https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10894

Kamanda v Musumba (Civil Appeal E1487 of 2024) [2026] KEHC 10894 (KLR) (Civ) (17 July 2026) (Judgment) Neutral citation: [2026] KEHC 10894 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1487 of 2024 RA Oganyo, J July 17, 2026 Between Emanuel Keroso Kamanda Appellant and Vincent Aluchio Musumba Respondent (Being an appeal from the ruling of Hon. S.G Gitonga (SRM) delivered on the 6th December, 2024 at the Magistrates Court at Milimani in Civil Case No. E5735 of 2022) Judgment 1.This appeal arises out of the decision of S. G Gitonga (SRM) delivered on the 6th December, 2024 at the Magistrates Court at Milimani in Civil Case No. E5735 of 2022 in which the Appellant had sued the Respondent for general damages, special damages of Kshs. 11,550, future medical expenses, costs of the suit and interests. 2.In his Plaint, the on the 18th Appellant in the Trial court, the Appellant averred that on or about the 14th day of October 2022, the plaintiff was a lawful pillion passenger on a Motor cycle along SGR near Wall street when the defendant so carelessly and negligently drove motor vehicle registration number KCH 009R that he caused an accident a result of which the Appellant suffered severe bodily injuries. He attributed the accident to the Respondent’s negligence which he particularised at paragraph 4 of the plaint. He particularised injuries sustained and special damages at paragraph 5 of the plaint and stated that and stated that despite issuing a demand notice and notice of intention to sue, the Respondent failed to admit liability necessitating the filing of this suit. He prayed that judgement be entered in his favour. 3.By statement of defence dated 2nd February, 2024, Respondent denied the Appellant’s averments in the Plaint and put them to strict proof thereof. He denied the Appellants averments of negligence and added that the doctrine of res ipsa loquitor and denied the Appellants allegations on injuries and special damages. He denied service of demand notice and notice of intention to sue and prayed that the Appellant’s suit be dismissed with costs. 4.The trial court considered the evidence placed before him and found that the Appellant failed to prove his case on liability against the Respondent. The suit was consequently dismissed.The Appellant was aggrieved by the trial court’s decision filed the instant appeal. In the memorandum of appeal, the Appellant impugned the trial Magistrate’s quantum award on grounds thata.The Trial Magistrate erred in law and fact by finding that the Appellant had not proved his case against the Respondent on a balance of probability.b.The Trial Magistrate erred in law and fact by considering and addressing irrelevant issues that were not canvassed before trial.c.The Trial Magistrate erred in law and fact by awarding general damages so low and erroneous.d.That the Trial Magistrate erred in law and fact by using wrong principles in deciding on liability hnce arriving at an erroneous decision on libilitye.That the Trial Magistrate erred in law and fact by failing to consider the facts before him. 5.The Appellants prayed that the appeal be allowed, the judgement delivered on 6th December, 2022 on liability and quantum be varied and set aside and substitute it with its own finding together with costs and interest. 6.This being a first appeal, I am alive to the responsibility of the court. I am therefore called upon to analyse and re-assess the evidence on record and reach my own conclusions bearing in mind that I neither saw nor heard the witnesses testify (see Selle v Associated Motor Boat Co. [1968] EA 123). In Kiruga v Kiruga & Another [1988] KLR 348, the Court of Appeal observed that;“An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution” 7.PW1, PC Jackline Naeku is stationed at Emabakasi police station where she performs traffic duties. She recalled that on the 14th October, 2022, the accident subject to these proceedings occurred near the SGR Wall pass at around 0730 hrs involving motor vehicle registration number KCH 009Z and an unidentified motor cycle carrying the Appellant herein as a pillion passenger. She said that the accident was reported under OB number 44/14/10/22 and was investigated by CPL Makenda who had since been transferred. He said that the investigations officer had since been transferred and that the police abstract indicated that the accident was pending under investigations. In cross examination, PW1 stated that she was not the investigations officer and that she didn’t produce any sketch plans. She said that nobody was blamed for the accident. 8.PW2 Dr. Cypranious Okoth Okere is a private medical practitioner based in Nairobi. He examined the Appellant on 26th October, 2022 and prepared a medical report which he produced as an exhibit. He said that he charged a sum of Kshs. 3,000/- for preparation of the medical report and Kshs. 10,000/- for court attendance. In cross examination, DR. Okere stated that the Appellant did not suffer any permanent disability. He said that he relied on the Perform in preparation of his report and that he suffered soft tissue injuries. 9.PW3 the Appellant testified that he recorded his witness statement dated 7th November, 2022 and prayed that the same be admitted as his evidence in chief. He also prayed that his bundle of documents dated the same day be adopted as his exhibits in this case. His witness statement is a replication of his averments in his Plaint. He said that the Respondent while driving motor vehicle registration number KCH 009 R tried to overtake the motor cycle on which he was riding thereby encroached on the motor cycles lane and violently hit the same thereby causing an accident a result of which he suffered injuries loss and damage. He blamed the Respondent for the accident and prayed that judgement be entered in his favour as prayed. 