https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7705

Mbogoro v Christ is the Answer Ministries (CITAM) (Civil Appeal E245 of 2025) [2026] KEHC 7705 (KLR) (Civ) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7705 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E245 of 2025 BW Murunga, J June 4, 2026 Between George Mbogoro Appellant and Christ is the Answer Ministries (CITAM) Respondent (Being an Appeal from the Judgment of Hon. A. Nyoike (Mrs.), Senior Principal Magistrate, sitting at the Chief Magistrates' Court at Nairobi (Milimani Commercial Courts) in Civil Suit No. E4551 of 2022, delivered on 24th February 2025) Judgment Background 1.This appeal arises from the judgment of Hon. A. Nyoike (Mrs.), Senior Principal Magistrate, delivered on 24th February 2025 in Chief Magistrates’ Civil Case No. E4551 of 2022 at the Milimani Commercial Courts, Nairobi. 2.The learned Magistrate dismissed the Appellant's suit with each party bearing its own costs. The Appellant, George Mbogoro, was the Plaintiff in the trial court and filed a suit emanating from a road traffic accident that occurred on 2nd April 2022 along the Nairobi–Naivasha Road at Kiamba. 3.The Plaintiff alleged that the Respondent’s motor vehicle, registration number KCV 027R, was driven so negligently, carelessly, and at an excessive speed that it knocked him down as he attempted to cross the road, resulting in serious bodily injuries. 4.The Respondent, Christ Is The Answer Ministries, is a duly registered religious organization in Kenya and was at all material times the registered owner and/or beneficial owner of motor vehicle registration number KCV 027R. 5.The Respondent’s driver at the material time was one James Njuguna Njuguna, who was employed by and acting on behalf of the Respondent. 6.In the trial court, the Appellant testified as PW1 and called a police officer (PW2) attached to Kikuyu Police Station in support of his case. The Respondent called two witnesses: DW1, the driver of the suit vehicle, James Njuguna Njuguna, and DW2, one Augustine Githinji, a passenger in the suit vehicle at the time of the accident. 7.The Appellant’s case was that he was a lawful pedestrian crossing the road when the Respondent’s motor vehicle, travelling at an excessive speed, hit him. He sustained fractures of the pelvic bones and fractured ribs on the right side with pleural effusions on the left side, all confirmed in a medical report by Dr. J.L. Okere dated 28th June 2022. 8.The Respondent’s case was the diametrically opposite that the Appellant suddenly and carelessly darted across the road without warning at a non-designated crossing point, that the driver applied emergency brakes but could not avert the collision given the short distance, and that the Appellant was in a state of intoxication at the time of the accident. 9.The trial Magistrate found that the Appellant had failed to prove the blameworthiness of the Respondent’s driver on a balance of probabilities, accepted the evidence that the Appellant was under the influence of alcohol and khat (miraa) at the time, and dismissed the suit. 10.Aggrieved by the decision of the trial Magistrate, the Appellant filed a Memorandum of Appeal dated 1st March 2025, raising five grounds of appeal, namely:a.that the Magistrate erred in law and fact in failing to give due consideration to the pleadings, evidence on record and submissions, thereby making an erroneous judgment on liability;b.that the Magistrate wrongly found that the Appellant failed to prove the blameworthiness of the driver;c.that the Magistrate wrongly found that the Appellant was drunk and chewing khat without material evidence;d.that the Magistrate erred in failing to appreciate relevant legal principles and case law in assessing quantum; ande.that the Magistrate erred in disregarding the evidence of the Appellant who witnessed the accident. This Court directed that the appeal be canvassed by way of written submissions, and both parties duly filed their respective submissions. Appellant’s Submissions 11.The Appellant, through the firm of Kulecho & Co. Advocates, submitted that as the first appellate court, this Court is enjoined to evaluate all the evidence on record afresh and arrive at its own independent conclusions. The Appellant urged that he proved his case on a balance of probabilities in the trial court and should not be subjected to a higher standard of proof akin to that in criminal proceedings. He relied on the decision in Fredrick Odongo Otieno v Al-Husnain Motors Limited [2020] eKLR, where the court emphasized that the standard of proof in civil matters is on a balance of probabilities and that requiring a plaintiff to produce documentary proof of ownership is an unnecessary elevation of that standard. 