https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10837

Gachanja v Nyaga (Civil Appeal E010 of 2024) [2026] KEHC 10837 (KLR) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10837 (KLR) Republic of Kenya In the High Court at Murang'a Civil Appeal E010 of 2024 S Mbungi, J July 17, 2026 Between David Kamau Gachanja Appellant and Frankline Mawira Nyaga Respondent Judgment 1. Background 1.This is a first appeal from the judgment of Hon. S. K. Nyaga, Senior Resident Magistrate, delivered on 1st February 2024 in Civil Suit No. E115 of 2023 at the Principal Magistrate's Court at Kenol. The appeal is brought pursuant to the provisions of Section 65(1)(b) of the Civil Procedure Act, Cap 21, Laws of Kenya, which confers upon the High Court jurisdiction to hear appeals from any original decree or part of a decree of a subordinate court on a question of law or fact. The appeal is governed by Order 42 of the Civil Procedure Rules, 2010, and is being heard by a single judge in accordance with Section 79C of the Civil Procedure Act. The learned trial magistrate dismissed the Appellant's suit with costs, finding that the Appellant (then Plaintiff) was entirely to blame for the road traffic accident that occurred on 6th November 2022 along the Kenol-Sagana Road at Gakungu area. 2.Before delving into the substance of this appeal, I am mindful of the overriding objective as set out in Section 1A of the Civil Procedure Act, which is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. In furtherance of this objective, Section 1B of the Civil Procedure Act requires this Court to handle all matters presented before it for the purpose of attaining the just determination of the proceedings, the efficient disposal of the business of the Court, the efficient use of the available judicial and administrative resources, and the timely disposal of the proceedings at a cost affordable by the respective parties. This judgment is rendered in consonance with those statutory imperatives. 3.The Appellant, David Kamau Gachanja, filed the suit before the subordinate court claiming general damages, special damages in the sum of Kshs. 2,550/-, costs of the suit, and interest arising from a road traffic accident involving Motor Vehicle Registration No. KCR 134Y (Toyota Passo) which was allegedly driven by the Respondent, Frankline Mawira Nyagah. The Appellant's case was that on the material date at about 8:00 p.m., he was lawfully selling pineapples on the footpath beside the road at Meru Stage off the main highway along the Kenol-Sagana Road when the Respondent so negligently drove, managed and controlled the said motor vehicle that it veered off its lane onto the footpath and collided with him, causing him serious injuries. 4.The Respondent filed a Statement of Defence on 18th April 2023 denying the Appellant's claim and averring that the Appellant solely and/or substantially contributed to the occurrence of the accident by, among other things, suddenly and carelessly running into the road without regard to the Respondent's vehicle, failing to confirm the road was clear, crossing the road when it was unsafe to do so, and causing the accident by his own negligence. The Respondent also raised the defence of volenti non fit injuria. 5.The suit was heard on 3rd November 2023. The Appellant testified as PW1 and called PC Otieno (PW2) from Makuyu Police Station. The Respondent testified as DW1 and called Nelly Mwendwa (DW2). After the close of the defence case, both parties filed written submissions: the Plaintiff's submissions were filed on 4th December 2023 and the Defendant's submissions were filed on 29th November 2023. After hearing, the learned trial magistrate rendered judgment on 1st February 2024, dismissing the suit entirely and awarding costs to the Respondent. 6.Aggrieved by the said judgment, the Appellant filed the Memorandum of Appeal dated 20th February 2024. The grounds of appeal may be condensed into the following key issues: whether the learned trial magistrate erred in failing to properly evaluate the evidence on record; whether the learned trial magistrate erred in law and fact in dismissing the Appellant's suit without proper analysis of the conflicting evidence on how the accident occurred; whether the finding that the Appellant was 100% to blame was against the weight of the evidence; whether the learned trial magistrate erred in relying on hearsay evidence; and whether the quantum of damages, if any, was appropriate. 2. The Appellant's Submissions 7.The Appellant's written submissions at the trial court were filed on 4th December 2023. On liability, the Appellant submitted that he was on the footpath (off the road) when the accident occurred, and that the Respondent's vehicle veered off the road onto the footpath, thereby knocking him down. It was submitted that the Respondent was the driver and the registered owner of Motor Vehicle Registration No. KCR 134Y,. The Appellant relied on the copy of records from the National Transport and Safety Authority (NTSA) produced as PExh. (j) to confirm that the Respondent was the registered owner of the motor vehicle. 8.On the issue of speed, the Appellant submitted that the nature and severity of the injuries sustained, namely compound (open) fractures of the right tibia and fibula, blunt and laceration injuries on the head, and abrasion on the right shoulder joint, were inconsistent with the Respondent's claim that he was driving at 30 kph. The Appellant argued that if the vehicle had been travelling at 30 kph, the injuries would have been far less severe, and the accident would have been avoided altogether if the Respondent had kept a proper lookout. The Appellant relied on the medical report by Dr. W. M. Wokabi dated 7th February 2023 (PExh. (f)) in support of the severity of the injuries. In support of the principle that the severity of injuries may be indicative of the speed of the vehicle, the Appellant relied on the case of Boniface Waiti & Another v Michael Kariuki Kamau [2007] KEHC 2609 (KLR) where the Court of Appeal held that each and every driver has a duty to drive prudently and to be on the proper lookout for other road users, and that the driver should be vigilant and able to control the vehicle and bring it to a safe stop in case of an emergency. 