https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11347

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **CIVIL APPEAL NO. E063 OF 2021** **BENSON ONYANGO OUKO …………………………..……………………APPELLANT** **-VERSUS-** **DAVID NJUGUNA KARANJA …………………………………………… RESPONDENT** **(Being an appeal from the judgment and decree of Hon. P. Achieng’ (S.P.M.) delivered on 30th September 2021 in Ngong SPMCC No. 127 of 2019)** **JUDGEMENT** 1. Before me is an appeal by the appellant, Benson Onyango Ouko, against the judgment of the Senior Principal Magistrate’s Court at Ngong. By that judgment, delivered on 30th September 2021, the learned magistrate found the appellant 80% liable for a road traffic accident that occurred on 16th October 2017 along the Ngong-Nairobi Road near the PCEA stage. The magistrate awarded the appellant general damages of Kshs. 2,000,000/= and special damages of Kshs. 189,583/=, subject to the apportionment of liability, arriving at a net judgment sum of Kshs. 437,916.60/= plus half costs of the suit. 2. The respondent did not enter appearance in this appeal despite having been served. Having satisfied itself of proper service, the court directed that the appeal be canvassed by way of the written submissions. 3. The appellant raises nine grounds of appeal. In summary, the grievance is that the learned magistrate erred in apportioning 80% liability against him when, on the evidence, the respondent ought to have been found wholly liable for the accident. The appellant also complains that the general damages awarded were inordinately low. 4. The salient facts as established before the trial court are not in material dispute. On 16th October 2017 at approximately 6.30 a.m., the appellant alighted from a vehicle at the PCEA stage along the Ngong-Nairobi Road and attempted to cross the road. The respondent’s motor vehicle, registration number KAV 906A, was travelling from Ngong towards Nairobi. As the appellant stepped out from behind a lorry that was travelling in the opposite direction, the respondent’s vehicle struck him. The appellant sustained serious injuries including a head injury with loss of consciousness, a compound fracture of the right leg, spinal injuries, and loss of memory, for which he was hospitalised at Kenyatta National Hospital from 16th October 2017 to 21st November 2017 and subsequently at Jaramogi Oginga Odinga Teaching and Referral Hospital. **The Evidence at Trial** 1. The appellant (PW1) adopted his witness statement and testified that he had waited for the road to clear before crossing and did not see any vehicle approaching. On cross-examination, however, he conceded that he had alighted from a Nissan vehicle and, as he attempted to cross to the other side, was struck. He admitted that he emerged from behind the Nissan before being hit. 2. The appellant also called No. 93177 PC Meitamei Leng’en (PW2), a traffic officer attached at Ngong Police Station. PW2 testified that he was not the investigating officer, had not participated in the investigation, and did not know the circumstances under which the accident occurred. He confirmed that the police abstract did not indicate who was to blame, as the matter was still under investigation. During his evidence, PW2 sought to produce the Occurrence Book (OB) for the material date; however, the respondent objected to its production on the ground that it had not been listed in the documents the appellant intended to rely on. The court sustained that objection. It bears noting that even if the OB had been admitted, it would have added nothing material to the appellant’s case: the occurrence of the accident itself was never in issue. The real contest was about how the accident came to happen and who was to blame for it — questions on which PW2, by his own admission, had no knowledge. 3. The respondent (DW1) and his conductor Benard Waguchu Ngugi (DW2) both testified. Their accounts were largely consistent and mutually corroborative. DW1 stated that he was driving at approximately 40 km/h when the appellant suddenly emerged from behind a lorry travelling in the opposite direction. He hooted and attempted to swerve but was unable to avoid the collision given the short distance at which the appellant appeared. DW2, who was seated in the front cabin, confirmed that the pedestrian appeared from behind the lorry without warning and that the driver hooted and applied the brakes. Both witnesses testified that they thereafter took the appellant to seek medical assistance. **Issues** 1. The following issues arise for determination: 2. Whether the trial court’s apportionment of liability at 80:20 against the appellant should be disturbed. 3. Whether the award of general damages of Kshs. 2,000,000/= was inordinately low. 4. Who should bear the costs of this appeal. **Analysis** 1. This being a first appeal, this Court is required to reconsider and evaluate the evidence afresh and draw its own conclusions. It must, however, bear in mind that the trial court had the advantage of observing the witnesses and hearing their evidence first-hand. The Court will not ordinarily interfere with findings of fact by the trial court unless they are based on no evidence, on a misapprehension of the evidence, or on a demonstrably wrong application of legal principles see ***Ephantus Mwangi & Another v Duncan Mwangi Wambugu* (1982-88) 1 KAR 278*;*** and ***Mbogo & Another v Shah* [1968] EA 93.** 2. **Issue I — Liability** 3. The appellant’s primary argument on liability is that he took all necessary provision for his safety and that the learned magistrate erred in relying on the police abstract to determine the question of liability. In his memorandum of appeal, he also raised as a ground that the respondent failed to adduce any evidence as to how the accident occurred, and that in those circumstances the appellant ought to have been held blameless. He also invoked the doctrine of res ipsa loquitur, submitting that the severity of the injuries and the respondent’s inability to avoid the accident implied excessive speed. 4. I deal first with the evidential issue. The argument that the respondent adduced no evidence is factually incorrect. The respondent called two witnesses — DW1 (the driver himself) and DW2 (his conductor) — both of whom were present at the scene and gave direct, first-hand accounts of how the accident unfolded. Their evidence was tested in cross-examination and remained consistent throughout. 