https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7367

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT SIAYA** **CIVIL APPEAL NUMBER E062 OF 2024** **DAVID KABUTU NJOKI…………….…………………………..APPELLANT** **-VERSUS-** **ODHIAMBO OSUMBA RATENG (Suing as the guardian and next friend of TEDDY OTIENO OTIENO)…............................................RESPONDENT** **(Being an appeal from the judgment and decree of Honourable E. Tsimonjero (SRM) delivered on 28/6/2024 in Ukwala SPMCC No. E31 of 2020)** **-BETWEEN-** **ODHIAMBO OSUMBA RATENG (Suing as the guardian and next friend of TEDDY OTIENO OTIENO)………………………………………..PLAINTIFF** **-VERSUS-** **DAVID KABUTU NJOKI ……………………..…….………….DEFENDANT** **JUDGMENT** 1. The appeal arises from the Judgment and orders of Honourable E. Tsimonjero (SRM) delivered on 28th June, 2024 in Ukwala SRMCC No. E31 of 2020 wherein he apportioned liability against the Appellant at 90% while the Respondent shouldered 10% thereof and further awarded the Respondent general damages of Kshs 250,000/ as well as interest at court rates and costs of the suit. 2. The Appellant was aggrieved and duly filed a Memorandum of Appeal dated 6th December, 2024 wherein he raised the following grounds of appeal namely; - 1. That the learned trial Magistrate erred in fact and in law by failing to dismiss suit and finding the Appellant (Defendant) 90% liable without considering the circumstances of the case. 2. That the learned trial Magistrate erred in law and in fact in apportioning liability at 90%:10% in favour of the Respondent (Plaintiff) against the Appellant (Defendant) when there was totally no credible evidence or proof of negligence on the part of the Appellant. 3. That the learned trial Magistrate erred in fact and in law in failing to consider the Appellant’s submissions on liability by completely disregarding the submissions and authorities of the Appellant and as a result arrived in an unjustified decision on liability 4. That the learned trial Magistrate erred in law and fact in awarding general damages of Kshs. 250,000/= which award was excessive and not commensurate to the nature of injuries sustained by the Respondent (plaintiff). 5. That the learned trial Magistrate erred in law and in fact in failing to pay regard to the Appellant’s (defendant’s) submissions and authorities in the defendant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case he was deciding. 6. That the learned trial Magistrate’s exercise of discretion in assessment of quantum was injudicious. Reasons wherefore the Appellant prays that the appeal be allowed and the decree of Honourable E. Tsimonjero be set aside; that this Honourable Court do re-asses the evidence on record of the subordinate Court on quantum and award with its own decision and that the cost of the appeal be awarded to the Appellant. 3. This being the first appellate Court, its duty is well spelt out namely to re-evaluate the evidence tendered before the trial court and/or arrive at its own independent conclusion. The Court will also have to take into account the fact that it did not see or hear the witnesses as they testified and to make due allowance for the same. See **Selle vs associated Motor Boat Co. Ltd (1968) E. A 123.** 4.The Respondent (Plaintiff in the lower court) instituted his suit vide Plaint dated 30/3/2020 claiming for general and special damages for injuries sustained in a road traffic accident that occurred on 30/11/2019 along Busia-Kisumu road at Jera Junction Area when the motor vehicle registration number KCW 734V was driven, managed and/or controlled by the Defendant, his employees and/or agents so carelessly and recklessly thereby causing the accident where, the minor, Teddy Otieno Otieno who was cycling a bicycle on the same road and sustained grievous injuries. The Respondent pleaded particulars of negligence and/or breach of statutory duty of care on the part of the Appellant. The Appellant vide a defence dated 8/7/2020 duly denied the particulars of negligence attributed to him and maintained that the minor was solely to be blame for the accident and duly pleaded particulars of negligence. 5. The trial commenced in earnest on 10/6/2022. **6. Odhiambo Osumba Rateng** (PW1) was the Respondent (Plaintiff). It was his testimony, that on the material date his son who was 13 years old at the time was riding his bicycle along the Busia-Kisumu road when motor vehicle registration number KCW 734V which was being driven carelessly thereby losing control while overtaking thereby causing the accident. On cross-examination, he confirmed that he did not witness the accident and that he was not aware when the minor had taken his bicycle since it was taken without his knowledge. (Refer to page 73-76 of the Record of Appeal-proceedings) **7. Teddy Otieno (PW2)**, after voire dire, proceeded to testify and stated that he was riding his bicycle off the road at Jera Junction when the motor vehicle which was being driven from the opposite direction hit him as it was overtaking. That he sustained injuries on the left leg, shoulder, dislocated knee, left leg and head. That at the time of his testimony, he had not fully healed and was still on medication On cross examination, he stated inter alia; that he was 12 years at the time and was alone on the road and that at the time; that it was not true that he was not watchful on the road; that he fell on the left side off the road; that it was not his first time to be on the road and that he did not ask for permissions when he was leaving the house with the bicycle. On re-examination, he stated inter alia; that he was riding off the road on the left side; that he was from Sega and heading towards Ugunja; that the Appellant’s vehicle was overtaking and moved towards his direction. 