https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13045

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT MAKUENI** **CIVIL APPEAL NO. E089 OF 2025** **GEORGE KITILI MAKOVO…..………………………………….………..….….APPELLANT** **-VERSUS-** **COSMAS NDETI MAITHA……………..……………………..…………. 1ST RESPONDENT** **JOHN MUTUNGI………………………………….…………………....…2ND RESPONDENT** **DOMINIC MUANGE KATITHI………………………………………...…3RD RESPONDENT** ***(Appeal from the Judgment of Hon. C.K Cheptoo (SPM) in the Senior Principal Magistrate’s Court at Kilungu, Civil Case No. E324 of 2023, delivered on 3rd October 2025)*** **JUDGMENT** **Introduction** 1. The Appellant filed a suit in the lower Court seeking General Damages, Special Damages, costs and interest pursuant to a road accident which occurred on 05/03/2022 (hereafter the material day). It was averred that on the material day, the Appellant was lawfully riding motorcycle KMCJ 903B along Ndilinge-Kasikeu Road at Kawandiki area within Makueni County when the 1st Respondent/agent/servant and or driver negligently so drove/controlled/managed motor vehicle KTCB 849S owned by the 2nd and 3rd Respondents consequences whereof it caused an accident leading to the Appellant sustaining serious multiple injuries and grievous harm Particularized as follows; 2. **Blunt injuries to the head** 3. **Commuted fracture right frontal bone extending to the right frontal sinus and involving the right anterior and lateral walls of the right orbit bone** 4. **Deep cut wound on the scalp** 5. **Deep cut wound on the right cheek.** 6. **Multiple laceration wounds on both upper limbs** 7. **Blunt injuries to the right thigh** 8. **Commuted fracture on the right thigh** 9. **Subluxation of the right sacro-iliac joint** 10. The Respondents filed a joint statement of defence, denied all the allegations in the plaint and called for strict proof. They specifically denied that any accident involving the tractor ever occurred at the place and time stated in the plaint and averred that the accident was self-involving hence there was no contact between the tractor and the Appellant’s motorcycle. 11. The Appellant filed a reply to the defence whereby he joined issues with the Respondents and reiterated the content contained in the plaint. 12. After the preliminaries, the matter proceeded to trial and judgment was eventually delivered in favor of the Respondents. The trial court found that the Appellant had not established his case to the required standard and dismissed it with costs. **The Appeal** 1. Aggrieved by the decision, the Appellant filed this appeal and raised the following grounds; 2. **The trial court erred in relying on the time the Appellant was taken to hospital as the basis for apportionment of liability disregarding the evidence of the clinical officer who confirmed that the accident happened and that the Appellant was treated.** 3. **The trial court erred in dismissing the Appellant’s suit on flimsy reasons of time the Appellant was allegedly taken to hospital when as victim of road accident, he had no control on what time, place or medical facility for him to be attended to.** 4. **The learned trial magistrate erred in law and in fact in dismissing the contents of the police abstract merely because the said abstract was issued to the Appellant after allegedly 19 months.** 5. **The learned trial magistrate erred in law and fact in suggesting that there is an unknown law of limitation of time for collection of police abstracts contrary to the Limitation of Actions Act, Cap 22 which allowed the Appellant to collect a Police Abstract from Sultan Hamud Police Station.** 6. **The learned trial magistrate erred in law and fact in disregarding the provisions of section 4(2) of the Limitation of Actions Act with regard to the 3 years for instituting a claim based on tort and purporting to prescribe an unknown time period of obtaining a Police Abstract from a Police Station.** 7. **The learned trial magistrate erred in law and fact in disregarding the reasons adduced by the Appellant that the delay in collection of the police abstract was because of the metal implants in his legs which fact was corroborated by Dr. Ndeti.** 8. **The learned trial magistrate erred in law and fact for failing to note that the police abstract was produced as an exhibit before court without any protestation by the Respondents.** 9. **The learned trial magistrate erred in law and fact claiming and upholding a concept of ‘authenticate’ police abstract when the same was already produced without any protestation as an exhibit before the trial court.** 10. **The learned trial magistrate erred in law and fact in relying and revisiting section 35(1B) of the Evidence Act and failing to note that when the matter was before Hon. Makoyo for hearing, the issue of the maker of the police abstract was never raised nor was there any protestation by the Respondent with the said abstract being adduced as evidence.** 11. **The learned trial magistrate erred in law and fact in dismissing the evidence of PC Okik and the contents of the police abstract and insisting on the evidence of PC Bakari who despite being the Investigation Officer never witnessed the accident but merely recorded that the same happened and was reported.** 12. **The learned trial magistrate erred in law and fact in disregarding the fact that *prima facie* the 1st Respondent admitted that he was charged with a traffic offence in Kilungu Traffic Case No. 455 of 2023 which fact connotes negligence.** 13. **The learned trial magistrate erred in law and fact in relying on the uncorroborated hearsay evidence of one Humphrey Kitavi Kathithi without any medical evidence that the alleged injuries the Appellant sustained were self-inflicted from unknown newly paved road.** 14. **The learned trial magistrate erred in law and fact by implying and upholding that the accident sustained by the Appellant was ‘self-involving’ despite the fact that the Respondents never adduced any medical evidence to corroborate the alleged purported self-involving accident.** 15. **The learned trial magistrate erred in law and fact by failing to note that the Respondents never rebutted the expert opinion of PC Okik, Mirriam Mutheu and Dr. Ndeti who confirmed that the injuries sustained by the Appellant was as a result of a road traffic accident.** 16. **The trial court erred in law and fact by relying on the Respondents’ submissions as evidence and failing to note that submissions cannot take the place of evidence.** 17. **The trial court failed to note that the Appellant gave direct evidence and had proved his case on a standard of probability.** 18. **The trial court failed in the proposal to apportion liability at the ratio of 80:20 when there was no cogent evidence that the Appellant contributed to the occurrence of the accident.** 19. **That the trial court failed awarding a significant low proposal of Kshs. 1,900,000 without any legal basis or comparable decision to justify the same.** 20. **The judgment is unreasonable, untenable and contrary to law, principles of negligence and facts of the case.