA** **JUDGE** **In the presence of:** Mr. Pravin Odiyo for the Appellant No attendance for the Respondent Catherine - Court Assistant/Interpreter