https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13130

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MACHAKOS** **CIVIL APPEAL NO. SUIT NO. E080 OF 2025** **BETWEEN** **DOROS MWONGELI PETER** (Suing as legal Representative to the Estate of **GEOFFREY MUENDO NGANDA………………………………………....APPELLANT** **VERSUS** **MICHAEL MUTINDA NGAO…………………………………………….RESPONDENT** **JUDGMENT** 1. Geoffrey Muendo Nganda filed the plaint on 20th February 2020 but regrettably passed away before the matter was heard. 2. Following his death, his legal representative, Doris Mwongeli Peter, was substituted in his place. 3. She filed an Amended Plaint on 18th August 2022, which was subsequently further amended on 14th April 2023. In the further amended plaint, she sought the following orders: 1. Special damages of KShs 6,800; 2. General damages for pain, suffering and loss of amenities; and 3. Costs of the suit together with interest at court rates. 4. The Appellant/plaintiff’s case in the trial court was that on 12th September 2017, the deceased was lawfully walking within Machakos Bus Park when the Respondent, either personally or through his servant and/or agent, so negligently managed and controlled Motor Vehicle Registration No. KCL 991M that he reversed the vehicle and violently knocked down the deceased. As a result, the deceased sustained severe soft tissue injuries. 5. The Appellant further pleaded the doctrine of *res ipsa loquitur* in the further amended plaint. 6. The Respondent denied the claim in its entirety, blamed the deceased for the occurrence of the accident, and pleaded *volenti non fit injuria*. 7. The Appellant called three witnesses, while the Respondent called one witness, who was stood down and never resumed his testimony. 8. The Respondent thereafter closed his case without calling any further evidence. 9. The Appellant testified that on 12th September 2017, the deceased was at the Machakos Bus Stage when Motor Vehicle Registration No. KCL 991M, travelling from the Nairobi direction, entered the stage. 10. A lady was travelling in the matatu with her child. The deceased assisted the child to alight while the mother remained inside the vehicle. 11. Without any warning, the motor vehicle suddenly began reversing and squeezed the deceased between Motor Vehicle Registration No. KCL 991M and another motor vehicle, Registration No. KBP 666K. 12. Following the accident, the deceased was treated at Shalom Hospital and later discharged. 13. He subsequently reported the accident at Machakos Police Station, where he was issued with a P3 Form and later a Police Abstract. 14. During cross-examination, the Appellant admitted that she had not witnessed the accident. 15. The deceased was later examined by Dr. Kimuyu Judith, who testified as PW3. The medical report indicated that the deceased sustained the following injuries: 1. Blunt head injury; 2. Cut wound to the right ear pinna with loss of the ear; 3. Blunt chest injury; and 4. Blunt lower back injury. 16. The injuries were assessed as serious soft tissue injuries, with permanent incapacity assessed at 7%. The doctor further opined that the loss of the ear was expected to affect the deceased's hearing. 17. PW2 was a Traffic Police Officer attached to Machakos Police Station. 18. During cross-examination, he admitted that he was not the investigating officer and that his evidence was based on the Occurrence Book regarding how the accident occurred. However, the Occurrence Book was not produced as an exhibit. 19. The Respondent closed his case without calling any witness. 20. Only the Appellant called witnesses and adduced evidence. The Appellant therefore submitted that her evidence remained unchallenged and uncontroverted. 21. The trial court, nevertheless, held that despite the Respondent not calling evidence, the Appellant still bore the legal burden of proving her case on a balance of probabilities. 22. The trial court observed that Sections 107, 109 and 112 of the Evidence Act provide that the legal burden of proof never shifts to the defendant; only the evidential burden shifts after the plaintiff has first discharged the initial burden. 23. The trial court held that the Appellant had not witnessed the accident and that a Police Abstract is not proof that an accident occurred but merely proof that an accident was reported. 24. In reaching that conclusion, the court relied on the Court of Appeal decision in Peter Karithi Kinunyu v Aden Guyo Haro (2014) eKLR. 25. The trial court found, from the totality of the evidence, that an accident had indeed occurred. 26. The court held that negligence must be specifically proved and that there can be no liability without fault. 27. In holding that the burden of proving negligence rests upon the plaintiff, the court relied on the Court of Appeal decision in Nadwa v Kenya Kazi Ltd (1988) eKLR. 28. The court observed that none of the Appellant's witnesses actually witnessed the accident or laid any factual basis explaining how it occurred. Further, the investigating officer did not testify, and no sketch maps or scene drawings were produced. 29. The trial court held that the pleaded particulars of negligence had not been proved. 