https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7797

Mogaka v Bosire (Civil Appeal E245 of 2025) [2026] KEHC 7797 (KLR) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7797 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Appeal E245 of 2025 BW Murunga, J June 4, 2026 Between Evans Onchonga Mogaka Appellant and Zephaniah Bosire Respondent (Before Honourable Wangari Mbulikah (PM), delivered on the 23rd day of November, 2023, in MCCC No. E6623 of 2020) Judgment 1.This appeal arises from the Judgment of the Chief Magistrate’s Court at Milimani by Hon. Wangari Mbulikah, PM delivered on the 23rd day of November, 2023 in MCCC No. E6623 of 2020. The suit before the trial court was instituted by Zephaniah Bosire (hereinafter “the Respondent”) as Plaintiff against Evans Onchong’a Mogaka (hereinafter “the Appellant”) as Defendant, arising out of a road traffic accident that allegedly occurred on 2nd August, 2020 along Haile Selassie Avenue, Nairobi. 2.The Respondent averred that he was lawfully and carefully crossing Haile Selassie Avenue at a designated pedestrian zebra crossing when motor vehicle registration number KCW 642M, registered in the name of the Appellant and under his control, was so recklessly and carelessly driven that its driver failed to slow down, give way to pedestrians, or stop at the zebra crossing, thereby knocking down the Respondent and occasioning him serious bodily injuries. 3.The Respondent testified before the trial court and tendered documentary evidence including a Police Abstract dated 4th August, 2020, motor vehicle records from the National Transport and Safety Authority (NTSA), medical reports by Dr. Cyprianus Okoth Okere dated 3rd September 2020 and Dr. P.M. Wambugu dated 22nd March 2023, hospital receipts, and a P3 Form. A Traffic Police Officer testified as PW1 in support of the Respondent’s case and produced the Police Abstract. 4.The Appellant closed his case without calling any witness and without tendering any documentary evidence in rebuttal. The learned trial Magistrate, after evaluating the evidence, found the Appellant 80% liable for the accident and awarded the Respondent Kshs. 350,000/= as general damages, Kshs. 15,683/= as special damages, and Kshs. 5,000/= as costs of the police officer’s court attendance, totalling Kshs. 365,683/= plus costs and interest, with damages reduced to reflect the 80:20 liability apportionment. 5.Being aggrieved by the said Judgment, the Appellant filed the present appeal vide a Memorandum of Appeal dated 15th February 2024, raising ten (10) grounds of appeal principally challenging:i.the apportionment of 80% liability against the Appellant on grounds that the evidence adduced was insufficient, that the Police Abstract was not conclusive proof of liability, that the police officer's testimony constituted inadmissible hearsay, and that in the absence of concrete evidence both parties ought to bear equal liability; andii.the award of general damages as being inordinately high given the nature and extent of the injuries sustained. The appeal was prosecuted by written submissions filed by both parties. 6.The Appellant’s submissions were dated 30th May, 2025 while the Respondent's submissions were dated 7th May, 2025. Appellant’s Submissions 7.On the issue of liability, the Appellant submits that the trial court erred in apportioning 80% liability against him. The Appellant contends that the Respondent failed to produce sufficient evidence to establish negligence, particularly noting the absence of an Occurrence Book (OB) extract and sketch maps from the scene of the accident. 8.The Appellant places considerable reliance on the proposition that a Police Abstract is not conclusive proof of liability nor proof that an accident occurred, but merely evidence that a report of an accident was made. 9.The Appellant further argues that the Police Abstract produced in evidence clearly stated that the matter was pending under investigation, meaning that at the time of its issuance no conclusive finding on blame had been made. He relies on the cases of Catherine Mbithe Ngina v Silker Agencies Limited [2021] eKLR; ZAO & CAO (Suing as the Legal Representative in the Estate of SAO (Deceased) v Amollo Stephen [2019] eKLR; and Stanley Oguti Attai v Peter Chege Mbugua [2019] eKLR to buttress this position. 