https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12481

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG'A** **CIVIL APPEAL NO. E077 OF 2023** **BENSON KARAITHA NGURE alias** **BENSON KARUITHA NGURE ...........................................APPELLANT** **VERSUS** **ESTHER SYLVIAH WACHERA KIRUTHI .................RESPONDENT** *(Being an Appeal from the Judgment of the Hon S. K. Nyaga (SRM) in Kenol PMCC No. E115 of 2022 delivered on 11th day of September, 2023)* **JUDGMENT** 1. The Respondent herein filed suit before the lower court seeking for damages for injuries and incidental loss suffered as a result of a road traffic accident which occurred on 10th January, 2020 along the Kenol-Thika road. The accident involved a three-wheeled motor vehicle registration number KTWB 908G (Tuk Tuk) and motor vehicle registration number KCR 493L. The Respondent was a passenger aboard the Tuk Tuk. 2. At the conclusion of the hearing, the trial court delivered judgment in which it found the Appellant 100% liable for the accident. The court further awarded the Respondent Kshs. 1,400,000 as general damages and Kshs. 1,085,685 as special damages bringing the total award to Kshs. 2,485,685. **Memorandum of Appeal** 1. Aggrieved by the said decision, the Appellant proffered this appeal, based on the following grounds: 2. *The learned Magistrate erred in law and in fact in giving a narrow interpretation of the facts, leading to an erroneous assessment of the issue of liability.* 3. *The learned Magistrate erred in law and in fact as she failed to take into account the issue of liability which was not proved by the Respondent against the Appellant.* 4. *The learned Magistrate erred in failing to consider the law on negligence and thereby erroneously finding the Appellant to blame at 100% liability.* 5. *The learned Magistrate erred in law and in fact in awarding general and special damages when there was no legal basis for the award.* 6. *The learned Magistrate erred in law and in fact in awarding general damages that were so excessive as to amount to an abuse of discretion.* 7. *The learned Magistrate erred in law and in fact in applying wrong principles in awarding general damages and special damages.* 8. *The learned Magistrate erred in law and in fact in totally ignoring the law and the submissions put in by the Appellant thereby arriving at a wrong decision on liability and quantum of damages.* 9. *The learned Magistrate misdirected herself on the applicable measure of award of general damages and special damages in favour of the Respondent.* 10. *The learned Magistrate erred in law and in fact in awarding general damages that were so excessive as to represent an erroneous estimate of the loss suffered.* 11. *That the judgment of the learned Magistrate is against the law and weight of the evidence on record.* **The Evidence** *The Plaintiff’s Case* 1. PW1 was the plaintiff and the respondent herein. she adopted her witness statement dated 9th December, 2022 as her evidence- in- chief, and produced her list of documents dated 9th December, 2022 save for the police abstract and occurrence book. She blamed the Appellant for the accident, and told the court that she was yet to recover from the injuries sustained. 2. During cross-examination she stated that there was a clerical error in her written statement regarding their direction of travel, and clarified that the Tuk tuk was heading in the general direction of Thika. She further told the court that the Tuk Tuk was in its lawful lane and that she observed the Appellant’s vehicle as it approached from the rear through the side mirrors of the tuk tuk before hitting the tuk tuk. She denied the Appellant’s assertion that the Tuk Tuk had hit a lorry registration No. KCX 657D just before the collision, insisting that no other vehicle was involved in the primary impact other than the Appellant’s Probox 3. PW2, PC Sarah Orando, attached to the Makuyu Traffic Base, and was standing in for CPL Kassim, the Investigating Officer. She produced as evidence the Police Abstract (PEX-11) and the OB Extract (PEX-12), which narrated the circumstances of the accident as booked under OB 40/10/01/2020. 