https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11591

**REPUBLIC OF KENYA** **IN THE HIGH COURT KENYA AT KERUGOYA** **CIVIL APPEAL NO 302 OF 2023** **EVANS BOSIRE.…………………………...……….…...……………….… APPELLANT** **VERSUS** **ISAIYA GATOBU M’IKIARA.....………................................................RESPONDENT** **JUDGMENT** The appellant being dissatisfied with the whole of the Judgement of Honourable Rose Gitau dated and delivered on 7th November, 2023 in MCCC No. 386 of 2022 appeals to the High Court of Kenya at Machakos against the said judgement on the following grounds: 1. That the learned trial magistrate erred in law and fact in dismissing the suit even when liability had been proved against the Respondent. 2. That the learned trial magistrate misdirected herself in totally disregarding the plausible evidence by the appellant in support of his case on the issue of negligence against the respondent. 3. That the learned trial magistrate erred in law and in fact by dismissing the appellant's suit yet he had discharged his burden of proof against the respondent. 4. That The learned trial magistrate erred in law and fact by considering only the evidence of the respondent and his witness and disregarding the plaintiff evidence and his witnesses. 5. That the learned trial magistrate grossly erred in her evaluation of the evidence before her. 6. That the learned trial magistrate grossly erred in failing to find that the respondent wholly contributed to the occurrence of the accident herein. 7. That the learned trial magistrate’s final orders have occasioned a miscarriage of justice. 8. That the learned trial magistrate erred in law and fact in holding that it is the appellant who was to blame for the accident. **Brief facts** The plaintiff filed a plaint dated 16th May, 2022 where he sued the Defendant claiming both general and special damages for soft tissue injuries. The plaintiff’s claim is that injuries the plaintiff allegedly sustained in an accident which occurred on 17th October, 2021 involving motor vehicle registration number KCX 447P and motor cycle registration number KMFT 007A. The plaintiff alleged that he was riding the motor cycle along Nairobi Mombasa Road, Signature Mall Service lane when the Defendant's authorized driver drove the motor vehicle so carelessly at a very high speed that he lost control causing the said vehicle to collide onto the motor cycle causing the Plaintiff serious injuries. The plaintiff’s particulars of injuries are as follows: a) Bruises on the right maxillary region. b) Laceration on the right 5th fingers c) Lacerations on the night lower leg. The Defendant entered appearance and an amended statement of Defence and Counterclaim dated 28th September, 2022 where he denied all the averments made in the Plaint were denied particularly ownership of motor vehicle KCX 447P, occurrence of the accident and particulars of negligence. The defendant setup a counterclaim where he blamed the Plaintiff for the occurrence of the accident and itemized his particulars of negligence in the defence. In addition, the Defendant sought special damages to the tune of kshs. 59,280 being repair costs assessor’s fees and re-inspection fees in respect of motor vehicle registration number KCX 447P which was damaged following the accident. The Plaintiff filed a reply to Defence and defence to counterclaim dated 31st October, 2022 in which he reiterated the content of the plaint and denied the Defendant's defence particularly that the Defendant's allegation that his vehicle was extensively damaged or that it required repairs to the tune of Kshs. 59,280/=. The case proceeded for hearing, parties testified and they filed submissions. On 7th November, 2023, the court entered judgment for the defendant against the Plaintiff as follows: Liability 100% Repair costs Kshs. 50,000/= Assessment fees Kshs. 6,380/= Grand Total Kshs. 56,380/= The Defendant is awarded interest on the above award at court rates from the date of filing of the counterclaim. The Plaintiff's suit against the Defendant is dismissed. The plaintiff/appellant lodged an appeal against liability and quantum. During the plaintiff’s hearing, **Evans Bosire Ndobi** testified as PW-1. He adopted his witness statement and produced documents (PEX 1-6, including medical reports). He testified that he was ahead on his motorcycle number KMFT 007A. The Defendant’s KCX 447P tried to overtake him, hit him from the side, and threw him off the road. The motorcycle was damaged on the front; the car on the rear tail light and bumper. He confirmed that police attended the scene and, per the abstract, the rider (himself) was blamed with an intention to charge him. He had fully recovered and sought compensation plus costs. He denied the Defendant’s allegations, including the extent of damage to the Defendant’s vehicle and the claimed repair costs of Kshs. 59,280/=. During the defence case hearing No. 96306 PC Michael Too testified as DW-1. He produced the police abstract (DEX-1) showing the rider was to blame. On cross-examination, he admitted he was not the investigating officer, did not visit the scene, had no file or sketches, and investigations were pending at the time the abstract was issued. **Isaiya Gatobu testified as DW-2.