9.The Appellant further submitted that his evidence remained unimpeached under cross-examination and that the Respondent should be held 100% liable. On quantum, the Appellant relied on the medical report by Dr. W. M. Wokabi dated 7th February 2023 and submitted that the injuries sustained, which included compound fractures of the right tibia and fibula, were comparable to those in the case of Teresiah Ngugi & Another v Michael Masia Kimende [2018] KEHC 3879 (KLR) where the Court awarded Kshs. 1,500,000/- for general damages for pain, suffering and loss of amenity. The Appellant therefore prayed for an award of Kshs. 1,400,000/- for general damages. The Appellant also relied on the case of Teresiah Ngugi & Another v Michael Masia Kimende [2018] KEHC 3879 (KLR) where the Court of Appeal upheld an award of Kshs. 1,200,000/- for similar injuries, and the case of Mary Njeri Murigi v Peter Macharia & Another [2016] eKLR, where the Court held that a person driving a motor vehicle on a public road owes a duty of care to other road users, including pedestrians, and that breach of that duty entitles the injured party to damages. 10.On appeal, counsel for the Appellant submitted that the learned trial magistrate failed to properly evaluate the evidence on record and arrived at a finding that was against the weight of the evidence. It was submitted that the Appellant's evidence was clear, consistent, and uncontradicted on the material point that he was on the footpath when the accident occurred, and that the Respondent's motor vehicle veered off the road onto the footpath. Counsel relied on the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123 for the proposition that a first appellate court has a duty to re-evaluate the evidence and arrive at its own independent conclusions. 11.Counsel further submitted that the trial magistrate erred in relying on hearsay evidence from the investigating officer (CPL Chai) who did not testify, and that this constituted a fundamental error of law. It was submitted that the opinion attributed to CPL Chai by PW2 was not evidence before the court in the proper sense, and the trial magistrate should not have placed any weight on it. Counsel relied on Section 63 of the Evidence Act, Cap 80, Laws of Kenya, which provides that oral evidence must be direct. The Appellant also relied on the case of Order 21 rule 4 of the Civil Procedure Rules, 2010 for the proposition that a trial court must consider and address the submissions of the parties before arriving at its decision. 12.On quantum, counsel for the Appellant submitted that the injuries sustained warranted an award of Kshs. 1,400,000/- for general damages for pain, suffering and loss of amenity, relying on Teresiah Ngugi & Another v Michael Masia Kimende [2018] KEHC 3879 (KLR). It was submitted that the Appellant's injuries, namely compound (open) fractures of both the right tibia and fibula, blunt and laceration injuries on the head, and abrasion on the right shoulder joint, were comparable to or even more severe than those in the cited case. The Appellant also relied on the case of Teresiah Ngugi & Another v Michael Masia Kimende [2018] KEHC 3879 (KLR) where the Court awarded Kshs. 1,200,000/- for a compound fracture of the tibia and fibula. On interest, the Appellant prayed for interest on general damages from the date of judgment in the subordinate court and interest on special damages from the date of filing suit. 3. The Respondent's Submissions 13.The Respondent filed written submissions dated 29th November 2023 through OG Law LLP. The Respondent framed the following issues for determination:(a)who caused the accident;(b)whether general damages are payable; and(c)whether special damages of Kshs. 2,550/- are payable. On liability, the Respondent submitted that the Appellant did not call any witness to corroborate his account of how the accident occurred. The Respondent relied on the testimony of PW2, who testified that according to CPL Chai, the investigating officer, the pedestrian crossed the road from right to left misjudging the distance and speed of the motor vehicle. The Respondent quoted the extract from the OB which stated that 'the pedestrian abruptly crossed the road from right to left misjudging the distance and speed.' It was submitted that the Appellant lied about not being taken to hospital by the Respondent, as the OB extract showed that the Respondent took him to hospital. The Respondent argued that the evidence of DW1 and DW2 was consistent and was supported by the OB extract, and that the Respondent tried to avoid the accident by applying emergency brakes and swerving. In support of these submissions, the Respondent cited Sections 107 and 108 of the Evidence Act, Cap 80, Laws of Kenya on the standard of proof being on a balance of probabilities; John Mwangi Maina v Evanson Njoroge Maina another [2022] eKLR where the Court upheld a finding that the appellant suddenly jumped on the road; Michael Kariuki Muhu v Charles Wachira Kariuki another [2015] eKLR on the duty of care owed by a pedestrian at night; Section 3(2) of the Evidence Act on the definition of 'proved' as meaning proved by a preponderance of probabilities; and Section 119 of the Evidence Act on the court's power to presume the existence of certain facts. 14.On appeal, counsel for the Respondent submitted that the learned trial magistrate's finding of fact was properly arrived at and should not be disturbed by this Court. It was submitted that the trial magistrate was entitled to believe the evidence of the defence witnesses and to disbelieve the Appellant's evidence, having had the advantage of seeing and hearing the witnesses testify. Counsel relied on the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123 for the proposition that the first appellate court should not interfere with findings of fact of the trial court unless they are based on no evidence or are against the weight of the evidence. Counsel also relied on the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123, where the Court of Appeal emphasized that while the first appellate court has a duty to re-evaluate the evidence, it should pay due regard to the fact that the trial court had the advantage of seeing and hearing the witnesses. 