4. It was her testimony that on 10th January 2020, at around 5:10 p.m. a road traffic accident occurred at the Delmonte area along the Kenol-Thika road. That the accident involved three motor vehicles: KCR 493L a Toyota Probox , KTWB 908G , a Tuk Tuk and KCX 657D , a Nissan Note . It was her evidence that both the tuk tuk and the probox were heading in the same direction and upon reaching the Delmonte junction, the Probox, which was behind the Tuk Tuk, attempted to change lanes. In the process, the Probox hit the Tuk Tuk at the rear side left wheel, causing the Tuk Tuk to roll and collide with the Nissan Note, which was in a service lane ready to join the main road. She confirmed that the Tuk Tuk was extensively damaged and its passenger sustained serious injuries. 5. During cross-examination, PW2 stated that she was not the Investigating Officer and noted that the damage to the Probox was not indicated in the occurrence book. PW2 further stated that the position of the motor vehicles at the scene was not captured in the OB and that she could not explain which lane the Tuk Tuk and Probox were in at the time of impact. 6. In re-examination, she reiterated that she was unaware of the specific lanes occupied by the vehicles since she was not the investigating officer. She further stated that she did not know the basis upon which the Investigating Officer had assigned blame to the driver of the Probox . **Defendant’s Case** 1. The Appellant testified as DW1 and adopted his witness statement dated 23rd March 2023 as his evidence-in-chief. During cross-examination, he denied hitting the Tuk Tuk from behind. He reiterated that both vehicles were moving parallel to each other and that he maintained in the inner lane. He further testified that the lorry involved in the primary collision was KCX 627D and claimed that the lorry was removed from the scene by a co-driver who was not available to testify. 2. The Appeal was heard by way of Written Submissions. **Appellant’s Submissions** 1. The Appellant, through his submissions dated 14th November 2025, contended that the trial court misdirected itself by ignoring the principles applicable to the award of damages and the relevant authorities cited during the trial. 2. On the issue of liability, the Appellant submitted that he did not cause the accident. He contended that the trial magistrate erred by relying solely on the police abstract, which assigned blame to the Probox while ignoring the testimony of the police officer (PW2) who admitted she could not form a conclusive opinion on how the accident occurred, based on the occurrence book. 3. The Appellant argues that it was physically impossible for the accident to have occurred as narrated by the Respondent, as both the Respondent and the police officer testified that the Probox remained on the road, and at the point of impact. 4. Regarding the quantum of general damages, the Appellant submits that the award of Kshs. 1,400,000 was inordinately high and represented an erroneous estimate of the loss suffered. He opines that an award of Kshs. 800,000 would have been sufficient and comparable to the injuries sustained. In support of this position, the Appellant relies on the case of ***Stephen Mburu Maina v H. Young & Company (E.A) Ltd (206) eKLR***, where the plaintiff sustained an impacted fracture to the L1 vertebral bone and was awarded Kshs. 800,000 for a 20% permanent disability. 5. The Appellant further relies on the decision in ***Daniel Makau Mutinda v Patrick Ngei Mutyetumo (2020) eKLR***, where on appeal, Justice V. Odunga upheld a trial court's award of Kshs. 1,000,000 for significantly more severe injuries, including spinal injury, compression fractures of the thoracic spine (L2 and L3), and partial dislocation of the 2nd and 3rd lumbar vertebrae. 6. On the award of Kshs. 1,085,685, in special damages, the Appellant submits that the Respondent failed to meet the strict standard of proof required. He points to the production of duplicate receipts from Mater Hospital, specifically Receipt No. CRCT 111254984 for Kshs. 700 and Receipt No. CRCT 111254988 for Kshs. 18,735.36, which he contends appeared twice in the record with similar entries. 7. Consequently, the Appellant urges this court to set aside the trial court’s award and substitute it with an amount of Kshs. 1,052,242, which he deems to have been properly pleaded and proved. **Respondent’s Submissions** 1. It is the Respondent's contention that the trial court's decision was based on a proper evaluation of the evidence and that the Appellant has failed to raise any triable issues that would warrant the intervention of this court. 