** 21. Directions were given that the appeal be canvassed through written submissions. Accordingly, the parties complied and filed their respective submissions. **The Appellant’s Submissions** 1. As to whether the Respondents rebutted the Appellant’s case, it was submitted that their witnesses did not make reference to their list of documents dated 25/02/2024 and did not request for the same to be adduced as exhibits before the trial court. Reliance was placed *inter alia* on **Machakos HCCA No. 57 of 2017: Robert Ngande Kathathi -vs- Francis Kivuva Kitonde** where the court *(Odunga J)* stated; **“17. In this case, however, instead of producing the exhibits by consent or otherwise, the parties proceeded to file submissions instead. No exhibits were produced before the trial court. The law is clear on how exhibits are to be produced. Even in a full-fledged trial, if documents are simply referred to by witnesses but not formally produced, they do not acquire the status of exhibits in the case.”** 1. It was thus contended that the trial court erred by holding that the Respondents’ case was more believable, in the absence of any documentary evidence to support the same. 2. It was submitted that the trial court ignored the evidence of the Clinical Officer who confirmed that the Appellant was treated at Sultan Hamud Sub-County Hospital and instead relied on the hearsay evidence of Humphrey Kitavi Katithi. It was contended that according to the police abstract, the accident involved the Appellant and motor vehicle KTCB 849S and there was no indication that the accident was self-involving as insinuated by the trial magistrate. Further, it was submitted that the Appellant himself testified of having been involved in an accident with the tractor. 3. It was further submitted that the Respondents never requested the Appellant to undergo a 2nd medical examination hence the only Medical Expert Report was that of Dr. Ndeti and Mirriam. That, the court never referred to any Medical Report where it was indicated that the injuries were self-inflicted. Reliance was placed on the case of **Benson Charles Ochieng’ & Anor -vs-Susan Odhiambo Otieno (2013) eKLR** where the court stated; **“The Appellants made the choice not to refer the Respondent to be seen by a doctor of their choice for a second opinion. The only evidence on record is therefore that adduced by the doctor of the Respondent. That medical evidence is uncontroverted.”** 1. It was submitted that the trial magistrate relied on the case of **Peter Kanithi Kimuyu -vs-Aden Guyo Haro (2014) KEHC 1547 (KLR)** to discredit the Police Abstract yet it was the finding of the court in the same case that an accident had occurred despite the non-production of a Police Abstract and P3 Form. It was contended that in the instant case, there is more than enough evidence from the Doctor, Police Officer and the Appellant himself. 2. It was further submitted that the trial court also relied on the case of **Techard Steam & Power Ltd -vs- Mutio Muli & Mutua Ngao (2019) 6433KLR** but contended that there is no holding therein to the effect that negligence must be proved independently of a police report and that the timing and circumstances of such a report may affect its evidentiary weight. That, the actual holding in that case was; **“However, proof of negligence being on a balance of probability does not solely depend on the evidence of the investigation officer. Negligence can be proved notwithstanding the fact that the accident in question was never reported to the police since there is no nexus between a report of an accident to the police with proof of negligence. While such report and the steps taken thereafter may be proof of the occurrence of the accident in question, where there is independent evidence proving that an accident took place and that it was caused by the negligence of the defendant, the failure to call the investigating officer is not necessarily fatal in accident claims..”** 1. It was contended that the trial court abdicated its duty of impartiality by referring to non-existent holdings. 2. It was submitted that the Respondents never raised an issue with collection of the abstract after 19 months and there was no protestation that the abstract was defective, fictitious or that it did not emanate from Sultan Hamud Police Station. It was contended that a court cannot, *suo motu*, turn against the Appellant’s documents and start questioning what is already part of the record and is an exhibit in support of the Appellant’s case. That, the trial court reasoning on limitation of time for collection of Police Abstract would mean that the police would refuse to issue abstracts to victims of road traffic accidents who report late. It was contended that this would be unconstitutional as a Police Abstract is a public document available to any party who has an interest in the accident. It was further contended that the Respondents did not raise any objection on grounds of being prejudiced by collection of the abstract after 19 months. 3. It was submitted that the Appellant accounted for the delay in collecting the police abstract *to wit*, that he had problems walking and his wound had not healed. 4. It was submitted that Hon. Cheptoo took over from Hon. Makoyo who had taken the evidence of the Appellant and his witnesses and the Appellant had adduced all his documents without protestation. It was contended that the contents of a Police Abstract are from the OB and there cannot be different information from the OB. That, it was therefore erroneous for the trial court to find that the Appellant had failed to call the maker of the abstract and instead relied on the testimony of PC Okik who neither investigated the accident nor visited the scene. It was submitted that PC Okik had stated that the I. O was on a weekend off hence it was illogical to expect the Appellant to be held at ransom by the I.O’s weekend off. Reference was made to **Section 35 of the evidence Act** for the submission that such a document can still be produced by any other party. 5. It was submitted that failure to call the I.O was not fatal and reliance placed on **Mombasa HCCA No. 44 of 2017: Harrison Baya Yaa -vs- Mash East Africa Limited** where the court (P.J Otieno) stated; **“It is this court’s view that proof of negligence being on a balance of probabilities does not solely depend on the evidence of the investigation officer. An investigating officer even if he attends to the scene, takes measurements and comes up with sketches does not thereby become a witness. The report he makes based on observations at the scene is at all times an opinion based on his experience and ability to interpret the scene and marks observed..”** 1. It was submitted that if the Respondents had a problem with the Police Abstract, they should have tabled evidence to discredit it. It was contended that there was nothing to authenticate as the abstract which had already been produced as an exhibit without an issue being raised that it was a forgery. 2. As to whether the Appellant proved his case to the required standard, it was submitted that he produced a Medical Report which confirmed his injuries, that a Clinical Officer confirmed that the P3 was issued to him as a result of the accident and that he gave direct evidence of how the accident happened. That, DW1 corroborated the Appellant’s case and ascertained that he was the one who was driving the impugned motor vehicle at the time of the accident. That, DW1 also confirmed that he was charged with the offence of careless driving. That, the Police Abstract produced by the Appellant without rebuttal from the Respondents confirmed that the accident involved the tractor which had no headlights and the Appellant’s motorcycle. The Appellant questioned why DW1 was picked by the police out of all the people in Nunguni. 