15.Counsel for the Respondent further submitted that the Appellant was the author of his own misfortune. It was submitted that the Appellant, by his own admission, was on the roadside at 8:00 p.m. in an area with no street lighting, and that he failed to take reasonable care for his own safety by ensuring that the road was clear before attempting to cross or by wearing reflective clothing. On quantum, the Respondent proposed an award of Kshs. 500,000/- for general damages for pain, suffering and loss of amenity. Counsel relied on the case of Ephantus Mwangi & Another v Duncan Mwangi Wambugu [1982-88] 1 KAR 278 for the proposition that even where a pedestrian is found to have been negligent, the driver of a motor vehicle who is in control of a potentially lethal instrumentality owes a higher duty of care, and the apportionment of liability must reflect this fundamental principle. 16.On the issue of contributory negligence, the Respondent submitted at the trial court that even if this Court were to find the Respondent partly liable, the Appellant's own negligence should be taken into account in apportioning liability. The Respondent argued that a pedestrian who suddenly enters the roadway at night without warning contributes significantly to the occurrence of an accident. In support of this argument, the Respondent relied on John Mwangi Maina v Evanson Njoroge Maina another [2022] eKLR and Michael Kariuki Muhu v Charles Wachira Kariuki another [2015] eKLR for the proposition that a pedestrian who suddenly enters the road at night bears a significant share of responsibility. On quantum, the Respondent proposed Kshs. 500,000/- and relied on Rahima Tayab & Others v Anna Mary Kinanu (Civil Appeal No. 29 of 1982) [1983] KLR 114 for the principles of awarding damages. The Respondent also relied on Ndwiga & Another v Mukimba (Civil Appeal E006 of 2022) [2022] KEHC 11793 (KLR) where the Court reduced an award from Kshs. 1,200,000/- to Kshs. 500,000/- for a tibia and fibula fracture; Aloise Mwangi Kahara v Martin Muitya & Another [2020] eKLR where the Court awarded Kshs. 500,000/- for a compound tibia and fibula fracture; and Daniel Otieno Owino another v Elizabeth Atieno Owuor [2020] eKLR where the Court reduced an award from Kshs. 600,000/- to Kshs. 400,000/- for a tibia and fibula fracture. The Respondent also invoked the reasonable person test as articulated in the case of Blyth v The Company of Proprietors of the Birmingham Waterworks [1856] EWHC Exch J65. The Respondent further noted that Dr. Wambugu's report dated 26th July 2023 showed that the Appellant had made adequate recovery with only 5% permanent incapacity, and that the Appellant walked into court unaided. The Respondent conceded special damages of Kshs. 2,550/=-. 4. Issues For Determination 17.Upon considering the Memorandum of Appeal, the record of appeal, and the submissions of both parties, and being guided by the overriding objective under Section 1A of the Civil Procedure Act, I find that the following issues arise for determination in this first appeal:(a)Whether the learned trial magistrate properly evaluated the evidence on record in arriving at the finding that the Appellant was solely to blame for the accident.(b)Whether the learned trial magistrate erred in law by dismissing the suit without considering the Appellant's submissions on both liability and quantum.(c)Whether the learned trial magistrate erred in relying on hearsay evidence from the investigating officer who did not testify.(d)What is the appropriate order on liability and, if liability is established, what quantum of damages is payable to the Appellant. 5. The Duty Of The First Appellate Court 18.This is a first appeal from the subordinate court to the High Court. As I have already stated, the jurisdiction of this Court to hear and determine this appeal is conferred by Section 65(1)(b) of the Civil Procedure Act and the procedure is governed by Order 42 of the Civil Procedure Rules, 2010. By virtue of Section 78 of the Civil Procedure Act, this Court is vested with wide powers, namely: to determine a case finally; to remand a case; to frame issues and refer them for trial; to take additional evidence or to require the evidence to be taken; and to order a new trial. Subject to those powers, the appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Civil Procedure Act on courts of original jurisdiction in respect of suits instituted therein. In addition, Order 42 rule 32 of the Civil Procedure Rules provides that the court to which the appeal is preferred shall have power to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require. Furthermore, by Order 42 rule 25 of the Civil Procedure Rules, where the evidence upon the record is sufficient to enable this Court to pronounce judgment, this Court may, after resettling the issues if necessary, finally determine the suit. 19.It is settled law that an appeal from a trial by a subordinate court to the High Court is by way of re-hearing. The first appellate court must itself weigh conflicting evidence and draw its own inferences and 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 courts’ findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally. See the case of Selle v Associated Motor Boat Co. Ltd [1968] EA 123. 20.This principle was restated by the Court of Appeal in Selle v Associated Motor Boat Co. Ltd [1968] EA 123, where the Court emphasized that the first appellate court has a duty to re-evaluate and re-assess the evidence on record and arrive at its own independent conclusions, while paying due regard to the fact that the trial court had the advantage of seeing and hearing the witnesses. . 21.On the burden and standard of proof in civil cases, Section 107(1) of the Evidence Act, Cap 80, Laws of Kenya 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. Section 108 of the Evidence Act provides that the burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Section 112 of the Evidence Act further provides that in civil proceedings, the fact that any party has failed to adduce evidence on any matter shall not be taken as evidence against that party. The standard of proof in civil cases is on a balance of probabilities. 6. Analysis And Determination . 