https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7513

Nyangoya v Nyakwana (Civil Appeal E013 of 2024) [2026] KEHC 7513 (KLR) (3 June 2026) (Judgment) Neutral citation: [2026] KEHC 7513 (KLR) Republic of Kenya In the High Court at Bomet Civil Appeal E013 of 2024 JK Ng'arng'ar, J June 3, 2026 Between Ezekiel Nyangoya Appellant and Otuke Albert Nyakwana Respondent (Being an Appeal from the Judgment of Resident Magistrate, Michuki M. at the Magistrate’s Court at Bomet, Civil Suit Number E055 of 2021) Judgment 1.The Appellant (then Plaintiff) sued the Respondents (then Defendants) for general and special damages that arose from a road traffic accident which occurred on 17th November 2020. In its Judgement delivered on 29th May 2024, the trial court dismissed the suit. 2.Being aggrieved with the Judgment of the trial court, the Appellant filed his Memorandum of Appeal dated 7th June 2024 appealing against the whole Judgement. 3.My duty as the 1st appellate court is to re-evaluate and re-examine the evidence in the trial court and come to my own findings and conclusions, but in doing so, to have in mind that I neither heard nor saw the witnesses testify. 4.I hereby proceed to summarise the case in the trial court and the parties’ respective submissions in the present Appeal. The Plaintiff’s/Appellant’s case. 5.Through his Plaint dated 12th February 2021, the Appellant stated that he was a passenger in motor vehicle registration number KCN 912P when it hit motor vehicle registration number KBR 362J occasioning him injuries. The Appellant further stated that the Respondent was the registered owner of motor vehicle registration number KCN 912P. 6.It was the Appellant’s case that the Respondent was negligent in causing the accident. The particulars of the negligence were stated in paragraph 4 of the Plaint. That as a result of the accident, the Appellant suffered the following injuries: -i.Blunt injuries to the anterior chest wall leading to soft tissue injuries.ii.Soft tissue injuries of the left gluteal region. 7.The Appellant prayed for special and general Damages against the Respondent. 8.Through his written submissions dated 22nd April 2026, the Appellant submitted that the evidence through PW1, PW2 and DW1 was clear that the driver of motor vehicle registration number KCN 912P was responsible for causing the accident. That the trial court erred in apportioning liability to a person who was not a party in the suit. The Appellant further stated that this court ought to find the Respondent 100% liable for causing the accident. 9.It was the Appellant’s submission that he did not plead vicarious liability in his Plaint and the trial court erred when it dismissed his suit on this limb. The Defendants’/Respondents’ case. 10.Through his statement of defence dated 14th December 2021, the Respondent denied the occurrence of the accident on 17th November 2020 and further denied being the registered owner of motor vehicle registration number KCN 912P. 11.It was the Respondent’s case that if the accident occurred then it was caused by the negligence of the Appellant. The particulars of negligence were contained in paragraph 5 of the Defence. 12.At the time of writing this Judgement, the Respondent had not filed his written submissions despite being directed to so on 9th March 2026. 13.I have gone through and carefully considered the Record of Appeal dated 21st August 2024, the Supplementary Record of Appeal dated 19th February 2025 and the Appellant’s written submissions dated 22nd April 2026. The only issue that I have sieved for my determination was whether the trial court erred when it dismissed the suit. Liability. 14.In regards to liability, Ezekiel Nyangoya (PW1) testified that he was a passenger in motor vehicle registration number KCN 912P when it was involved in a head on collision with motor vehicle registration number KBR 362J. PW1 further testified that he blamed the driver of motor vehicle registration number KCN 912P for causing the accident through dangerous driving. PW1 produced a copy of the motor vehicle records as P. Exh 8. I have looked at the exhibit and I have confirmed that the Respondent was the registered owner of motor vehicle registration number KCN 912P. 15.No. 72792 PC Reyland Nzai (PW2) testified that he was the investigating officer. PW2 further testified that the driver of motor vehicle registration number KCN 912P attempted to hit a pothole and veered onto the right side of the road colliding head on with motor vehicle registration number KBR 362J. PW2 blamed the driver of motor vehicle registration number KCN 912P for causing the accident. PW2 produced an abstract as P. Exh 10. I have looked at the exhibit and it confirmed the occurrence of the accident. It is salient to note that PW2 also testified as DW1 and gave the same testimony in regards to the circumstances that led to the accident. 