Mwashi v Masai (Civil Appeal E091 of 2025) [2026] KEHC 10328 (KLR) (30 June 2026) (Judgment)

**REPUBLIC OF KENYA** **JURISDICTION:** IN THE HIGH COURT, BUNGOMA. **FILE NUMBER:** HC CIVIL APPEAL No. E091/2025. **BETWEEN:** HEZEKIAH MWASHI VS CHRISPINUS MASAI **CORAM:** R.K. ONDIEKI- JUDGE **HEARD:** **DELIVERED:** (*Being an Appeal against the Judgment by Hon. Viola Yator SPM Court in Webuye SPMCC No. E026 of 2023, Delivered on 30th May, 2025*). 1. **Perhaps, it fits this case from the outset to drop anchor so that when I come back to the surface, I do not lose my footing.** Lord Simon’s speech in *Watt Vs. Thomas [1947] AC, 484* at p. 485 is recorded that appellate Ccourt has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. If there is no evidence to support a particular conclusion (and this is really a question of law), the appellate court will not hesitate so to decide. But if the evidence as a whole can reasonably be regarded as justifying the conclusion arrived at the trial and especially if that conclusion has been arrived at on conflicting testimony by a tribunal which saw and heard the witnesses, the appellate court will bear in mind that it has not enjoyed this opportunity and that the view of the trial judge as to where credibility lies, is entitled to great weight**.** Lord Simon further said, that apart from the classes of case in which the powers of the Court of Appeal are limited to deciding a question of law (for example, on a case stated or on an appeal under the County Courts Acts) an appellate court has, of course, jurisdiction to review the record of the evidence in order to determine whether the conclusion originally reached upon that evidence should stand; but this jurisdiction has to be exercised with caution. This is not to say that the judge of first instance can be treated as infallible in determining which side is telling the truth or is refraining from exaggeration. Like other tribunals, he may go wrong on a question of fact, but it is a cogent circumstance that a judge of first instance, when estimating the value of verbal testimony, has the advantage (which is denied to courts of appeal) of having the witnesses before him and observing the manner in which their evidence is given. 2. In Peters Vs Sunday Post Limited(1958) EA 424, it was held that whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or had plainly gone wrong, the appellate court will not hesitate so to decide. It is a strong thing for an appellate court to differ from the finding, on a question of fact, of the judge who tried the case, and who has had the advantage of seeing and hearing the witnesses. An appellate court has, indeed, jurisdiction to review the evidence in order to determine whether the conclusion originally reached upon that evidence should stand. But this is a jurisdiction which should be exercised with caution; it is not enough that the appellate court might itself have come to a different conclusion. 3. In *Selle & another Vs Associated Motor Boat Co. Ltd. & others (1968) EA 123,*it was stated that the appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the appellate court from a trial by the High Court is by way of retrial and the principles upon which the appellate court acts in such an appeal are well settled. Briefly put, they 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, this 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. emphasis supplied. 4. In Bundi Marube Vs Joseph Onkoba Nyamuro[1982-88]IKAR, Hancok J A, said that a court of appeal will not normally interfere with a finding of fact by the trial court unless, it is based on no evidence, or on a representation of the evidence, or the judge is shown demonstrably to have acted on wrong principles in reaching he findings he did. 5. ***Dr. Joseph Sokobe (PW1*) produced a Medical Report for the Respondent dated 11th January, 2023 which enumerates the injuries sustained. Additionally, the witness produced medical report as Exhibit 1(a) receipt of Kshs6000/ as Exhibit (b), Discharge summary as Exhibit 3, p3 Form as Exhibit 3 and CT scan as Exhibit 4. Under cross examination, the witness said that the Respondent suffered soft and skeletal injuries** 6. ***Chrispinus Nyaranga Masai (PW2)* adopted his written statement recorded on 15th March, 2023 and said that he hit the Appellant from the back as he headed to Bungoma direction from Webuye. This occurred as the appellant suddenly stopped, but he applied emergency but still hit him. As a result, he suffered fracture of the skull and bruises on the face and blunt injury to the chest. Under cross examination, the witness said that he had helmet on and had no riding licence.** 7. ***Corporal Ochieng Amollo (PW3)* produced a Police Abstract as exhibit 6 and the report was made by the driver of Motor Vehicle registration number KDH 849J. The circumstances of the accident were that the Motor Vehicle KDH 849(J) suddenly stopped and the rider of Motor cycle registration number KMYD 834X rammed into it from the rear. According to the evidence of the witness, preliminary investigations show that the driver of the accident Motor Vehicle was to blame for the accident. However, under cross examination, the witness said that he was not the Investigation Officer and the Police Abstract does not state the preliminary investigations. There was no evidence that the driver of the accident Motor Vehicle was charged in court.