https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11356

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT ELDORET** **CIVIL APPEAL NO. E211 OF 2025** **GATEWAYS MARINE SERVICES LTD ………………. APPELLANT** **Versus** **SALLY JEMUTAI KOGO ………… 1st RESPONDENT** **NATHAN KIRAGU ………… 2nd RESPONDENT** **JUDGEMENT** **Introduction** 1. This appeal arises out of the judgement of the Magistrates Court in Eldoret Civil Case No. E710 of 2021 delivered on 29/07/2025. At the trial court, the 1st Respondent was the Plaintiff and she sued the Appellant (Defendant before the trial court) vide a plaint dated 26/08/2021 for compensation for injuries suffered in a road traffic accident. The 2nd Respondent was a third party in the proceedings before the trial court. 2. The trial court found the Appellant and 2nd Respondent 50:50 liable for the accident and awarded the 1st Respondent total compensation of Kes. 1,414,070/= together with costs of the suit and interest. 3. Dissatisfied with the judgement of the trial court, the Appellant filed the present appeal vide a memorandum of appeal dated 27/08/2025 with the following listed grounds; 1. THAT the learned trial magistrate erred in law and fact in failing to appreciate and apply the principles applicable in assessing and/or apportioning liability in a claim for negligence. 2. THAT the learned trial magistrate erred in law and fact by allowing the 1st Respondent’s suit against the Appellant which was not proved on a balance of probabilities as per the law. 3. THAT the learned trial magistrate erred in law and fact in apportioning liability at 50%:50% between the Appellant and the 2nd Respondent rather than make a finding of 100% against the 2nd Respondent, as per the evidence on record. 4. THAT the learned trial magistrate erred in law and fact by compelling the Appellant to first compensate the 1st Respondent fully at 100% and thereafter pursue the 2nd Respondent for 50% indemnity, contrary to the provisions of Order 21 Rule (1) of the Civil Procedure Rules 2010. 5. THAT the learned magistrate erred in law and fact by adopting the wrong principles in assessment of quantum thereby arriving at an erroneous decision. 6. THAT the learned trial magistrate erred in law and fact in awarding general damages of Kshs. 1,000,000/= which was manifestly excessive in the circumstances. 7. THAT the learned trial magistrate erred in law and fact in awarding future medical expenses of Kshs. 200,000/= in complete disregard of Mr. Z. Gaya’s medical report which indicated that the 1st Respondent had recovered well from her injuries and therefore, there was no basis for the award. 8. THAT the learned trial magistrate erred in law and fact in failing to consider the appellant’s written submissions on record. 4. The Appellant prayed for the appeal to be allowed, the 1st Respondent’s case against the Appellant be dismissed, the trial court’s finding on liability be set aside and substituted with a finding of 100% liability against the 2nd Respondent, the trial court’s award on general damages of Kes. 1,000,000 be reassessed, the trial court’s award on future medical expenses of Kes. 200,000 be set aside and the costs of the appeal be awarded to the Appellant. 5. This appeal was canvassed by way of written submissions. At the time of writing the judgement, only the Appellant and 1st Respondent had filed their written submissions. **Appellant’s submissions** 1. The Appellant in its written submissions dated 05/05/2026, claims that the trial court's Judgment delivered on 30th July 2025 in Eldoret CMCC No. E710 of 2021 was erroneous and against the weight of evidence. The Appellant contends that the Learned Magistrate misapprehended the evidence on record by apportioning liability at 50:50 between the Appellant and the 2nd Respondent. 2. On liability, the Appellant submitted that the 1st Respondent admitted the matatu driver was over speeding, did nothing to avoid the accident, and that she was not wearing a seat belt. The police officer who testified admitted he could not blame anyone for the accident. The Appellant's driver testified that the 2nd Respondent's matatu suddenly veered off its lane to overtake, and despite the Appellant's driver swerving to his extreme left, the matatu still rammed onto his vehicle. He argued that this evidence was uncontroverted, yet the trial magistrate ignored it and erroneously apportioned equal liability without identifying any negligent act attributable to the Appellant. He relied on the principle that he who alleges must prove under Section 107 of the Evidence Act, and cited ***Stephen Wasike Wakitu v Security Express Ltd* [2006] eKLR and *Khambi v Mahithi* (1968) EA 70**, submitting that the trial magistrate failed to accord proper weight to unchallenged evidence and should have found the 2nd Respondent 100% liable. 