10.In cross examination, PW3 stated that on the date of the accident, he was headed to his farm together with his equipment and that he had put on a helmet. He said that the equipment he was carrying did not touch on the motor vehicle and that after the accident, he fell down on the road. He said that the Defendant took him to hospital and paid the bills. He reiterated that the vehicle was overtaking when the accident occurred. This marked the close of the Appellant’s case 11.On the defence side, DW1 PC peter Kiogora is attached at the Embakasi police station performing traffic duties. He said that the accident subject to these proceedings occurred on the 14th October, 2022 involving an unidentified motor cycle and motor vehicle registration number KCH 009R driven by the Respondent herein. He said that the motor cycle came from behind and tried to overtake MV KCH 009R and that as it overtook, a generator that it was carrying hit the motor vehicle a result of which the motor cycle fell down injuring the Appellant herein who was a pillion passenger. He produced a police abstract dated 15th October, 2022 and said that no one was blamed for the accident as the same is pending under investigation. In cross examination, DW1 stated that the case was investigated by PC Makenda who had since been transferred. He said that he never visited the scene of the accident and neither had he seen the sketch plan. He said that he came to court to produce the police Abstract. Analysis and Determination 12.The appeal was disposed of by way of written submissions which I have read and considered. The main issue for determination is whether the learned Trial Magistrate erred in law and fact in finding that the Appellant failed to prove his case on liability against the Respondent. Liability 13.Both parties gave their account on the circumstances under which the accident occurred. Both parties are in consensus on the date, place of occurrence of the accident. The point of contention is how the accident occurred and who is liable for the accident. The interesting part is that we had two different Police officers from Embakasi Police station who testified in favour of both the Appellant and the respondent. Both of time informed the court that they were not the investigations officers in this case as the same was investigated by PC Makenda who had since been transferred. They also concurred that nobody was blamed for the accident as the same was pending under investigations. They also confirmed that they never visited the scene of the accident and neither did they have sketch maps on the scene of the accident. 14.In arriving at her decision on liability, the learned trial magistrate relied on the evidence of the two police officers who testified before the court. She observed that PW1 was not present at the scene of the accident, was not the investigating officer, and that her role was limited to the production of the police abstract. PW1 further testified that investigations into the accident were still pending and that no party had been blamed for its occurrence. The trial magistrate also relied on the evidence of DW1, PC Kiogora, who testified that the accident occurred when the motorcycle on which the Appellant was riding attempted to overtake Motor Vehicle Registration No. KDD 009R, and that the generator being carried on the motorcycle struck the Respondent's motor vehicle, thereby causing the accident. However, DW1 equally confirmed that he was not at the scene of the accident, was not the investigating officer, and did not have the sketch map of the accident scene. 15.The Trial Magistrate proceeded to rightfully rely on the Halsbury's Laws of England“The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which the breach of duty a causal connection must be established.” 16.Theact that the investigation file was not produced in evidence and that investigations were incomplete, with no party having been blamed, does not, of itself, absolve the Respondent from liability. Moreover, neither of the police officers who testified was present at the scene of the accident. The only eyewitness to testify was the Appellant, whose evidence remained uncontroverted. 17.The proceedings herein are civil in nature and the applicable degree of the burden of proof is on a balance of probability. In Abson Motors Limited v Tabitha Syombua Mutua & another [2019] eKLR where the court held that;“burden of proof in civil cases on the balance of probability was defined in the case of Kanyungu Njogu v Daniel Kimani Maingi [2000] eKLR that when the court is faced with two probabilities, it can only decide the case on a balance of probability, if there is evidence to show that one probability was more probable than the other. Even if a certain issue is not challenged by the defendant, the burden of prove on the plaintiff on the balance of probabilities is not lessened. This was found to be the case by the Court of Appeal in Kirugi & Another v Kabiya & 3 Others [1987] eKLR 347.” 18.It is not in dispute that the accident occurred between the unidentified motorcycle on which the Appellant was riding as a pillion passenger and the Respondent's Motor Vehicle Registration No. KDD 009R. The Appellant, who was the only eyewitness to testify, stated that the accident occurred when the Respondent attempted to overtake the motorcycle, in the process colliding with it and thereby causing the accident. He further testified that he was wearing a helmet at the time of the accident and had therefore taken reasonable precautionary measures as a pillion passenger. 19.I therefore find that the trial magistrate erred in finding that the Plaintiff had not proved his case on liability against the Defendant and consequently set aside the trial Courts judgement on liability and substitute the same with entry of judgement on liability in favour of the Appellant against the Respondent in the ration of 100% on grounds that the accident was caused by the Respondent as he attempted to overtake the motor cycle on which the Appellant was riding. Quantum 20.The Appellant submitted that he suffered tenderness on the lumbar region, tenderness on the left lower leg and tenderness on the lumbo-sacral region. The injuries were confirmed by the treatment notes from Jamii Medical Centre, the Nairobi west hospital and Doctor Cypranus OKoth OKere’s medical report dated 26th October, 2022 who opined that the Appellant, recurrent backaches and lumbo-sacral Appellant suffered blunt soft tissue injuries which he classified the Appellants injuries as Harm. His opinion is echoed by the findings of Dr. Madhiwala who re-examined the Appellant on the Respondent’s instructions. 21.In a judgement delivered on 18th June, 2026 in Salat v Buyoto alias Ralia Hassan & another [2026] KEHC 8485 (KLR) the court awarded general damages for pain and suffering for injuries similar to those suffered by the Appellant herein of Kshs. 150,000/-. This being a relatively recent case, I will award the Appellant a sum of kshs. 150,000/- in general damages for pain and suffering. 22.On special damages, it is trite law that they must not only be pleaded but also be proved. The Appellant claimed a sum of Kshs. 11,550 which was proved by way of receipts. I consequently award the same. 23.The upshot is that this court makes the following orders;a.The Appellant’s appeal is hereby allowed.b.Judgement on liability is entered in favour of the Appellant against the Respondent in the ratio of 100%c.General damages of Kshs. 150,000d.Special Damages of Kshs. 11, 550/On costs, it is trite law that costs follow the event. The Appellants will get the costs of the appeal together with interest.It is so ordered.Right of appeal 30 days. DATED, SIGNED AND DELIVERED THIS 17TH DAY OF JULY, 2026.………………………….ROSELINE OGANYOIn the presence of: -Court Asst…...E, SanaN/A by both parties although date taken in their presence on 26th May, 2026.