https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6753

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAJIADO** **CIVIL APPEAL NO. E005 OF 2023** **DARIUS MWANIKI NJUKI.……………………..………….APPELLANT** **VERSUS** **LEPANTAS CHARLES LESHORE................................RESPONDENT** **(Being an appeal against the judgment in Kajiado CMCC No. E211 of 2021- Kamau SRM)** **JUDGMENT** 1. This appeal emanates from the suit instituted in the lower court via a plaint dated 19th April 2021, being **Kajiado CMCC No. E211 of 2021**. By which **Darius Mwaniki Njuki** (hereafter the Appellant) sued **Lepantas Charles Leshore** (hereafter the Respondent) seeking damages in respect of injuries he allegedly sustained in a road traffic accident which occurred on 8.02.2021 along **Kajiado -Isinya road** after the Respondent’s vehicle **KBA 401Z** (hereafter the accident motor vehicle) allegedly rammed into the motorcycle registration no. **KCD 625G** (hereafter the motorcycle). Negligence was pleaded against the driver of the accident motor vehicle as particularized in the plaint. 2. The Respondent subsequently entered appearance and filed a defence in which he denied the key averments in the plaint, including negligence, while pleading, in the alternative, contributory negligence against the Appellant. The matter thereafter proceeded to hearing. 3. By a judgment delivered on 20th December 2022, the trial court, apportioned liability at 50% against the Appellant and awarded general damages in the net sum of Kshs. 150,000/= together with special damages amounting to Kshs. 3,550/=. The trial court, however, declined to make any award in respect of future medical expenses, costs or interest. 4. Being dissatisfied with the judgment, the Appellant lodged the present appeal challenging both liability and quantum by the memorandum of appeal dated 17th January 2023 which contains nine grounds of appeal as follows: **‘’i. THAT the Honourable Trial Magistrate erred in law and in fact when she failed to consider at all, the evidence tendered by the Appellant during the trial and in the submissions.** **ii. THAT the Learned Trial Magistrate erred in Law and in fact in finding that the Appellant was entitled to general damages of Kshs.300,000.00/= which was to be reduced on a 50:50 degree of liability making it too much on the lower side in view of the injuries suffered by the Appellant and that it presented a miscarriage of justice.** **iii. THAT the Learned Trial Magistrate erred in Law and in fact by failing to consider the Appellant’s submissions and judicial authorities on quantum thereby arriving at the impugned figure on quantum.** **iv. THAT the Learned Magistrate erred in fact and law in failing to consider the Appellant’s evidence and submissions on the issue of liability.** **v. THAT the Learned Trial Magistrate erred in Law and in fact by failing to consider conventional awards for general damages in cases of comparable injuries and awarded general damages for pain and suffering which is very low.** **vi. THAT the Learned Magistrate erred in law and in fact by failing to apply the relevant and pertinent judicial principles, precedents and trends regarding the award of quantum.** **vii. THAT the learned trial magistrate erred in law by weighing the Respondent’s case in isolation from the Appellant’s case and precluded herself from assessing the magnitude of damages in the proper way.** **viii. THAT the learned magistrate erred in fact and law in failing to accord the Appellant’s evidence and submissions due consideration.** **ix. THAT the Learned Trial Magistrate erred in Law and in fact when making her award by failing to consider the passage of time and incidence of inflation’’.** **Submissions** 1. The appeal was canvassed by way of written submissions. The Appellant identified four issues for determination, namely whether the trial court erred in the level of damages awarded, whether the trial court erred in apportioning liability at 50:50, whether the court failed to consider the evidence tendered, and who should bear the costs of the appeal. 2. Regarding quantum, the Appellant submitted that the guiding principle in the award of damages is that comparable injuries should attract comparable awards. Citing the decision in the case of **Simon Taveta v Mercy Mutitu Njeru [2014]eKLR** inter alia. The Appellant contended that the award of Kshs. 150,000/= was inordinately low considering the injuries sustained, namely bruises on the right hand, bruises on the left upper limb, and fracture of the neck of the lower right femur. And that he had proposed an award of Kshs. 1,000,000/= as general damages and Kshs. 200,000/= in future medical expenses, based on the decision in **Pestony Limited & Another v Samuel Toney Kagoko[2020]eKLR,** where the High Court awarded Kshs. 800,000/= for injuries involving a left femur fracture and soft tissue injuries. 3. The Appellant contended that the injuries sustained by the plaintiff in that authority were comparable to his own and therefore a higher award ought to have been made in his case. He also cited **Odinga Jackson Ouma v Maureen Achieng Odera (2016)** for the statement that while awards in damages should not be excessive, they ought to be commensurate with the injuries suffered by a claimant. 