https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8182

**REPUBLIC OF KENYA** **IN THE HIGH COURT AT NAIROBI** **CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. 296 OF 2015** ## GRACE WAMBUI MUCHIRI (*Suing as the Administrator* ## *ad Litem of the Estate of the late* ## ERASTUS JOHN MACHARIA MUCHIRI) ……..................... APPELLANT ## VERSUS ## JANE WANJIRU MUCHINA……………………………….RESPONDENT **(*Being an appeal from the decision of Honourable C. C. Oluoch (Mrs.), Senior Principal Magistrate delivered on 20th May 2015 in Kiambu CMCC No. 138 of 2010)*** **JUDGMENT** 1. Having been dissatisfied with the above-mentioned decision, the Appellant filed this Appeal and preferred the following grounds (in summary) in the Memorandum of Appeal dated 17/6/2015. That Learned Magistrate erred in; 2. *In law and fact by awarding general damages that were manifestly low in total disregard of the grievous injuries sustained by the appellant.* 3. *In law and misdirected herself by awarding Kshs. 2,200/= for special damages.* 4. *The learned magistrate’s award was minute and not proportional to the damage and injuries that the appellant suffered.* 5. *Failing to appropriately address the question of contributory negligence and to accordingly apportion the same.* 6. *Taking into consideration matters she ought not to have considered and also failed to consider matters that she ought to have considered and in the result arrived at a wrong decision.* 7. *That the weight of the evidence on record does not support the learned magistrate’s findings.* 8. *In law in failing to evaluate and analyze the evidence in support of the appellant’s case.* 9. It thus prayed that that the appeal be allowed with costs and the judgment of the lower court be set aside in its entirety, and that this Honourable Court do substitute its own findings. 10. Directions were taken to have the appeal disposed of by way of written submissions. The appellant complied with the court’s directions but the respondent did not file any submissions. The Appellant’s submissions are dated 11/10/2024. 11. The Appellant submitted that the trial magistrate erred in apportioning liability in the ratio of 60:40 in favour of the appellant yet the respondent never called any eyewitness. The appellant argued that his evidence on the issue of liability stood uncontroverted as the driver of the accident motor vehicle did not testify. He further submitted that the police officer who testified on behalf of the respondent did not witness the accident and therefore his evidence was mere hearsay. 12. The appellant further submitted on quantum praying for enhancement of the award of General Damages. He submitted that the award of Kshs. 150,000/= was too little in view of the injuries involved. He urged that the judgment of the lower court was unfair and subjected the appellant to grave injustice. ***Analysis and Determination*** 1. This Court has carefully considered the Record of Appeal, the appellant’s submissions, the authorities cited as well as the law and the only issue that falls for this Court’s determination is whether the trial court erred in apportioning liability as against the appellant and whether the award of general damages was reasonable. 2. This being a first Appeal, the Court should with judicious alertness re-evaluate the evidence and consider arguments by parties and apply the law thereto, and, make its own determination of the issue or issues in controversy. Except however, that it should give due allowance to the fact that it neither saw nor heard the witnesses’ testimonies. 3. This was aptly stated by the Court of Appeal in the case of ***Selle & Another vs. Associated Motor Board Company Ltd. [1968] EA 123*** as follows: ***“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal from a trial by the High Court is by way of a retrial and the principles upon the Court of Appeal acts are that the court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect, in particular the court is not bound necessarily to follow the trial Judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanour of a witness is inconsistent with the evidence in the case generally.”*** 1. I have perused the Memorandum of Appeal and the entire record of the Trial Court and I am alive to the fact that my task is to re-evaluate the evidence in order to establish whether or not the Trial Court erred in its findings. 2. It is not in dispute that there was an accident involving the appellant herein and the suit motor vehicle registration number KAW 089A. It is also not in dispute that the said motor vehicle knocked down the appellant as he was walking along the road. 3. I have reviewed the evidence adduced before the trial court and found that the respondent did not call any evidence of an eyewitness. The police officer who was called by the respondent was not at the scene of the accident. The appellant testified that the accident motor vehicle veered off the road and knocked him as he was walking on the pedestrian path. This evidence was never controverted by the respondent. The respondent did not adduce any evidence to prove how the appellant contributed to the occurrence of the accident if at all. In the circumstances, I find that there was no basis for apportioning liability as against the appellant. The respondent ought to have been held 100% liable for the accident. 4. On the issue of quantum, the appellant had pleaded that he sustained head injury with extradural haematoma and pains and soft tissue injuries. The injuries are supported by the Medical Legal report by Dr. Kiama Wangai dated 9th March 2010. The doctor classified the injuries as grievous harm in view of the severe head injury with extradural haematoma. He had not fully recovered by the time of examination. No permanent physical disability was anticipated. the award of Kshs. 150,000/= for these kind of injuries was manifestly low. I do hereby set it aside and substitute it with an award of Kshs. 500,000/=; being persuaded by the decision in **Lucy Ntibuka v Bernard Mutwiri & Others [2007] eKLR,** where the High Court made an award of Kshs. 500,000/= for multiple soft tissue injuries in a judgment delivered on 8th February, 2007. The appellant pleaded and proved special damages in the sum of Kshs. 2,200/=. The award is hereby upheld. 5. In the upshot, I do hereby make the following orders: - 6. ***The lower court finding on liability in its judgment dated 20th May 2015 is hereby set aside and substituted with a finding that the respondent was 100% liable for the accident.*** 7. ***The lower court award of Kshs. 150,000/= in general damages is hereby set aside and substituted with an award of Kshs. 500,000/=.*** 8. ***Each party shall bear its own costs in the appeal.*** ***Dated, signed, delivered virtually and uploaded to the Case Tracking System this 11th day of June 2026.*** **DAVID MBURU** **JUDGE** **11/06/2026**