8. **Philip Kilimo (PW3)** testified that he is a clinical officer attached at Kisumu. That he filled a P3 form for one Teddy Otieno who was aged 14 years. That he examined the patient and received the treatment notes from St Ann Mission Hospital. That the patient had fully healed with no disability. 9. **Kibet Langat (PW4)** of Sega Mission Hospital testified on behalf of his colleague and confirmed that the patient sustained soft tissue injuries. 10. **No. 78842 Sergeant Jacob Tego (PW5)** testified and stated that he is stationed at Sega Police station at the time of the accident. It was his evidence that he was the Investigating officer and stated that the driver of the motor vehicle was to be charged but was yet to be charged. He produced the police abstract. On cross examination, he confirmed that he had not finalized the investigation over three years from the date of the accident and that the driver was to be charged with an offence of careless driving. That on visiting the scene, he established that the minor had been hit from behind and that the driver was seeing the child and ought to have avoided knocking him. That no inspection was done to the vehicle and the bicycle. That the driver was able to control the accident but did not. That the driver was careless. **11. Moses Mwangi** **(DW1)** testified and stated that he blamed the Respondent for the accident as there was no zebra-crossing at the scene of the accident and that the minor abruptly crossed the road while on his bicycle and hit himself on the vehicle. That he did not see the child. On cross-examination, he stated that the pedal cyclist abruptly joined the road from the right side while he was on the left side. Since it was abrupt, he was hit by the front right side of the motor vehicle. That the victim landed off the right side of the tarmac. That he was not at high speed. That there was nothing he could do as he had not seen the pedal cyclist. 12.The appeal was canvassed by way of written submissions. Both parties duly complied. 11.It was submitted by the Appellant that the learned magistrate erred in law and fact when he held the defendant 90% to blame when the evidence clearly stated otherwise and that the respondent was wholly to blame for the accident. That the trial magistrate failed to consider that the Respondent (plaintiff) failed to advance any evidence as to the negligence acts/omission on the part of the Appellant. That the mere fact that the accident occurred and the Respondent/Plaintiff was injured does not qualify as proof of negligence against the Appellants and that the same was duly pointed out in the Appellant’s/ Defendant’s submissions before the trial court. It was therefore submitted that the Appellant is entirely blameless. That the Respondent did not establish his case on a balance of probabilities. That the witnesses called by the Respondent did not blame the Appellant for the accident and hence, the Respondent, having failed to prove his case on liability, there was no need for the Appellant to bring evidence contrary to that. That sections 107-109 of the Evidence Act, Cap 80 Laws of Kenya provides that he who alleges must prove. That this is an adversarial system and that it is not enough to throw everything at the court and tell it to scrape through and arrive at a favourable decision. It must be persuaded. The Respondent did not offer much to persuade the court that the Appellant was negligent. 12. As regards the issue of quantum of general damages, it was submitted that the award was excessive and unjustified. That this being a first appeal, the court is duty bound pursuant to Section 78 of the Civil Procedure Act, Cap. 21 of the Laws of Kenya to re-assess and re-evaluate the evidence adduced before the trial court and arrive at its own independent conclusion bearing in mind it neither saw nor heard the witnesses testify in the first instance. (see the position in **Kenya Ports Authority vs Kushton (K)Ltd (2009) 2 EA, 212).** Equally, the general principle is that an appellate court will only interfere with an award of damages if it is so high or so low as to represent an entirely erroneous estimate (see **Butt v Khan [1981] KLR 349).