12.On the question of liability, the Appellant submitted the evidence of PW1 and PW2 (the police officer) who established that the Respondent’s driver was negligent. The Appellant pointed to the fact that at the time of the accident, the Nairobi–Naivasha Road was under construction, with no road markings and a speed limit of 40 km/h. 13.He contended that the condition of the road required heightened vigilance on the part of the driver, who nonetheless failed to maintain a proper lookout. The Appellant further submitted that DW1 himself conceded during cross-examination that he was unaware the road was under construction, and that it was not unusual to see pedestrians crossing at that point. Relying on Jumaa Mwaura Kaphutsu v Pallet Logistics Limited [2020] eKLR and the principle that a driver owes a duty of care to all reasonably foreseeable road users including pedestrians, the Appellant argued that the Respondent’s driver breached this duty and was wholly responsible for the accident. 14.The Appellant further submitted that the evidence of DW2 (Augustine Githinji) ought to have been rejected entirely by the trial Magistrate. The Appellant contended that DW2 was never listed in the police abstract as a witness to the accident, never recorded a statement at the police station, and his evidence was replete with hearsay. Specifically, the allegation that the Appellant was drunk was described as unsubstantiated; DW2 admitted that what he saw in the Appellant's mouth looked like miraa and groundnuts, substances that the Appellant argued are not intoxicants. The Appellant relied on Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, for the principle that the burden of proving any particular fact lies upon the party who asserts it, and that DW2 failed to discharge that burden. 15.On quantum, the Appellant submitted that the trial Magistrate erred in failing to consider the nature and severity of the injuries sustained. The Appellant’s injuries of fracture of pelvic bones and fractured ribs on the right side with pleural effusions on the left side were classified by Dr. Okere as grievous in nature. 16.The Appellant submitted that he had not fully recovered, experienced ongoing pain, and was unable to engage in his vocation normally following the accident. He relied on the case of Edward Mzamili Katana v CMC Motors Group Ltd & Anor where Kshs. 2,000,000/= was awarded, and Marsabit HCCC No. 9 of 2017, Hussein Ali Shariff Alias Hussein Ali v A.I.L. (Minor Suing Through F.T.L.) where the court awarded Kshs. 2,700,000/= for somewhat comparable injuries. He prayed for an award of Kshs. 2,500,000/= as general damages and Kshs. 5,550/= as special damages. Respondent's Submissions 17.The Respondent, through M. Karen Opondo & Co. Advocates, submitted in opposition to the appeal and urged this Court to uphold the trial court’s findings. The Respondent invoked the appellate principle established in Peters v Sunday Post Limited as relied upon in Bwire v Wayo & Sailoki (Civil Appeal 032 of 2021) [2022] KEHC 7 (KLR): that while an appellate court has jurisdiction to review the evidence, it is a weighty matter to differ from findings of fact by a trial court that had the advantage of seeing and hearing witnesses firsthand, and that jurisdiction should be exercised with caution. The Respondent submitted that the trial Magistrate properly evaluated the evidence and arrived at a justifiable conclusion. 18.On liability, the Respondent submitted that the Appellant wholly failed to discharge his burden of proof and establish a causal link between the Respondent’s driver’s negligence and the Appellant’s injuries. The Respondent relied on Desi (Suing as the Legal Representative of the Estate of Abdi Yissuf Ahmed) v Ndungu (Civil Appeal E028 of 2023) [2025] KEHC 5275 (KLR) which cited the principle from Nakuru HCCA No. 320 of 2004, Timsales Ltd v Willy Nganga Wanjohi that it is trite law that the burden of proof rests on the plaintiff and that an injury per se is not sufficient to hold a defendant liable, a causal link between the negligence and the injury must be established. 19.The Respondent argued that the evidence on record showed that the Appellant crossed a dual carriageway at a non-designated crossing point, that there was a clear wall barrier the Appellant had to surmount, and that the Appellant’s own state of inebriation impaired his judgment, making the accident his own fault. 20.The Respondent further submitted that the evidence of DW2 (Augustine Githinji), as a passenger in the suit vehicle, was credible and corroborated the account of DW1. DW2 testified that he personally observed the Appellant appearing inebriated upon alighting from the vehicle, that bystanders who had been with the Appellant rebuked him for crossing while drunk, and that the Appellant’s own sister scolded him at the scene. 21.The Respondent argued that this consistent, firsthand account from an independent observer was rightly accepted by the trial Magistrate as credible testimony. The Respondent further submitted that PW2 was not the investigating officer, did not visit the scene, and could not determine the speed of the vehicle or assign blame, materially weakening the Appellant's case on liability. 22.On quantum, the Respondent submitted in the alternative that should this Court be inclined to apportion liability in the Appellant’s favour, which was strongly resisted, the appropriate quantum for general damages would not exceed Kshs. 800,000/=. 