30. On the doctrine of *res ipsa loquitur,* the trial court relied on the Court of Appeal decision in Margaret Waithera Maina v Michael K. Kamau (2015) and held that the evidence adduced by the Appellant was too scanty to warrant application of the doctrine. 31. The trial court concluded that there could be no presumption of liability because the Appellant had failed to establish facts giving rise to the application of *res ipsa loquitur.* Therefore, the Appellant's suit was dismissed. 32. Although it dismissed the suit, the trial court assessed damages in the event it was wrong on liability. 33. The trial court awarded KShs 500,000 as general damages, guided by the following authorities: NIC Bank (K) Plc v Mugure (2024) eKLR, where KShs 500,000 was awarded for injuries resulting in 14% permanent incapacity; and Mwifadhi Hamisi & Another v Mary Wanjiku Macharia (2020) eKLR, where KShs 700,000 was awarded for more serious injuries with permanent incapacity assessed at 5%. 34. The court further found that the claim for special damages had been specifically pleaded andproved. 35. The Appellant submitted that, this being a first appeal, the appellate court is required to subject the entire evidence to a fresh and exhaustive scrutiny and draw its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. Reliance was placed on Selle & Another v Associated Motor Boat Company Ltd & Others (1968) EA 123. 36. The Appellant further submitted that the trial court failed to appreciate the role of the police in investigating accidents, drawing conclusions and preferring charges. 37. It was also submitted that the award of KShs 500,000 was inordinately low. 38. The Appellant relied on HCC No. 79 of 2011, Linus Nganga Kiongo & 3 Others (suing as legal representatives/administrators of the Estate of Crispus Kiongo Waweru (Deceased)) v Town Council of Kikuyu, together with Trust Bank Limited v Paramount Universal Bank Limited & 2 Others, Nairobi (Milimani) HCC No. 1243 of 2001, for the proposition that where a defendant fails to call evidence in support of his pleadings, the plaintiff's evidence remains uncontroverted and unchallenged. 39. The Appellant submitted that a driver operating a motor vehicle, being a heavy and potentially dangerous machine, owes a higher duty of care to other road users, particularly pedestrians. 40. Reliance was placed on HCCA No. 140 of 2019, John Wambua alias Benson Wambua v Mathew Makau Mwololo & Sylvester Muthoka Makau. 41. It was further submitted that the driver of Motor Vehicle Registration No. KCL 991M, while driving within the busy Machakos Bus Stage with heavy pedestrian and vehicular traffic, ought to have exercised greater caution and owed a duty of care to everyone within the stage. 42. The Appellant also argued that the deceased had no control over either of the motor vehicles involved and therefore could not have contributed to the occurrence of the accident. 43. The Appellant submitted that the owner of Motor Vehicle Registration No. KCL 991M was vicariously liable for the negligence of its driver. 44. The Appellant further argued that it is not only the investigating officer who can competently testify regarding the occurrence of an accident. According to the Appellant, any police officer attached to the Traffic Department can produce evidence based on the Occurrence Book and Police Abstract, both being public documents. 45. It was submitted that PW2 attended court with the police records and tendered their contents as evidence. 46. In support of that submission, reliance was placed on Moses Munithi Njagi v Joseph Njuguna Macharia & 2 Others, HCC Civil Appeal No. 20 of 2011, and Richa Evans v Mohammed Ibrahim, Mombasa HCC Civil Appeal No. 125 of 2014. 47. The Appellant maintained that her evidence remained uncontroverted and that she had proved her case on a balance of probabilities. She therefore urged the appellate court to find the Respondent 100% liable. 48. On quantum, the Appellant sought an award of KShs 800,000 as general damages, relying on Rosemary Bulinda v Peter Kingadi Gakuku & 5 Others, Civil Appeal No. 86 of 1998, where the plaintiff was awarded KShs 650,000. 49. The Appellant submitted that the decision was made many years ago and that, taking inflation into account, an award of KShs 800,000 would constitute adequate compensation. 50. The Appellant also prayed for an award of the pleaded special damages, submitting that they had been specifically proved. 51. Ultimately, the Appellant prayed that the appellate court: 1. Set aside and quash the judgment of the lower court; 2. Allow the appeal; 3. Find the Respondent 100% liable; 4. Award KShs 800,000 as general damages; 5. Award special damages of KShs 6,880; and 6. Award costs and interest of both the suit and the appeal. 