Gicheha & another v Kimani (Civil Appeal E377 of 2024) [2026] KEHC 8860 (KLR) (Civ) (10 June 2026) (Judgment)

Gicheha & another v Kimani (Civil Appeal E377 of 2024) [2026] KEHC 8860 (KLR) (Civ) (10 June 2026) (Judgment) Neutral citation: [2026] KEHC 8860 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E377 of 2024 AN Ongeri, J June 10, 2026 Between Joseph Ng’Ang’A Gicheha 1st Appellant Eliud Ngugi Gicheha 2nd Appellant and Yvonne Grace Wambui Kimani Respondent (Being an appeal from the Judgment of Hon. Selina N. Muchungi (PM) in Milimani CMCC No. E3790 of 2022 delivered on 16/2/2024) Judgment 1.In the judgment delivered on February 16, 2024 in Milimani CMCC NO. E3790 of 2022, the respondent, Yvonne Grace Wambui Kimani had sued the appellants, Joseph Ng'ang'a Gicheha and Eliud Ngugi Gicheha, seeking the following;i.Special damage of Kshs 10,300.ii.General damages.iii.Costs of the suit.iv.Interest at court rates. 2.The cause of action arose from a road accident that occurred on May 19, 2021, near Karura Forest, in which she sustained serious bodily injuries while riding as a pillion passenger on a motorcycle. 3.The trial court, having adopted evidence from a related case arising from the same accident, found the driver of the lorry (the second appellant) entirely to blame. 4.The lorry driver had illegally overtaken other vehicles along a continuous yellow line, drove at high speed, encroached into the opposite lane, and knocked down the motorcycle and its passenger. 5.The trial court ruled in favor of the respondent. 6.Since the respondent was a mere passenger with no control over the motorcycle, the court held that she could not have contributed to the accident in any way, and therefore found the respondents one hundred percent liable. 7.Regarding the quantum of damages, the trial court considered the serious nature of the respondent's injuries, which included loss of consciousness, fractures of the maxillae, right orbit, and right zygoma, as well as soft tissue injuries to her right thigh and knees, as confirmed by two medical reports. 8.Taking into account the period of hospitalization, her recovery time, relevant legal authorities cited by both sides, and the effect of inflation, the trial court awarded her Kshs. 850,000 as general damages. 9.The trial court also awarded her Kshs. 10,300 as special damages, being the amount she had pleaded and proved. In addition, the respondent was granted the costs of the suit and interest at court rates. 10.The appellants have appealed to this court on the following grounds;i.That the learned trial magistrate erred in law and fact by shifting the burden of proof in a negligence action to the Appellants, misdirecting herself and arriving at an erroneous decision.ii.That the learned trial magistrate erred in law and fact by failing to consider all material facts before the court, taking into account irrelevant matters and ignoring relevant ones, thus reaching an erroneous decision.iii.That the learned trial magistrate erred in law and fact in holding the Appellants 100% liable for the accident when no evidence supported such a finding.iv.That the learned trial magistrate erred in law and fact by misdirecting herself on liability without supporting evidence, and thereafter assessing damages erroneously.v.That the learned trial magistrate erred in law and fact in failing to appreciate or consider the Appellants’ submissions at all.vi.That the learned trial magistrate grossly misdirected herself by ignoring the principles and relevant authorities on quantum cited in the Appellants’ written submissions.vii.That the learned trial magistrate erred in awarding Kshs 850,000 as general damages for pain and suffering, which was inordinately high and excessive, occasioning a miscarriage of justice.viii.That the learned trial magistrate erred in awarding Kshs 10,300 as specials when the same were not pleaded and not proved.ix.That the learned trial magistrate consequently erred in law and fact in awarding costs and interest to the Respondent. 11.The parties filed written submissions as follows; The appellants submitted that they have appealed against a judgment delivered on 16th February 2024 by the Chief Magistrate’s Court in Nairobi, which held them 100% liable for a road traffic accident and awarded the respondent Kshs 850,000 in general damages and Kshs 10,300 in special damages. 12.The appellants argue that the trial magistrate erred in law and fact by shifting the burden of proof to them, failing to consider material evidence, and finding them fully liable without sufficient evidence of negligence. 13.Under Section 107 of the Evidence Act (Chapter 80 of the Laws of Kenya), the burden of proof lies on the person alleging negligence, meaning the respondent was required to prove both negligence and a causal link between that negligence and the accident. 14.The respondent’s own witness, a police officer, testified that the appellants’ vehicle had the right of way, the point of impact was on the appellants’ correct lane, and the driver of the appellants’ vehicle was never charged with any traffic offence. 15.Relying on Kiema Mutuku v. Kenya Cargo Hauling Services Ltd [1991] eKLR and Statpack Industries v. James Mbithi Munyao Civil Appeal No. 152 of 2002 (unreported), the appellants submit that there is no liability without fault in Kenya, and the respondent failed to establish any causal link. 16.In the alternative, if the court finds some negligence proved, the appellants urge that liability be apportioned at 50:50 due to the contradictory evidence, guided by Robert Koskei Saina & another v. Samson Kibiowo Kirumet & another [2016] eKLR. 17.On quantum, the appellants contend that the general damages award of Kshs 850,000 is inordinately high, especially since medical reports confirmed the respondent fully recovered without any permanent disability. 