https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8796

Karia v NW (Minor Sued Through Her Next Friend Purity Wanjiru Miruru) (Civil Appeal E200 of 2024) [2026] KEHC 8796 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8796 (KLR) Republic of Kenya In the High Court at Kiambu Civil Appeal E200 of 2024 KL Kandet, J June 19, 2026 Between Ezekiel Ken Otieno Karia Appellant and NW (Minor Sued Through Her Next Friend Purity Wanjiru Miruru) Respondent (Being an appeal from the Judgment of the Honourable Senior Principal Magistrate M. Kinyanjui delivered at the Chief Magistrates Court at Kiambu on 4th September 2023) Judgment 1.This is an appeal against the entire Judgment and Decree of the Honourable Senior Principal Magistrate M. Kinyanjui delivered at the Chief Magistrates Court at Kiambu on 4th September 2023 in Civil Suit No. E303 of 2021. 2.The Appellant, being dissatisfied with both the finding on liability and the quantum of damages awarded, filed the instant appeal seeking to have the said judgment set aside, varied or reviewed. 3.The Appellant contended that the Trial Magistrate erred in law and in fact by:i.Finding that the Appellant was wholly liable for the occurrence of the accident without adequate evidentiary basis;ii.Holding that the Respondent had discharged the burden of proof on a balance of probabilities;iii.Failing to appreciate that the Plaintiff's evidence was misleading and fraudulent;iv.Failing to consider the Defence evidence tendered in support of a finding of fraud;v.Misdirecting himself in failing to appreciate the principle of a just and fair hearing, which occasioned a miscarriage of justice; andvi.Acting on wrong principles of law.vii.Awarding the Respondent the sum of Kshs.150,000/- as general damages for pain, suffering and loss of amenities, which amount was manifestly excessive, inordinately high, and incomparable to common judicial awards in respect of similar injuries;viii.Awarding the Respondent Kshs.3,550/= as special damages;ix.Disregarding the Appellant's submissions and authorities on quantum; andx.Acting on wrong principles of law in assessing damages contrary to the evidence adduced at the trial. 4.The Appellant prays that this Honourable Court to:i.Vary, vacate, review and/or set aside the judgment of the lower court both on liability and quantum;ii.In the alternative, review or set aside the award on quantum;iii.Assess downwards the quantum of damages awarded to the Respondent;iv.Order that the Respondent pays costs of this appeal and the costs in the lower court; andv.Grant such further relief as may appear just and appropriate. 5.The Respondent filed a plaint dated 29th March 2021 seeking general and special damages for injuries sustained as a result of a road traffic accident alleged to have occurred on 16th November 2020 along the Northern By Pass road in Kiambu County. 6.According to the Respondent's evidence, she was lawfully travelling as a passenger in motor vehicle Registration Number KCN 218A along the Northern By-Pass. Upon reaching the Potter House area, there was a traffic snarl-up and the vehicles slowed down to negotiate bumps ahead. The motor vehicle Registration Number KCG 159N owned and driven by the Appellant, was behind and was driven at a very high speed, negligently, recklessly and without due care, attention or regard for other road users. It lost control and rammed into two motor vehicles ahead of it, motor vehicle Registration Number KAZ 007E and motor vehicle Registration Number KCN 218A being the vehicle the Respondent was travelling in and as a result the Respondent sustained injuries. 7.The matter was consolidated with the test suit, Kiambu CMCC No. E304 of 2021 (Salome Wambui Miruru v. Ezekiel Ken Otieno Karia) pursuant to Order 38 of the Civil Procedure Rules 2010. The test suit was heard and determined on 28th November 2022, with the court finding the Defendant/Appellant 100% liable for the accident. The trial court in Kiambu CMCC No. E303 of 2021 adopted the finding on liability and on 4th September 2023, issued judgment awarding the Respondent/Plaintiff general damages of Kshs.150,000/- and special damages of Kshs.3,550/- together with costs and interest. Appellant's Submissions 8.The Appellant, through Counsel on record, submitted that the Respondent failed to discharge the burden of proof on a balance of probabilities as required under Section 107 of the Evidence Act, Cap. 80 Laws of Kenya, relying on Ahmed Mohammed Noor v Abdi Aziz Osman [2019] eKLR and Samuel Stephen Were v Sukari Industries Limited [2016] eKLR 9.The Appellant submitted that the lower court failed to adequately consider his evidence to the effect that motor vehicle KCN 218A had violated traffic rules by stopping abruptly in the middle of the road, thereby contributing to the circumstances leading to the accident. He further testified that he applied emergency brakes upon noticing the abrupt stop but that due to the close proximity, a collision nonetheless occurred. 