https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10718

Devkan Enterprises Ltd & another v Githu (Civil Appeal E133 of 2025) [2026] KEHC 10718 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10718 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E133 of 2025 BW Murunga, J July 16, 2026 Between Devkan Enterprises Limited 1st Appellant John Mwangi Wachira 2nd Appellant and John Kiiru Githu Respondent (Being an appeal from the judgment and decree of Hon. D.N. Musyoka (CM) delivered on 23rd April, 2025 in Gatundu Chief Magistrate's Court Civil Case No. E321 of 2021) Judgment Background 1.This is an Appeal arising from the judgement of the Chief Magistrate’s Court at Gatundu delivered on 23rd April 2025 by Hon D.N Musyoka in Gatundu CMCC No. E321 of 2021. 2.The Respondent (then Plaintiff) sued the Appellant (then Defendant) for special and general damages, future medical expenses as well as costs and interests arising from a road traffic accident that occurred on 22nd January 2021. 3.The Respondent stated that he was lawfully riding motor cycle registration number GKB 167K along Kiamwangi-Kiganjo road when the 2nd Defendant as the authorized agent, servant and or employee managed, controlled and or drove motor vehicle registration number KCL 719E so carelessly and negligently that he caused the said motor vehicle to collide onto the motor cycle thereby occasioning him serious bodily injuries, loss and damages. 4.The Respondent blamed the Appellants for causing the accident. 5.In response to the suit, the Appellants denied that the Respondent was lawfully riding the motorcycle registration number GKB 167K as well as denied that motor vehicle registration number KCL 719E was being driven so carelessly and negligently as to cause it to collide with the Respondents motor cycle. 6.The Appellants also denied causing the suit accident and aver that the Respondent was rising on the wrong side of the road, lost control of the motorcycle and collided with motor vehicle registration number KCL 719E. 7.The trial court conducted a hearing where the Respondent adopted his statement filed on 3rd November 2021 and called one witness who produced the abstract dated 19th May, 2021; while the Appellants called three (3) witnesses before closing their respective cases. 8.In its Judgement dated 23rd April 2025, the trial court found the Appellants100% liable (jointly and severally) for causing the accident. The trial court further awarded the Respondent general damages of Kshs. 1,200,000/=, special damages of Kshs. 58,300/= and future medical expenses of Kshs. 454,000/=. 9.Being aggrieved with the Judgment of the trial court, the Appellant filed his Memorandum of Appeal dated 20th August 2025 and relied on the following grounds that: -I.The trial court erred in basing its finding on liability solely on the testimony of Sgt Cecilia Nderitu, despite her evidence being controverted by credible and independent evidence.II.The trial court erred by disregarding material evidence adduced by the Appellants, thereby denying them a fair hearing.III.The trial court erred in awarding Kshs. 454,000/- for future removal of metal implants despite medical evidence and the Respondent’s own testimony confirming that the implants had already been removed.IV.Cost of removal of the metal implants was an expense already incurred in the nature of special damages for the Respondent to plead and strictly prove; not for the Court to estimate.V.The trial court erred in failing to consider and determine the 1st Appellant’s counterclaim. 10.Accordingly, the Appellants prayed that the judgment of the trial court be set aside and that the Respondent’s suit be dismissed and 1st Appellants’ counterclaim allowed. They also prayed for the costs of the appeal. Submissions by the Appellant 11.The Appellants submitted that the trial magistrate erred in finding them liable for the accident based solely on the evidence of the investigating officer. 12.They argued that the investigating officer’s opinion was inconsistent with the physical evidence on record and that the court failed to properly consider the evidence showing that the Respondent was riding on the wrong side of the road. 13.The Appellants relied on Njane t/a Argwings Twin Service Station & another v Total Kenya Limited & another [2025] KEHC 14898 (KLR) for the proposition that expert evidence must be based on verifiable facts and considered together with all other evidence on record. 14.They maintained that the evidence before court demonstrated that the Respondent was responsible for causing the accident and urged the Court to set aside the finding on liability. 15.On quantum, the Appellants submitted that the award of Kshs. 454,000/= for removal of metal implants was erroneous as the same had not been specifically pleaded and proved. The Appellants argued that the Respondent had admitted in cross-examination that the implants had already been removed and that the cost of removal was a specific and quantifiable expense which ought to have been pleaded as special damages. 16.They contended that there was no evidence that the Respondent had incurred the alleged cost or disclosed the actual amount paid for the procedure. The Appellants therefore submitted that the award was unjustified and ought to be set aside. 17.They further contended that the trial court erred in dismissing their counterclaim despite evidence being produced in support of repair costs and related expenses. They relied on Silas Mutua Mberia v Muthoni Njue Veronica [2021] Kehc 4538 (Klr) to submit that assessment reports may sufficiently prove repair costs. Submissions by the Respondent 18.The Respondent opposed the appeal and submitted that the trial magistrate correctly found the Appellants liable based on the evidence of the investigating officer, the police abstract and the testimony of the parties. The Respondent argued that the Appellants had failed to demonstrate any basis for interfering with the trial court’s findings. 