** It was submitted that the trial court awarded Kshs. 250,000/=, which is excessive considering the nature of the injuries—classified as minor soft tissue injuries, without any long-term impairment or need for prolonged treatment. That the p3 form and treatment notes confirmed that he suffered soft tissue injuries. He did not suffer any dislocation or fracture. That it is trite law that assessment of quantum of damages in a claim for general damages is a discretionary exercise. However, the law has set dimensions for an exercise of discretion namely that it must be exercised judicially, with wise circumspect and upon some legal principles. That the said dimensions are vital such that when the trial court has violated a legal principle(s), the appellate court will interfere with the exercise of discretion by the trial court. That the discretion in assessing the amount of general damages payable will be disturbed if the trial court took into account an irrelevant factor or, left out of account a relevant factor or, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damages. It is also trite law that awards must be within consistent limits and that court awards for damages must be made taking into account comparable injuries or similar injuries and awards. In **Kigaraari vs Aya(1982-88) 1 KAR 768**, as quoted by **Kamau J in Godfrey Wamalwa Wamba& another v Kyalo Wambua [2018] eKLR** it was stated as follows:- **“Damages must be within the limits set out by decided cases and also inevitably passed on to members of the public, the vast majority of whom cannot within the limits the Kenyan economy can afford. Large awards are afford the burden in the form of increased insurance and increased fees.”** It was submitted that an award of kshs. 100,000/= would be reasonable in the circumstance. Reliance was placed on the case of **Onsongo v Owino & another (Civil Appeal E102 of 2023) [2024**] where the court upheld an award of kshs.100, 000/= for soft tissue injuries. It was submitted that the trial court failed to consider comparable precedents and thus awarded damages that were inordinately high.That the trial court relied heavily on a secondary medical evidence and not the primary medical treatment notes of the Plaintiff thus arrived at a wrong principal and high award. The Appellant therefore urged the court to allow the appeal herein and that the court do set aside the trial Court’s award. That the costs be awarded to the Appellant. 13. The Respondent raised two issues for determination namely, whether the learned trial Magistrate erred in law and in fact in apportioning liability at 90%:10% in favour of the Respondent herein, and whether the earned trial Magistrate erred in law and in fact in awarding general damages of Kshs 250,000/- in favour of the Respondent herein. 14. As regards the first issue, it was submitted that during the trial hearing, the Respondent, Odhiambo Osumba Rateng (PW1) – the father to the minor gave his detailed testimony concerning the accident and even produced relevant documentary evidence in support of the claim. The minor, 13 years old also testified as PW2 and described how the accident occurred. He stated that on 30.11.2019 he was lawfully and carefully cycling besides the road along Busia- Kisumu road when he was hit by Motor vehicle registration number KCW 734V owned by the Appellant herein at Jera Junction and as a consequence, the minor sustained grievous bodily injuries for which the Respondent held the Appellant herein directly and wholly liable. During the trial, the Respondent also called the Clinical Officer as PW3 who produced P3 form marked as PEX4 who confirmed the nature of injuries suffered by the minor. His testimony was that the minor suffered multiple soft tissue injuries categorized as harm. PW4 was also a clinician in charge at Sega Hospital who produced treatment notes from St. Annes Sega Mission Hospital as PEXH 3(a,b&c). Lastly, PW5 the Investigating officer testified and positively identified the parties involved in the accident. He produced police abstract as PEXH2. PW5 also informed the court that the driver of the motor vehicle KCW 734V was to be charged with an offence of careless driving. His observation after investigation was that the driver could have avoided the accident and therefore solely to blame for the occurrence of the accident. In the case of **Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa)** (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) (Judgment), Mativo J (as he then was) stated as follows: **“In every legal proceeding, the parties are required to adhere to important rules known as evidentiary standards and burdens of proof. These rules determine which party is responsible for putting forth enough evidence to either prove or defeat a particular claim and the amount of evidence necessary to accomplish that goal. In my view, in the instant case, to meet this standard, the appellants were required to do much more in the lower court. By opting not to adduce evidence to rebut the Respondent’s evidence, they took the risk of leaving the Respondent’s evidence unchallenged.”** 15. The Appellant during the defense hearing called one witness (DW1) who, while testifying, admitted the fact that his car hit the child but that it was the cyclist who knocked himself on the car. The Appellant did not produce any material to enable the trial court to apportion liability between the Appellant and the Respondent. The Appellant also did not call other witnesses to corroborate his testimony. On the contrary, the testimony of the minor –(PW2) was well corroborated by PW5 upon visiting the accident scene and determined that the accident was caused by the driver who was carelessly driving without paying attention which caused him to hit the minor. In **Interchemie EA Limited v Nakuru Veterinary Centre Limited** it was held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. A similar position was held in **Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001** where it was held: - **"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."