23.The Respondent relied on three authorities: in Peter Gakere Ndiangui v Sarah Wangari Maina [2021] eKLR, the appellate court reduced an award to Kshs. 500,000/= for comparable injuries including pelvic fractures and blunt chest injuries; in Naftali Orenga Ogao v James Oraguchu Masorori (Civil Appeal E007 of 2021) [2025] eKLR, an award of Kshs. 800,000/= was upheld for multiple fractures including pelvic and rib fractures; and in Swift Rides Logistics Limited v Ogambo (Civil Appeal E006 of 2021) [2022] KEHC 11727 (KLR), an award of Kshs. 800,000/= was made for six fractured ribs and multiple other injuries. The Respondent urged the Court to note that the injuries in those authorities were more extensive than those of the Appellant. Issues for Determination 24.Having carefully considered the pleadings, the trial court record, and the written submissions of both parties, this Court distils the following two issues for determination:i.Whether the learned trial Magistrate erred in finding that the Respondent’s driver bore no liability whatsoever for the accident of 2nd April 2022; andii.What is the appropriate quantum of damages to be awarded to the Appellant? Analysis And Determination Issue (i): Liability 25.This Court begins by reaffirming the well-settled principles governing its mandate as a first appellate court. In Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, the court stated that a first appellate court is not only entitled but is in fact bound to subject all the evidence to fresh scrutiny and to draw its own independent conclusions. 26.The court went further to observe that, unlike subsequent appellate courts, a first appellate court should treat the matter as if the evidence comes before it for the first time, though bearing in mind that it lacked the advantage of seeing and hearing the witnesses. 27.The starting point is the undisputed fact that an accident did occur on 2nd April 2022, involving the Appellant as a pedestrian and the Respondent’s motor vehicle KCV 027R. What is in sharp dispute is the degree of fault attributable to each party. 28.The law on negligence in road traffic accidents in Kenya is settled. In Rabuor v Matatu Owners' Association [1968] EA 349, it was established that negligence consists in the breach of a legal duty to take care, by the defendant, which results in damage to the plaintiff. In assessing road accidents involving both a motorist and a pedestrian, both parties may bear degrees of responsibility, and that a finding of total exculpation on the part of the motorist requires cogent evidence that the pedestrian was the sole cause of the accident. The trial Magistrate reached such a conclusion in the present case. This Court must examine whether that conclusion is justified on the evidence before it. 29.In considering the duty of care owed by motorists, this Court is guided by the principle articulated in Jumaa Mwaura Kaphutsu v Pallet Logistics Limited [2020] eKLR where the court quoted, with approval, the statement in Devon Higgiris & Shanice Brown v Umah Campbell & Winston Campbell & Orville Senior HCV 04716 that: a driver of a vehicle on the road owes a duty of care to take proper care and not to cause damage to other road users whom he reasonably foresees is likely to be affected by his driving. In order to satisfy this duty, a driver should keep a proper lookout, avoid excessive speed, and observe traffic rules and regulations. The question that immediately arises in this case is whether DW1, the Respondent’s driver, discharged that duty. 30.The evidence shows that the accident occurred along the Nairobi–Naivasha Road at Kiamba, a road that was, at the material time, under active construction. PW2, a police officer, confirmed in his testimony that the road was under construction and that all road users were instructed to observe traffic rules, with a reduced speed limit of 40 km/h in force. DW1 himself, in cross-examination, conceded that he was not aware the road was under construction at that particular section, and that it was not unusual to see pedestrians crossing the road at that point. These two concessions are, in this Court's assessment, highly significant. The duty of care owed by a motorist is not static; it rises with the level of foreseeable risk on a particular stretch of road. 31.The Court turns to the question of the Appellant’s own conduct. First, the accident occurred at a non-designated crossing point on a dual carriageway. PW2 confirmed that pedestrians had an alternative route available. Second, DW1 testified that there was a clear wall barrier along the central reservation that the Appellant would have had to negotiate in order to cross, adding to the hazard of the crossing. Third, both DW2 and DW1 testified consistently that the Appellant appeared suddenly on the road without warning, in a split second. Fourth, DW2 testified that the Appellant was in a state of apparent intoxication, a finding corroborated by the reported reactions of bystanders and the Appellant's own sister at the scene. 