2. On the issue of liability, the Respondent maintains that she was a lawful fare-paying passenger in the Tuk Tuk and had no control over the manner in which the vehicles were being driven. She relies on the principle that a passenger cannot be penalized for the poor workmanship or negligence of a driver. In support of this contention she cites the decision in the case of ***Amal Hauliers Ltd v Abdulnasir Abubakar Hassan (2018) KEHC 3233 (KLR)***. 3. The Respondent further submits that the evidence of **PW2,** PC Sarah Orando, established that the Appellant’s vehicle hit the Tuk Tuk from the rear while attempting to change lanes, causing it to roll and collide with a third vehicle, a Nissan Note. She points out that while the Appellant offered a different narration of the accident, he failed to call any eye witnesses, produce scene photographs, or provide sketch maps and inspection reports to corroborate his testimony. Consequently, she urges the court to find that the Appellant's testimony did not challenge her evidence nor discharge his burden of proof. 4. On the award on General Damages, the Respondent argues that the award of Kshs. 1,400,000 was reasonable given the severity of her injuries, which included an unstable fracture of the 1st Lumbar vertebra (L1), requiring major surgery and resulting in a 25% permanent incapacity. She contends that her proposed award at the trial stage of Kshs. 2,000,000 was justified by the following authorities: ***Akamba Public Road Services Limited vs Maureen Akinyi Abok (2016) eKLR***, where an award of **Kshs. 3,000,000** for a C1 vertebra fracture and other injuries was upheld on appeal. ***Subati Flowers Limited vs Walter Wanyonyi Wekesa (2019) eKLR***, where an award of **Kshs. 1,600,000** was upheld for a fracture of the Lumbar vertebrae. 1. On the issue of Special Damages, the Respondent categorically denies the Appellant’s assertion that duplicate receipts were produced. She explains that Receipt No. CRCT 111254984 for Kshs. 700 and Receipt No. CRCT 111254988 for Kshs. 18,735.36 were issued on two distinct dates;27th February 2020 and 12th March 2020; representing separate consultation fees and laboratory charges incurred at different stages of her treatment. She submits that these expenses were strictly proved by the receipts and stamps produced in the trial court and that the total award of Kshs. 1,085,685 should not be disturbed. 2. The Respondent urged the court to dismiss the appeal with costs. **Analysis and Determination** 1. This being a first appeal, the duty of this court was settled in the case of ***Selle and Another v Associated Motor Boat Company Limited and others EA 123***. The first appellate required to reconsider the evidence, evaluate it, and draw its own conclusions, while bearing in mind that it did not have the advantage of hearing the witnesses first-hand. The principle has been affirmed in several other subsequent decisions of the courts. 2. Upon review of the evidence, the memorandum of Appeal and the rival submissions of the parties, the following issues lend themselves for determination: ***a).*** *Whether the Appellant was liable for the accident.* *b). Whether the award on General and Special damages awarded were excessive.* *Whether the Appellant was liable for the accident.* 1. I have re-evaluated the evidence on liability. The Respondent was a passenger in KTWB 908G. Her evidence was that the Tuk Tuk was moving in its lawful lane; that she had seen the Appellant’s Probox behind it through the side mirror, and that the Probox struck the Tuk Tuk from the rear. The occurrence book account produced by PW2 was consistent on the material sequence: that KCR 493L, while travelling behind the Tuk Tuk changed lanes, struck the tuk tuk on its rear left wheel, causing it to roll and thereafter collided with the vehicle which was on the service lane. 2. According to the Appellant however, the the Tuk Tuk first hit a lorry, lost control and swerved into his lane. That account was not supported by the alleged lorry driver, the Tuk Tuk driver, a scene sketch, photographs or an inspection report. There was also a material inconsistency as to the third vehicle: the police record identified KCX 657D as a Nissan Note, whereas the Appellant referred to the same vehicle as a lorry, and stated that it was removed by an unidentified co-driver. The Appellant’s attempt to introduce the lorry not reflected in the police records casts doubts on the credibility of his testimony. I find the Respondent’s account to be more plausible. 3. Although the Respondent’s status as a passenger meant that she had no control over either vehicle, that status did not relieve her of the burden of proving negligence against the Appellant. Upon evaluating her eye-witness account together with the contemporaneous police record, I am satisfied that she discharged that burden. 