10.The Appellant further contends that the police officer who testified as PW1 was neither the investigating officer nor an eyewitness to the accident, and therefore his testimony amounts to inadmissible hearsay evidence with no probative value. He relies on the definition of direct evidence in Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR) as well as Section 63 of the Evidence Act. 11.The Appellant invokes the principle that where no concrete evidence exists to determine who is to blame for an accident, liability ought to be apportioned equally at 50:50 as between the parties, citing the Court of Appeal decision in Hussein Omar Farah v Lento Agencies [2006] 1 KLR 124 and John Simon Ashers & Another v Nelson Okello Onjao [2020] eKLR. 12.On quantum, the Appellant contends that the award of Kshs. 350,000/= in general damages is inordinately high given the nature of the injuries, and advances comparable awards in the range of Kshs. 60,000/= to Kshs. 120,000/= from cases including Adembesa & another v Gweno [2024] KEHC 5379 (KLR), Rege v LA [2022] KEHC 16634 (KLR), and Asad Motors Limited & 2 others v Yaa (Civil Appeal 92 of 2022) [2023] KEHC 24279 (KLR). 13.The Appellant prays that the appeal be allowed, liability be apportioned at 50:50, and the general damages award be reduced to Kshs. 100,000/= less 50% liability. 14.Regarding costs, the Appellant submits that under Section 27(1) of the Civil Procedure Act, costs follow the event and therefore this Court should award the Appellant costs of the appeal. Respondent’s Submissions 15.The Respondent submits that he has proven his case on a balance of probabilities and that the learned trial Magistrate correctly apportioned liability at 80:20 in his favour. The Respondent highlights that he testified under oath, adopted his written statement, and produced documentary evidence including the Police Abstract, NTSA vehicle records, medical reports, hospital receipts, and the P3 Form. He further called PW1, a Traffic Police Officer, who corroborated the occurrence of the accident and confirmed that vehicle KCW 642M was involved. 16.The Respondent underscores that the Appellant closed his case entirely without calling any witness or tendering any evidence, rendering the Respondent’s testimony and supporting documents wholly uncontroverted. 17.On liability, the Respondent submits that the Appellant, as the driver of a motor vehicle on a public road, was obligated to exercise care, observe traffic rules, and respect the rights of pedestrians at a designated zebra crossing. The Respondent relies on William Kabogo Gitau v George Thuo & 2 Others [2010] 1 KLR 526 to emphasize the high duty of care imposed on drivers. 18.He submits that the burden of proof in civil cases is on a balance of probabilities and relies on Miller v Minister of Pensions [1947] 2 All ER 372 and Section 107(1) of the Evidence Act. The Respondent asserts that the learned trial Magistrate independently evaluated the evidence before court and correctly concluded that the Appellant was predominantly to blame. He urges the Court to uphold the 80:20 apportionment and to dismiss the appeal. 19.On the issue of damages, the Respondent argues that the trial court’s award of Kshs. 350,000/= in general damages cannot be interfered with by an appellate court unless it is demonstrated that the award was inordinately high or low, or that the trial court took irrelevant matters into account or failed to take relevant ones into account. The Respondent relies on Peter Namu Njeru v Philemone Mwagoti (Civil Appeal 132 of 2012) [2016] eKLR where it was held that the duty to assess damages is a discretionary factor and interference by an appellate court requires a clear and demonstrable error. 20.The Respondent draws the court’s attention to his injuries including blunt head injury, blunt injury to the left chest wall, swelling of the occipital region, tenderness, bruises, recurrent headaches, chest pains, and scarring on the left elbow and submits that the trial court's award fell within an acceptable range supported by the two comparable authorities cited before the lower court. 21.He prays that the appeal be dismissed with costs. Issues for Determination 22.From the pleadings, the Record of Appeal, and the written submissions of the parties, this Court identifies the following two issues for determination:i.Whether the learned trial Magistrate erred in apportioning 80% liability against the Appellant; andii.Whether the award of general damages in the sum of Kshs. 350,000/= was inordinately high and warrants interference by this Court on appeal. Analysis and Determination 23.At the outset, it is useful to restate the well-established principles governing the jurisdiction of this Court in a first appeal from the subordinate court. This Court is empowered by Section 78 of the Civil Procedure Act (Cap. 21) and Order 42 Rule 25 of the Civil Procedure Rules, 2010. As the first appellate court, it has a duty to re-evaluate the entire evidence on the record and arrive at its own independent conclusions, while giving allowance for the fact that the trial court had the benefit of seeing and hearing the witnesses. 