3. With regard to the proposal to apportion liability at the ratio of 80:20, it was submitted that according to PW1’s evidence, it was DW1 who was driving the tractor without head lights on hence the Respondents should be held 100% liable for the accident. 4. With regard to the trial court’s proposal to award Kshs. 1,900,000/=, it was submitted that the proposal is way below what courts have awarded in cases of similar injuries. The Appellant’s proposal was and still is Kshs. 2,500,000/= guided by the cases of; **Edward Mzamili Katana -vs- CMC Motors Group Ltd & Anor (2006) eKLR** and **Samwel Mwangi Kamau -vs-Joseph M. Kimemia & Anor (2004) eKLR**. 5. It was submitted that the Doctor’s opinion and prognosis was that the Appellant sustained grievous harm. That, he sustained severe soft tissue injuries and fractured bones which caused him untold pain, blood loss and suffering. That, functional permanent incapacity in the right lower limb was assessed at 15%. **Submissions by the Respondents** 1. It was submitted that the Appellant has not demonstrated the threshold for Appellate interference with a trial court decision. Reliance was placed *inter alia* on the case of **Mbogo & Another -vs- Shah [1968] EA 93** for the submission that an Appellate Court will not interfere with the exercise of judicial discretion by an inferior court **“unless it is satisfied that the decision is clearly wrong or it has misdirected itself or because it has acted on matters which it should not have acted or because it failed to take** **into consideration matters which it should have taken into consideration and in doing so arrived at a wrong conclusion.”** 1. As to whether the trial court correctly applied the burden and standard of proof, it was submitted that direct evidence is only valuable to the extent that it is credible. 1. That, the trial court observed all witnesses and found that the Appellant’s account was contradicted by independent witnesses and not corroborated by reliable documentary evidence which is a proper, unremarkable exercise of the judicial function. That, the Appellant’s assertion, that the case was proved on a balance of probabilities is a bare submission, not a legal argument and must be rejected. Reliance was placed *inter alia* on the case of **Keziah & Another (Personal Representatives of the Late Isaac Macharia Mutunga) -vs- Lochab Transport Limited (Civil Appeal 82 of 2018) [2022] KECA 477 (KLR) (18 March 2022) (Judgment)** where the court stated; **“17. It was thus upon the appellants to discharge the burden of proof of negligence aforesaid against the respondent. This Court in East Produce Kenya Limited Vs. Christopher Astiado Osiro [2006] eKLR, reiterated that he who alleges negligence bears the burden of proof. The court further quoted with approval the case of Kiema Mutuku Vs. Kenya Cargo Hauling Services Ltd [1991] 2 KAR 258 on the holding that ‘there is yet no liability without fault in the legal system in Kenya and the plaintiff must prove some negligence against the defendant where the claim is based on negligence.’”** 1. As to whether the trial court evaluated the Police Abstract correctly, it was submitted that the law on the status and weight of a Police Abstract is clear, consistent and binding. That, the Abstract obtained by the Appellant was issued nineteen months after the alleged accident of 5th March 2022. Reliance was placed *inter alia* on the case of **Wangongu -vs- Kithinji & 2 Others (Civil Appeal 293 of 2023) [2024] KEHC 6272 (KLR)** where the court stated; **“It is trite law that the purpose of a police abstract is to support the fact that an accident was reported - the making of a report is not necessarily proof of occurrence of an accident.”** 1. It was submitted that the inescapable corollary is that where, as is in this case, there is no independent evidence proving that the Respondents’ vehicle caused the accident, the Abstract standing alone is wholly insufficient. 2. Reference was made to **Section 35(1) of the Evidence Act** for the submission that admission of the abstract without formal objection does not confer conclusive weight. Reliance was placed on the case of **Lwangu -vs- Ndote (Environment & Land Case 79 of 2010) [2021] KEELC 2 (KLR)** where the court stated; **“He who alleged had to prove... The maker of the document had to produce the document. That was provided for in section 35(1)(b) of the Evidence Act. The maker needed not to be called if it was shown to the satisfaction of the court that either the maker was dead, or could not be found, or incapable of giving evidence; or his attendance could only be procured with an amount of delay or expense which in the court’s view would be unreasonable in the circumstances of the case.”** 1. It was contended that none of these exceptions was established by the Appellant. That, PC Bakari, the I.O and maker of the Abstract was not called and no explanation was given for this failure. That, the Appellant called PC Okik, who by his own admission: (a) was not the I.O; (b) did not visit the scene of the accident; (c) could not produce the OB extract, sketch map or police file; and (d) was not the maker of the Abstract. 2. It was submitted that the admission of the document as an exhibit did not waive the court’s duty under **Section 35** to assess the conditions for admissibility and weight. That, its production as an exhibit did not substitute for the testimony of its maker and that the trial court was entirely correct in treating it as being of minimal probative value. Reliance was placed on the case of **Alex Kyalo Ngima & 2 Others -vs- Kisau Girls Secondary School [2021] eKLR** where the court stated; **“The appellants should have called at least one person to testify on the medical documents, even if it was the medical practitioner who ultimately filled the P3 form, in order to avoid the pitfall of relying on hearsay evidence. As it is, the appellants did not call any medical practitioner who dealt with the medical records, to support any of the medical reports relied upon. Such default rendered the medical reports they relied upon to be hearsay evidence, even though the same were produced as exhibits by PW1. Since these documents were challenged even in cross examination, this greatly weakened the Appellants’ case.”** 1. It was submitted that the trial court did not invent a **“limitation period”** for Police Abstracts but it applied the ordinary rules of evidence, which require a court to assess the weight and reliability of documentary evidence in its full context, including the circumstances of its procurement. That, the delay of nineteen months was a factor going to the reliability of the document and the credibility of the Appellant’s account. That, the Appellant offered metal implants as justification, but produced no contemporaneous medical records linking the implants to an inability to make a report for nineteen months hence the explanation was rightly found insufficient. 