3. On quantum, the Appellant submitted that the award of Kshs. 1,000,000/- for general damages was excessive given that the 1st Respondent sustained a fracture of the mandible, head injury with loss of consciousness, degloving injury and fracture of the right tibia, with no permanent incapacity assessed by either doctor. He relied on ***Musembi v Kiptala* (2025) eKLR** where Kshs. 500,000/- was awarded for similar injuries, and urged this Court to substitute the award with a sum between Kshs. 550,000/- and 600,000/-. On future medical expenses, he submitted that the claim was not specifically pleaded in the plaint and was therefore not recoverable as special damages, relying on ***Susan Kipturu v Susan Chepkalam Limarus* [2019] eKLR and *Kenya Bus Service Ltd v Gituma* [2004] EA 91**. He further submitted that the medical evidence was contradictory, with Dr. Sokobe indicating future treatment was required while Mr. Z. Gaya opined the plaintiff had fully recovered with no need for future treatment. He urged the Court to set aside the award of Kshs. 200,000/- entirely. 4. The Appellant also submitted that should this Court affirm the 50:50 apportionment, it should order that each party settles their 50% liability concurrently, rather than requiring the Appellant to pay the full decree and pursue recovery from the 2nd Respondent, which defeats the purpose of apportionment and exposes the Appellant to undue hardship. The Appellant prayed for the appeal to be allowed, liability set at 100% against the 2nd Respondent, and the awards on quantum set aside or reduced accordingly. **1st Respondent’s submissions** 1. The 1st Respondent in her written submissions dated 5th March 2026, opposes the Appeal and contends that the trial court's Judgment delivered on 30th July 2025 was sound and properly entered judgment in her favour. She argues that the Appellant has failed to demonstrate any error warranting appellate interference, and that the findings on liability and quantum should be upheld. 2. On liability, the 1st Respondent submitted that the issue of liability is a factual question dependent on the evidence adduced, and the trial court properly found that both drivers contributed to the accident. She argued that the Appellant itself brought the 2nd Respondent into the suit via Third-Party Notice, and cannot now fault the court for apportioning liability to that Third Party. She relied on the principle in ***Mbura v Nzaka* [2024] KECA 1920 (KLR)** that an appellate court will not lightly interfere with findings of fact unless the trial court misapprehended the evidence or acted on wrong principles. On the "pay-and-pursue" order, she submitted that it is settled law that where two or more parties are joint tortfeasors, a plaintiff may recover the full amount from any one of them, and the trial court's direction ensuring an innocent victim is not frustrated by collecting from multiple parties was standard practice. 3. On quantum, the 1st Respondent submitted that the award of Kshs. 1,000,000/- for general damages was based on medical evidence and comparable authorities, and the trial court duly considered the nature of injuries and precedents before arriving at the figure. She relied on ***Ratemo v Ogaro* (2024) KEHC 14539 (KLR)** for the principle that appellate courts will only interfere where the trial court acted on wrong principles or the award was inordinately high or low. On future medical expenses, she submitted that Dr. Sokobe testified and opined that she would require further treatment estimated at Kshs. 200,000/-, evidence which was not rebutted convincingly, and relied on ***Tracom Limited v Hassan Mohamed Adan* [2009] KECA 48 (KLR)** that future medical expenses need not be exact but must be a reasonable estimate supported by medical opinion. 4. She prayed for the appeal to be dismissed with costs, and the trial court's judgment to be upheld. **Analysis and determination** 1. It is settled law that the duty of a first appellate court is to evaluate afresh the evidence adduced before the trial court in order to arrive at its own independent conclusion but bearing in mind that it neither saw nor heard the witnesses testify. 2. In ***Gitobu Imanyara & 2 Others vs Attorney General [2016] eKLR*** the Court of Appeal stated that: ***“An appeal to this court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.”