32.The Appellant challenged DW2’s evidence on the grounds that DW2 was not named in the police abstract, never recorded a statement with the police, and that his evidence regarding the Appellant’s intoxication was unsubstantiated because the substances observed, miraa and groundnuts, are not conventional intoxicants. 33.This Court has weighed these submissions carefully. On the question of DW2’s absence from the police abstract: this Court agrees with the Appellant that the absence of DW2’s name from the abstract is a circumstance that should have prompted the trial court to scrutinise his evidence with greater care. However, it does not, by itself, render DW2’s evidence inadmissible or worthless. DW2 was a passenger in the suit vehicle and was physically present at the scene. His account of the events was internally consistent and materially corroborated by DW1. 34.On the question of the Appellant’s intoxication: while this Court acknowledges that miraa is not a conventional intoxicant in the same category as alcohol, and that the evidence of intoxication rested primarily on the observations of defence witnesses and hearsay accounts of bystanders, it is satisfied on the totality of the evidence that the Appellant’s judgment and awareness were, to some degree, impaired at the material time. The Appellant denied being drunk but did not call any of the persons who were allegedly with him at the scene to contradict DW2’s account, nor did he produce any medical documentation inconsistent with impairment. 35.The trial Magistrate’s finding that the Appellant bore responsibility for the accident is, in this Court’s view, not unsupported by the evidence but the finding that the Appellant bore sole responsibility is, on the evidence, too absolute. 36.We therefore turn to the doctrine of contributory negligence that provides that where a person suffers damage partly as the result of his own fault and partly as the result of the fault of another, his claim shall not be defeated by reason of his own fault, but the damages shall be reduced to such an extent as the court thinks just and equitable having regard to the claimant’s share in the responsibility for the damage. In the present case, the evidence establishes a number of material facts pointing to the Appellant’s own negligence as highlighted above. 37.Where both the negligence of the defendant and the contributory negligence of the plaintiff have combined to cause the damage, the court must assess the relative culpability of each party and apportion liability accordingly. Such apportionment must be based on the actual evidence before the court and must reflect a just and equitable outcome. 38.This Court is satisfied that the accident in the present case was caused by the combined fault of both parties. On the one hand, the Respondent’s driver failed to maintain a sufficient lookout on a road under active construction where pedestrian crossing was, by his own admission, a common occurrence. He drove in the inner lane at a speed of approximately 40 km/h, which was within the applicable limit, but was nonetheless unable to avert the collision. On the other hand, the Appellant crossed a dual carriageway at a non-designated point, in an apparent state of impaired judgment, at a time when an alternative safe route was available. The moral blameworthiness of each party and their relative contributions to the causation of the accident must be weighed accordingly. 39.This Court therefore apportions liability at 60% to the Respondent and 40% to the Appellant. The Respondent shall be liable for 60% of the damages assessed by this Court. Issue (ii): Quantum of Damages 40.In Woodruff vs. Dupont [1964] EA 404 it was held by the East African court of appeal that:“The question as to the quantum of damage is one of fact for the trial Judge and the principles of law enunciated in the decided case are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties…The quantum of damages being a question of fact for the trial Judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff, but whether the damages awarded are “such as may fairly and reasonable be considered as a rising according to the usual course of things, from the breach of the contract itself.” The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.” 41.The Court of Appeal in Southern Engineering Company Ltd. vs. Musingi Mutia [1985] KLR 730 also restated these principles which should guide the court in awarding damages, where it was held that:“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated...The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion judgement and experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong, the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of the appellate tribunal to pose for himself the question as to award he, himself would have made. Having done so, and remembering that in this sphere there are invariably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment...It is inevitable in any system of law that there will be disparity in awards made by different courts for similar injuries since no two cases are precisely the same, either in the nature of the injury or in age, circumstances of, or other conditions relevant to the person injured.” 