2. It was submitted that the significance of the Appellant’s time of hospital admission is not about control over hospital arrival but about the fundamental credibility of his account of when and how the accident occurred. That, according to the Appellant, the accident occurred at 8:00 p.m. and he arrived at hospital at 10:00 p.m. but Humphrey Kitavi Katithi, a KDF Officer of independent standing, testified that he personally transported the Appellant from the scene, departing at 6:35 p.m. and arriving at 7:00 p.m. That, this evidence was corroborated by Paul Mathenge Wambua who testified that he received the Appellant at the hospital at 7:00 p.m. It was contended that if the defence witnesses are believed on the issue of time, as the trial court found, then the Appellant’s account that the accident occurred at 8:00 p.m. is impossible. That, the time discrepancy does not merely cast doubt on a peripheral detail but destroys the Appellant’s entire narrative of the accident. 3. It was submitted that the defence witnesses did not give hearsay evidence as alleged by the Appellant. That, Humphrey Kitavi Katithi was physically present at the scene and personally drove the Appellant to hospital hence testified from direct personal knowledge. That, Paul Mathenge Wambua personally received the Appellant at the hospital. Reliance was placed on the case of **Mwangi -vs- Mambo (Civil Appeal E1058 of 2023) [2025] KEHC 8438 (KLR)**, the court stated; **“This being a first appeal, this court is under a duty to re-evaluate and assess the evidence and make its own conclusions. It must, however, keep at the back of its mind that a trial court, unlike the appellate court, had the advantage of observing the demeanour of the witnesses and hearing their evidence first hand.”** 1. It was submitted that the finding of a self-involving accident was justified by the evidence. That, the Respondents were under no obligation to produce medical evidence as their case was that if at all the accident occurred, then it did not involve their vehicle. That, their witnesses positively provided an alternative account and testified from personal observation that the Appellant had collided with the raised edge of a newly paved road, with no other vehicle present. That, the Appellant relied on the evidence of PC Okik, Madam Mirriam Mutheu and Doctor Ndeti as establishing that the accident was road-traffic-related but it was contended that none of the said witnesses witnessed the accident. That, they treated or examined the Appellant after the fact and their evidence speaks to the existence and nature of injuries presented to them but not to the cause of those injuries or who was responsible. Reliance was placed on the case of **Mary Wambui Kabugu -vs- Kenya Bus Services Ltd** where the Court of Appeal stated; **“The appellant’s case in the court below was that her husband was seriously injured in a road traffic accident due to negligence on the part of the respondent’s driver. She did not, however, adduce evidence to establish that fact or any blame on the respondent... She did not of her own knowledge know how he had sustained those injuries... Nor did the appellant call any eye witness or witnesses to the accident to testify on it. She did not also call any other evidence from which some inference could be drawn as to the cause of the accident.”** 1. It was submitted that the identification of the 1st Respondent as the driver was not established and that it is legally unsound to infer negligence because the 1st Respondent was charged in Kilungu Traffic Case No. 455 of 2023. It was submitted that **Section 107(1) of the Evidence Act** places the burden squarely on the Appellant to prove negligence. That, a criminal charge does not discharge that burden as the standard of proof in criminal proceedings is proof beyond reasonable doubt, which is a higher standard than the civil balance of probabilities. That, a charge is not a conviction and a charge that was withdrawn and never prosecuted to conclusion has zero probative value on the question of civil liability. Reliance was placed on the case of **Mweni -vs- Kagai & Another (Civil Appeal 17 of 2021) [2022] KEHC 17264 (KLR)** where the court stated; **“The legal basis for the legal burden of proof is provided in Section 107 of the Evidence Act, Cap 80 of the Laws of Kenya. The said section states as follows: (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.”** 1. It was submitted that the 1st Respondent’s driving licence was issued on 17/11/2023, some twenty months after the alleged accident of 05/03/2022 and the Appellant is asking this Court to find that the 1st Respondent drove a tractor on a public road on the day of the accident without a driving licence, in circumstances where; (a) the 1st Respondent denied being at the scene; (b) he testified he was in Kajiado; (c) the 2nd and 3rd Respondent denied he was their driver; and (d) no independent witness placed him at the wheel of the vehicle. 2. It was submitted that the Appellant had previously filed Kilungu Traffic Case No. E442 of 2023 attributing the same accident on the same tractor KTCB 849S to a different driver, Charles Noah Kioko, a case which the Appellant abandoned for want of prosecution. It was contended that the Appellant cannot be permitted to simultaneously assert in these proceedings that the 1st Respondent was the driver while having previously attributed the same collision to a different person altogether. That, this inconsistency is fatal to the Appellant’s credibility on the identity of the driver. 3. It was submitted that the argument of uncontroverted expert evidence does not arise where liability is not established. That, the authorities relied upon by the Appellant on this point, including **Benson Charles Ochieng & Another v Susan Odhiambo Otieno [2013] eKLR, H. Young Construction Company Ltd v Richard Kyule Ndolo [2014] eKLR and Dick Omondi Ndiewo TIA Ditech Engineering Service v Cell Care Electronics [2015] eKLR**, all arise in a context where liability was either admitted by consent or not genuinely in dispute, and the sole question before the court was quantum of damages. That, in those cases, the court was specifically addressing the principle that a party who consents to the production of a Medical Report cannot later challenge it. 4. It was submitted that the position in the present case is fundamentally different because the entire basis of liability as to whether the Respondents’ vehicle caused the accident at all was in dispute. It was submitted that medical evidence of injury is not the same as medical evidence of causation by the Respondents. 5. It was submitted that the trial court did not treat submissions as evidence. That, it is elementary that submissions are not evidence and the trial court was fully aware of this distinction. That, the trial court’s references to the parties’ submissions were for the purpose of outlining their respective legal contentions and arguments on the evidence already on record and the court’s ultimate findings were grounded on its evaluation of the oral testimony and exhibits, not in the submissions. 