24.The principle was settled in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court of Appeal for East Africa held that a first appellate court should reconsider the evidence, evaluate it itself and draw its own conclusions, but that it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. This Court will therefore apply that standard in the analysis that follows. 25.The foundational principle of tort liability in Kenya was authoritatively stated by the Court of Appeal in Kiema Mutuku v Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258, where the Court affirmed that there is no liability without fault and that a plaintiff must prove some negligence against the defendant where the claim is based on negligence. The evidential basis for such proof is governed by Sections 107, 108, and 109 of the Evidence Act (Cap. 80), which places the burden of proof on the party who asserts the existence of the facts upon which a right or liability depends. 26.In civil proceedings, the standard of proof is on a balance of probabilities, which requires the tribunal to be satisfied that the occurrence of the alleged event was more likely than not. As Lord Denning stated in Miller v Minister of Pensions [1947] 2 All ER 372, the evidence must carry a reasonable degree of probability; if the tribunal can say "we think it more probable than not," the burden is discharged. Lord Denning stated that:“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘We think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 27.The first substantive challenge raised by the Appellant is that the evidence adduced by the Respondent was insufficient to sustain the apportionment of 80% liability. The Appellant attacks the reliance placed on the Police Abstract and the testimony of PW1. 28.On the value of a Police Abstract, this Court is guided by a well-settled line of authority. I agree that the contents of a Police Abstract, as extracted from the records held by the police, are merely evidence that a report of an accident was made. The abstract is prima facie evidence of the occurrence of the accident and the particulars of those involved, but it can be rebutted and is not conclusive proof of liability. In Kennedy Nyangoya v Bash Hauliers [2016] eKLR, the Court held that even if a Police Abstract indicates that a party was to blame, the abstract is not conclusive proof of liability in the absence of further corroborating evidence. These propositions represent trite law and are not in dispute. 29.However, the critical question is not whether the Police Abstract alone suffices to establish liability but whether, when considered alongside the totality of the evidence adduced, the Respondent discharged his burden of proof on a balance of probabilities. This Court is of the view that the Appellant’s focus on the Police Abstract, while legally accurate in isolation, ignores the broader evidentiary matrix before the trial court. 30.The Respondent did not rest his case solely on the Police Abstract. He gave direct, uncontroverted sworn testimony as PW2, in which he stated that he was crossing Haile Selassie Avenue at a designated pedestrian zebra crossing when the Appellant’s vehicle KCW 642M knocked him down. He produced the NTSA records confirming the Appellant’s ownership of the vehicle, the P3 Form, medical reports, and hospital receipts corroborating the injuries sustained. It is a fundamental principle of evidence, well stated in Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR, where Odunga J held that where a defendant fails to call any evidence in rebuttal, the evidence adduced by the plaintiff, if credible, stands uncontroverted and the defendant's own pleaded defence remains mere statements of fact unsubstantiated by proof. 31.On the challenge to PW1’s testimony as hearsay, this Court acknowledges the general rule against hearsay embodied in Section 63 of the Evidence Act. It is correct that PW1 was not an eyewitness to the accident and testified primarily from the Police Abstract and station records. To that extent, his testimony on the mechanics of how the accident occurred carries limited probative value in isolation. However, it must be recalled that PW1’s evidence was tendered to corroborate the fact that the accident was reported, to confirm the vehicle involved, and to produce the Police Abstract as a formal document. The Respondent himself provided direct eye-witness testimony. 