1 Whether the Trial Magistrate Properly Evaluated the Evidence 22.I have carefully re-evaluated the evidence on record, as I am required to do as a first appellate court under the principles in Selle v Associated Motor Boat Co. Ltd [1968] EA 123 (supra). The central dispute in this case was whether the Appellant was on the footpath (as he claimed) or was crossing the road (as the Respondent claimed) when the accident occurred. This was a question of fact that turned on the credibility of the witnesses and the inherent probabilities in the evidence. The Appellant (PW1) adopted his witness statement dated 25th November 2022 as his evidence-in-chief. He produced exhibits PExh. (a) through PExh. (k), including his identity card, P3 form, treatment notes from Murang'a Level 5 Hospital and Makuyu Health Centre, police abstract, the police occurrence book extract, a medical report by Dr. W. M. Wokabi dated 7th February 2023, receipts for the medical report and copy of records, the motor vehicle search record, demand letter, and statutory notice. 23.PW2, Police Constable Otieno attached to Makuyu Police Station, produced the police abstract dated 22nd December 2022 as PExh. (e). He testified that the accident was recorded under OB No. 25/6/11/2022 and was investigated by CPL Chai. He stated that the motor vehicle was travelling towards Sagana when it hit a pedestrian. Crucially, PW2 testified that according to CPL Chai (the investigating officer), the pedestrian crossed the road from right to left and misjudged the speed of the motor vehicle. However, CPL Chai did not testify at the trial. PW2 was not the investigating officer and had no personal knowledge of how the accident occurred. His testimony on the cause of the accident was entirely based on what CPL Chai had reportedly told him, which is classic hearsay. 24.The Respondent (DW1) adopted his witness statement dated 12th July 2023 as his evidence-in-chief. He confirmed he was driving Motor Vehicle Registration No. KCR 134Y from Thika towards Sagana. He testified that he had just navigated a bump and was driving between 30-40 kph. He stated that the pedestrian (the Appellant) was crossing the road and that he applied emergency brakes upon seeing him. He admitted he did not check the speedometer at the time. He confirmed it was 8:00 p.m. and there were no street lights in the area. He admitted the point of impact was on the right side of his vehicle. Under cross-examination, he confirmed that he did not see the Appellant until he was very close to him. DW2 (Nelly Mwendwa) adopted her witness statement dated 12th July 2023. She stated that they were moving from Nairobi towards Sagana and that they saw the Appellant 'jumping to the road.' She confirmed that the Respondent applied emergency brakes. Under cross-examination, she admitted it was dark and there were no street lights. She also maintained that if the vehicle was travelling at 30 kph, the injuries sustained by the Appellant could still occur. 25.The Appellant's evidence was clear and consistent: he was a fruit vendor on the footpath beside the road at Meru Stage, and the Respondent's motor vehicle veered off the road onto the footpath and knocked him down. He stated categorically that he was not crossing the road and that the accident occurred while he was stationary on the footpath attending to his pineapple business. He produced exhibits including his treatment notes from Murang'a Level 5 Hospital and Makuyu Health Centre (PExh. (b) and (c)), which confirmed the nature and severity of his injuries, consistent with a high-impact collision. The Appellant's evidence on this critical point remained unshaken under cross-examination. 26.The Respondent's evidence, on the other hand, was riddled with inconsistencies. DW1 (the Respondent) stated that the Appellant was 'crossing the road' from right to left, while DW2 (his passenger) stated that the Appellant was 'jumping to the road.' These are materially different accounts of the same event. 'Crossing the road' implies a deliberate act of moving from one side of the road to the other, while 'jumping to the road' suggests a sudden movement from the roadside onto the roadway. The difference is not merely semantic; it goes to the heart of whether the Appellant was on the footpath or the roadway when the accident occurred. Furthermore, DW1 admitted he did not check the speedometer and was estimating his speed. The area was dark with no street lights at 8:00 p.m., which raises serious questions about the visibility and the ability of the defence witnesses to accurately observe what happened. 27.The learned trial magistrate relied heavily on the testimony of PW2 (PC Otieno), who stated that according to CPL Chai, the investigating officer, the pedestrian misjudged the speed of the motor vehicle. However, CPL Chai did not testify, and his purported opinion was relayed through PW2. This was classic hearsay evidence. The investigating officer's opinion as to how the accident occurred was not evidence before the court in the proper sense, as CPL Chai was not called as a witness and was not subjected to cross-examination. The trial magistrate treated this hearsay opinion as a proven fact and based his finding of liability on it, which was a fundamental error of law. This error is compounded by the fact that the trial magistrate relied on this hearsay as the primary basis for finding the Appellant solely to blame, despite the Appellant's sworn evidence to the contrary. 28.Furthermore, the learned trial magistrate failed to make any finding on the critical question of whether the Appellant was on the footpath or was crossing the road. The magistrate merely stated that 'the pedestrian misjudged the speed of the motor vehicle according to the investigating officer and he jumped to the road according to the evidence of DW2,' without critically evaluating whether the Appellant's evidence that he was on the footpath was more probable than the defence version. The magistrate did not explain why he preferred the defence evidence over the Appellant's evidence on this critical point, despite the inconsistencies in the defence case and the fact that the Respondent's own admission that the point of impact was on the right side of the vehicle suggested the vehicle had veered off the roadway. 29.Additionally, the learned trial magistrate failed to consider the significance of the Respondent's own admission that he was driving in an area with no street lights at 8:00 p.m. In such conditions, a driver has a heightened duty of care to other road users, including pedestrians who may be on the roadside. The use of headlights, while mandatory, does not absolve a driver from the obligation to drive at a speed that allows him to stop within the distance he can see ahead. 