https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8387

 **REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **CIVIL APPEAL NO. E 1125 OF 2023** **DANIEL KIMOMO ILEI……………..…………………… APPELLANT** **VERSUS** **NANDHA PUNIT……………………..……………… RESPONDENT** ***(Being an appeal from the Decree of the Chief Magistrate’s Court at Nairobi, Milimani (Hon. A.S LESOOTIA - PM) arising from Judgement delivered on 28/9/ 2023 in CMCC No. E1544 OF 2021).*** **JUDGEMENT** 1. The Appellant herein is challenging the learned trial magistrate’s Judgement in which he dismissed the Appellant’s suit with costs to the Respondent for want of proof of the claim to the required legal standard. 2. The Appellant’s three Grounds of Appeal as stated in her Memorandum of Appeal dated 17/ 10/2023 may be condensed into two broad grounds as hereunder: 3. **That the learned trial magistrate erred in law and fact by finding that the Appellant did not establish the Respondents’ liability, against the weight of evidence.** **and** 1. **That the learned trial magistrate erred in law and fact in failing to assess and award damages to the Appellant.** 2. The Appellant therefore prays for the appeal to be allowed with costs incurred in this court and in the lower court; that the lower court’s Judgement on liability be set aside and substituted with one holding the Respondent liable for the claim and the Appellant be awarded damages for injuries he sustained. 3. The Appellant’s claim against the Respondent is based in tort. A summary of the case before the trial court is that the Appellant sued the Respondent for general damages, special damages, the costs of the suit, interest and any other reliefs deemed fit to grant following a road traffic accident that allegedly occurred on 11/1/ 2021 in which the Appellant suffered bodily injuries. The Respondent was accused of negligently or carelessly driving and/or managing his motor vehicle registration number KBF 101 F as a result of which it collided with the Appellant’s motorcycle registration number KMFE 787 S thereby causing the Appellant’s injuries. 4. The Respondent filed defence traversing all the material claims in the suit. Alternatively, she attributes occurrence of any such accident to the Appellant’s evidence. 5. The matter went to full hearing. The Appellant underscored his averments in the suit. He testified that the Respondent’s vehicle negligently overtook his motorcycle at high speed and veered onto his lane, thereby knocking the motorcycle and occasioning injuries to him. 6. On her part, the Respondent told the court that it was the motor cycle that rammed into his vehicle in the rear as it attempted to overtake it. 7. While noting that no independent witness was called to testify the learned trial magistrate found on the totality of the evidence on record that the Appellant did not prove the Respondent’s negligent driving on a balance of probability and dismissed the claim. 8. The Appellant submits through his Advocates that that he proved his claim on a balance of probability. Reference is made to the provisions of **Sections 107, 109 and 112 of the Evidence Act** which cast the burden of proof on a Claimant. The legal position is reiterated in **Anne Wambui Nderitu vs Joseph Kiprono Ropkoi & Another (2005) I. EA 334** cited by Counsel. 9. These principles are further underscored in **Palace Investment Limited vs Geoffrey Kariuki Mwenda & Another (2015) eKLR** also relied upon by the Appellant, where the Court of Appeal observed as follows regarding the standard of proof in civil cases;- **“…. That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that a tribunal can say; we think it more probable than not, the burden is discharged.”** 1. The Appellant suffered a compound fracture of the right midshaft tibia as per medico-legal report dated 3/2/2021. A Plaster of Paris was applied to the fracture site. The injury led to 20% permanent disability. The Appellant pleads for Kshs. 2,500,000/= and Kshs. 5,000/= in general and special damages respectively, relying on authorities the lower court allegedly failed to consider. 2. While pitching tent on the case in **Treadsetter Tyres Limited vs John Wekesa Wepukhulu (2010) eKLR** and **Nickson Muthoka Mutavi vs K.A.R.I. (2016) eKLR**, the Respondent’s Advocates submit that the burden of proof lies on the Claimant. The burden is said not to have been discharged by the Appellant as even the police abstract report does not blame the Respondent. 3. Referring to **Bwire vs Wayo & Sailoki (Civil Appeal E032 of 2021 (2022) KEHC 7 (KLR) (24 January 2022),** Counsel underscore the principles guiding a first appellate in disposal of a civil appeal before it. The principles mirror those alluded to in the case of **Selle vs Associated Motor Boat Company (1968)** **EA 123*.*** 4. On the matter of quantum of damages, the Respondent thinks that Kshs. 400,000/= in general damages would be adequate compensation for the Appellant. A second medico-legal report by Dr. Wokabi is said to indicate that the Appellant healed with no permanent disability. In support of this submission reliance is placed on judicial determinations in **Fatuma Abdalla vs Tusks Restaurant Limited & Another (2000) eKLR** and **Omar Musa Hassan & Another vs Rashid Salim & Another, Nairobi HCCC No. 239 of 1995**. The former case features a compound fracture of the left leg bones (the tibia and fibula) and a fracture of the right superior pubic ramus of the pelvis among other soft tissue injuries. The Claimant was awarded Kshs. 600,000/= general damages. 