** 8. ***Evans Mayaka Mageto (DW1)* adopted his statement in evidence and produced his driving licence as defence Exhibit 2 and inspection of the accident Motor vehicle as defence Exhibit 3. Under cross examination, the witness said that indeed he was the driver of the accident Motor Vehicle and that he was driving it to Bungoma for wheel alignment. The witness was released on a cash bail of Kshs10,000/ from the police custody. He has an experience of 19 years and that he knows that before he stops, he should alert those behind me. In re-examination, the witness said that brake lights signals, that one is about to stop.** 9. **In the Judgement delivered by the Learned Magistrate on 30th May, 2025, the Appellant was aggrieved with the findings and proffered an Appeal. In his Petition of Appeal, he relied on the following grounds;** 1. **That the learned Trial Magistrate erred in law and fact in holding the appellant 50% liable without evidence to that effect.** 2. **That the learned Trial Magistrate erred by law and fact in failing to find that the Respondent had failed to prove his case on a balance of probabilities contrary to the evidence on record.** 3. **That the learned Trial Magistrate erred in law and fact in failing to find that the Respondent was the author of his misfortune.** 4. **That the learned Trial Magistrate erred in law and fact to consider the submissions of the appellants.** 5. **That the learned Trial Magistrate erred in law and fact by failing to appreciate the evidence tendered by the appellant thereby arriving at an erroneous decision.** 6. **That the learned Trial Magistrate erred in law and fact in failing to dismiss the Respondent’s case.** 7. **That the learned Trial Magistrate erred in law and fact in awarding damages using the wrong principles.** 8. **That the learned Trial Magistrate erred in law and fact in misdirecting herself to the facts of the law.** 10. **The Respondent and the Appellants filed written submissions and relied on them in the determination of this Appeal.** Analysis and Determination: 1. I have, with singleness of my mind, looked at the eight lamentations by the Appellant and to my understanding, they can be collapsed into two issues for determination; **(1) whether or not the Respondent proved his case on a balance of probability and** (2) **Whether or not, quantum was assessed in accordance to the relevant principles.** Burden of Proof in Civil Matters. 1. In respect to proof on a balance of probabilities, the [Evidence Act](https://new.kenyalaw.org/akn/ke/act/1963/46) Cap 80, Laws of Kenya is clear enough upon whom the burden of proof lies. Section 107 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. When a person is bound to prove the existence of any facts, it is said that the burden of proof lies on that person. Equally section 109 of the same Act, further provides that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by law that the proof of that fact lies on any particular person. Therefore, it is not in every case where the defendant had not called evidence that the plaintiff’s case must invariably be deemed to be proved on a balance of probabilities. 2. In *Halsbury's Laws of England 4th Ed at Para 662 (page 476);* **“The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible. This involves the proof of some duty owed by the defendant to the plaintiff, some breach of that duty, and an injury to the plaintiff between which the breach of duty a causal connection must be established."** 3. Denning J. in *Miller Vs Minister of Pensions [1947] 2 ALL ER* discussing the burden of proof said that the degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: *‘We think it more probable than not’*, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un)convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained. 4. **Rajah JA**in***Britestone Pte Ltd Vs Smith & Associates Far East Ltd*** {*2007} 4 SLR (R} 855* succinctly states **that, t**he court’s decision in every case will depend on whether the party concerned has satisfied the particular burden and standard of proof imposed on him. 5. **Lord Brandon** inRhesa Shipping Co SA Vs Edmunds remarked that no Judge likes to decide cases on the burden of proof if he can legitimately avoid having to do so. There are cases, however, in which, owing to the unsatisfactory state of the evidence or otherwise, deciding on the burden of proof is the only just course to take. Simply put, proof of a legal burden is a principle which applies in all cases without exception. 