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Kyalo v Mwangi (Civil Appeal E123 of 2024) [2026] KEHC 7028 (KLR) (Civ) (18 May 2026) (Judgment) Neutral citation: [2026] KEHC 7028 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Commercial Courts) Civil Civil Appeal E123 of 2024 FR Olel, J May 18, 2026 Between Bernard Kyalo Appellant and George Nyange Mwangi Respondent (BEING AN APPEAL FROM THE JUDGMENT/ DECREE OF HON T.E MARIENGA (Ms) PRINCIPAL MAGISTRATE DELIVERED ON 14th DECEMBER 2023 IN NAIROBI MILIMANI CMCC NO E692 OF 2023) Judgment A. Introduction 1.This Appeal challenges the Judgment/decree of Hon T.E Marienga, Principal Magistrate dated 14th December 2023, delivered in Milimani CMCC No E692 of 2021, where she held that the appellant was 100% liable for the accident which occurred on 24th March 2018 and awarded the respondent general damages of Kshs.350,000/= for pain and suffering and special damages of Kshs.3,550/= plus costs and interest at court rates. 2.The background hereto was that the respondent filed his plaint dated 28th January 2021 against the respondent and one Samuel Wakomo Gichuhi, wherein he averred that on or about the 24th of March 2018, he was a lawful passenger on motor vehicle registration Number KBY 755X Isuzu bus (hereinafter referred to as the 1st suit motor vehicle), Which was lawfully being driven around Syokimau Area along Mombasa road, when the appellant being the driver, employee and/or agent of the 2nd defendant carelessly , negligently and recklessly drove motor vehicle registration Number KCF 348Y Isuzu Truck ( the 2nd suit motor vehicle ) in blatant disregard of the traffic rules, and other road users, by abruptly stopping the 2nd suit motor vehicle after overtaking the 1st suit motor vehicle, and caused the said 1st motor vehicle to ram into its rear. 3.As a result, he had suffered serious bodily injury and prayed that he be awarded damages for the same 4.In response, the Appellant did file his statement of defence dated 21st September 2021 wherein, he denied all the averments made by the respondent and put him to strict proof thereof. In the alternative, if indeed an accident did occur, then the driver of the 1st suit motor vehicle and the respondent too was partially liable for the same due to their negligence, recklessness and lack of caution and put the respondent to strict proof to the contrary. B Facts at Trial 5.PW1 George Mwangi reiterated the contents of his witness statement wherein he explained how the accident did occur and produced his claim supporting documentation, save for the medical report and police abstract. He stated that he was seated behind the driver of the 1st suit motor vehicle and saw the driver of the 2nd suit motor vehicle, overtake them at high speed and then abruptly stopped Infront of their motor vehicle, without warning, thereby caused their motor vehicle to ram into the rear of the 2nd suit motor vehicle. 6.Dr Titus Ndeto confirmed that he examined the respondent, who gave a history of having been involved in a road traffic accident and subsequently prepared his medical report dated 13th February 2020 detailing his findings. PW3 Pc Peter Kiogora of Embakasi police station confirmed that the accident was reported at their station, and an abstract was issued, but he was not the investigating officer, and investigations into the said accident was pending. 7.The Appellant closed his case without calling any witness. 8.The 2nd defendant in the primary suit testified and stated that he bought the suit motor vehicle in April 2022 and produced asset financing documentation from NCBA to support his contention. He therefore denied owning the suit motor vehicle as at the date of the accident and could not be held to be vicariously responsible for the acts of the driver and/or previous owner. 9.The learned trial Magistrate considered the evidence adduced, parties’ submission and held that the Appellant was 100% liable for the accident and proceeded to award the respondent General damages of Ksh.350,000/= , Special damages of Kshs.3500/= plus costs and interest at court rates. C. The Appeal 10.The Appellant, being dissatisfied with the said Judgment, raised four (4) grounds of appeal, namely: -a.That the learned magistrate erred in law and in fact in finding the 1st defendant 100% liable for causing the accident.b.That the learned trial Magistrate erred in law and in fact by proceeding to hearing and determining the matter without the respondent undergoing 2nd medical examination despite the respondents counsel being served with the referral letter.c.That the trial Magistrate erred in law and in fact by proceeding to hear and determine the matter relying only on the respondents’ doctor medical report without considering the rules of natural justice and that would befall the appellant noting the serious injuries alleged to have been sustained by the respondent have never been confirmed.d.That the learned Magistrate erred in law and fact when she failed to consider the Appellants submissions on libility and dismissed the same without giving any reason at all 11.The Appellant thus prayed that the appeal be allowed and the judgment of the trial court be set aside and the respondents claim be dismissed with costs. He also urged the court to award him the costs of this Appeal. D. Analysis And Determination 12.A first appeal is a valuable right of the parties and unless restricted by law, the whole case therein is open for rehearing both on the question of fact and law. The judgment of the appellate court must therefore reflect its conscious application of mind and record the findings supported by reasons, on all issues arising along with the contentions put forth and pressed by the parties for decision of the appellate court. While reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the appellate court had discharged the duty expected of it. See Santosh Hazari v Purushottam Tiwari ( Deceased) by L.Rs (2001) 3 SCC 179. 