32.The Appellant places particular emphasis on the fact that the Police Abstract stated the matter was pending under investigation and argues that no investigations were concluded to attribute blame to the Appellant. This Court takes note of this argument but observes that the matter is being determined many years after the accident and the absence of a concluded police investigation does not, of itself, exonerate the Appellant. The law requires the civil court to arrive at its own independent finding on the balance of probabilities, distinct from any criminal or regulatory process. 33.The crux of this Court’s analysis on liability is the Appellant’s complete failure to adduce any evidence whatsoever in rebuttal. This Court is therefore satisfied that the Respondent’s direct, uncontroverted oral testimony, corroborated by the documentary record, meets this standard comfortably. 34.The Appellant urges this Court to apply the principle in Hussein Omar Farah v Lento Agencies [2006] 1 KLR 124 and apportion liability equally at 50:50, on the basis that there is no concrete evidence to determine who is to blame. With respect, this Court finds that principle inapplicable on the facts of this case. The Hussein Omar Farah principle is appropriate where both sides adduce evidence and neither can establish the other's fault, making it impossible to prefer one account over the other. In the present case, the Respondent testified on oath, produced corroborating documents, and called a supporting witness. The Appellant offered nothing. To apply equal apportionment in these circumstances would be to penalise a plaintiff who has discharged his burden of proof and to reward a defendant who elected to remain silent. 35.This Court is however of the considered view that the trial Magistrate’s apportionment of 80% liability against the Appellant warrants brief examination. The accident occurred at a zebra crossing, a location that imposes a statutory duty of care on motorists. As was observed in P G Njuguna & Another v Joseph Kamau Kuriri (Civil Appeal 378 of 2009) [2016] eKLR (per Justice A. Mbogholi Msagha), a zebra crossing is reserved for pedestrians and it is the duty of every motorist to respect the right of persons crossing thereat. The Respondent was crossing at such a designated point. The Appellant’s vehicle struck him. The Appellant advanced no evidence of contributory negligence on the Respondent’s part. 36.In these circumstances, this Court finds that the trial Magistrate’s apportionment of 80% liability against the Appellant was well within the range of a reasonable court properly directing itself on the law and facts. This Court sees no basis to interfere with that finding. 37.The second ground of appeal challenges the award of Kshs. 350,000/= in general damages. The governing principles on appellate interference with awards of general damages are well-settled. As stated in Ephantus Mwangi & Another v Duncan Mwangi Wambugu (Civil Appeal No. 74 of 1982) [1982-88] 1 KAR 278, an appellate court will not interfere with an award of general damages unless the trial court applied the wrong principles of law, or misapprehended the facts, or awarded a figure that is so inordinately high or low as to represent a wholly erroneous estimate of the damage. 38.The same principle was restated in Peter Namu Njeru v Philemone Mwagoti (Civil Appeal 132 of 2012) [2016] eKLR, where the Court observed that the duty to assess damages is a discretionary factor vested in the trial court and there must be a clear and demonstrable error to invite interference by an appellate court. 39.On the correct approach to assessing damages, it is trite law that comparable injuries should as far as possible be compensated by comparable awards, keeping in mind that no two cases are exactly alike. The assessment must reflect the nature and gravity of the injuries actually sustained. Further, the law in assessing compensatory damages seeks at most to indemnify the victim for the loss suffered and not to penalise the tortfeasor. 40.According to the medical evidence on record, the Respondent sustained the following injuries: blunt head injury; blunt injury to the left chest wall with swelling on the occipital region and tenderness on the left chest wall; bruises on the left elbow with tenderness; recurrent headaches; chest pains; recurrent pains on the left elbow; and bruised scars on the left elbow. The injuries are consistent with the pattern of blunt force soft tissue injuries commonly sustained in pedestrian accidents. 