4. The Appellant further submitted that in assessing damages, courts ought to consider the state of the economy and prevailing inflationary trends, calling to his aid the decision in **Butler vs Butler (1984) KLR**. The Appellant therefore argued that the trial court failed to properly apply the principles governing assessment of damages and failed to consider the authorities cited before it, thereby arriving at an award that was manifestly low. 5. On liability, the Appellant submitted that the Respondent neither tendered evidence before the trial court nor called witnesses to controvert the Appellant’s evidence regarding the manner in which the accident occurred. Thus, his evidence which included his testimony, the police abstract and the evidence of **PW2**, demonstrated that the Respondent negligently veered into the Appellant’s path while overtaking, thereby causing the collision. In supporting the submission, the Appellant quoted dicta **Edward Muriga suing through Stanley Muriga v Nathaniel D. Schulter, Civil Appeal No. 23 of 1997**. 6. Further asserting that based on his evidence, he had on his part discharged the burden of proof on a balance of probabilities, the Appellant stated that the evidential burden had therefore shifted to the Respondent. And hence, the Appellant contended that the trial court erred in finding him 50% liable despite the absence of rebuttal evidence from the Respondent. 7. The Appellant additionally submitted that the medical evidence tendered before the trial court was not controverted. It was argued that the medical report by **Dr. C.O. Okere** indicated that the Appellant would require future surgery at an estimated cost of Kshs. 200,000/=, for removal of screws implanted on the fracture site. The Appellant pointing out that during the trial, the Respondent neither cross-examined him on his medical evidence nor tendered contrary medical evidence, with the consequence that the Appellant’s evidence remained unchallenged. The Appellant anchored his submission on the principle that documentary evidence may speak for itself where uncontroverted, on the case of **Fidelity Commercial Bank Ltd v Kenya Grange Vehicle Industries Ltd (2017)eKLR .** 8. The Appellant therefore urged the court to interfere with the findings of the trial court on liability and quantum. Reiterating that the evidence tendered by the Appellant met the threshold required for interference by an appellate court as set out in **Butt v Khan (1981) KLR 349**. The Appellant hence prayed that the appeal be allowed and that the award of Kshs. 150,000/= for general damages be set aside and substituted with an award of Kshs. 1,000,000/= together with future medical expenses, and that the finding on liability against the Appellant be overturned. The Appellant also sought costs of both the appeal and the lower court suit. 9. On his part,the Respondent submitted that the duty of a first appellate court is to re-evaluate the evidence and draw its own conclusions while bearing in mind that it did not see the witnesses testify. In support of this proposition, the case of **Selle & Another v Associated Motor Boat Co. Ltd [1986]EA 123** was cited. 10. Concerning liability, the Respondent argued that the Appellant failed to sufficiently demonstrate negligence on the part of the Respondent, beyond merely alleging that the accident motor vehicle was negligently driven. Besides, the police abstract produced at the trial neither assigned blame against the Respondent’s driver nor indicated that any traffic charges had been preferred, the matter having been referred to the insurer. 11. The Respondent further asserted that the testimony by **PC Oketch** (**PW2**), established that the Appellant was overtaking the accident motor vehicle at the time of the accident. According to the Respondent, the evidence demonstrated that the said motor vehicle had slowed down with the intention of turning when the Appellant attempted to overtake, thereby causing the collision. The Respondent therefore supported the trial court’s finding of contributory negligence against the Appellant for his action of overtaking at a junction or at a place not designated for overtaking. 12. The Respondent relying on the provisions of Section 107(1) of the Evidence Act as applied in **Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another[2005]1 EA 334** therefore argued that the Appellant failed to discharge the burden of proving negligence against the Respondent and that the trial court correctly apportioned liability at 50:50. 13. Regarding quantum, the Respondent submitted that the award of Kshs. 300,000/= as general damages was fair, reasonable, and commensurate with the injuries sustained. He cited in support the decision in **Reamic Investment Ltd v Joaz Amenya Samuel [2021] EKLR** where the plaintiff who had suffered a fractured femur and soft tissue injuries was awarded Kshs. 350,000/= in general damages. The Respondent stating that the award made by the trial court was proper as the injuries sustained by the Appellant in the present matter were comparable to those in the cited authority. 