6. It was submitted that the trial court’s obiter remarks on apportionment and quantum are not appealable. That, an obiter dictum is a judicial remark that is not necessary to the court’s decision. Reliance was placed on the case of **Co-operative & Commerce Bank PLC -vs- Jonah Dan Okoro Ekperi [2007] NGSC** where the Supreme Court of Nigeria stated; **“It is elementary law that a ground of appeal must arise from or relate to the judgment of the court. It must directly emanate from the judgment of the court. It must complain against the ratio decidendi of the case, not the obiter dictum. An appellate court should not be placed in a position of speculation or conjecture whether a ground of appeal arises from or relates to the judgment of the court.”** 1. In any event and without prejudice to the foregoing, it was submitted that the quantum assessment was within the appropriate range given the injuries, the functional incapacity assessed and the comparable authorities available to the trial court, including **Edward Mzamili Katana v CMC Motors Group Ltd [2006] eKLR (Ksh. 2,000,000 for injuries with three-inch leg shortening requiring multiple operations) and Samwel Mwangi Kamau v Joseph M Kimemia [2004] eKLR** (Kshs. 1,000,000 before apportionment for permanent left-hand disability and malunion of tibia and fibula. That, the Appellant has not demonstrated that the figure of Kshs. 1,900,000 was so inordinately low as to amount to an entirely erroneous estimate of a different character. 1. It was submitted that vicarious liability was never established. That, the Appellant wholly failed to establish any employment, agency or authorization relationship between the 1st Respondent and the 2nd or 3rd Respondents. Reliance was placed on **Cassidy -vs- Ministry of Health [1951] 2 KB 343** for the submission that an employer is only liable for the torts of a servant committed in the course of employment and the control test applies to determine whether an employment relationship existed. 2. Further reliance was placed on **Morgans -vs- Launchbury & Others (1972) 2 ALL E R 607** cited in the case of **Paul Muthui Mwavu -vs- Whitestone (k)Ltd (2015) eKLR** in which it was stated that; **“In order to fix liability on the owner of a car for the negligence of a driver, it is necessary to show either that the driver was owner’s servant or at the material time the driver was acting on the owner’s behalf as his agent. To establish the existence of the agency relationship it is necessary to show that the driver was using the car at the owner’s request express or implied or on his instructions and was doing so in the performance of the task or duty thereby delegated to him by the owner…”** 1. It was submitted that no employment records, payment records, contractual documents or any other form of evidence establishing an employment or agency relationship between the 1st Respondent and the 2nd or 3rd Respondents was produced by the Appellant and that three Respondents categorically denied such a relationship. That, consequently, the Appellant’s claim for vicarious liability fails at the threshold. **Duty of Court** 1. It is now settled that the duty of a First Appellate Court isto analyze and re-evaluate the evidence on record in order to reach its own conclusions bearing in mind that it did not have the benefit of seeing or hearing the witnesses. (**Selle & another –vs- Associated Motor Boat Co. Ltd. & others (1968) EA 123)** 2. Having looked at the grounds of appeal, the rival submissions and entire record, the issues for determination are; 3. **Whether the trial court erred by dismissing the Appellant’s suit.** 4. **What is the quantum of damages, if any?** **Whether the trial court erred in dismissing the Appellant’s suit.** **Evidence on Liability** 1. PW1 was PC Daniel Okikof Sultan Hamud Traffic Base. He testified that the accident occurred on 5/3/2022 at 2000hrs along Ndulungu Kasikeu road involving KTCB 849S Tractor and motor vehicle KMCT 203B. That, one rider named Kitili was seriously injured. That, the accident occurred at night and the tractor is said not to have had full lights on. That, the driver of the tractor was Cosmas Ndeti Maitha and was charged of causing accident by careless driving. He produced the Abstract dated 26/10/2023 as exhibit 3. 2. On cross-examination, he stated that PC Bakari was the Investigating Officer. That, he (PW1) had to visit the scene procedurally and the OB extract has a report that he (PW1) went to the scene. He agreed that he did not have the inspection report. That, the accident was reported on 04/04/2023 yet it occurred on 05/03/2022. He could not tell from the OB entry when the same was visited or when the inspection was done. He didn’t know the status of the case against the driver as it was physically in court at the time of issuance of abstract. He didn’t testify in the traffic matter and knew nothing about the case. 3. PW3 was the Appellantwho adopted his statement dated 09/11/2023 as his evidence in chief. He stated that on 05/03/2022, he was on his motorcycle KMCJ 903B along Ndilinge -Kasikeu Road when the 1st Respondent who was driving KTCB 849S ran over him consequences whereof he sustained serious injuries. 4. On cross-examination, he stated that he had a driving license but agreed that he had not produced it because it got lost during the accident. He agreed that he had not produced proof of ownership of the motorcycle. He denied having a passenger. He said that the accident occurred at 8pm and that he got to Sultan Hamud Hospital at 10pm. When referred to the outpatient record, he denied getting to the hospital at 7pm. He said that he had dropped off a client and was heading back home and the tractor was heading in the opposite direction. He stated that he did not come across any other motor vehicle. 5. He agreed that he was taken to the hospital by Peter Mutilu and the owner of the motor vehicle Kitavi Katithi but they were not witnesses in this case. He stated that he was in hospital for one month and two weeks. He said that he had worn a helmet and reflective jacket but they were stolen during the accident. He told the court that Paul Mathenge Wambua was known to him as he (PW3) had married the daughter of Paul Mathenge’s sister. He denied that Paul Mathenge nursed his injuries. He further denied seeing Paul Mathenge in the hospital. 6. He stated that it was the first motorcycle accident that took him to hospital and denied crashing in the bridge heading to Sultan Hamud. That, he reported the accident after a year because he had metal implants. That, the motorcycle’s headlight was on and properly working. That, he was riding at around 40kph on an earth road. That, he only saw a torch when the tractor tyre ran over his right leg. That, his motorcycle and his leg were in pieces after the accident. That, the tractor driver caused the accident because he did not have a headlight and was using a torch. 7. It was his testimony that Traffic case No. 442 of 2023 was against Noah since he was the one found with the tractor. It was his testimony that he did not know the outcome of that case nor did he know the outcome of the case against the 1st Defendant. 