13.A first appellate court is also the final court of fact and litigants are entitled to full fair independent consideration of the evidence. The parties have a right to be heard both on issues of fact and issues of law, and the court must address itself to all issues raised and give reasons thereof. While considering the entire scope of section 78 of the civil procedure Act a court of first appeal can appreciate the entire evidence and come to a different conclusion. See Kurian Chacko v Varkey Ouseph AIR 1969 Kerala 316. 14.I have considered this appeal, submissions, and the impugned judgment. I have also considered the decisions relied on and perused the trial court’s record. The appellant has challenged the trial courts finding both on liability and quantum. 15.On Liability the appellant did not offer any evidence before the trial court to rebut the respondent contention explaining the circumstances that led to the said accident, and thus on balance or probability established that the accident occurred due to the appellants negligence. 16.The issue of uncontroverted evidence was addressed by Justice Mwongo in Peter Ngigi & Another (suing as legal representative of the Estate of Joan Wambui Ngigi) v Thomas Ondiki Oduor & Another 2019 eKLR where he stated:-“ 22.There are many authorities that deal with the question of uncontroverted evidence, such as the situation in the present case where the defence did not show up at the trial. The general position running through such authorities is that uncontroverted evidence bears a lot of weight and a statement of defence without any evidence to support the assertions therein will amount to mere statements. 23.In the case of Shaneebal Limited v County Government of Machakos [2018] eKLR, Odunga, J, relied on the cases below in reaching his judgment. In Trust Bank Limited v . Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001 the learned judge citing the same decision stated that 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. In the same vein the failure to adduce any evidence means that the evidence adduced by the plaintiff against them is uncontroverted and therefore unchallenged. 17.The appellant therefore has no basis to claim that the trial Magistrate erred in determining that he was 100% liable for the accident that occurred, since he failed to offer evidence to exonerate him and/or his driver. This ground of appeal therefore fails. 18.With regards to interference of the award of damages, it was observed in the case of H. West & Son Ltd v . Shephard [1964] AC 326, that:“...In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range of limits of current thought. In a case such as the present it is natural and reasonable for any member of an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that in this sphere there are inevitably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment.” 19.This was appreciated by the Court of Appeal in Gitobu Imanyara & 2 Others v . Attorney General [2016] eKLR:“…it is firmly established that this Court will be disinclined to disturb the finding of a trial Judge as to the amount of damages merely because they think that if they had tried the case in the first instance, they would have given a larger sum. In order to justify reversing the trial Judge on the question of the amount of damages it will generally be necessary that this Court should be convinced either that the Judge acted upon some wrong principle of law, or that the amount awarded was so extremely high or so very low as to make it, in the judgment of this Court, an entirely erroneous estimate of the damage to which the plaintiff is entitled.” 20.The respondent pleaded and proved that as a result of the said accident, he had suffered comminuted fracture of the right humerus bone and soft tissue injury on the right upper hand. The same was confirmed by the medical documents produced and the medical report of Dr Titus Ndeti. The trial Magistrate did consider similar injury awards and awarded the respondent Kshs.350,000/= for general damages for pain and suffering. 21.The trial court award is not inordinately high to represent an entirely erroneous estimate of the injuries suffered, nor has it been shown the said award is based on wrong principles or that trial court misapprehended the evidence in some material respect. Considering similar injury awards, the sum awarded was adequate and represents a proper estimate of the damage which the appellant was entitled to. E . Disposition 12.I do therefore find and hold that this Appeal has no merit and the same is dismissed with costs to the respondent, 13.The same are assessed at Kshs.100,000/= all inclusive. 14.Stay of execution 45 days. 15.It is so ordered. DATED, SIGNED, AND DELIVERED IN OPEN COURT AT THIS 18TH DAY OF MAY 2026.FRANCIS RAYOLA OLELJUDGEDELIVERED ON THE VIRTUAL PLATFORM, TEAM THIS 18TH DAY OF MAY 2026.In the presence of: -N/A……………………………..AppellantN/A…………………………. RespondentJARSO……………………….Court Assistant