*** 1. In view of the above, I have perused and considered the evidence adduced before the trial court, grounds of appeal together with submissions by the parties and consider the following issues arising for determination: 1. Whether the trial court applied the correct principles in apportionment of liability 2. Whether the trial court erred in directing that the Appellant first satisfies the decree before recovering the 2nd Respondent's 50% contribution; 3. Whether the quantum on general damages and future medical expenses was excessive * 1. **Whether the trial court applied the correct principles in apportionment of liability** 2. The principles guiding an appellate court in interfering with a trial court's findings of fact are well settled. In ***Mbura & 2 others v Nzaka & another [2024] KECA 1920 (KLR)***, the Court of Appeal held that an appellate court will only interfere with a trial court's findings of fact where it is shown that the trial court considered factors it should not have, failed to consider matters it should have, misapprehended the effect of the evidence, or acted on wrong principles. 3. From the record of appeal, the accident arose from a head-on collision between motor vehicle registration number KBU 402G, in which the 1st Respondent was a passenger, and the Appellant's motor vehicle registration number KBM 084Y. The driver of motor vehicle KBU 402G did not testify, having died in the accident, and the 2nd Respondent neither entered appearance nor adduced any evidence. 4. The 1st Respondent testified that the driver of KBU 402G, in which she was travelling, was over speeding, that he did nothing to avoid the accident, and that the vehicle swerved before the collision. The investigating police officer confirmed that a collision occurred but was unable to state which of the two vehicles caused it. DW1, on his part, testified that KBU 402G suddenly encroached onto the Appellant's lane while overtaking another vehicle and that although he swerved to his extreme left, KBU 402G still rammed onto his motor vehicle. 5. The trial court found that the 1st Respondent's account blamed the Appellant's driver for overtaking, while DW1's account blamed the driver of KBU 402G for overtaking, and that neither party gave details of the vehicles they claimed were being overtaken. In these circumstances, and in the absence of evidence from the deceased driver of KBU 402G, the trial court found it difficult to determine, on a balance of probabilities, which of the two drivers was to blame for the accident. 6. Where a court is unable, on the evidence before it, to determine which of two drivers was responsible for a collision, the settled position of the law is that liability is apportioned equally between them. This principle, traceable to ***Baker v Market Harborough Industrial Co-operative Society Ltd (1953) 1 KLR 1472*** and applied in ***Hussein Omar Farah v Lento Agencies, Civil Appeal No. 34 of 2005 [2006] eKLR***, has more recently been restated by the High Court in ***Ndatho v Chebet (Civil Appeal 8 of 2020) [2022] KEHC 346 (KLR)***, where the court held that where liability cannot be conclusively apportioned between two drivers on the available evidence, equal apportionment is the appropriate course. 7. While the Appellant contends that DW1's evidence was not controverted in cross-examination, this alone does not resolve the conflict identified by the trial court. The absence of independent or corroborating evidence, coupled with the death of the driver of KBU 402G, placed the trial court in the same position contemplated in the authorities cited above. 8. I do not find that the trial court misapprehended the evidence or applied a wrong principle in apportioning liability equally between the Appellant and the 2nd Respondent. This ground of appeal accordingly fails. 9. **Whether the trial court erred in directing that the Appellant first satisfies the decree before recovering the 2nd Respondent's 50% contribution;** 10. In its written submissions, the Appellant further argued that having apportioned liability at 50:50, the trial court ought to have directed that each of the Appellant and the 2nd Respondent settles its share of the decree directly, rather than requiring the Appellant to satisfy the whole decree and thereafter recover 50% from the 2nd Respondent. 11. I note that the 2nd Respondent was served with the third-party notice but neither entered appearance nor filed any pleading, and interlocutory judgment was consequently entered against him. 12. Order 1 Rule 19 of the Civil Procedure Rules, 2010, provides as follows; ***19. Judgment against third party in default [Order 1, rule 19]*** ***Where a third party makes default in entering an appearance in the suit, or in delivering any pleading, and the defendant giving the notice suffers judgment by default, such defendant shall be entitled, after causing the satisfaction of the decree against himself to be entered upon the record, to judgment against the third party to the extent claimed in the third-party notice; the court may upon the application of the defendant pass such judgment against the third party before such defendant has satisfied the decree passed against him:*** ***Provided that it shall be lawful for the court to set aside or vary any judgment passed under this rule upon such terms as may seem just.