8. DW1 was Cosmas Ndeti Maitha, the 1st Respondent who adopted his statement dated 22/02/2024 as his evidence in chief. He stated that the 2nd and 3rd Respondents are his neighbors at Enguli where he resides. That, at the time of the alleged accident, he was in Kajiado doing manual jobs. That, he never worked as the driver of KTCB 849S and did not even know the motor vehicle. That, he was not involved in any Road Traffic Accident on 05/03/2022. That, he was never employed as a driver by his co-defendants. That, he was charged in Kilungu Traffic Case No. E455 of 2023 where the Appellant was the Complainant but it was withdrawn for failure to prosecute. That, the Appellant had earlier contended in Kilungu Traffic Case No. E442 of 2023 that Charles Noah Kioko was the driver of the tractor. According to him, he didn’t know why he was named as a defendant in this matter. 9. On cross-examination,he agreed that the Police Abstract dated 26/10/2023 states that the accident happened on 05/03/2022 and that the driver named as Cosmas Ndeti Maitha was charged with careless driving. He agreed that he was charged in Traffic Case No. 455 of 2023 at Kilungu Law Courts. That, he requested for proceedings in the traffic case but the same were not in court. That, he was not the only Cosmas in Nunguni but couldn’t tell why the police officers picked him. 10. He was aware that Police Officer testified and produced the Abstract. That, the Police had no reason to frame him with the charges. That, he was released for lack of evidence and had not sued for malicious prosecution. He denied being the driver and that he was not even in the area where the accident occurred. That, his driving license was dated 17/11/2023 and he didn’t have a driving license as at 05/03/2022. He agreed that he didn’t write to the Traffic Commander complaining of the error in the abstract. He agreed that John Mutungi is his neighbor and he believed that the police had no reason to frame him and Mutungi. 11. He reiterated that he was in Kajiado doing manual jobs and that he had not stated the name of his employer because he was a casual laborer to different people. 12. DW2 was John Mutungi Musinga, the 2nd Respondent. He adopted his statement dated 22/02/2024 as his evidence in chief where he stated that he is not the registered owner of the tractor. That, the 1st Respondent is a neighbor while the 3rd Respondent is a friend and a neighbour. That, the 3rd Respondent and himself are members of the Enguli Development Self Help Group (**herein after ‘Enguli’**). That, the 1st Respondent is neither an employee of Enguli nor himself nor the 3rd Respondent. 13. That, the tractor is the property of Enguli but registered in the name of the 3rd Respondent as Trustee. That, as a member of Enguli, he (DW2) was not aware of any accident involving the tractor on 05/03/2022 along Ndilinge-Kasikeu Road or any other place, day or at all. He confirmed that the Appellant is known to him as a neighbor. That, the Appellant has previously been involved in other self-involving accidents due to his careless riding and failing to adhere to road traffic rules including riding without a valid driving licence, riding without protective gear, speeding and riding under the influence of alcohol. 14. That, no information was shared to him or Enguli concerning an accident involving the tractor and the motorcycle in question and that he was never summoned by the police to give a statement on any accident. 15. On cross-examination, he said that Enguli owns the tractor. That, according to Police Abstract dated 26/10/2023, the accident happened on 05/03/2022 at 2000hrs. That, the name and address of owner of motor vehicle is indicated as John M. Mutungi and driver as Cosmas Ndeti Maitha who was charged in a traffic case. That, he has never been charged with a traffic case and didn’t know where the police got his name. That, the advocate told him about the accident. That, he was served with the suit papers. That, an inspection was done and the driver had the report. That, DW1 has never been a driver of the tractor. 16. DW3 was Dominic Muange Katithi,the 3rd Respondent who also adopted his statement dated 22/02/2024 as his evidence-in-chief. He stated that he is a professional truck driver hence registered as the owner of the tractor on behalf of Enguli. That, on 05/03/2022 at around 2000hrs he was at work and no accident involving the tractor was ever reported to him. That, as a Trustee of Enguli, he would have been informed of any accident involving the tractor. 17. That, according to his experience, the motor vehicles involved in an accident have to be inspected immediately and the owner must be informed. That, the scene of the accident must be visited immediately and witnesses asked to make statements. That, the scene visit report has never been shared with him or any member of Enguli. That, the 1st Respondent has never been his employee nor of Enguli and therefore could not be involved in an accident with a motor vehicle he did not drive. 18. On cross-examination, he confirmed that he was a resident of Enguli and that the tractor was registered in his name on behalf of the employer. That, he was not aware of any accident involving the tractor. That, according to the Abstract, the accident happened on 05/03/2022 and name of the tractor owner is indicated as John. M. Mutungi. That, John is a group member. DW3 couldn’t confirm that the tractor was involved in an accident. That, the motor vehicle search indicates the owner as Dominic M. Katithi. That, he did not go to Sultan Hamud to complain about the Abstract. 19. He stated that John Mutungi and Cosmas Ndeti are well known to him but he could not tell why their names are in the Police Abstract. He couldn’t tell if the Appellant was involved in an accident but overheard that he was involved in an accident. It was alleged that he was involved in a motorcycle accident. That, the tractor was inspected but the report was not before the court. 20. DW4 was Humphrey Kitavi Kativi. He adopted his statement dated 22/02/2024 as his evidence in chief. He stated that on 05/03/2022 at around 1615hrs, he embarked from Enguli village driving to Sultan Hamud Town for personal business along Ndilinge-Kasikeu Road and after about 5 minutes’ drive, he saw a number of people on the road. He enquired what the issue was and was informed that a neighbor had been involved in an accident where he hit the raised side of the newly paved Kasikeu-Ndilinge Road. That, he disembarked and offered to help and realized that it was someone known to him. That, he called a relative of the victim Paul Mathenge who lived at Sultan Hamud at the time and informed him of the accident. 21. That, Mr Paul Mathenge asked him to ferry the victim to Sultan Hamud Sub-County Hospital where he would be waiting for them. That they left the scene at around 1835hrs and arrived at 1900hrs. That, he narrated to Mr. Mathenge what had transpired and left the hospital for his personal business. 22. On cross-examination, he said that there is no sketch map of the area. That, he had nothing to show that the road was under construction. He stated that the Appellant was drunk and smelt alcohol but agreed that he was not a doctor. 