10.The Appellant invoked the principle stated in Embu Public Road Services Ltd. v Riimi [1968] EA 22 (cited with approval in Kamau v Kimani & another [2023] KECA 187 (KLR)), that a defendant may avoid liability if he can show either that there was no negligence on his part, or that the accident was due to circumstances beyond his control. He also relied on Kanyungu Njogu v Daniel Kimani Maingi (2000) eKLR in support of the proposition that where multiple probabilities exist as to the cause of an accident, and the plaintiff fails to adduce sufficient evidence to establish which is more probable, the suit ought to fail. 11.The Appellant therefore submitted that the full attribution of liability against him was erroneous and invited the court to find that the Respondent failed to discharge the burden of proof on liability. 12.On general damages, the Appellant submitted that the award of Kshs.150,000/- for pain, suffering and loss of amenities was excessive for soft tissue injuries to the anterior chest wall and both forearms, and that an award of Kshs. 100,000/= was fair and sufficient. In support, the Appellant cited:i.Civil Appeal No. 54 of 2016, Ndung'u Dennis v Ann Wangari Ndirangu & another [2018] eKLR where injuries including minor bruises, tenderness, head concussion, blunt injuries to the chest and both hands attracted a reduced award of Kshs.100,000/- on appeal;ii.George Mugo & another v AKM (minor) [2018] where an award of Kshs.300,000/- was substituted with Kshs.90,000/- for soft tissue injuries to the left shoulder, blunt chest injury, and bruises;iii.Ephraim Wagura Muthui & 2 others v Toyota Kenya Limited & 2 others [2019] eKLR court assessed damages at Kshs.100,000/- for soft tissue injuries. 13.On special damages, the Appellant conceded that the Respondent had specifically pleaded and strictly proved the sum of Kshs.3,550/= and thus did not challenge the special damages award. Respondent's Submissions 14.The Respondent, through Counsel on record, submitted that the trial court was fully justified in finding the Appellant 100% liable for the accident. The Respondent highlighted that the trial court, having considered the demeanour of witnesses and the totality of evidence, found the Defendant/Appellant fully culpable in the primary test suit, Kiambu CMCC No. E304 of 2021. 15.The Respondent pointed to the police abstract dated 23rd November 2020 which clearly indicated that KCG 159N was to blame for the accident, and that its driver (the Appellant herein) was charged for failing to keep a safe distance. The Respondent also highlighted that in his own testimony before the trial court, the Appellant confirmed hitting motor vehicle KAZ 007E from behind, which in turn rammed into vehicle KCN 218A, and that he acknowledged being to blame for the accident per the police abstract. He further took full responsibility for the accident in his testimony. 16.The Respondent submitted further that the Appellant had failed to pursue third party proceedings against the driver of KAZ 007E, as required under Order 1 Rule 15 of the Civil Procedure Rules 2010.To support this position the Respondent relied on James Gikonyo Mwangi v D M (Minor) [2016] eKLR. In the circumstances, the Appellant cannot be permitted to avoid liability on the basis of a third party not before the court. 17.The Respondent urged the court to uphold the trial court's finding on liability. 18.On general damages, the Respondent submitted that the Plaintiff sustained multiple soft tissue injuries, residual scars on both forearms, and continues to experience residual pain and tenderness on the chest wall. The Respondent relied on the medical report of Dr. Ndeti which confirmed the severity of the injuries and their impact on the minor Plaintiff. 19.The Respondent cited the following authorities in support of the award:i.Odinga Jactone Ouma v Moureen Achieng Odera [2016] KEHC 2922 (KLR) where the plaintiff sustained chest pains, back pains, a painful shoulder joint and scars.He was awarded Kshs.180,000/-ii.Poa Links Services Ltd & Anor v Sindani Boaz Bonzemo, Bungoma HCCA No. 17 of 2019.The plaintiff suffered blunt injury to the chest, bruises of the lower abdomen, right hip joint, thigh and knee.An award of Kshs.350,000/- was upheld. 20.The Respondent also invoked the principles in Butt v Khan [1977] 1 KAR and Kemfro Africa Limited t/a Meru Express Services & Another v A.M. Lubia and Another (1982-88) KLR 727 to the effect that an appellate court should not interfere with an award for damages unless the trial court applied wrong principles or arrived at a figure that is inordinately high or low. The Respondent submitted that the award of Kshs.150,000/- was neither inordinately high nor erroneous and prayed for the dismissal of the appeal with costs. Analysis And Determination 21.Having considered the Memorandum of Appeal, the pleadings and submissions of both parties, this Court identifies the following issues for determination:i.Whether the Trial Magistrate erred in finding the Appellant 100% liable for the accident.ii.Whether the award of Kshs.150,000/- as general damages for pain, suffering and loss of amenities was inordinately excessive and ought to be interfered with.iii.Who bears the costs of this appeal? 22.The duty of this Court sitting as a first appellate court is well settled. It is required to re evaluate and re analyse the evidence on record and arrive at its own independent conclusion, while bearing in mind that it had no opportunity of seeing and hearing the witnesses testify. This principle was restated in Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where it was held:“An appeal from a decision of a trial court is by way of re trial and the Court of Appeal is not bound to follow the finding of fact by the trial judge if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially relevant to an estimate of the evidence, or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.” 