14. The Respondent also underscored evidence by the Appellant during the trial to the effect that he had healed and had not returned to hospital for further treatment. And argued that the medical report did not sufficiently explain the extent of the fracture sustained, and that although the report referred to a 30% degree of incapacity, no evidence was tendered to substantiate that assessment. The Respondent additionally pointed out that the Appellant did not call the doctor who prepared the report as a witness. 15. With regard to future medical expenses, the Respondent submitted that these were not specifically pleaded and proved as required by law and were therefore rightly declined by the trial court. Consequently, the Respondent urged the court to uphold both the finding on liability and the award on damages and to dismiss the appeal with costs. **Analysis and Determination** 1. The court has considered the record of appeal, the pleadings and the proceedings as well as the parties’ respective submissions. This is a first appeal. The Court of Appeal for East Africa set out the duty of the first appellate court in **Selle v Associated Motor Boat Co. [1968] EA 123** in the following terms: - **“An appeal from the High Court is by way of re-trial and the Court of Appeal is not bound to follow the trial judge’s finding of fact if it appears either that he failed to take account of circumstances or probabilities, or if the impression of the demeanour of a witness is inconsistent with the evidence generally.** **An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.** **In particular this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”** 1. An appellate court will not ordinarily interfere with a finding of fact made by a trial court unless such finding was based on no evidence, or it is demonstrated that the court below acted on wrong principles in arriving at the finding it did. See **Ephantus Mwangi & Another vs Duncan Mwangi Wambugu [1982 – 1988] 1 KAR 278**. 2. This appeal turns on the issues of liability and damages. During the trial, the Appellant testified as **PW1**. He identified himself as a resident of Kajiado and an employee of Kenya Power and Lighting Company. He adopted his witness statement dated 19th April 2021 as part of his evidence and produced several documents as exhibits, namely the treatment notes, medical report, police abstract, demand letter, receipts and copy of records. 3. Concerning the accident itself, he testified that on 8th February 2021 he was riding the motorcycle and presently encountered the accident motor vehicle that was moving slowly ahead of him. According to him, the accident motor vehicle indicated to the right as he attempted to overtake from the right side. He stated that the vehicle also started overtaking and, in the process, hit him, occasioning injuries including a fracture to the right leg. He blamed the owner of the accident motor vehicle for the accident and sought damages and costs of the suit. 4. During cross-examination by counsel for the Respondent, **PW1** stated that he was riding the motorcycle and possessed a driving licence, though he admitted that riding motorcycles was not part of his duties at work. He testified that there was no oncoming vehicle at the time of the accident and that he did not manage to swerve because the motor vehicle had not indicated an intention to turn right. He further testified that although he had not fully recovered, he had resumed work and no longer rode motorcycles. He also stated that the metal plate inserted at the fracture site had not been removed. 5. **PC Mwendia Obing Oketch (PW2)**, a police officer attached to Kajiado Police Station and performing traffic duties testified that the accident involved the accident motor vehicle and motorcycle owned by the Kenya Power and Lighting Company. Stating that he was not the investigating officer but had obtained details from the Occurrence Book (OB), he testified that both vehicles were travelling from Isinya towards Kajiado; that the motorcycle was overtaking while the accident motor vehicle was taking a left turn into a junction when the collision occurred; that the conclusion in the police abstract **(P.Exh.5**) was that the driver of the accident motor vehicle was blamed for careless driving. 6. During cross-examination, **PW2** admitted that he was not the investigating officer of the case, had not visited the scene of the accident and did not have sketch plans. He further testified that the driver of the motor vehicle had not been charged in any traffic case arising out of the accident. The Respondent did not call any witnesses. 