23. DW5 was Paul Mathenge Wambua. He adopted his statement dated 22/02/2024 as his evidence in chief. He stated that on 05/03/2022, he received a call from Humphrey Kitavi Katithi who informed him that George Kitili Makovo had been involved in an accident along Ndilinge-Kasikeu murram road and was in urgent need of medical attention. That, he implored Mr. Humphrey to ferry George to Sultan Hamud Hospital where he would be on standby awaiting their arrival. He arrived at the hospital at 1845hrs as he lives a few meters away from the hospital while Humphrey and George arrived at around 1900hrs. 24. Upon enquiry as the nature of the accident, Mr. Humphrey told him that all he saw was the Appellant lying on the side of the road with his motorcycle beside him, wrecked. That, there was no other vehicle at the scene and the witnesses said it was a self-involving accident and that he was carrying someone as he rode at a very high speed. 25. It was his testimony that he stayed with George during his treatment until his referral to Machakos Level 5 Hospital. That George had previously been involved in at least 3 other self-involving accidents, one of which he (DW5) nursed him in his house after discharge from Sultan Hamud Sub County Hospital. 26. On cross-examination, he agreed that DW1 didn’t witness the accident and he didn’t witness it too. That, in paragraph 5 of his statement, he stated that the motorcycle had broken down but it was what he was told. That, on the P3 form, he was the one who received the Appellant and he was smelling alcohol. He agreed that the P3 Form doesn’t state that he was drunk. He further agreed that he is not a doctor but rather that he knows how a drunk person behaves. 27. When asked about paragraph 7 where he said that the Appellant had been involved in close to five accidents, he stated that the current accident is different but, in all cases, he was hit. He agreed that he had not testified on all the other accounts. He agreed that he was not a Traffic Officer and had nothing to prove that the Appellant was involved in other accidents. **Analysis** 1. The Appellant pleaded that on the material day, he was lawfully riding his motorcycle along the Ndilinge-Kasikeu Road when he was ran over by the tractor, KTCB 849S, driven by the 1st Respondent and owned by the 2nd and 3rd Respondents. The 1st Respondent denied being the tractor driver and that he was in Kajiado at the time of the alleged accident. The 2nd and 3rd Respondents denied any vicarious liability and averred that the 1st Respondent had never been their employee. 2. The Appellant testified as PW3 and called PW1-PC Okik- who produced the Police Abstract. Admittedly, PC Okik was not the I.O and had very few details about the case. He didn’t know whether inspection had been done and could not tell when the scene was visited. He did not produce a sketch map, an OB extract and had no information about the traffic cases. 3. In addition to PC Okik, the Appellant placed reliance on the evidence of PW2, Dr. Titus Ndeti and PW4, Mirrian Ntheu to argue that their evidence established that his injuries were related to road traffic accident. The two medics however came into contact with the Appellant in hospital and did not witness the accident hence had no capacity to tell how and where the injuries were sustained. 4. The Appellant also placed a lot of premium on the Police Abstract which was produced unopposed and he argued that a court cannot *suo motu* start question an exhibit which is already part of the record. It is indeed true that the Police Abstract was produced as P. Exh. 3 without opposition but that in itself did not diminish the trial court’s duty to interrogate it and determine its probative value. 5. The trial court was faulted for citing a non-existent holding in the case of**Techard Steam & Power Ltd (supra)** *to* wit; **‘the court emphasized that that negligence must be proved independently of police abstract and that the timing and circumstances of such a report may affect its evidentiary weight.’** I have looked at the said case and indeed the trial court misquoted the holding of the court hence erroneous to that extent. The opinion of the court, which I agree with, was that liability can be established in a case which was not reported to the police where there is sufficient independent evidence proving that an accident took place and that it was caused by the negligence of the defendant. 6. The difference between this case and the **Techard Steam & Power Ltd (supra)** is that in the latter case, there was sufficient independent evidence even in the absence of a report to the police hence the court’s finding that the I. O’s evidence was unnecessary. In the instant case however, the Appellant relied heavily on the Police Abstract as he did not adduce any independent evidence. In the circumstances therefore and in light of the fact that liability was hotly contested, it was necessary that the Abstract be substantiated otherwise, it was wholly insufficient on its own. In my view, there was nothing wrong with the trial court calling for authentication of the police abstract. 7. The Appellant also argued that the contents of a Police Abstract are from the OB and there cannot be different information from the OB. That may be so but the OB in this case was not produced for the court to confirm that indeed the contents in the abstract and OB were the same. In any case, an OB is a record of what is reported and since anybody can report anything, the contents of an OB are also not conclusive evidence of liability. That is the reason why a report to the police is followed by investigations. 8. Our courts have repeatedly held that a Police Abstract may be useful in showing that an accident was reported but it is not conclusive proof of circumstances of the accident or liability. In addition to the case of **Wangongu -vs- Kithinji & 2 Others (supra),** there is **Erastus K. Mbijiwe -vs- Joseph K. Buria (Suing as the Administrator of the Estate of Martin Muriungi Kaura) [2014] eKLR** where the Court held that a Police Abstract without testimony from the Investigating Officer carries limited probative value and mainly serves as *prima facie* proof that an accident occurred. 9. Further, there is the case of **Karangu -vs- Njogu (Civil Appeal E063 of 2023) [2026] KEHC 4470 (KLR) (12 March 2026) (Judgment)** where the Court stated; **“[27] In the present case, the investigating officer was not called as a witness to clarify how the police reached the conclusion that the Respondent’s vehicle was to blame. Consequently, the trial court was entitled to treat the abstract as evidence only of the occurrence of the accident but not conclusive proof of liability.”** 1. Similarly, in this case, the Appellant did not call independent evidence and did not call the I.O to clarify how the police concluded that the tractor was involved in the alleged accident and as such, the trial court was justified in attaching minimal probative value to it. 2. The trial court was also faulted for relying on hearsay evidence of DW4, Humphrey Kitavi Kativi and having looked at the judgment, the trial court stated; **“Further, defense witness Humphrey Kitavi Katithi testified that the plaintiff collided with the raised edge of the newly paved road suggesting that the accident may have been self-inflicted.”** Indeed, none of the Respondents’ witnesses was an eye witness to the alleged accident and DW4’s evidence about the Appellant colliding with a pavement was indeed hearsay as it is what he was told by the people he found at the scene. To that extent therefore, the trial court misconstrued the evidence of DW4. 