23.On the question of liability, the standard of proof in civil matters is that set out in Section 107 of the Evidence Act, Cap. 80 of the Laws of Kenya, which is proof on a balance of probabilities. It has been consistently held that the party asserting must prove the facts relied upon. 24.In the instant case, I find that the evidence on record overwhelmingly supports the trial court's finding on liability. The key evidence is as follows: 25.First, the police abstract dated 23rd November 2020 confirmed that three motor vehicles were involved in the accident, that is M/V KCG 159N driven by the Appellant, M/V KAZ 007E, and M/V KCN 218A (in which the Respondent was a passenger). The police abstract expressly stated that motor vehicle KCG 159N failed to slow down, hit motor vehicle KAZ 007E from behind, which in turn rammed into motor vehicle KCN 218A, and that the driver of KCG 159N was blamed for the accident and charged for failing to keep a safe distance. 26.The Appellant in his testimony before the trial court confirmed that he hit motor vehicle KAZ 007E from behind, which rammed into motor vehicle KCN 218A. He further acknowledged in cross-examination that he was to blame for the accident as reflected in the police abstract, and in his testimony took full responsibility for the accident. 27.The issue of liability had been fully and conclusively determined in the test suit, being Kiambu CMCC No. E304 of 2021 (Salome Wambui Miruru v. Ezekiel Ken Otieno Karia), pursuant to Order 38 Rules 1 and 2 of the Civil Procedure Rules 2010. The trial court in the instant suit was bound to adopt that finding, or provide reasons for departing from it. The trial court correctly adopted the finding of 100% liability against the Appellant as was held in the test suit. 28.The Appellant's contention that motor vehicle KCN 218A stopped abruptly, thereby contributing to the accident, is not supported by any credible evidence. The Appellant did not enjoin the driver of motor vehicle KCN 218A or motor vehicle KAZ 007E as a third party to the proceedings. Courts of law can only determine issues between parties before them. 29.The principles governing appellate interference with an award of damages are well established. In Bashir Ahmed Butt v Uwais Ahmed Khan [1982-88] KAR 5, the Court of Appeal held:An appellate court will not disturb an award for damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low. 30.This principle was further affirmed in Kemfro Africa Limited t/a Meru Express Services & Another v A.M. Lubia and Another (1982-88) KLR 727, where the court reiterated that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own simply because it would have awarded a different figure. 31.The Respondent's injuries, as confirmed by the medical report of Dr. Titus Ndeti dated 3rd December 2020, and as pleaded, were:i.Soft tissue injuries to the anterior chest wall; andii.Soft tissue injuries to both forearms. 32.The trial court, guided by the principle in West H & Son Ltd v Shepherd [1964] AC 326, awarded Kshs.150,000/- for general damages. The court was minded of the need to ensure that comparable injuries attract comparable awards while accounting for inflation. 33.This Court has considered the comparable decisions cited by both parties and notes that the injuries in the instant case, were not trivial particularly given the Respondent is a minor and the residual scarring. The cases cited by the Appellant are instructive. They demonstrate a judicial trend of awarding between Kshs.90,000/- and Kshs.100,000/- for comparable soft tissue injuries, before factoring in inflation. 34.However, this Court is alive to the observation of the Court of Appeal in Ugenya Bus Service v Gachoki NKU CA Civil Appeal No. 66 of 1981 [1982] eKLR that inflation must be factored into the assessment of damages. The award in this matter was made in 2023, and the economic environment and inflationary pressures that have prevailed in Kenya over the intervening years must be accorded due weight. 35.Considering the nature and extent of the soft tissue injuries sustained, the residual scars, and continuing pain by the minor and inflationary trends, this Court is of the considered view that the assessment of damages by the trial court represents a fair and reasonable estimate for these injuries in 2023. 36.In the circumstances, this Court does not find that the trial court proceeded on wrong principles or misapprehended the evidence. The award of Kshs.150,000/- is neither inordinately high nor represents an erroneous estimate. The trial court's award on general damages is therefore upheld. 37.On special damages, both parties are agreed that the sum of Kshs.3,550/- was specifically pleaded and strictly proved. No challenge is raised to this award on appeal. It accordingly stands. 38.On costs, the general principle is that they follow the event. 39.In the upshot I find that this appeal lacks in merit. The same is dismissed with costs to the Respondent. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 19TH DAY OF JUNE 2026, VIRTUALLY THROUGH THE MICROSOFT TEAMS PLATFORMKENNEDY KANDETJUDGEIn The Presence Of:Ondigo For The AppellantNo Appearance For The RespondentCourt Assisstant: Jael Nosim