*** 1. The High Court in ***Family Bank Limited v Mutisya & another (Civil Appeal E076 of 2021) [2024] KEHC 5740 (KLR)***, explained that a defendant is entitled, upon a third party's default, either to first satisfy the decree passed against him and thereafter apply for judgment against the third party, or to apply for judgment against the third party to the extent of the third-party notice before satisfying the decree; and that where the latter course was not taken, the defendant must first satisfy the decree. 2. I find there is consistency with the procedure under Order 1 Rule 19. This ground of application also fails. 3. **Whether the quantum awarded was excessive** **General damages** 1. It is settled that an appellate court will only interfere with an award of general damages where it is shown that the trial court considered an irrelevant factor, left out a relevant one, or that the award is so inordinately high or low as to amount to a wholly erroneous estimate of the damage. 2. The 1st Respondent sustained a head injury with loss of consciousness, a fracture of the mandible, a cut wound on the left leg, a degloving injury on the left leg and a fracture of the right tibia. She was hospitalized for 50 days. Neither Dr. Sokobe nor Mr. Gaya assessed any permanent incapacity. 3. Having considered the nature and severity of these injuries against comparable awards, including ***Musembi v Kiptala & another (2025) eKLR***, where an award of Kshs. 850,000/= was set aside and substituted with Kshs. 500,000/= for similar injuries, and ***Kagiri v Waime (Civil Appeal 7 of 2019) [2023] KEHC 17800 (KLR)***, where awards in the range of Kshs. 600,000/= to Kshs. 800,000/= were considered appropriate for comparable combinations of fractures, I am satisfied that the award of Kshs. 1,000,000/= made by the trial court was on the higher side. 4. Bearing in mind the multiple fractures, the degloving injury and the 1st Respondent's prolonged hospitalization, but also that no permanent incapacity was assessed, I find that an award of Kshs. 750,000/= is fair and adequate compensation. The award of general damages is accordingly set aside and substituted with Kshs. 750,000/=. **Future medical expenses** 1. On future medical expenses, it is settled law that a claim for future medical expenses, though awarded under the umbrella of general damages, is in the nature of special damages and must be specifically pleaded and proved. 2. The Appellant contends that the claim for future medical expenses was not pleaded in the plaint. In the present case, the Appellant specifically pleaded a claim for future medical expenses in the Plaint. While a specific, crystallized amount was not initially stated at the time of filing, the Plaint unequivocally indicated the Appellant's intention to claim these expenses, thereby giving sufficient and proper notice to the court and the opposing party. 3. Dr. Joseph Sokobe testified that upon examining the Appellant, he found that she had not fully recovered. To address this ongoing need, Dr. Joseph recommended that an award of KES 200,000 would be sufficient to cover the costs of the Appellant's future medical treatment. This was not challenged by the Appellant and I find no reason to interfere with the trial court’s finding on this issue. 4. The award of Kshs. 214,070/= as special damages was not challenged by any of the grounds of appeal and accordingly remains undisturbed. **Disposition** 1. For the foregoing reasons, I make the following orders; 1. The appeal is allowed in part 2. The finding of the trial court apportioning liability at 50%:50% between the Appellant and the 2nd Respondent is upheld. 3. The order that the Appellant shall first satisfy the decree in full before recovering the 2nd Respondent's 50% contribution is upheld. 4. The award of Kshs. 1,000,000/= as general damages for pain and suffering is set aside and substituted with an award of Kshs. 750,000/=. 5. The award of Kshs. 200,000/= as future medical expenses is upheld. 6. The award of Kshs. 214,070/= as special damages is affirmed. 7. The revised decretal sum payable to the 1st Respondent is Kshs. 1,164,071/=, together with interest and costs of the suit as ordered by the trial court. 8. Each party shall bear its own costs of this appeal. It is so ordered. Right of appeal 30 days. Dated, signed and delivered virtually on TEAMS on this 24th day of July, 2026. **……………………………** **Hon. R. A. Oganyo, Mrs.** **Judge.** **In the Presence of; -** Court Assistant…E, Sana Miss Nyabuto for the Appellant-I pray for 30 days stay of execution to process the judgment. **Order.** There be 30 days stay of execution. **……………………………** **Hon. R. A. Oganyo, Mrs.** **Judge.**