** The Appellant called DW1 who narrated the events that happened on the fateful day. He accepted that indeed it was his motor vehicle which hit the minor but that it was the cyclist who knocked himself on the car. The Appellant did not call any other witness to corroborate the testimony by DW1. On the contrary, PW1’s testimony was corroborated by PW5 who visited the scene of the accident and determined that the driver was carelessly driving without paying attention which caused him to hit the minor. The Appellant did not prove negligence on the part of the Respondent herein. Thus, the evidence by the Respondent remained uncontroverted. 16. At the close of the hearing, both parties were given opportunity to prepare and file written submissions, which both parties complied. One of the grounds of this appeal is that the learned trial Magistrate erred in fact and in law by failing to consider the Appellant’s submissions on liability by completely disregarding the submissions and authorities of the Appellant and as a result arrived in unjustified decision on liability. It was submitted that submissions do not form part of the evidence but rather a guide in support of one’s claim. In this case, the Appellant did not tender enough evidence in support of their defense and thus cannot rely on submissions in support of their appeal. Besides, it is trite law that the trial court was at liberty of masking its own independent decision, not being confined on the written submissions by the Appellant herein. In the case of **Mwabili v Nayab Motors Limited & another (Civil Appeal E1210 of 2023) [2025] KEHC 11393 (KLR) (Civ) (23 July 2025)** (Judgment) Justice Magare held as follows: The Court of Appeal was more succinct in that Submissions cannot take the place of evidence when they addressed the question in the case of **Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR**: **“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”** 17. As regards the second issue, it was submitted that, basing on the medical documents produced as exhibits by the Respondent,that is P3 forms, treatment notes and x-ray reports, clearly indicated that the Respondent sustained multiple soft injuries as a result of the said accident. PW2, the minor testified that as a result of the accident he was treated at St. Anne’s Mission Hospital. The nature of the accident the minor sustained was as follows: • Deep cut wound on the thigh, • Deep cut wound on the left knee, • Deep cut wound on the right knee, • Deep cut wound on the left ankle. • Blunt injuries to the head. • Blunt injuries to the shoulder. • Blunt injuries to the right knee. • Blunt injuries to the left knee. • Blunt injuries to the chest, Furthermore, during the trial, DW1 confirmed that indeed it was his motor vehicle that hit the minor. This corroborated the evidence produced by the Respondent during the trial. That the trial court did reach an award that reflected the nature and gravity of injuries sustained, considering the cardinal principle that comparable injuries should as far as possible be compensated by comparable awards. Basing on the severity of the accident, and the Respondent having proved the injuries sustained by the minor due to the negligence of the Appellant, and by awarding a general damage of Kshs 250,000.00 it was contended that the authority of **Kenya Wildlife Services vs David Muteti (2017) eKLR** wherein the High Court confirmed an award of Kshs 200,000.00 for similar injuries on appeal. 18. It was finally urged that the appeal lacks merit and ought to be dismissed with costs. 19. I have considered the record of appeal and the rival submissions. I find the issue for determination is whether the appeal has merit. 20. The Respondent was the Plaintiff in the lower court and hence he bore the burden of proving his claim against the Appellant. The *legal burden of proof* was on the Respondent to prove his claim on a balance of probabilities. It was therefore incumbent upon the Respondent to prove his assertions pleaded in the Plaint. Section 107(1) of the *Evidence Act*, Cap 80 provides that: **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 exist.** 21. However, the burden may shift to the Defendant to disprove the alleged claim. This is the *evidential burden of proof,* which is well captured under Sections 109 and 112 of the Evidence Act. See **Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] 1 EA 334**. The two concepts are well illustrated by the Court of Appeal in the case of **Mbuthia Macharia v Annah Mutua & Another [2017] eKLR**, that: **“The legal burden is discharged by way of evidence, with the opposing party having a corresponding duty of adducing evidence in rebuttal. This constitutes an evidential burden. Therefore, while both the legal and evidential burdens initially rested upon the appellant, the evidential burden may shift in the course of trial, depending on the evidence adduced.”