41.The Appellant’s expert report by Dr. P.M. Wambugu also forms part of the record. Notably, the injuries described, while real and painful, involved no fractures, no permanent disability, no major organ damage, and according to the defence submissions, had healed without further complications or incapacitation. 42.Turning to comparable awards, the Appellant has cited a number of recent appellate decisions. In Adembesa & Another v Gweno [2024] KEHC 5379 (KLR), the High Court reduced an award of Kshs. 1,200,000/= to Kshs. 120,000/= for soft tissue injuries, taking into account inflation and the inordinateness of the original award. In Rege v LA (Minor suing through her father and next friend GAA) (Civil Appeal E111 of 2021) [2022] KEHC 16634 (KLR), an award of Kshs. 300,000/= for blunt trauma to the neck, chest, and abdomen was reduced to Kshs. 80,000/=. In Asad Motors Limited & 2 Others v Yaa (Civil Appeal 92 of 2022) [2023] KEHC 24279 (KLR), an award of Kshs. 300,000/= for injuries including bruises, deep cuts, blunt object injury, and tooth loosening was reduced to Kshs. 100,000/=. These cases collectively suggest that where injuries are primarily soft tissue in nature, have healed without residual incapacity, and no permanent disability is reported, the current range of general damages in the High Court tends toward Kshs. 80,000/= to Kshs. 150,000/=, taking into account inflation. 43.The Respondent’s own submissions before the trial court sought an award of Kshs. 380,000/= relying on cases where injuries of comparable severity including the Poa Link Services Co. Ltd & Another v Sindani Boaz Bonzemo [2021] eKLR case (Kshs. 350,000/= for chest and limb bruising) and Joseph Kimani Gathaga & Another v Dickson Ndungu Njoroge [2019] eKLR (Kshs. 240,000/= for multiple blunt injuries)—attracted higher awards. The trial court awarded Kshs. 350,000/=, which appears to have been influenced by the authorities cited by the Respondent. However, a close comparison of the injuries in those cases with the injuries in the present case reveals a distinction: the cases relied upon by the Respondent involved a greater range of injuries, including swollen joints, lower limb injuries, and laceration wounds, generally presenting a more severe injury profile. The injuries in the present case, while involving blunt head and chest trauma, are primarily soft tissue with no fractures and no documented residual incapacity. 44.In the judgment of this Court, the trial Magistrate’s award of Kshs. 350,000/= in general damages, while within the range of the authorities cited to her, does not fully reflect the current appellate trend towards more restrained awards for soft tissue injuries that resolve without permanent sequelae. When judged against the trajectory of appellate decisions from this Court over the last three to four years, the award of Kshs. 350,000/= for injuries of this nature and severity does, in this Court’s view, represent an inordinately high estimate. 45.In Woodruff vs. Dupont [1964] EA 404 it was held by the East African court of appeal that:The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.” 46.Therefore, a sum of Kshs. 200,000/= would, in the opinion of this Court, adequately compensate the Respondent for the pain, suffering, and loss of amenities occasioned by the injuries sustained, bearing in mind the principle of indemnity and the current levels of comparable awards. 47.The general damages award is accordingly reduced from Kshs. 350,000/= to Kshs. 200,000/=. Disposition 48.In conclusion, having re-evaluated the entirety of the evidence and considered the written submissions of the parties, this Court finds that the Appeal is allowed in part as follows:a.The appeal against the apportionment of liability at 80% against the Appellant is dismissed.b.The award of general damages is reduced from Kshs. 350,000/= to Kshs. 200,000/=.c.The award of special damages of Kshs. 15,683/= is upheld.d.The award of Kshs. 5,000/= as costs of the police officer's court attendance is upheld.e.The Respondent is entitled to judgment against the Appellant to the above sums and apportionment together with interest thereon at court rates from the date of the judgment of the subordinate court until payment in full.f.Given that the appeal has partially succeeded, each party shall bear their own costs of this appeal. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE, 2026.BENARD WAFULA MURUNGAJUDGEDelivered on virtual platform in the presence ofMs. Nzuki for the Appellant instructed by ROM Law AdvocatesMs. Adhiambo for the Respondent instructed by Musili Mbithi AdvocatesKevin Babu - Court Assistant