30.The trial magistrate cited several authorities in the judgment. Some of these were relevant to the issues for determination, while others were not. The magistrate cited Trust Bank Ltd v Paramount Universal Bank Ltd & 2 others (Nairobi HCCC No. 1243 of 2001) for the proposition that pleadings which are not supported by evidence remain mere statements of fact, and CMC Aviation Ltd v Cruisar Ltd (No.1) (1978) KLR 103 / (1976-80) 1 KLR 835 for the principle that pleadings are not evidence until the facts pleaded are proved. The magistrate also relied on Section 107(1) of the Evidence Act on the burden of proof. These authorities set out relevant legal principles, though they were misapplied by the magistrate in that the Appellant did in fact produce evidence in support of his pleadings. Notably, the magistrate also cited Boniface Waiti & Another v Michael Kariuki Kamau [2007] KEHC 2609 (KLR), John Karanja Wainaina (deceased) v Elijah Oketch Adellah (Nairobi HCCC No. 191 of 2013), and Mary Njeri Murigi v Peter Macharia & Another [2016] eKLR, all of which are authorities on the duty of care owed by drivers to other road users and the circumstances in which a driver may be found wholly or substantially to blame for an accident. These authorities are, in fact, supportive of the Appellant's case rather than the Respondent's, yet the magistrate cited them only to state general legal principles without applying them to the facts. The only authorities cited that were truly irrelevant to the core issue of how the accident occurred were Joel v Morison [1834] EWHC KB J39, which concerns the liability of a master for the acts of his servant, and Section 8 of the Traffic Act, Cap 403, Laws of Kenya, which deals with deemed ownership of a registered vehicle. The magistrate also referred to Section 49 of the Traffic Act, Cap 403, Laws of Kenya on careless driving, which was tangentially relevant. The magistrate's error was not primarily in the choice of authorities but in failing to properly apply the relevant principles to the evidence on record. 2 Whether the Trial Magistrate Erred in Failing to Consider the Appellant's Submissions 31.The Appellant's submissions at the trial court were comprehensive and addressed both liability and quantum. On liability, the Appellant made detailed submissions on why the Respondent should be held 100% liable, including arguments about the inconsistency of the defence witnesses, the nature and severity of the injuries being inconsistent with the claimed speed, and the fact that the Appellant was on the footpath. On quantum, the Appellant relied on the medical report and comparable authorities to support his claim for general damages. These submissions were properly before the trial court and ought to have been considered and addressed in the judgment. 32.A careful reading of the learned trial magistrate's judgment reveals that the magistrate did note the parties' respective positions in broad terms, stating in paragraph 5 of the judgment that 'the plaintiff submitted that the defendant is liable 100%... whereas the defendant submitted that the plaintiff is wholly to blame.' However, this bare acknowledgment fell far short of what was required. The magistrate's five-page judgment, of which the analysis section comprises only two paragraphs, entirely failed to engage with the substance of the parties' submissions. Specifically, the magistrate failed to address the Appellant's argument that the severity of the injuries was inconsistent with the Respondent's claimed speed of 30 kph. The magistrate failed to address the material inconsistency between DW1's testimony that the Appellant was 'crossing the road' and DW2's testimony that the Appellant was 'jumping to the road,' despite the Appellant having highlighted this inconsistency in his submissions. The magistrate failed to engage with the Appellant's quantum submissions and the authorities cited in support thereof. The magistrate also failed to analyze the significance of the point of impact being on the right side of the vehicle, which the Appellant had submitted was evidence that the vehicle had veered off the roadway onto the footpath. An analysis section of only two paragraphs for the entire determination of a contested road traffic accident case, where both parties had filed detailed written submissions citing multiple authorities, is plainly insufficient. This failure to substantively engage with the parties' submissions is a serious procedural error. 33.It is settled practice that a trial court must consider and address the submissions of the parties in its judgment. A judgment that fails to do so risks being set aside on appeal, as it suggests that the court did not give full and proper consideration to the case. See the case of James Kanyiita Nderitu & Another v Marios Philotas Ghikas & Another [2016] eKLR,where the court emphasized the duty of a trial court to consider and address the submissions of the parties before arriving at its decision. 3 Whether the Trial Magistrate Erred in Relying on Hearsay Evidence 34.As I have already discussed in paragraph 29 above, the learned trial magistrate placed significant weight on the opinion of CPL Chai (the investigating officer) as relayed through PW2 (PC Otieno). CPL Chai did not testify at the trial. His opinion was not given on oath, he was not available for cross-examination, and the court could not assess the credibility of the maker or the basis for his opinion. This is classic hearsay evidence. In Chebulet & another v Kipsoi & another(Civil Appeal E012 of 2024) [2026] KEHC 2502 (KLR), the High Court emphasized that where the Investigating Officer who actually investigated the case and made entries in the Station's records did not testify, the testimony given by other Police Officers who were not the Investigating Officer was technically hearsay. The Court held that all such officers could have done in Court was to simply produce the records contained in the Police entries, nothing more. Similarly, in the present case, PW2 was not the investigating officer and had no personal knowledge of how the accident occurred. His testimony on the cause of the accident was entirely based on what CPL Chai had reportedly told him, which is precisely the type of evidence that Section 63 of the Evidence Act, Cap 80, Laws of Kenya, was designed to exclude. 