** See **Supreme Court in Raila Amolo Odinga & Another v Independent Electoral and Boundaries Commission & 2 Others [2017] eKLR,** The *standard of proof* is well captured in the case of **Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another (2015) eKLR**, where the Court held that: **Denning J. in Miller v Minister of Pensions (1947) 2 ALL ER 372, discussing the burden of proof, had this to say:** **“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 the tribunal can say, we think it is more probable than not, the burden is discharged, but if the probabilities are equal, it is not. This burden on a balance of preponderance of probabilities means a win, however narrow. A draw is not enough. So in any case in which a tribunal cannot decide one way or the other which evidence to accept, where both parties…are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”** **Kimaru J.** (as he then was) in **William Kabogo Gitau vs George Thuo & 2 others (2010) 1 KLR 526** stated that: **“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred.”** 22.As the Appellant has challenged the aspect of liability and quantum, I find that it is necessary to determine whether the learned trial Magistrate erred in law and in fact in apportioning liability at 90%:10% in favour of the Respondent herein, and whether the earned trial Magistrate erred in law and in fact in awarding general damages of Kshs 250,000/- in favour of the Respondent herein. 23. As regards the issue of liability, it was contended by the Appellant that the minor (PW2) had caused the accident and had actually hit his car with a bicycle. However, the Respondent, Odhiambo Osumba Rateng (PW1) – the father to the minor gave his detailed testimony concerning the accident and even produced relevant documentary evidence in support of the claim. The minor, 13 years old also testified as PW2 and described how the accident occurred. He stated that on 30.11.2019 he was lawfully and carefully cycling besides the road along Busia- Kisumu road when he was hit by Motor vehicle registration number KCW 734V owned by the Appellant herein at Jera Junction and as a consequence, the minor sustained grievous bodily injuries for which the Respondent held the Appellant herein directly and wholly liable. During the trial, the Respondent also called the Clinical Officer as PW3 who produced P3 form marked as PEX4 who confirmed the nature of injuries suffered by the minor. His testimony was that the minor suffered multiple soft tissue injuries categorized as harm. PW4 was also a clinician in charge at Sega Hospital who produced treatment notes from St. Annes Sega Mission Hospital as PEXH 3(a,b&c). Lastly, PW5 the Investigating officer testified and positively identified the parties involved in the accident. He produced police abstract as PEXH2. PW5 also informed the court that the driver of the motor vehicle KCW 734V was to be charged with an offence of careless driving. His observation after investigation was that the driver could have avoided the accident and therefore solely to blame for the occurrence of the accident. In the case of **Mursal & another v Manese (suing as the legal administrator of Dalphine Kanini Manesa)** (Civil Appeal E20 of 2021) [2022] KEHC 282 (KLR) (6 April 2022) (Judgment), Mativo J (as he then was) stated as follows: **“In every legal proceeding, the parties are required to adhere to important rules known as evidentiary standards and burdens of proof. These rules determine which party is responsible for putting forth enough evidence to either prove or defeat a particular claim and the amount of evidence necessary to accomplish that goal. In my view, in the instant case, to meet this standard, the appellants were required to do much more in the lower court. By opting not to adduce evidence to rebut the Respondent’s evidence, they took the risk of leaving the Respondent’s evidence unchallenged.”** 24. The Appellant during the defense hearing called one witness (DW1) who, while testifying, admitted the fact that his car hit the child but that it was the cyclist who knocked himself on the car. The Appellant did not produce any material to enable the trial court to apportion liability between the Appellant and the Respondent. The Appellant also did not call other witnesses to corroborate his testimony. On the contrary, the testimony of the minor (PW2) was well corroborated by PW5 upon visiting the accident scene and determined that the accident was caused by the driver who was carelessly driving without paying attention which caused him to hit the minor. In **Interchemie EA Limited v Nakuru Veterinary Centre Limited** it was held that where no witness is called on behalf of the defendant, the evidence tendered on behalf of the plaintiff stands uncontroverted. A similar position was held in **Trust Bank Limited vs. Paramount Universal Bank Limited & 2 Others Nairobi (Milimani) HCCS No. 1243 of 2001** where it was held: - **"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."** The Appellant called DW1 who narrated the events that happened on the fateful day. He accepted that indeed it was his motor vehicle which hit the minor but that it was the cyclist who knocked himself on the car. The Appellant did not call any other witness to corroborate the testimony by DW1. On the contrary, PW1’s testimony was corroborated by PW5 who visited the scene of the accident and determined that the driver was carelessly driving without paying attention which caused him to hit the minor. The Appellant did not prove negligence on the part of the Respondent herein. Thus, the evidence by the Respondent remained uncontroverted. 