19.The Respondent relied on Gitobu Imanyara & 2 others v Attorney General [2016] eKLR, submitting that an appellate court should only interfere with an award of damages where the trial court acted on wrong principles or the award was inordinately high or low. The Respondent maintained that the award of Kshs. 1,200,000/= was reasonable considering the injuries sustained and was supported by comparable authorities. 20.The Respondent further submitted that the award of Kshs. 454,000/= for future medical expenses was properly granted based on medical evidence and that the Appellants’ counterclaim was rightly dismissed for failure to prove liability against the Respondent. The Respondent therefore urged the Court to dismiss the appeal with costs. Issues for Determination 21.This Court is called upon to determine the following three issues:a.Whether the trial court erred in finding the Appellants liable for the accident.b.Whether the trial court properly assessed and awarded damages including future medical expenses.c.Whether the Appellants proved their counterclaim and were entitled to the reliefs sought. Analysis and Determination 22.As a first appellate court, this Court is required to re-evaluate and independently consider the evidence presented before the trial court while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. This duty was restated in Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123, where the Court held that a first appellate court must reconsider the evidence and arrive at its own conclusions. 23.The Appellants challenged the finding of 100% liability on the basis that the trial court placed undue reliance on the evidence of Sgt. Cecilia Nderitu, the investigating officer, without sufficiently considering the Appellants’ evidence that the Respondent was riding motor cycle registration number GKB 167K on the wrong side of the road and had encroached into the lane of motor vehicle registration number KCL 719E. 24.The Appellants’ witnesses testified that the collision occurred as a result of the motorcycle crossing into the path of the motor vehicle. They further challenged the investigating officer’s reconstruction of events, arguing that it was inconsistent with the physical circumstances of the accident, including the respective positions of the vehicles and the nature of the collision. They also relied on the nature and location of the Respondent’s injuries as supporting their version of how the accident occurred. 25.It is trite law that the evidence of police investigating officer, though relevant, is not conclusive proof of negligence. The Court is required to independently evaluate all the evidence before it. In Samuel Gikuru Ndungu v Coast Bus Company Ltd [2000] Keca 374 (KLR), the Court held that liability in road traffic accidents must be determined from the evidence presented and that the Court must consider the circumstances of the accident as a whole rather than rely solely on th opinion of the police. 26.Similarly, in Isabella Wanjiru Karanja v Washington Malele [1983] KECA 72 (KLR), the Court held that where there are conflicting accounts regarding the occurrence of an accident, the Court must consider the probabilities of each version and determine whether either party contributed to the accident. 27.The burden of proof remained with the respective parties. Under Sections 107 and 109 of the Evidence Act, the Respondent bore the burden of proving that the accident was caused by the negligence of the Appellants, while the Appellants bore the evidential burden of proving their assertion that the Respondent contributed to the accident. 28.Upon re-evaluation of the evidence, this Court finds that the Appellants raised legitimate doubts regarding the circumstances of the collision. While Sgt. Nderitu attributed blame to the driver of motor vehicle registration number KCL 719E, her opinion was not determinative of liability and had to be considered alongside the testimony of the Appellants’ witnesses regarding the position of the motorcycle on the road. 29.The evidence before Court demonstrates that the Respondent’s riding contributed to the occurrence of the accident. However, the Court is not persuaded that the Respondent was solely responsible. The driver of the motor vehicle, being in control of a heavier and potentially more dangerous machine, equally bore a duty to exercise reasonable caution and take evasive measures to avoid the collision. 30.Where the negligence of both parties contributes to an accident, the proper approach is to apportion liability according to the degree of fault attributable to each party. 31.In Khambi & Another vs Mahithi & Another [1968] EA 70, it was held that“it is well settled that where a trial judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional circumstances, as where there is some error in principle or the apportionment is manifestly erroneous and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.” 32.In the circumstances, this Court finds that the trial magistrate erred in holding the Appellants wholly liable without adequately considering the contribution of the Respondent. Taking into account the respective conduct of the parties, liability is apportioned as follows:Appellants – 70%Respondent – 30% 33.The award of damages shall accordingly be reduced by the Respondent’s contribution of 30%. 34.On quantum, the Appellants challenged the award of Kshs. 454,000/= as future medical expenses. They submitted that the award was erroneous because the evidence before the trial court demonstrated that the Respondent had already undergone removal of the metal implants. They argued that the cost of removal of the implants was an expense already incurred and, being in the nature of special damages, ought to have been specifically pleaded and strictly proved. 35.The Respondent, on the other hand, maintained that the award was properly made based on the medical evidence presented before the trial court and that the Court was entitled to award the estimated cost of future treatment. 