16.Flowing from the above, I am satisfied that the Appellant proved his case against the Respondent. He was able to prove that the accident occurred on the material day involving the subject motor vehicle and further, was able to establish that the subject motor vehicle was owned by the Respondent. In the circumstances, it is my finding that the Respondent was 100% liable for causing the accident. Quantum 17.For this court to interfere with an award, it must be satisfied that the trial magistrate misdirected himself in some manner and as a result arrived at a wrong decision, or that it was clear from the case as a whole that the trial magistrate was clearly wrong in the exercise of his discretion and that as a result there has been a miscarriage of justice. See Catholic Diocese of Kisumu vs Tete (2004) eKLR. 18.It is judicial practice that the general approach in awarding damages for injuries is that comparable injuries should as far as possible be compensated by comparable awards. I have found the following cases quite helpful in terms of comparison: -I.In LNK (A Minor Suing Through CNK As Next Friend) & 2 others v Simon Gatuni Njukia [2022] KEHC 2497 (KLR), the Appellant suffered soft tissue injuries tempered and parietal region, soft tissue injuries right shoulder region joint, soft tissue injuries to the chest and soft tissue injuries of the lower limbs. The Appellate court substituted the award of Kshs 20,000/= with an award of Kshs 80,000/=.II.In PF (Suing as next friend and father of SK (Minor) v Victor O Kamadi & another [2018] KEHC 142 (KLR), the court substituted an award of Kshs 50,000/= with an award of Kshs 100,000/= for cut wound to the forehead, multiple small abrasions to the face, blunt injury to the head leading to loss of consciousness for some time, abrasions to the back, abrasion wounds to the dorsum of the right hand and cut wound to the right leg.III.In Ayoro v Freight World Logistics Limited & another [2023] KEHC 22489 (KLR), the court substituted an award of Kshs 90,000/= for an award of Kshs 150,000/= for blunt injury to the neck leading to soft tissue injuries, blunt injury to the thoraco-lumber spine leading to soft tissue injuries, blunt injury to the left hip joint leading to soft tissue injuries and blunt injuries to the left knee joint leading to soft tissue injuries. 19.I have considered the authorities above and the nature of the injuries suffered by the Respondent. I have also considered that the trial court would have awarded the Appellant Kshs 75,000/= as general damages had he been successful at the trial court. The Appellant having been successful on Appeal, it is my finding that the award of Kshs 75,000/= was just, fair and was commensurate to the injuries suffered by the Appellant. 20.In regards to the special damages, the Appellant pleaded Kshs 7,000/= for the Medical Report, Kshs 100/= for the Police Abstract, Kshs 1,000/= for the P3 Form, Kshs 575/= for the Search Certificate and Kshs 9,520/= for the medical expenses. I have seen the receipt for the Medical Report (P. Exh 3), motor vehicle search receipt (P. Exh 10) and medical treatment (P. Exh 5) all totaling to Kshs 17,070/=. The same is awarded. 21.The final award is translated as follows: -a.Liability 100% against the respondentb.General Damages Kshs 75,000/=c.Special damages Kshs 17,070/=d.Each party to bear its own costs for the Appeal.e.The Appellant is awarded costs for the lower courtf.30 days stay of execution is granted. JUDGEMENT DELIVERED, DATED AND SIGNED AT BOMET THIS 3RD DAY OF JUNE, 2026..................................HON. JULIUS K. NG’ARNG’ARJUDGEJudgement delivered in the presence of:Songok holding brief for the AppellantMwira holding brief for the RespondentSiele/Susan (Court Assistants)