5. I turn to the doctrine of res ipsa loquitur. The appellant urged this Court to infer negligence from the fact of the accident itself and from the severity of the injuries sustained. With respect, this argument is misconceived in the circumstances of this case. 6. The doctrine operates as an evidential tool to permit an inference of negligence in the absence of an explanation of how an accident occurred. Its availability is therefore contingent on there being no direct evidence explaining the cause of the accident. As was stated by the Canadian Supreme Court in ***Fontaine v British Columbia (Official Administrator) [1998] 1 SCR 424***, a decision adopted with approval by Kenyan courts (see ***Netah Njoki Kamau & another v Eliud Mburu Mwaniki [2021] KEHC 2810 (KLR)*** : **“Where there is direct evidence available as to how an accident occurred, the case must be decided on that evidence alone … Res ipsa loquitur only operates to provide evidence of negligence in the absence of an explanation of the cause of the accident. If the facts are known, the inference is impermissible and it is the task of the court to review the facts and to decide whether they amount to the plaintiff having satisfied the burden of proof which is upon him.”** 1. This position is squarely on all fours with the decisions in ***Sally Kibii & another v Francis Ogaro [2012] KEHC 1874 (KLR)*** and ***Netah Njoki Kamau & another v Eliud Mburu Mwaniki [2021] KEHC 2810 (KLR)***, which this Court finds directly applicable. In Sally Kibii, the High Court declined to apply the doctrine where the plaintiff had not adduced any evidence to establish the circumstances of the accident and the police abstract was inconclusive on blame. In Netah Njoki Kamau, the court similarly held that where the plaintiff failed to adduce sufficient evidence to support the allegations of negligence pleaded, those allegations remained unproved; and more pertinently, that the doctrine of res ipsa loquitur does not shift the burden of proving negligence from the claimant — it only operates where the claimant has first established a prima facie case of negligence on the evidence available. 2. In the present case, there is ample and uncontroverted direct evidence before this Court as to exactly how the accident occurred — PW1, DW1 and DW2 testified in detail. The res ipsa loquitur doctrine simply has no room to operate. The question of how the accident came about falls to be decided on that direct evidence. 3. Turning then to the burden of proof: it is trite that the burden rests on the party who alleges, throughout the entirety of the proceedings, to prove their case on a balance of probabilities: see **Sections 107-109 of the Evidence Act Chapter 80 Laws of Kenya** ; and ***Re H and Others (Minors) [1996] AC 563.*** 4. The appellant called only PW1 (himself) and PW2 (a police officer who was not at the scene, did not investigate the accident, and expressly admitted that he did not know the circumstances in which it occurred). The appellant’s own evidence, on cross-examination, effectively corroborated the respondent’s account: he admitted that he emerged from behind a vehicle before being struck (albeit not a lorry as testified by the defence witnesses). The police abstract, the only document produced by the plaintiff witnesses, did not attribute blame as the matter was still under investigation. 5. Against this, DW1 and DW2 gave consistent, detailed and unshaken direct evidence that the appellant stepped suddenly from behind a lorry, at close range, leaving the driver with insufficient time or distance to stop. DW1’s evidence that he was travelling at approximately 40 km/h was not contradicted. His explanation that he hooted, attempted to swerve and applied the brakes was confirmed by DW2. 6. The trial court correctly identified the crux of the matter: the appellant had, by crossing from behind an obstructing vehicle, failed to ensure that the lane of oncoming traffic was clear before entering the road. At the same time, the trial court correctly held that the respondent ought to have exercised greater care near a known bus stop where pedestrian movement was foreseeable, and that driving at a speed from which he could not stop when a pedestrian appeared indicated a degree of fault on his part. 7. I am satisfied that the trial court’s apportionment of liability at 80:20 in favour of the respondent is supported by the evidence and does not disclose any error of principle or any demonstrable misapprehension of the evidence. I decline to interfere with that finding. 8. **Issue II — Quantum** 9. The appellant also seeks an enhancement of the general damages award of Kshs. 2,000,000/=. In his submissions he is, however, equivocal in that he ultimately expressed agreement with the award and urged this Court to uphold it. In the circumstances, this Court takes the position that the appellant has effectively conceded the quantum ground. The Court of Appeal in ***Butt v Khan [1978] KECA 24 (KLR)*** has stated that an appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, or unless the judge proceeded on wrong principles or misapprehended the evidence in a material respect. 10. The appellant suffered serious injuries a head injury with loss of consciousness, a compound fracture of the right leg with a discharging sinus, spinal injuries, and loss of memory. He was hospitalised for extended periods and continues to experience debilitating effects. The trial court had the benefit of the medical report of Dr. L.W. Okombe, which confirmed the extent of his injuries as grievous harm. The award of Kshs. 2,000,000/= for general damages, in those circumstances, cannot be said to be inordinately low so as to warrant interference. I accordingly uphold the trial court’s award on quantum in its entirety. **Disposition** 1. The upshot of the foregoing is that the appeal is dismissed in its entirety. The judgment and decree of the Senior Principal Magistrate’s Court at Ngong in SPMCC No. 127 of 2019 dated 30th September 2021 is hereby upheld as follows: 1. Liability: 80:20 against the appellant (plaintiff) 2. General damages: Kshs. 2,000,000/= 3. Special damages: Kshs. 189,583/= 4. Total: Kshs. 2,189,583/= 5. Less 80% (Kshs. 1,751,666.40/=): Net judgment sum — Kshs. 437,916.60/= 2. The costs of the lower court shall abide the order of the trial court. 3. The respondent did not enter appearance in this appeal. Each party shall therefore bear their own costs of this appeal. It is so ordered. **DATED, SIGNED AND DELIVERED AT GARISSA VIRTUALLY THIS 23RD DAY OF JULY 2026** **JOHN T. LOLWATAN** **JUDGE**