https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12482

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **CIVIL APPEAL NO. E044 OF 2023** **CATHERINE WAMBUI ......................................................APPELLANT** **VERSUS** **JAMES GITAU NGIGI .......................................................RESPONDENT** *(Being an Appeal from the Judgment and Decree of the Hon. E.W. Wambugu, Principal Magistrate at Kandara delivered on 13th June, 2023 in Kandara CMCC No. E092 of 2021)* **JUDGMENT** 1. The Appellant herein filed suit in the lower court seeking damages for injuries and loss suffered as a result of an accident which occurred on 11th March 2021 along the Kaha-ini-Naru Murram road. The accident involved motor vehicle registration number KAV 242 Z, a lorry owned by the Respondent. 2. At the conclusion of the hearing, the trial court arrived at a finding that the Appellant had failed to prove negligence on a balance of probabilities and dismissed the suit, with costs to the Respondent. 3. The Appellant, was aggrieved by the outcome and proffered this Appeal. **Memorandum of Appeal** 1. In the Memorandum of Appeal dated 7th July 2023, the Appellant sets forth the following grounds: 2. *The learned trial magistrate grossly misdirected himself on the evidence tendered before Court and arrive at a wrong conclusion on the findings of liability.* 3. *The learned trial magistrate grossly misdirected himself on the binding precedents and arrived at a wrong conclusion on the award of general damages.* 4. *The trial Court misdirected itself in dismissing the Plaintiffs suit.* 5. The Appeal was heard by way of written submissions. **Appellant’s Submissions** 1. It is the Appellant’s submissions that the trial court's determination on liability was unjustified, asserting that the Police Abstract produced in evidence clearly confirmed her status as a passenger alighting from the subject motor vehicle when the accident occurred. The Appellant has relied on the principles set out in ***Gitobu Imanyara & 2 others v Attorney General (2016) eKLR,*** to argue that the lower court proceeded on wrong principles and disregarded the facts tendered and consequently this court ought to intervene . 2. The Appellant further urges the Court to be guided by the decisions in **Cosmas Mutiso Muema v Kenya Road Transporters Limited & another (2014) eKLR** and **PAS v George Onyango Orodi (2020) eKLR**, to the effect that a driver is bound to anticipate obstacles and that the consistency of a plaintiff’s testimony should be preferred where it is corroborated by the circumstances of the accident. 3. Regarding the assessment of damages, the Appellant submitted that the trial court's award of Kshs. 250,000/= was inordinately low for the injury sustained, specifically the amputation of the distal 1/3 of the left ring finger. 4. To justify an enhancement of the award to Kshs. 400,000/=, the Appellant cited **Peter Kibe Waweru v Moses Maina (2022) KEHC 826 (KLR)** and **Henry Albert Andera v Car & General (K) Ltd (2000) KEHC 300 (KLR),** emphasizing that comparative injuries ought to attract similar awards, to maintain judicial consistency. 5. In conclusion the Appellant has urged the court to find that the instant appeal is merited and enter judgement for the Appellant as prayed. **Respondent’s Submissions** 1. Through his written submissions dated 6th day of January, 2026, the respondent has urged this Court to uphold the decision of the trial court and dismiss the appeal with costs. 2. On liability, the Respondent contends that the Appellant failed to discharge the legal burden of proof under **Sections 107 and 108 of the Evidence Act;** that the trial court was correct in finding that the motor vehicle was lawfully parked at Kaburugi Market and was not being driven at the material time. 3. It was the Respondent’s submission that the Appellant was the author of her own misfortune, having climbed onto the stationary vehicle unlawfully and without authority, only to hurt herself while jumping down. The Respondent relied on the testimony of DW2, which corroborated that the Respondent was away taking orders from shops while the accident occurred, and further pointed out that the Police Abstract (Plaintiff Exhibit 5) did not attribute any blame to him. 4. On the assessment of damages, the Respondent submitted that the award of Kshs. 250,000/= was not only adequate but perhaps even generous, given that both medical reports from Dr. Mwaura and Dr. Michelle Muhanda (DExh 1) assessed the permanent incapacity at a mere 2% and confirmed that the wound had completely healed. 5. The Respondent finally argues that the Appellant has provided no justification for an enhancement of the award. **Summary of the Evidence** 1. PW1, was the plaintiff (Appellant herein). She adopted her witness statement dated 18th August 2021 and produced her list of documents bearing the same date. Under cross-examination, she testified that she operates a shop and was acting as a shopkeeper on the material day. She testified that the motor vehicle was being driven around Kaburugi market and had stopped for her to alight after she had given her order. It was her testimony that while the off-loader was outside the motor vehicle, the driver locked the door suddenly, causing her to sustain an injury in her finger. She told the court that despite taking medication, she has not healed completely and remains unable to work due to persistent pain. **The Respondent’s case,** 1. DW1 was the driver of the motor vehicle registration number KAV 242Z. He adopted his witness statement dated 5th June 2022 as his evidence- in -chief. 2. In cross-examination, DW1 confirmed he was the owner of the above stated vehicle and acknowledged the occurrence of the accident. He admitted the Appellant cut her finger on the motor vehicle and he reported the accident to the police. In re-examination, he reiterated that the Plaintiff had entered the vehicle without permission to offload goods and that his conductor was far from the door at the material time. 3. DW2 identified himself as a turn boy of the Motor Vehicle and an employee of the Defendant. He adopted his witness statement dated 15th June, 2022, as his evidence. In cross-examination, he stated that he was inside the vehicle at the material time while the DW1 was away taking orders at the shops. **Analysis and Determination** 1. The jurisdiction of this Court as a first appellate court is settled. It must reconsider and evaluate the evidence and draw its own conclusions, while making due allowance for the fact that it neither saw nor heard the witnesses. (See ***Selle & another v Associated Motor Boat Co. Ltd & others [1968] EA 123***). The Court will nevertheless be slow to interfere with findings of fact founded on the trial court’s assessment of witnesses unless the findings are unsupported by the evidence, are based on a misapprehension of the evidence, or the trial court demonstrably acted on a wrong principle. 