52. I have considered the memorandum of appeal, the record of appeal and the Appellant’s submissions; the issues that emerge therefrom for determination are: 53. Whether the Appellant proved the Respondent's liability for the accident on a balance of probabilities: 54. Whether the trial court erred in finding that the evidence adduced was insufficient to establish negligence or invoke the doctrine of *res ipsa loquitur*: 55. Whether the trial court erred in its evaluation of the evidence, particularly the effect of the Respondent's failure to adduce evidence and the evidential value of the police evidence tendered by PW2: 56. Whether the trial court's assessment of general damages at KShs 500,000 was inordinately low and warrants interference by this Court: 57. This being a first Appeal, this Court is obligated to re-evaluate and re-appraise the evidence adduced in the trial court to arrive at its own independent conclusion, taking into account the fact that it did not have the advantage of seeing and hearing the witnesses as they testified. [Selle vs. Associated Motor Boat Company Ltd [1968] EA 123.] 58. I agree with the trial court that negligence must be proved and that there is no liability without fault, and that the burden is on the plaintiff to prove negligence, as was succinctly expounded by the Court of Appeal in Nadwa vs Kenya Kazi Ltd (1988) eKLR. 59. I have read the testimony of PW1 and PW2 before the trial court (pages 129 and 130 of the Record of Appeal), and it is apparent, as was observed by the trial court, that neither of them witnessed the accident so that they could explain how it happened. PW1 was emphatic that she was not at the scene and that she was telling the court what she was told; she stated that she did not witness the accident and did not bring an eyewitness to court. 60. PW2, a police officer attached to Machakos police station, testified that he was not the investigating officer, he did not visit the scene of the accident, and that although he had the occurrence book with him and a police abstract, he did not have the police file and statements that may have been recorded in the matter. 61. My view on police witnesses is that a police officer may give admissible opinion evidence on the occurrence of an accident that he/she has investigated and an investigating officer’s evidence can assist the court in evaluating the testimony of a witness based on an objective assessment of an accident, by their analysis of the scene, production of sketch maps, photos, assessment of motor vehicle to show points of impact, damage et cetera, but to be able to do so, just like any other opinion witness, the officer must establish their experience and/or training in accident investigations and give a factual basis for their conclusions for their evidence to be useful to the court. Such Investigating officers are better placed to give their opinion based on their investigations and can be cross-examined on the premises of their findings and conclusions; the same cannot be said of any other officer who isn’t privy to the investigations. 62. The other point I may observe is that once investigations have been concluded, that position would be officially on record; police abstracts are standardized to include questions on whether investigations have been completed, whether anyone has been charged, whether the case is still under investigation, whether there is any likelihood of either party being prosecuted. They also have a place where potential witnesses are listed, and the investigating officer is ordinarily the officer best placed to explain the investigative findings, the materials upon which they were based, and any conclusion reached regarding the cause of the accident. 63. Now, in the instant matter, the trial court found that the evidence adduced by PW1 and PW2 was scanty and could neither prove negligence nor suffice for invocation of *res ipsa loquitor*. 64. Having considered the totality of the evidence adduced, I find no reason to disagree with the trial court on that finding. Neither PW1 nor PW2 proved that the accident was caused by the negligent act of the Respondent. 65. I find that, having taken guidance from the decision of the Court of Appeal in Margaret Waithera Maina vs Michael K. Kamau (2015) eKLR and Bikwaririzo Vs Railway Corporation (1971) E.A. 82, the trial court properly appreciated the applicability of *res ipsa loquitor* and that the Appellant did not establish primary facts upon which the same may be invoked against the Respondent. 66. On the effect of the Respondent's failure to adduce evidence, I find that the trial court did not err; it informed itself of the effect of the same by considering the decision of the Court of Appeal in Charter House Bank Ltd (Under statutory management) versus Frank. N.Kamau (2016) eKLR and applied the same to the case. 67. On the issue of quantum of damages, I did not find the decision of the trial court to be out of the range of awards for comparable injuries, as to amount to an error of principle. 68. The trial court cited two fairly recent decisions that were in respect of similar injuries suffered by the deceased and awarded damages within their range. I find no reason to interfere with the same. In the upshot, I find the appeal lacking in merit, and I order as follows; 1. The appeal be and is hereby dismissed 2. The respondent shall have costs of the Appeal. Dated, signed and delivered via Microsoft Teams in Mombasa this 20th day of August 2026. Emmanuel Bitta Judge of the High Court In the Presence of: C/A Francis Mwawuda h/b Gicharu for the Appellant N/A for the Respondent