** He adopted his statement and produced documents (DEX 2-9, including assessment report with photos). He testified that he indicated to turn right, stopped to give way to an oncoming vehicle (truck/tuk-tuk), and was hit from the left rear side. This damaged his bumper and tail lights. Photos confirmed rear impact. All parties went to the police station. He maintained the Plaintiff failed to keep distance. **Appellant submissions** On whether the trial Court erred in its findings on liability. The appellant submits that the only witnesses who testified before the Court and were at the scene of the accident was the Appellant and the Respondent. The Police officer did not visit the scene of the accident; could not tell the court the circumstances of the accident and who was to blame. Further, the trial Court proceeded to rely on the Police Abstract which was not conclusive at all. Further, it is the Appellants submissions that the Respondent was overtaking when the accident occurred. The Respondent attempted to say that he had stopped and was turning when the accident occurred. He never gave the particulars of the purported Tuk Tuk. It is the Appellant’s submissions that the trial Court disregarded the evidence tendered and arrived at a wrong conclusion, It is the appellant’s humble submission that a police abstract is not conclusive proof of liability or the exact cause of an accident in civil cases, but rather evidence that an incident was reported. **Kasaam Hauliers Limited & another v Shreeji Enterprises [2025] KEHC 12039 (KLR)** **It is settled that a police abstract is not conclusive evidence of liability and that the contents therein must be proved. PW2 was not the IO and could not authoritatively give the circumstances of the accident as he was not an eye witness and did not visit the scene. He referred to records in his testimony on how the accident occurred but the said records were not produced in evidence hence reducing his evidence to hearsay. In the persuasive case of Dikir & another v Kimary (Civil Appeal 316 of 2013) [2022] KEHC 12733 (KLR) (Civ) (30 August 2022) (Judgment), the court (Majanja J) stated;** **“** **Since the Investigating Officer was not called as testify as to the circumstances of the accident, the reports produced amount to hearsay evidence and cannot be proof of how the accident took place. At the very least, the report is only proof that the accident involving several motor vehicles took place on the material date (see Peter Kanithi Kimunya v Aden Guyo Haro NRB HCCA No. 307 of 2008 [2014] eKLR). As to which party was to blame for the accident is a question of evidence and the remarks in the OB about blameworthiness is hearsay as the investigating officer was not called a witness. The conclusion therein are matters of opinion which are inadmissible to prove facts.”** **Production of a police abstract by any police officer in the relevant police station is not in issue. A police abstract shows that an accident was reported in a certain police station and its contents must be substantiated. In this case there was no eye witness. The IO did not testify. The circumstances of the accident as recorded in the abstract unless conceded required the evidence of the plaintiff/or the plaintiff’s witness in the absence of which, they were not proved.** **It is the Appellant’s submissions that had the Court been faced with a challenge on who was to blame amongst the parties, the least it would have done was to apportion liability at 50:50 which was not the case.** On whether the trial Court erred in its assessment for general damages It is the Appellant's submissions that the trial Court erred in its assessment on general damages that would have awarded the Appellant herein. The injuries pleaded were: a) Bruises on the right maxillary region. b) Laceration on the right 5th fingers, c) Lacerations on the night lower leg. The trial court held that an award of Kshs. 140,000/= would have been reasonable to award the Appellant as general damages had he succeeded. It is the Appellant’s submissions that the trial Court findings on general damages should be enhanced by this Honourable Court to Kshs. 300,000/= The appellant urge the court to be guided by the case of **Mara Tea Factory Limited v Lillian Bosibori Nyandika [2021] eKLR** **when it affirmed the trial Court findings on general damages of Kshs. 300,000.00/= for comparable injuries.** Also, in the case of **Anthony Nyamwaya v Jackline Moraa Nyandemo [2022] eKLR** **when it awarded the Plaintiff Kshs. 250,000.00 /= for comparable injuries.** **Respondent submissions** Though the appellant claims that it is the respondent who is to blame, there is nothing from his evidence or documents to support this assertion. He did not bring an eyewitness to attest to his allegation. He did not even bring a police officer to support his case since he was well aware that he was culpable and the police would actually confirm that. It is unclear why he did not call an independent witness to corroborate his testimony**.** The respondent relies on the decision in **Joseph Muchiri v Musa Kiplangat Ngetich (2015) EKLR**. **The plaintiff's suit was dismissed by the trial court for having failed to meet the required threshold of proof. The plaintiff having been aggrieved filed an appeal on the-issue of liability in the High court at Nakuru which court dismissed the appeal and upheld the trial court’s verdict.