35.The general rule is that hearsay evidence is inadmissible because it is not made on oath, the maker is not available for cross-examination, and the court cannot assess the credibility of the maker. Section 63(1) of the Evidence Act provides that oral evidence must, in all cases whatever, be direct; that is to say, if it refers to a fact which could be seen, it must be the evidence of a witness who says he saw it; if it refers to a fact which could be heard, it must be the evidence of a witness who says he heard it; and if it refers to a fact which could be perceived by any other sense or in any other manner, it must be the evidence of a witness who says he perceived it by that sense or in that manner. This provision applies with equal force in civil and criminal proceedings, and its purpose is to ensure the reliability of evidence by requiring that the person with first-hand knowledge of a fact testifies to that fact. In Alfred Kiptoo Keter v Bernard Kibor Kitur & 2 others (Election Petition Appeal No. 21 of 2018) [2018] KECA 478 (KLR), the Court of Appeal, citing Section 63(1) and (2) of the Evidence Act, held that oral evidence must be direct in all cases and that evidence which is not direct is hearsay and of no probative value. The Court emphasized that the admission of hearsay evidence denies the other party the right to cross-examine the maker of the original statement, thereby undermining the adversarial process. 36.In the present case, the Appellant was denied the opportunity to cross-examine CPL Chai on the basis for his opinion, the accuracy of his recollection, and whether his conclusion was based on a proper investigation. Furthermore, the fundamental principle of evidence law, as embodied in Section 107 of the Evidence Act, is that the person who makes an assertion must prove it. The Respondent, having relied on the OB extract to support his version of events, bore the burden of producing the maker of that extract for cross-examination. As the Court held in Chebulet & another v Kipsoi & another (supra), where the Investigating Officer who made the entries in the police records was not called to testify, the court should be reluctant to accept extracts from the Occurrence Book as conclusively confirming the party to blame. The trial magistrate's reliance on this inadmissible hearsay evidence as a basis for finding the Appellant solely to blame for the accident was a fundamental error of law that cannot be allowed to stand. 37.The danger of relying on hearsay evidence is well recognized. The person who makes the original statement (in this case, CPL Chai) may have based his opinion on incomplete information, may have been mistaken, or may have been biased. Without the opportunity to cross-examine CPL Chai, the Appellant was denied the opportunity to test the accuracy and reliability of the investigating officer's opinion. This is precisely the kind of prejudice that the hearsay rule is designed to prevent. The trial magistrate's reliance on this hearsay evidence was not only an error of law but also a violation of the Appellant's right to a fair hearing. 4 Liability 38.Having re-evaluated the evidence on record, I find as follows on the issue of liability. The Appellant's evidence was that he was on the footpath selling pineapples when the Respondent's motor vehicle veered off the road onto the footpath and knocked him down. This evidence was consistent, clear, and remained unshaken under cross-examination. The Appellant called a police officer (PW2) who confirmed that the accident occurred and that the Appellant was injured. The medical evidence (PExh. (f)) confirmed the nature and severity of the injuries, which are consistent with a high-impact collision involving a motor vehicle. 39.I also note that the Respondent admitted the following facts: (a) he was driving at night (8:00 p.m.) in an area with no street lights; (b) he had just navigated a bump; (c) he did not check his speedometer; (d) the point of impact was on the right side of the vehicle; (e) the Appellant was a fruit vendor who sold pineapples on the roadside; and (f) he did not see the Appellant until he was already very close to him. These admissions, taken together, paint a picture of a driver who was not keeping a proper lookout, was not in full control of his vehicle, and was not driving at a speed that allowed him to stop or avoid a collision with a person on or near the roadway. The admission that the point of impact was on the right side of the vehicle is particularly significant, as it suggests that the Appellant was on the road side, which is consistent with the Respondents witness evidence that he the Appellant was jumping into the road when he was hit. There was no sketch plan produced to show the exact point of impact on the road. 40.Taking all the evidence into account, I find that the Appellant has proved on a balance of probabilities that the Respondent was negligent in the manner in which he drove, managed and controlled Motor Vehicle Registration No. KCR 134Y on the material date. The Respondent failed to keep a proper lookout, failed to keep his vehicle on the roadway, and failed to drive at a speed that was appropriate for the conditions (dark, no street lights, area with traders and pedestrians on the roadside). The fact that the Appellant sustained compound (open) fractures of the right tibia and fibula, which are severe injuries, is inconsistent with the Respondent's claim of driving at 30-40 kph. If the Respondent was indeed driving at that speed, he should have been able to see the Appellant and stop in time, particularly given that DW2 admitted under cross-examination that even at 30 kph the injuries sustained could occur, which itself suggests the speed was likely higher than claimed. 