42.Having found the Respondent liable to the extent of 60% and having apportioned 40% of the blame to the Appellant, this Court proceeds to assess the appropriate quantum of damages before applying the apportionment. The guiding principle in the assessment of general damages for personal injury is that the award must be fair, reasonable, and commensurate with the nature, severity and consequences of the injuries sustained, with appropriate regard to comparable awards in similar cases. The object of an award of general damages in personal injury cases is to compensate the plaintiff for pain, suffering and loss of amenities of life. 43.The Appellant sustained the following injuries as confirmed by the medical report of Dr. J.L. Okere dated 28th June 2022 and classified as grievous harm: (a) fracture of the pelvic bones; and (b) fractured ribs on the right side with pleural effusions on the left side. The Appellant was treated at PCEA Kikuyu Hospital where CT scan examinations of the abdomen, pelvis and head were conducted. Dr. Okere found the right chest wall and pelvis tender on deep palpation. The Appellant testified to ongoing chest and pelvic pains, reduced physical capacity, and an inability to engage in his vocation normally. No permanent disability assessment was produced. 44.Turning to the comparable awards, this Court notes the decisions cited by both parties and finds the Respondent’s authorities more instructive for the purpose of comparability, given that the injuries in the Appellant’s authorities involved significantly more extensive and complex trauma. In Naftali Orenga Ogao v James Oraguchu Masorori (Civil Appeal E007 of 2021) [2025] eKLR, an award of Kshs. 800,000/= was sustained on appeal where the plaintiff sustained fractures of the ribs and pelvis in addition to multiple other injuries including tibia/fibula fractures, chest and head contusions, and knee dislocation. In Peter Gakere Ndiangui v Sarah Wangari Maina [2021] eKLR, an appellate court reduced the award to Kshs. 500,000/= where the plaintiff sustained pelvic fractures, blunt chest injuries, a head concussion and pulmonary bruising. In Swift Rides Logistics Limited v Ogambo (Civil Appeal E006 of 2021) [2022] KEHC 11727 (KLR) Kshs. 800,000/= was substituted for an award involving six fractured ribs and multiple additional injuries to the neck, head, shoulder, chest, back and ankle. The injuries in all three cases were more extensive than the Appellant's, which were limited to pelvic bone fractures and rib fractures with pleural effusions. 45.Giving due weight to the Appellant’s pleural effusions, a complication that adds to the severity and duration of suffering from rib fractures, and to the persistent pain and functional limitation described in the Appellant’s testimony, this Court is satisfied that an award of Kshs. 1,100,000/= (Kenya Shillings One Million, One Hundred Thousand) as general damages represents a fair and reasonable assessment for the injuries sustained, consistent with the current level of awards in comparable cases. 46.On special damages, the Appellant claimed Kshs. 5,550/= being Kshs. 5,000/= for a medical report and Kshs. 550/= for a motor vehicle search receipt. The Appellant pleaded the special damages in his plaint and produced documentary evidence in support. The Respondent did not specifically challenge or disprove these items. This Court accordingly allows the sum of Kshs. 5,550/= as special damages. 47.The total damages assessed are therefore as follows:General damages:Kshs. 1,100,000/=Special damages:Kshs. 5,550/=Total:Kshs. 1,105,550/= 49.Applying the 60:40 apportionment — the Respondent being liable for 65% and the Appellant bearing 35% of the contributory negligence — the Appellant is entitled to recover 65% of the total assessed damages, being:60% of Kshs. 1,105,550/= = Kshs. 663,330 Orders 50.Having exhaustively analyzed the two issues highlighted above, this appeal accordingly succeeds in part. The judgment of the Senior Principal Magistrate in Chief Magistrates' Civil Suit No. E4551 of 2022 delivered on 24th February 2025 is hereby set aside and substituted with judgment in favour of the Appellant as hereunder:i.Liability for the accident of 2nd April 2022 is apportioned as follows: the Respondent bears 60% of the liability and the Appellant bears 40% of the liability by way of contributory negligence.ii.The Respondent shall pay the Appellant the following sums:General damages: Kshs. 1,100,000/=Special damages: Kshs. 5,550/=iii.Total net damages payable are subject to the contribution on liabilityiv.Interest on (iii) above at court rates from the date of this judgment until payment in full.v.Each party shall bear their costs. DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026.BENARD WAFULA MURUNGAJUDGEDelivered on virtual platform in the presence ofLucheli for the AppellantMs Muthie for the RespondentKevin Babu - Court Assistant