6. In ***Siraj Din Vs Ali Mohamed Khan (1957) EA 25*,** it was held that *t*he quantum of proof required in civil litigations is not such as resolves all doubt whatsoever but such as establishes a preponderance of probability in favour of one party or the other as cited in BWK Vs EK & Ano. (2017) eKLR. 7. In the case of ***Susan Kanini Mwangangi & Another Vs Patrick Mbithi Kavita (2019) eKLR*** where there were no eye witnesses to the accident that resulted to the deceased therein sustaining fatal injuries, the court on the issue of lack of eye witnesses said t**hat is not necessarily fatal as long as there is credible evidence on which negligence can be inferred. Such inference may be made where the Plaintiff was a passenger in the vehicle that got involved in an accident in which event *res ipsa loquitor* may be successfully involved**. 8. In the case of ***P.A Okello & M.M Nsereko T/A Kaburu Okello & Partners Vs Stella Karimi Kobia & 2 Others (2012) eKLR***, the Court of Appeal held that **vicarious liability arises when the tortious act is done in the scope of or during the course of one’s employment or authority. Put differently,** vicarious liability mostly comes into play when an employee has acted in a negligent manner for which the employer will be held responsible. 9. Back to the evidential facts, it is clear there is no contest that the accident occurred. There is no contest that the Respondent sustained bodily injuries as set out in the medical report. What is contested is who was to blame for the accident. It is alleged that the Respondent the Appellant from the rear. The police Abstract did not contain much as who was to blame for the accident. Instead, it has remarks *‘pending under investigation”*. In any event, a police Abstract does not prove liability, but who alleges is obligated to do so. I am not alone. In *Kennedy Nyangoya Vs Bash Hauliers [2016] eKLR,* the court held that police abstract only confirms that an accident occurred and the parties involved, but does not, on its own, establish liability. 10. Additionally, in the case of *Florence Mutheu Musembi & Geofrey Mutunga Kimiti Vs Francis Karenge**{2021} eKLR* in which the court said; **“A police abstract is merely evidence that a report of an accident has been made to the police. Unless it contains information regarding the investigations and their outcome, such evidence cannot without more be evidence of negligence. The Police Abstract Report which was produced before the trial court did not contain any other information apart from the date, of the accident, the particulars of the vehicle involved, its ownership, the insurance company that covered the vehicle, the victim and the name of the investigating officer. There was no information regarding the outcome of the investigations which was indicated to have been still pending. That document could not therefore be the basis of finding liability on the part of the Respondents.”** 11. It is apparent from the evidence on record that both sides did not call an independent witness to shed light on the manner in which the accident occurred. However, on the strength of the Appellant’s sole evidence, the accident Motor vehicle was being driven to Bungoma for repair, when the driver saw a lorry ahead of him, and had to slow down. This when the Respondent rammed into the Vehicle. Ordinarily, one has to keep safe distance but what makes me a little uneasy, is the fact that no independent witness was called to show at what speed the accident Motor chattels were doing and or the Respondent had kept safe distance. Consequently, the court is in doubt as to who was to bear liability. 12. Many are the decisions on this aspect as to when a court is unable to in its fact-finding to establish as to who is to blame for the accident. 1. In the case ***Grace Kanini Muthini ­vs­ KBS and Another Nyeri H.C. Miscl Appl. No. 270 of 2000***the Court of Appeal was faced with two probabilities as to between the parties may have caused an accident. The Judge said that; **“…I can only decide the case on a balance of probability if there is evidence to enable me say that it was more probable than that the second defendant wholly or partly contributed to the accident.”** 2. In ***Kanyungu Njogu Vs­ Daniel Kimani Maingi (2000) e KLR*** it was held that: **“­­­ when a court is faced with two probabilities, it can only decide the case on a balance of probability if there is evidence to show that probability was more probable than the other”** 13. On the strength of these decisions, and without an explanation from the driver of the appellant’s vehicle and or an independent witness, and from my review of the evidence, I am little persuaded to upset the finding of the trial court, on liability. Assessment of quantum: 1. In respect to assessment of quantum, many are the decisions of superior courts in respect to damages awarded in personal injury claims and whereas I may not be able to sample all of them here, I shall set out a copious of superior court decisions hereunder, which will act as my anchorage. This famous passage from Lord Morris’ speech in *H West & Son Vs Shephard, [1964] AC 326 at page 353*, reads; **“The difficult task of awarding money compensation in a case of this kind is essential a matter of opinion of judgment and of 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 an appellate tribunal to pose for himself the question as to what award he himself would have made. Having done so, and remembering that this sphere there are inevitably 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…Money cannot renew a physical frame that has been battered and shattered. All that judges and courts can do is to award sums, which must be regarded as giving reasonable compensation. In the process there must be the endeavour to secure some uniformity in the general method of approach. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards. When all this is said it must still be that amounts which are awarded are to be to a considerable extent conventional.”** 2. The Court of Appeal observed in *Simon Taveta Vs Mercy Mutitu Njeru [2014] KECA 755 [KLR*] that: **“The context in which the compensation for the respondent must be evaluated is determined by the nature and extent of injuries and comparable awards made in the past.”** 3. In the case of *Arrow Car Limited Vs Elijah Shamalla Bimomo & 2 others [2004] KECA 136 [KLR*], it was stated that: **“…It is our view that in assessment of damages the general method of approach should be that comparable injuries should, as far as possible, be compensated by comparable awards keeping in mind the correct level of awards in similar cases.”** 4. In *Harun Muyoma Boge Vs Daniel Otieno Agulo MGR HCCA No. 7 of 2015 [2015] eKLR,* D.S Majanja J. expressed himself thus: **- “The assessment of general damages is not an exact science and the court in doing the best it can, takes into account the nature and extent of injuries in relation to awards made by the court in similar cases. It ensures that the body politic is not injured by making excessively high awards and that the claimant is fairly compensated for his or her injuries.”.** 5. Lord Morris in Jag Singh v Toong Fong Omnibus Co Ltd [1964] 1 WLR 1382, at page 1385, says: - **“It need hardly be emphasised that caution has to be exercised when paying heed to the figures of awards in other cases. This is particularly so where cases are merely noted but not fully reported. It is necessary to ensure that in main essentials the facts of one case bear comparison with the facts of another before any comparison between the awards in the respective cases can fairly or profitably be made. If, however, it is shown that cases bear a reasonable measure of similarity then it may be possible to find a reflection in them of a general consensus of judicial opinion. This is not to say that damages should be standardised or that there should be any attempt to rigid classification. It is but to recognise that since in a court of law compensation for physical injury can only be assessed and fixed in monetary terms the best that courts can do is to hope to achieve some measure of uniformity by paying heed to any current trend of considered opinion.”** 6. Equally in the case of [***Ken Odondi & Two Others Vs James Okoth Omburah t/a Okoth Omburah & Company Advocates***](https://kenyalaw.org/akn/ke/judgment/keca/2013/252), *Court of Appeal, Kisumu, CA No 84 of 2009,* Onyango Otieno, Azangalala & Kantai JJA, it was held that **“We agree that this court will not ordinary interfere with the findings of a trial judge on an award of damages merely because this court may take the view that had it tried the case it would have awarded higher or lower damages different from the award of the trial judge. To so interfere this court must be persuaded that the trial judge acted on wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled."** 7. In respect to the issue of quantum, I have already displayed bounties of superior court precedents. I must register my deep respect to the jurists, who have set the law, as it ought to be. I will forever be grateful to them till, the end of age. What is more, these decisions can be heard in the corridors of our courts, in every corner of the year. It sets continuity of the law. Departing from it, I, in doubt becomes, a prodigal son. Economics has been challenging in every single day that we wake up. Consequently, Learned Magistrates must keep very close to their hearts, that inflation, keeps rising and whatever consideration that may be, prices of fuel must be the center-piece for quantification of damages in every personal injury claim. 8. I note that the current thought on damages of injuries sustained by the appellant, and the fact we have too much money facing few goods in the market, is evidence enough that inflation, is a crucial factor for consideration. I note that in the judgement, the learned Magistrate did refer to decisions as a guide for the purposes of comparison of the similar injuries and comparable awards. However, given that the injuries were not life threatening and having fully healed, a lesser figure recommends itself as a prudent settlement. 9. Putting all these together, I make the following orders; 1. On liability, the appeal is dismissed. 2. On quantum, the Award by Trial Magistrate is hereby set aside and replaced with a figure of Kenya shillings One Million (Kshs1,000,000/) as general damages after 50% liability. 3. Special damages pleaded and proved is Kshs6,000/, which is hereby awarded. 4. Costs of this appeal to the appellant. Delivered virtually this 30th June, 2026 in the presence of the Appellant, the Respondent and Brian- Court Assistant. **Hon. R.K. Ondieki.** **Judge.**