** The respondent on the other hand proved his counterclaim on a balance of probabilities that the accident happened and the appellant was blamed for causing it. The appellant should thus be held 100% liable, and urge this court to hold as much. On award of general damages, the appellant submits that the case warrants dismissal, but in the event some liability is attributed to the respondent, he submits as follows on quantum. The appellant sustained facial bruises, bruises on the right upper limb. On referral for 2nd medical examination by Dr Wambugu he confirmed the said injuries as per his medical report and confirmed that as at the time of the hearing the appellant had fully healed. He should be awarded kshs 80,000. They on the case of **BB (minor suing through mother & next friend DKM) V Jasper Nchonga Magari & another** **(2024) eKLR** where Nyakundi J uphold **the lower court award of Kshs. 60,000/= for blunt injury to the head, neck, thorax, abdomen and limbs.** **Nyambati Nyaswabu Erick Vs Toyota Kenya Limited & 2 others [2019] eKLR** where Majanja **set aside an award of Kshs. 55,000/= for a deep cut on the scalp extending to the maxillary area, blunt injury to the left side of the chest, contusion on the back and contusion on both legs and Substituted it with one of Kshs. 90,000/=** On special damages, the respondent has pleaded and proved sums of Ksh 59,280/= being the outlay used in repairing his vehicle following the damage occasioned by the appellant’s motorcycle. The assessment report was filed and it is trite that for material damage claims an assessment report is vital as regards proving a damage to the vehicle and the estimated costs of parts and repairs. **Issues** 1. Whether the trial court erred in its findings on liability. 2. Whether the trial court erred in its assessment of general damages **Analysis** This Court has a duty to re-evaluate and re-appraise the entire evidence on record and draw its own conclusions, while giving due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses **(see Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123).** **Liability** The main issue is who caused or contributed to the accident. The two eyewitnesses, the parties themselves, gave different accounts of the accident. Appellant’s version (PW1): He was ahead on his motorcycle. The Respondent’s vehicle attempted to overtake him at high speed, lost control, hit him from the side, and threw him off the road. The car was damaged on the rear tail light and bumper; the motorcycle on the front. Respondent’s version (DW2): He was driving, indicated to turn right, slowed down/stopped to give way to an oncoming vehicle (described as a truck/tuk-tuk), and was hit from the left rear side. His bumper and tail lights were damaged. Photographs in the assessment report confirm rear-end damage to his vehicle. However, the physical evidence of damage is decisive. Rear damage to the respondent’s car (tail light and bumper) and front damage to the motorcycle are inconsistent with the Appellant’s claim of being hit from the side while the car was overtaking. They are consistent with a rear-end collision by the motorcycle into the rear of the Respondent’s vehicle, which had slowed or stopped. The police abstract produced by DW1, who was not the investigating officer, did not visit the scene, and had no sketches or investigation file indicated that the rider (Appellant) was to blame. However, the abstract itself noted that investigations were still pending as at 18th October, 2021. DW1 conceded this on cross-examination. It is settled law that a police abstract is not conclusive proof of liability or of how an accident occurred. It merely proves that an accident was reported to the police. **Kennedy Nyangoya v Bash Hauliers [2016] eKLR** **Even where the abstract indicates blame, it is not conclusive proof of liability in the absence of supporting evidence from the investigating officer or other corroboration.** In this case, there was no independent eyewitness, no sketch map, and no investigation report produced by either party. The only direct evidence is the conflicting testimony of the two parties plus the objective physical evidence of vehicle damage and photographs. On a balance of probabilities, the Respondent’s version is more credible and consistent with the damage to the vehicle. The Appellant has failed to prove any negligence on the part of the Respondent. The Respondent has proved his counterclaim on a balance of probabilities. **Quantum** Since the Appellant’s suit was properly dismissed, no award of general damages arises in his favour. The court had intended to award him Kshs 140,000 had the suit succeeded. The Appellant’s proposal of Kshs. 300,000/= is excessive. The case he relied on**, Mara Tea Factory Limited v Lillian Bosibori Nyandika [2021] eKLR**, involved more serious injuries including dislocations of the shoulder and wrist joints, in addition to soft tissue injuries. The respondent submitted on the case of **BB (minor suing through mother & next friend DKM) V Jasper Nchonga Magari & another** **(2024) eKLR** where Nyakundi J uphold **the lower court award of Kshs. 60,000/= for blunt injury to the head, neck, thorax, abdomen and limbs.** The trial court award of Kshs 140,000 was reasonable and should be maintained. The special damages awarded on the counterclaim of Kshs. 56,380/= were specifically pleaded and proved through the assessment report and supporting documents. In conclusion, the appeal lacks merit. The trial court properly evaluated the evidence, applied the correct standard of proof (balance of probabilities), and arrived at the verdict on both liability and quantum. The appeal is hereby dismissed. READ AND PUBLISHED IN THE CTS THIS 23RD JULY 2026 IN THE PRESENCE OF: NO PARTY PRESENT BEFORE HON JOYCE GANDANI, HIGH COURT JUDGE