36.The law is settled that future medical expenses, although awarded as part of damages, are special damages in nature and must be specifically pleaded and proved. In Tracom Limited & Another v Hassan Mohamed Adan [2009] eKLR, the Court of Appeal held that future medical expenses must be specifically pleaded and proved, though proof may be based on medical evidence indicating the necessity and anticipated cost of future treatment. 37.Similarly, in Kenya Bus Services Ltd. - v _ Gituma, (2004) EA 91, the Court recognized that future medical expenses may properly be awarded where there is medical evidence demonstrating that future treatment will be required. 38.In the present case, the question is not whether the Respondent suffered injuries warranting compensation, but whether the particular expense awarded constituted a future medical expense. 39.The Appellants contended that the evidence of the Respondent and the medical documents produced before the trial court demonstrated that the metal implants had already been removed. If that position is correct, then the cost of removal was not a future expense anticipated to be incurred after trial, but rather an expense already undertaken which ought to have been specifically pleaded and proved as a past expense. 40.Having re-evaluated the evidence, this Court finds that the trial court did not sufficiently address the inconsistency between the medical evidence and the Respondent’s testimony regarding the status of the implants. 41.The award of Kshs. 454,000/= appears to have been made on the assumption that removal of the implants was still pending, without reconciling that assumption with the evidence presented. 42.A court cannot award damages for an expense that has already occurred under the head of future medical expenses. Such an award would amount to compensating the Respondent for an expense that was not proved to be future in nature. 43.Accordingly, this Court finds that the award of Kshs. 454,000/= for future medical expenses was made in error and the same is hereby set aside. The award of general damages of Kshs. 1,200,000/= and special damages of Kshs. 58,300/= remains undisturbed. 44.On the issue of counterclaim, the Appellants contended that the trial court erred in dismissing their counterclaim for repair costs and related expenses arising from the accident. They submitted that they had produced evidence, including an assessment report, demonstrating the damage occasioned to motor vehicle registration number KCL 719E and the costs incurred in restoring the vehicle. 45.A party who advances a counterclaim assumes the position of a plaintiff and bears the burden of proving the claim on a balance of probabilities. The Appellants were required not only to prove the loss suffered but also to establish that the loss was occasioned by the negligence of the Respondent. 46.This position is consistent with Sections 107 and 109 of the Evidence Act, which place the burden of proving a fact upon the person who asserts it. 47.The Court of Appeal in Eastern Produce (K) Limited (Savani Estate) v Christopher Atiado Osiro [2006] eKLR, held that a party alleging negligence must prove the acts or omissions constituting negligence and demonstrate the connection between the negligence and the damage suffered. 48.In the present case, the Appellants produced evidence relating to the damage to their vehicle and the estimated repair costs. However, proof of damage alone does not establish entitlement to compensation. The Appellants were required to demonstrate that the Respondent’s negligent riding was the cause of the damage. 49.Having found that liability for the accident was contributed to by both parties, the question then becomes whether the Appellants proved their specific loss and the extent to which it was attributable to the Respondent’s negligence. 50.The evidence on record establishes that the motor vehicle was damaged as a result of the collision and that repair costs were assessed. An assessment report may constitute sufficient evidence of the cost of repairs where it has not been successfully challenged. 51.In Silas Mutua Mberia v Muthoni Njue Veronica [2021] KEHC 4538 (KLR), the Court recognized that a motor vehicle assessment report may be relied upon in proving repair costs. 52.However, the Court must also account for the Respondent’s contribution to the accident. Since liability has been apportioned, the Appellants cannot recover the entirety of their alleged loss. Their entitlement must correspond with the Respondent’s percentage of contribution. 53.Accordingly, this Court finds that the Appellants proved their counterclaim to the extent of the proven repair costs, subject to the Respondent’s contribution of 30%. 54.The Appellants are therefore entitled to recover 30% of the proved damages under the counterclaim, with the same to be set off against the Respondent’s award where appropriate. Disposition 55.In conclusion, having re-evaluated the entirety of the evidence on record and considered the written submissions of the parties, this Court finds that the appeal has merit and is allowed in part. Accordingly, the following orders are made:I.The finding of the trial court holding the Appellants 100% liable for the accident is hereby set aside. Liability for the occurrence of the accident is apportioned as follows:i.The Appellants shall bear 70% liability; andii.The Respondent shall bear 30% liability.II.The award of general damages of Kshs. 1,200,000/= and special damages of Kshs. 58,300/= by the subordinate court is upheld.III.The award of Kshs. 454,000/= for future medical expenses is hereby set aside.IV.The Appellants’ counterclaim is allowed to the extent of 30% of the proved repair costs and related expenses.V.Each party shall bear its own costs of this appeal. DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JULY, 2026.BENARD WAFULA MURUNGAJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:In the presence of:Kamau instructed by Evan Mbugu for the AppellantKiptanui instructed by Waiganjo Wachira for the RespondentsKevin Babu - Court Assistant