41.On the question of contributory negligence, the Respondent filed written submissions in support of this plea, but the evidence on record does not support a finding that the Appellant was crossing the road. The Appellant's evidence, which I accept, was that he was on the footpath selling pineapples. The Respondent's own witnesses gave inconsistent accounts of how the accident occurred, with DW1 saying the Appellant was 'crossing the road' and DW2 saying he was 'jumping to the road.' I have carefully considered the Respondent's submissions and the authorities cited in support of the plea of contributory negligence. The Respondent relied on John Mwangi Maina v Evanson Njoroge Maina another [2022] eKLR for the proposition that the appellant in that case suddenly jumped on the road. However, that case is distinguishable on the facts: in John Mwangi Maina, the evidence showed that the appellant was actually on the roadway when struck, whereas in the present case, the Appellant's uncontroverted evidence is that he was on the footpath. The Respondent also relied on Michael Kariuki Muhu v Charles Wachira Kariuki another[2015] eKLR on the duty of care of a pedestrian at night. While I accept the principle that pedestrians owe a duty of care to themselves, the evidence in this case does not establish that the Appellant was on the roadway or that he failed to take reasonable care for his own safety. He was lawfully engaged in his trade on the footpath. 42.In Kamau v John (Suing as the Legal Representative of the Estate of Amos Murangiri Nkonge - Deceased) [2025] KEHC 1622 (KLR), the High Court recently emphasized that a driver owes a duty of care to other road users notwithstanding the act of the other road users. The Court held that even where a pedestrian may have contributed to the accident by crossing at a non-designated area, the driver still owes a duty of care, and the legal burden of proof lies upon the respondent to prove that the appellant was negligent, after which the evidential burden shifts to the appellant to show in defence that he was not negligent. In the present case, the Appellant has discharged his burden of proving negligence on the part of the Respondent, and the Respondent has failed to prove any contributory negligence on the part of the Appellant. 43.I must also consider the duty of care owed by a pedestrian. While the Appellant was on the footpath, the fact that he was on the roadside at 8:00 p.m. in a dark area without reflective clothing may have made him less visible to approaching motorists. Having considered all the circumstances, including the fact that the Appellant was lawfully engaged in his trade on the footpath and that the Respondent admitted the point of impact was on the right side of his vehicle (suggesting the vehicle had veered off the road), I find that the Appellant was not contributorily negligent and that the Respondent bears 100% liability for the accident. 44.I am guided by the principles in Ephantus Mwangi v Duncan Mwangi Wambugu [1982-88] 1 KAR 278, where the Court of Appeal held the driver 80% liable for knocking down a pedestrian who was walking along the road at night. The Court held that a driver must exercise proper care and show that the accident was inevitable. In the present case, the Appellant was not even on the road; he was on the footpath. The vehicle left the roadway and struck him. In the circumstances, I find that the Respondent was solely negligent and that the Appellant bears no contributory negligence. The principle in Ephantus Mwangi & Another v Duncan Mwangi Wambugu [1982-88] 1 KAR 278 is also instructive: it is rare for a pedestrian to be found 100% to blame where a motor vehicle is involved, and such a finding should only be made in the clearest of cases. This is certainly not such a case. 45.The Court of Appeal in Mwanasokoni v Kenya Bus Services Ltd [1985] KLR 931 held that on a first appeal, the court is not bound by the findings of fact of the trial court and must re-evaluate the evidence and draw its own conclusions. In the present case, the learned trial magistrate failed on both counts: the magistrate did not re-evaluate the evidence in light of the material conflict between the Appellant's evidence (footpath) and the defence evidence (crossing/jumping), and the magistrate's analysis consisted of only two paragraphs which did not resolve this critical conflict. 46.The failure of the trial magistrate to engage with the parties' submissions is compounded by the failure to consider the authorities cited by both sides on quantum. In Rahima Tayab & Others v Anna Mary Kinanu (Civil Appeal No. 29 of 1982) [1983] KLR 114, the Court of Appeal warned that in awarding damages, the court must look at the whole picture and have regard to recent awards in comparable cases. The trial magistrate in this case made no assessment of quantum at all, as the suit was dismissed on liability. Had the magistrate engaged with the Appellant's quantum submissions and the comparable cases cited, the magistrate would have been better placed to render a comprehensive judgment. It is also incumbent upon a trial court to engage with the submissions and authorities placed before it, whatever the ultimate outcome on liability. 5 Quantum of Damages 47.General Damages - Pain, Suffering and Loss of Amenity. The Appellant sustained the following injuries as confirmed by the medical report of Dr. W. M. Wokabi dated 7th February 2023: (a) compound (open) fracture of the right tibia; (b) compound (open) fracture of the right fibula; (c) blunt and laceration injuries on the head; and (d) abrasion on the right shoulder joint. The Appellant was admitted at Murang'a Level 5 Hospital for 21 days and underwent surgical fixation of the fractures. The medical report indicates that the Appellant developed a superficial surgical site infection and that at the time of the report, the fractures had not fully healed. The doctor assessed a temporary disability of 12 months. These are serious injuries that undoubtedly caused the Appellant significant pain, suffering, and loss of amenity during the healing period and beyond. 48.In assessing general damages, I am guided by the principle that damages must be fair and reasonable, and should compensate the injured party for the pain, suffering, and loss of amenity experienced. The award must be comparable to awards made in similar cases. The Appellant claimed Kshs. 1,400,000/- for general damages. The Appellant relied on the case of Teresiah Ngugi & Another v Michael Masia Kimende [2018] KEHC 3879 (KLR), where the respondent sustained a cut wound on the right leg below the knee and a compound fracture of the right tibia/fibula, and was awarded Kshs. 1,500,000/- for general damages. I note that the judgment in that case was delivered in 2018. Since then, there has been significant inflation and depreciation of the Kenyan shilling. 