25. At the close of the hearing, both parties were given opportunity to prepare and file written submissions, which both parties complied. One of the grounds of this appeal is that the learned trial Magistrate erred in fact and in law by failing to consider the Appellant’s submissions on liability by completely disregarding the submissions and authorities of the Appellant and as a result arrived in unjustified decision on liability. It was submitted that submissions do not form part of the evidence but rather a guide in support of one’s claim. In this case, the Appellant did not tender enough evidence in support of their defense and thus cannot rely on submissions in support of their appeal. Besides, it is trite law that the trial court was at liberty of masking its own independent decision, not being confined on the written submissions by the Appellant herein. In the case of **Mwabili v Nayab Motors Limited & another (Civil Appeal E1210 of 2023) [2025] KEHC 11393 (KLR) (Civ) (23 July 2025)** (Judgment) Justice Magare held as follows: The Court of Appeal was more succinct in that Submissions cannot take the place of evidence when they addressed the question in the case of **Daniel Toroitich Arap Moi vs. Mwangi Stephen Muriithi & Another [2014] eKLR**: **“Submissions cannot take the place of evidence. The 1st respondent had failed to prove his claim by evidence. What appeared in submissions could not come to his aid. Such a course only militates against the law and we are unable to countenance it. Submissions are generally parties’ “marketing language”, each side endeavouring to convince the court that its case is the better one. Submissions, we reiterate, do not constitute evidence at all. Indeed, there are many cases decided without hearing submissions but based only on evidence presented.”** On the whole, it is clear that the Appellant’s driver was responsible for the accident as he did not observe the Highway Code of Traffic as he failed to have a proper lookout. It transpired that at the time prior to the accident, he was overtaking other vehicles and thus ended up hitting the minor. The Appellant’s driver raised an issue that the minor ought to have been accompanied by a parent but then the minor claimed that he had been riding his bicycle in the past without being accompanied. It is noted that the learned trial magistrate did apportion 10% contributory negligence on the minor while the Appellant shouldered the remainder of liability. I find that this apportionment was fair in the circumstances. In any event, the minor was on his left lane of the road and that on being hit, he fell off the road. I do not see any reason to disturb the apportionment of liability as suggested by the Appellant. 27. As regards the second issue, it was submitted that, basing on the medical documents produced as exhibits by the Respondent that such as P3 forms, treatment notes and x-ray reports, clearly indicated that the Respondent sustained multiple soft injuries as a result of the said accident. PW2, the minor testified that as a result of the accident he was treated at St. Anne’s Mission Hospital. The nature of the injuries the minor sustained was as follows: • Deep cut wound on the thigh, • Deep cut wound on the left knee, • Deep cut wound on the right knee, • Deep cut wound on the left ankle. • Blunt injuries to the head. • Blunt injuries to the shoulder. • Blunt injuries to the right knee. • Blunt injuries to the left knee. • Blunt injuries to the chest, Furthermore, during the trial, DW1 confirmed that indeed it was his motor vehicle that hit the minor. This corroborated the evidence produced by the Respondent during the trial. That the trial court did reach an award that reflected the nature and gravity of injuries sustained, considering the cardinal principle that comparable injuries should as far as possible be compensated by comparable awards. Basing on the severity of the accident, and the Respondent having proved the injuries sustained by the minor due to the negligence of the Appellant, and by awarding a general damage of Kshs 250,000.00 it was contended that the authority of **Kenya Wildlife Services vs David Muteti (2017) eKLR** wherein the High Court confirmed an award of Kshs 200,000.00 for similar injuries on appeal. Even though the Appellant maintained that the injuries were soft tissue in nature, the issue of inflation must be taken into account. I find the award of Kshs 250,000/ was not excessive in the circumstances and that the trial court did not take into account irrelevant factors. I will uphold the same. 18. In view of the foregoing observations, it is my finding that the appeal lacks merit. The same is dismissed with costs. **Dated and delivered at Siaya this 29th day of. May 2026.** **D. KEMEI** **JUDGE** **In the presence of :** **Ms. Ngome for Ms. Ong’onga.....................for Appellant** **Mr. Adeka for Ms. Wafula.............................for Respondent** **Ms. Moureen ……………….............................Court Assistant**