2. On liability, sections 107 and 108 of the Evidence Act place the legal burden upon the party who asserts the facts from which liability is said to arise. In a claim founded on negligence, the plaintiff must prove, on a balance of probabilities, the duty of care, its breach, and the causal connection between that breach and the injury. 3. In the instant case, certain matters were not disputed. It is not disputed that Motor vehicle registration number KAV 242Z belonged to the Respondent; that the Appellant came into contact with it at Kaburugi Market; and she sustained an injury which resulted in the loss of the distal one-third of her left ring finger. Those admissions proved the occurrence of the incident and the injury. They did not, by themselves, proved negligence. 4. The only dispute concerned how the injury occurred. The Appellant stated that the vehicle had stopped for her to alight after she had given her order and that the driver suddenly closed or locked the door, trapping her finger. The Respondent’s evidence was that the vehicle was stationary, that the Appellant entered it without permission to offload goods, and that the Respondent was away taking orders when she injured herself. DW2, who was inside the vehicle, stated that the Respondent was away from the vehicle at the material time. 5. The Police Abstract confirmed that an accident was reported, but it did not identify any person as blameworthy. It is a principle of the law of negligence that there can be no liability without fault. No investigating officer was called, and no independent evidence was produced to show that the Respondent operated the door, authorized the Appellant to enter the vehicle, or otherwise performed the negligent act attributed to him. The abstract could therefore not supply the missing proof of breach. 6. I have considered the Appellant’s submission that the Respondent’s admission of the incident and his report to the police and insurer supported her case. Those facts are consistent with the occurrence of an injury involving the vehicle. However, they are not admissions that the Respondent negligently caused the accident. Further that admission of the accident could not shift the evidential burden, merely because the Respondent acknowledged that the Appellant had all her fingers before the incident and lost part of one finger in it. 7. The decisions in ***Cosmas Mutiso Muema v Kenya Road Transporters Limited & another [2014] eKLR and PAS v George Onyango Orodi [2020] eKLR*** cited by the Appellant do not alter that conclusion. The duty of a driver to keep a proper lookout and anticipate hazards arises in the context of the evidence concerning the operation of the vehicle. In this case the undisputed feature of both sides’ evidence was that the lorry was stationary. The imperative question was whether the Respondent negligently operated the door. On that question, the evidence did not tip the balance in the Appellant’s favour. The testimonies of both defendant’s witnesses to the effect that the respondent was away from the vehicle was hardly shaken during cross- examination. 8. The Court has also considered whether this was a proper case for apportionment of liability. Apportionment is not a substitute for proof of fault. In the absence of proof of a negligent act on the Respondent’s part, there is no evidential basis upon which a percentage of liability can properly be assigned to him. 9. Upon review and e- evaluation of Evidence by this court, I find no basis for concluding that the trial magistrate ignored material evidence, misapprehended the probabilities, or applied a wrong principle. The Appellant did not prove, on a balance of probabilities, that the injury was caused by the negligence of the Respondent. The appeal on liability therefore fails. *Damages* 1. Although liability was not established, the question of quantum must still be addressed. ( See ***Andrew Mwori Kasaya v Kenya Bus Service [2016] eKLR)***. 2. An appellate court will not disturb an award of general damages merely because it would itself have arrived at a different figure. The principle of interference following many past decisions of the courts is well settled. Interference is warranted only where the award is so inordinately high or low as to represent an entirely erroneous estimate, or where the trial court acted on a wrong principle, took account of an irrelevant factor, or failed to consider a relevant one. (See ***Kemfro Africa Ltd t/a Meru Express Service v A.M. Lubia & Ano (No. 2) [1987] KLR 30).*** 3. The Appellant suffered amputation of the distal one-third of the left ring finger. The two medical reports placed permanent incapacity at 2% and recorded that the wound had healed. The trial court stated that it would have awarded Kshs. 250,000/=. 4. The authorities relied upon by the Appellant involved materially graver injuries. In ***Peter Kibe Waweru v Moses Maina [2022] KEHC 826 (KLR)***, the award of Kshs. 600,000/= concerned amputation of two fingers, permanent disability assessed at 20%, and reduced function of the hand. In ***Henry Albert Andera v Car & General (K) Ltd [2000] KEHC 300 (KLR),*** the claimant suffered compound fractures and amputation of the right ring and little fingers together with fractures of the radius and ulna, repeated operations and substantial impairment of the arm. The cited injuries are not comparable to the Appellant’s injuries. 5. Considering the limited amputation, the 2% permanent incapacity, the healed wound, I am not persuaded that Kshs. 250,000/= was founded on a wrong principle or was inordinately low to warrant the intervention of this court. Thus, had the Appellant succeeded on liability, I would have upheld Kshs. 250,000/= as general damages. 6. It follows that the appeal is without merit, and it is hereby dismissed. The judgment and decree in Kandara CMCC No. E092 of 2021 are upheld. The Respondent is awarded the costs of the appeal. 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.