7. As to the occurrence of the accident and parties and vehicles involved, there was no dispute. The contested issue was the blameworthiness of the said parties. The Appellant’s evidence consisted principally of the testimonies by **PW1** and **PW2** together with documentary exhibits. According to **PW1**, the accident occurred as he attempted to overtake the accident motor vehicle from the right side when the said vehicle also suddenly turned to the right and hit him. This account is more plausible than that given by **PW2** that the collision occurred as the accident vehicle turned *left*, despite the witness confirming that both the accident motor vehicle and the motorcycle were travelling in the same direction from Isinya towards Kajiado. The statement in the police entries relied on **PW2** to the effect that the accident motor vehicle was turning *right* just before the accident must be an erroneous entry. 8. **PW1** maintained that the motor vehicle had not previously indicated its intention to turn. While relying on the police OB record, **PW2** confirmed that the motorcycle was overtaking while the motor vehicle was turning into a junction when the collision occurred. And that from the police abstract, the driver of the accident motor vehicle was blamed for causing the accident through careless driving. 9. The Court of Appeal in **Mumbi M'Nabea v David M. Wachira [2016] eKLR** while discussing the standard of proof in civil liability claims in our jurisdiction had this to say:- **“In our jurisdiction, the standard of proof in civil liability claims is that of the balance of probabilities. This means that the Court will assess the oral, documentary and real evidence advanced by each party and decide which case is more probable. To put it another way, on the evidence, which occurrence of the event was more likely to happen than not. Section 107(1) of the Evidence Act, Cap 80 Laws of Kenya provides as follows:** **“Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exists.” The above provision provides for the legal burden of proof.** **However, Section 109 of the same Act provides for the evidentiary burden of proof and states as follows:** **“The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact** shall lie on any particular person.” **The position was re-affirmed by the Court of Appeal in Maria Ciabaitaru M’mairanyi & Others v. Blue Shield Insurance Company Limited -Civil Appeal No. 101 of 2000 [2005] 1 EA 280 where it was held that:** **“Whereas under Section 107 of the Evidence Act, (which deals with the evidentiary burden of proof), the burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue, Section 109 of the same Act recognises that the burden of proof as to any particular fact may be cast on the person who wishes the Court to believe in its existence.”** 1. Hence, the duty of proving the averments contained in the plaint lay squarely on theAppellant. In **Karugi & Another v Kabiya & 3 Others (1987) KLR 347** the Court of Appeal stated that: **“[T]he burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof. We would therefore venture to suggest that before the trial court can conclude that the plaintiff’s case is not controverted or is proved on a balance of probabilities by reason of the defendants’ failure to call evidence, the court must be satisfied that the plaintiff has adduced some credible and believable evidence, which can stand in the absence of rebuttal evidence by the defendant…--. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.”** (Emphasis added) 1. Thus, although the Respondent herein did not adduce evidence, the burden of proof nevertheless rested upon the Appellant to establish negligence on a balance of probabilities, pursuant to Section 107 of the Evidence Act. The mere failure by a defendant to call evidence does not automatically entitle a plaintiff to judgment on liability. More so where the plaintiff’s own evidence discloses contributory negligence. 2. In **Gideon Ndungu Nguribu & Another v Michael Njagi Karimi [2017] eKLR** the Court of Appeal stated that “determination of liability in a road traffic case is not a scientific affair” and proceeded to **quote Lord Reid in Stapley vs Gypsum Mines Ltd (2) [1953] A.C. 663 at p. 681** as follows: **“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it …** 1. In the present matter, both **PW1** and **PW2** confirmed that the Appellant was in the process of overtaking the accident motor vehicle when the accident occurred near a junction. A rider intending to overtake a motor vehicle while approaching a junction or at a junction bears a duty to exercise a high degree of care and attention. Equally, the driver of the accident motor vehicle owed a duty to other road users to keep a proper lookout, ensure that the road was clear for purposes of turning and to use his indicators appropriately and in a timely manner to signal his intention before executing the turn. No doubt, the collision occurred due to negligence on the part of both parties. 2. The court is therefore not persuaded that the trial magistrate erred in finding contributory negligence against the Appellant. However, having re-evaluated the evidence, the Court is of the view that the greater blame rested with the driver of accident motor vehicle who, according to the police abstract was blamed for careless driving, having executed the right turn in the path of the motorcycle resulting in the collision. 