4. A driver travelling behind another vehicle is required to maintain a safe distance and ensure that a change of lane can be made safely. The evidence demonstrates that the Appellant failed to keep a safe distance from the tuk tuk. There was no evidential basis upon which liability could properly be apportioned against the Respondent, and the Appellant did not establish any contributory act by the Tuk Tuk driver. I therefore find no basis for disturbing the trial court’s finding that the Appellant was 100% liable. *Whether the award on General awarded were excessive.* 1. An appellate court does not interfere with an award of general damages merely because it would have awarded a different sum. It may do so only where the trial court considered an irrelevant factor, left out a relevant factor, applied a wrong principle, or where the award is so inordinately high or low as to represent an entirely erroneous estimate. That principle was aptly articulated in the decision of ***Kemfro Africa Ltd t/a Meru Express Service & another v A. M. Lubia & another (No. 2) [1987] KLR 30.*** 2. The medical evidence was that the Respondent sustained an unstable fracture of the first lumbar vertebra, underwent major surgery and was assessed to have suffered permanent incapacity of 25%. Those were not minor injuries. The trial court was entitled to consider the nature of the spinal injury, the treatment undertaken, the residual incapacity, comparable awards and factors of inflation, while also bearing in mind that no two cases are identical. 3. I have considered the authorities relied upon by both parties. In ***Stephen Mburu Maina v H. Young & Company (E.A.) Ltd [2017] eKLR,*** Kshs. 800,000 was awarded for an impacted L1 fracture with 20% disability. That award was made about 5 years before the impugned judgment and involved its own medical features. On the other hand, in Subati ***Flowers Limited v Walter Wanyonyi Wekesa [2019] eKLR,*** in which Kshs. 1,600,000 was upheld, it involved fractures of the legs and lumbar vertebrae, a chest injury and 40% disability. Those injuries were more severe in comparison to the ones suffered by the respondent herein. I find that the award of Kshs. 1,400,000 in the present case lies within the range disclosed by the comparable decisions, adjusted for the Respondent’s 25% incapacity and the passage of time. 4. The Appellant has not demonstrated that the trial magistrate considered any irrelevant consideration or omitted any material consideration. I do not find the award of Kshs. 1,400,000 so excessive as to amount to an erroneous estimate. I decline to interfere with the award. *Special damages* 1. The applicable principle on special damages is that they must be specifically pleaded and strictly proved. On proof the court must be satisfied, on the material placed before it, that the pleaded expense was actually incurred (See ***Hahn v Singh [1985] KLR 716***). 2. The Appellant’s complaint is confined to the assertion that two Mater Hospital receipts were duplicated, while the respondent states that they were for different services and issued on different dates. A careful scrutiny of two sets of receipts validates the Appellant submissions. The receipts for ksh. 700 bear the same number, that is CRCT 111254984 while the ones for Kshs. 18,735.36 also bear one number, that is CRCT 111254988. Further in both cases the original receipts have the dates printed on the receipt, while the duplicated receipts only have the date stamps. Consequently, an amount of kshs 19, 435,36, being an aggregate of the repeated expenses is to be discounted from the award. This leaves a balance of ksh. 1,066,250.63 as special damages. 3. Final orders: a). The Appeal on liability is hereby dismissed and the finding of the trial court upheld. b). The trial court award on general damages is upheld. c). The award on special damages is set aside and substituted with kshs. 1,066,250.63. d). The award on general damages, will attract interest at court Rates from the date of judgment at the trial court , while interest on special damages will run from the date of filing suit. e). The Appeal having partially succeeded, each party to meet their own costs Dated , signed and delivered at Isiolo, via *Microsoft Teams* this 30th day of July 2026. S. Chirchir Judge. In the presence of : Roba Katelo- Court Assistant Ms. Nyanjiru for the Appellant