18.They rely on the principle in Jabane v. Olenja [1986] KLR 661 that courts should avoid astronomical awards and ensure fair compensation considering the value of the shilling and the state of the economy. 19.The appellants propose Kshs 300,000 as adequate compensation, citing Moiz Motors Limited & another v. Harun Ngethe Wanjiu [2021] eKLR (where the High Court awarded Kshs 500,000 for multiple facial lacerations, depressed skull frontal bone, soft tissue injury to the right upper chest, and multiple bruises) and Specialized Aluminium Renovators Limited & another v. Stephen Mutuku Musyoka [2021] eKLR (where the High Court reduced an award from Kshs 800,000 to Kshs 500,000 for fracture of the frontal nasal bones, fracture of nasal bones, fracture of the right orbit, frontal lobe hemorrhage contusion, and bleeding into sinuses). 20.The appellants also argue that the special damages of Kshs 10,300 were not specifically pleaded and proved as required by law, following the established principle that special damages must be both pleaded and strictly proved. 21.On costs, the appellants rely on Farah Awad Gollet v. CMC Motor Group Limited [2018] eKLR, where the Court of Appeal held that costs are at the court’s discretion but must be exercised judiciously, and a successful party may be denied costs only for good cause. 22.Since the respondent failed to establish her claim to the required standard, the appellants submit she was not entitled to costs in the lower court. 23.The appellants pray that the appeal be allowed, the trial court’s judgment set aside, and the respondent’s suit dismissed with costs. 24.The respondent did not file any submissions in this appeal. 25.The issues for determination in this appeal are as follows;i.Whether the trial magistrate erred in finding the appellants 100% liable for the accident,ii.Whether the award of Kshs. 850,000 in general damages was inordinately high, andiii.Whether the special damages of Kshs 10,300 were properly awarded. 26.On the issue of liability, the appellants argue that the trial magistrate shifted the burden of proof to them contrary to Section 107 of the Evidence Act (Chapter 80 of the Laws of Kenya), which provides that 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. 27.The Court of Appeal in Kiema Mutuku v Kenya Cargo Hauling Services Ltd (supra) held that there is no liability without fault in the legal system in Kenya and a plaintiff must prove some negligence against the defendant where the claim is based on negligence. 28.However, this court finds that the respondent adduced sufficient evidence through the trial court's adoption of evidence from a related case arising from the same accident, which clearly established that the driver of the lorry illegally overtook other vehicles along a continuous yellow line, drove at high speed, encroached into the opposite lane, and knocked down the motorcycle. 29.The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant, convinces the court that on a balance of probabilities it proves the claim. 30.The trial court properly found that since the respondent was a mere passenger with no control over the motorcycle, she could not have contributed to the accident. 31.Regarding quantum of damages, the appellants contend that the award of Kshs. 850,000 is inordinately high and excessive. 32.The trial court considered the serious nature of the respondent's injuries, which included loss of consciousness, fractures of the maxillae, right orbit, and right zygoma, as well as soft tissue injuries to her right thigh and knees, as confirmed by two medical reports. 33.The court also considered the period of hospitalization, her recovery time, relevant legal authorities cited by both sides, and the effect of inflation. 34.The appellants rely on Moiz Motors Limited & another v Harun Ngethe Wanjiu (supra) where Kshs 500,000 was awarded for multiple facial lacerations and Specialized Aluminium Renovators Limited & another v Stephen Mutuku Musyoka (supra) where an award was reduced from Kshs 800,000 to Kshs 500,000. 35.This court finds that the trial magistrate properly exercised her discretion in awarding Kshs 850,000 given the severity of the fractures sustained by the respondent, which involved multiple facial bones including the maxillae, right orbit, and right zygoma, injuries that are more serious than those cited by the appellants. 36.An appellate court will not disturb an award of general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate, which is not the case here. 37.On special damages, the appellants argue that the Kshs 10,300 was not specifically pleaded and proved. However, the trial court expressly found that the respondent pleaded and proved this amount. 38.Special damages must not only be specifically pleaded but also strictly proved. The respondent satisfied this requirement, and the trial court properly awarded the special damages. 39.Since the respondent succeeded in her claim, she was entitled to costs of the suit and interest at court rates as granted by the trial court. 40.This court finds no merit in any of the grounds of appeal. 41.The appeal is dismissed in its entirety and since the respondent did not file submissions, each party to bear its own costs of this appeal. 42.The judgment of the Chief Magistrate's Court delivered on 16th February 2024 is hereby upheld. 43.Orders to issue accordingly. JUDGMENT DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 10TH DAY OF JUNE, 2026.ASENATH ONGERIJUDGEDelivered in the absence of the parties.