3. The Respondent did not controvert that evidence or explain the circumstances under which the turn was made. In the circumstances, the apportionment of liability at 50:50 was not entirely supported by the evidence. The Court would therefore interfere with that finding and substitute therefor a finding that in the circumstances of the case, liability ought to be apportioned in the ratio of 70:30 against the Respondent. That settles the matter of liability. 4. In considering the issue of quantum, the court is guided by the principles enunciated by the Court of Appeal in the case of **Kemfro Africa Limited t/a as Meru Express Service, Gathogo Kanini v A.M Lubia and Olive Lubia (1987) KLR 30**. 5. The same court stated in **Bashir Ahmed Butt v Uwais Ahmed Khan [1982 – 1988] 1 KAR 5** 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. It must be shown that the judge proceeded on wrong principles or that he misapprehended the evidence in some material respect and so arrived at a figure which was either inordinately high or low”.** See also **Lukenya Ranching and Farming Co-operative Society Limited v Kavoloto (1979) EA 414**; **Catholic Diocese of Kisumu v Sophia Achieng Tete Kisumu Civil Appeal No. 284 of 2001; (2004) eKLR**. 1. In the latter case, the Court of Appeal confirming the discretionary nature of general damages awards, also observed that “***an appellate court is not justified in substituting a figure of its own for that awarded by the court below, simply because it would have awarded a different figure if it had tried the case in the first instance”.*** 2. The principles upon which an appellate court may interfere with an award of damages are well settled. In **Kemfro Africa Limited t/a Meru Express Services & Another v Lubia & Another (No.2) [1985] eKLR** the Court of Appeal stated that: **“The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial Judge were held by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either that the Judge, in assessing the damages, took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.”** 1. The medical evidence produced before the trial court showed that the Appellant sustained the injuries particularized in the plaint, namely, bruises on the right hand, bruises on the left upper limb, and a fracture of the neck of the right femur. As a result, the Appellant had to undergo a procedure for the insertion of metal implants at the fracture site. The medical report produced by **PW1** himself without any objection by the Respondent indicated the necessity of future surgery to remove the implants. 2. The degree of incapacity arising from the injury was assessed at 30%. This report was not challenged by the Defendant or controverted during the trial. This being the case the Appellant proved his case on a balance of probabilities based on the contents of the medical report. The injuries in the medical report include not only soft tissue injuries but also a significant skeletal injury with attendant sequela. It is too late in the day for the Respondent to attack the medical report on this appeal on the basis that the doctor who prepared it did not testify. 3. The trial court awarded Kshs. 300,000/= as general damages before contribution, which translated to Kshs. 150,000/= after apportionment. Having considered the comparable authorities cited by the parties, including **Pestony Limited & Another v Samuel Toney Kagoko** and **Reamic Investment Ltd vs Joaz Amenya Samuel** (supra)**,** the court is of the view that the Appellant’s complaint regarding quantum is not idle. The award made by the trial court appears inordinately low, having failed to adequately take into account of and to compensate the Appellant for the fracture injury suffered as well as the attendant future disability as documented in the medical report produced. Comparable injuries in recent authorities have attracted higher awards, no doubt considering inflationary trends and the prevailing economic circumstances, which the trial court apparently failed to consider. 4. In the Court’s view, an award of Kshs. 700,000/= for pain, suffering and loss of amenities would constitute fair and reasonable compensation for the injuries sustained. The award in respect of special damages of Kshs. 3,550/= was specifically pleaded and proved and is therefore upheld. However, the Appellant did not specifically plead, as required, the sum sought in respect of future medical expenses and the claim was properly disallowed. 5. Accordingly, the appeal has partially succeeded. The judgment of the lower court is hereby set aside and substituted with judgment for the Appellant against the Respondent as follows: **General damages for pain, suffering and loss of amenities: Kes. 700,000/-** **Special damages: Kes 3,550/-** **Total- 703,550/- (Seven Hundred and Three Thousand Five Hundred and Fifty) subject to the liability ratio of 70:30 against the Respondent** **Net - Kes. 492,485/-.** 1. The Appellant is also awarded the costs of the suit in the lower court and of the appeal, together with interest at court rates. **DELIVERED AND SIGNED ELECTRONICALLY AT KAJIADO ON THIS 14TH DAY OF MAY 2026.**  **C. MEOLI** **JUDGE** **In the presence of:** **For the Appellant: Mr. Muteti h/b for Mr. Wanjohi** **For the Respondent: Mr. Kering** **C/A; Lepatei**