49.The Respondent proposed an award of Kshs. 500,000/- for general damages and relied on several cases in support of this figure. I have carefully considered each of these cases and find them distinguishable from the present case. First, the Respondent relied on Ndwiga & Another v Mukimba (Civil Appeal E006 of 2022) [2022] KEHC 11793 (KLR), where the Court reduced an award from Kshs. 1,200,000/- to Kshs. 500,000/- for a tibia and fibula fracture. However, the injuries in that case were less severe than those in the present case: there were no head injuries, no surgical fixation was required, and the claimant was not hospitalized for 21 days. Second, the Respondent relied on Aloise Mwangi Kahara v Martin Muitya & Another [2020] eKLR, where the Court awarded Kshs. 500,000/- for a compound tibia and fibula fracture. While the injuries in that case were similar in nature, that judgment was delivered in 2020 and must be adjusted for the inflation and currency depreciation that has occurred since then. Third, the Respondent relied on Daniel Otieno Owino another v Elizabeth Atieno Owuor [2020] eKLR, where the Court reduced an award from Kshs. 600,000/- to Kshs. 400,000/- for a tibia and fibula fracture. However, the injuries in that case, while including a metal implant, were less severe overall than those sustained by the Appellant in the present case. The present case involves compound fractures of both the right tibia and fibula, head injuries (blunt and laceration injuries), a 21-day hospitalization with surgical fixation, a temporary disability of 12 months, and the risk of long-term complications. These injuries are considerably more severe than those in the cases cited by the Respondent. 50.I am guided by the principles in Rahima Tayab & Others v Anna Mary Kinanu (Civil Appeal No. 29 of 1982) [1983] KLR 114, which the Respondent itself cited, where the Court of Appeal warned that in awarding damages, the court must look at the whole picture and have regard to recent awards in comparable cases. Taking into account the severity of the injuries in the present case (compound fractures of both the right tibia and fibula, head injuries, a 21-day hospital stay with surgical fixation, a temporary disability of 12 months, and the risk of long-term complications), the awards in the comparable cases cited, and the current economic climate, I assess general damages for pain, suffering and loss of amenity at Kshs. 800,000/- (Kenya Shillings Eight Hundred Thousand Only). This figure takes into account the awards in the comparable cases cited, adjusted for inflation and the specific circumstances of this case. I note that the Respondent submitted that the award should not exceed Kshs. 500,000/-, but I find that this figure is too low given the severity and multiplicity of the injuries sustained and the period of disability. 51.Special Damages. Special damages must be specifically pleaded and strictly proved. The Appellant pleaded special damages in the sum of Kshs. 2,550/-, being the cost of the medical report (Kshs. 2,000/-) and the cost of obtaining copies of medical records (Kshs. 550/-). Both items were supported by receipts produced as PExh. (h) and PExh. (i). The Respondent conceded special damages of Kshs. 2,550/- in its written submissions at the trial court. I therefore award special damages in the sum of Kshs. 2,550/- (Kenya Shillings Two Thousand Five Hundred and Fifty Only) as pleaded and proved. 7. Conclusion And Orders 52.In the result, I find that this appeal has merit. The learned trial magistrate erred in law and fact in the following respects: first, by failing to properly evaluate the conflicting evidence on record and arriving at a finding that was against the weight of the evidence; second, by relying on inadmissible hearsay evidence from the investigating officer who did not testify, in violation of Section 63 of the Evidence Act; third, by failing to consider and address the Appellant's written submissions on both liability and quantum, by citing authorities that were relevant to the issues for determination but failing to properly apply them to the evidence on record. Each of these errors, taken individually, would be sufficient to warrant interference with the judgment. Taken together, they demonstrate a fundamental failure to properly determine the issues before the court. 53.Upon re-evaluation of the evidence, I find that the Respondent was solely negligent in the manner in which he drove, managed and controlled Motor Vehicle Registration No. KCR 134Y on 6th November 2022, and that the Appellant was not contributorily negligent. The appeal is therefore allowed, the judgment of the trial court is set aside, and judgment is entered in favour of the Appellant as detailed below. 54.Accordingly, I make the following orders:(a)The appeal is allowed.(b)The judgment of Hon. S. K. Nyaga, Senior Resident Magistrate, delivered on 1st February 2024 in Civil Suit No. E115 of 2023 at the Principal Magistrate's Court at Kenol, is hereby set aside.(c)Judgment is hereby entered in favour of the Appellant against the Respondent as follows:(i)Liability is found at 100% against the Respondent.(ii)General damages for pain, suffering and loss of amenity are assessed at Kshs. 800,000/- (Kenya Shillings Eight Hundred Thousand Only).(iii)Special damages are awarded at Kshs. 2,550/- (Kenya Shillings Two Thousand Five Hundred and Fifty Only).(iv)The total award is Kshs. 802,550/- (Kenya Shillings Eight Hundred and Two Thousand Five Hundred and Fifty Only).(d)Interest on general damages at court rates from the date of judgment.(e)Interest on special damages at court rates from the date of filing suit until payment in full.(f)The Appellant shall have the costs of this appeal.(g)The Appellant shall also have the costs of the suit in the subordinate court.(h)Right of Appeal 30 days. DATED, SIGNED AND DELIVERED AT KAKAMEGA ONLINE THIS 17TH DAY OF JULY, 2026.S.N MBUNGIJUDGEIn the presence of:-CA: Angog’a/VelmaMr. Mwana for the Respondent present.Wangari Mwanzia for the Appellant absent.MS MWAMA: I pray for 30 days stay of the execution of the judgment.COURT: 30 days stay of the execution of the Judgment is granted.