5. In the latter case Kshs. 700,000/= General Damages were assessed for a comminuted fracture of the right femur and several soft tissue injuries. 6. According to the Respondent, only medical and search receipts were exhibited and may be awarded as special damages. 7. It is trite law that in civil appeals a first appellate court can only interfere with the findings and/or award of the trial court if the court misdirects itself on matters of fact and/or law by failing to take relevant factors into account or by considering irrelevant factors and thus arrive at a plainly wrong decision (see the case of **Ocean Freight Shipping Co. Ltd vs Oakdale Commodities Ltd ( 1997) eKLR Civil Appeal No. 198 of 1995**). The appellate court also has the duty of analysing and re-assessing the evidence on record and reach an independent decision as observed in the case of **Selle vs Associated Motor Boat Co. ( 1968) EA 123.** 8. In the **English House of Lords decision in Re H (minors) sexual abuse; standard of proof (1996) AC 563 and 505 for the Home Department vs Rehman (2003) 1 AC 153** it was reiterated the standard of proof in civil cases as the preponderance of probability or the balance of probability as it is commonly known; **“….which means that the court must be satisfied that the event in question is more likely than not to have occurred. The balance of probability standard is a flexible standard. This means that when assessing this probability, the court will assume that some things are inherently more likely than others…..’’.** 1. In the instant matter it is the word of one party against that of the other. There is no independent corroborative evidence as noted by the trial court. Considering, however, that the accident did occur, it must have been the result of negligent driving and I would hold the parties equally liable in the circumstances as found in **Commercial Transporters Limited vs Registered Trustees of the Catholic Archdiocese of Mombasa (2015) eKLR**. 2. The trial Magistrate ought to have assessed any general damages awardable despite his dismissal of the suit. This is established judicial practice so as not to deprive the parties of the right of appeal to this court in the event of dissatisfaction with the lower court’s assessment of damages. I would nevertheless undertake the task given the long pendency of this Appeal. 3. It is trite law that general damages are assessed in the discretion of the court guided by comparable cases and also considering the incidence of inflation. The court also bears in mind that no injuries sustained in cases of tort are exactly identical but vary from one case to another. The court will be guided by these principles in determining awardable quantum of damages in the instant matter. 4. For a fracture of the left tibia and fibula; dislocation of the left hip joint; cut wounds and several soft tissue injuries, Kshs. 450,000/= general damages were awarded in **Civicon Limited vs Richard Njomo Omwancha & 2 Others (2019) eKLR.** In **Akamba Public Road Services vs Abdikadir Adan Galgalo (2016) eKLR** the claimant suffered a fracture of the right tibia and fibula as well as a blunt injury to the right ankle. The court granted general damages of Kshs. 500,000/=. For a similar fracture and blunt injuries that also included a broken tooth and nose bleeding, the Claimant was awarded Kshs. 500,000/= general damages in **Tirus Mburu Chege & Another vs JKN & Another (2018) eKLR.** 5. The Appellant herein suffered a compound fracture leading to permanent disability assessed at 20%. The Respondent did not offer contrary medical evidence as per the record. 6. Taking all relevant factors into account including the incidence of inflation in light of passage of time since the decisions referred to were made, I would grant the Appellant Kshs. 1,000,000/= in general damages for pain and suffering. The special damages claim of Kshs. 5,000/= has been proven by a payment receipt and is also allowed. 7. The Appeal therefore succeeds as follows; 8. **The lower court’s Judgement on liability is set aside and substituted for this court’s Judgement adjudging the Appellant and the Respondent equally liable for the claim before the lower court.** 9. **The Appellant is awarded general damages for pain and suffering in the sum of Ksh. 1,000,000/= (Kenya Shillings One Million) and the pleaded special damages of Ksh. 5,000/= (Kenya Shillings Five Thousand) .** 10. **The parties shall bear their own costs of the Appeal and in the lower court.** 11. **The Appellant is granted interest at court rates on the general damages and special damages awards. Interest shall be computed on the general and special damages from the date of this Judgement and the date of filing suit, respectively.** 12. Judgement accordingly. **J. M NANG’EA, JUDGE.** **Judgement dated, signed and delivered virtually this 9th day of June, 2026. In the presence of:** The Appellant’s Advocate, Ms Aluodo for Mr. Lucheli. The Respondent’s Advocate, Absent. The Court Assistant, Jeniffer. **J. M NANG’EA, JUDGE.**