3. Be that as it may, DW4 testified that he ferried the Appellant to the hospital and DW5, Paul Mathenge Wambua testified that he received DW4 and the Appellant when they arrived at the hospital. The Appellant admitted that he was taken to the hospital by DW4 and he did not disclose to DW4 and DW5 that he had been hit by a tractor. 4. DW4 testified that he left the scene with the Appellant at 1835hrs and arrived at Sultan Hamud Hospital at around 1900hrs. The evidence on time of arrival was corroborated by DW5 who testified that he received them at around 1900hrs. The evidence of DW4 and 5 materially contradicts the Appellant who testified that the alleged accident occurred at 8pm and that he got to Sultan Hamud Hospital at 10pm. It is noteworthy that the Appellant did not avail the initial treatment notes from Sultan Hamud Sub-County Hospital which would have greatly assisted in settling the issue of time. In my view and contrary to the Appellant’s submissions, the issue of time was important as it speaks to the credibility of the Appellant’s narrative. 5. From my re-evaluation of the evidence on record, it is my considered view that the Appellant failed to establish, on a balance of probability, that the tractor KTCB 849S was involved in the accident with his motorcycle on the material day. The medical evidence on record shows that indeed the Appellant sustained injuries but there is no proof that he sustained the injuries in an accident between the tractor and his motorcycle. I noted that the Appellant was confusing **‘self-inflicted injuries’** and **‘self-involving accident’**. In my view, the former connotes self-harm, whether intentionally or unintentionally and the latter means an accident which occurs without involvement of a third party. In this case, there is medical evidence showing that the Appellant sustained injuries but there is no evidence that a third party was involved. It is therefore not far-fetched for one to conclude that the injuries may have been the result of a self-involving accident. 6. Having opined that the occurrence of the accident as pleaded was not established, the issue of whether the 1st Respondent was the tractor driver becomes irrelevant. Be that as it may, the same was hotly contested and apart from relying on the police abstract, the Appellant did not produce any independent evidence to connect the 1st Respondent to the tractor on the material day. 7. The Appellant acknowledged that there had been two traffic cases before the Kilungu Court concerning the alleged accident where he was the Complainant and two men had been separately charged with careless driving. This shows that even the Appellant himself was not sure of who the tractor driver was and it makes it probable that the 1st Respondent was away in Kajiado at the time of the alleged accident. Further, this evidence dents the credibility of the Appellant and the dent is further compounded by the fact that the alleged accident was reported on 26/10/2023, nineteen months after it allegedly occurred on 05/03/2022. While it is true that there is no limitation of time within which an accident victim can obtain a Police Abstract, the totality of evidence in this case makes it appear like pursuing the case was an afterthought. Why did it take that long to report the accident? The claim by the Appellant that delay was occasioned by the metal implants could not stop even close relatives from reporting the accident immediately or shortly thereafter. 8. The upshot, in my view, is that liability of the Respondents was not established on a balance of probability and the trial court was right in dismissing the case. **Quantum** 1. The trial magistrate opined that if the Appellant had succeeded in his claim, she would have awarded General Damages of Kshs. 1,900,000/=, Future Medical Expenses of Kshs. 100,000/= and Special Damages of Kshs. 103,765/=. The Respondents contended that the trial court’s obiter remarks on apportionment and quantum are not appealable. However, it is trite that a trial court has a duty to assess damages even where liability is not established hence a corresponding right on an aggrieved Appellant to comment on the proposed damages for consideration by the Appellate court. 2. The Appellant pleaded that he sustained the following injuries; 3. **Blunt injuries to the head** 4. **Comminuted fracture right frontal bone extending to the right frontal sinus and involving the right anterior and lateral walls of the right orbit bone.** 5. **Deep cut wound on the scalp.** 6. **Deep cut wound on the right cheek.** 7. **Multiple laceration wounds on both upper limbs.** 8. **Blunt injuries to the thigh.** 9. **Comminuted fracture right femur.** 10. **Subluxation of the right sacro-iliac joint.** 11. The Appellant produced a Medical Report dated 21/09/2023 by Dr. Titus Ndeti, PW2, which confirmed the injuries as pleaded. To support his proposal of Kshs. 2,500,000/=, he relied on the case of **Edward Mzamili Katana -vs- CMC Motors Group Ltd & Anor (2006) eKLR** where an award of Kshs. 2,000,000/= was made for; head injury leading to concussion, cut wound and bruises of the scalp, fracture of the left scapula, compound fracture dislocation of the left elbow, chest injury with multiple fractures of left 5th, 6th & 7th ribs, fracture of the left femur upper 1/3 shaft. He also relied on the case of **Samwel Mwangi Kamau -vs-Joseph M. Kimemia & Anor (2004) eKLR** where an award of Kshs. 800,000/= was made for; depressed fracture of the skull (on the right temporal region, fracture of the right tibia & fibula). 12. The Respondents did not submit on quantum in the trial court. 13. In proposing an award of Kshs. 1,900,000/=, the trial court stated as follows; **“In assessing general damages for pain, suffering and loss of amenities, the court is guided by comparable precedents and the principle that awards should reflect the severity of injuries while maintaining consistency with prior decision…. the injuries sustained by the plaintiff in the present case are extensive and include both cranial and orthopedic trauma, with long term implications for mobility and neurological function. The comminuted fractures and sacro-iliac joint subluxation suggest a prolonged recovery period and significant pain. Taking into account the nature of the injuries, the medical evidence and cited authorities and adjusting for inflation and current judicial trends, a fair and reasonable award for general damages would be Kshs. 1,900,000/=.”** 1. The general rule is that assessment of damages is an exercise of judicial discretion and the instances that would make an appellate Court interfere with that discretion are well established. In **Butt –vs Khan (1977)1KAR** it was held that; **“An appellate Court will not disturb an award for damages unless it is 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.** 1. It is evident that the trial court appreciated the applicable principles in assessment of damages and was properly guided by the cases placed before her. Consequently, it is my view that the proposed award is fair and reasonable in the circumstances. Dated, signed and virtually this **21st** day of **August 2026** ….....................…………… **J.N.ONYIEGO** **JUDGE**