https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7746

Informed Systems Ltd v WAO (A Minor Suing Through the Mother and Next Friend CAO) (Civil Appeal E670 of 2025) [2026] KEHC 7746 (KLR) (Civ) (4 June 2026) (Judgment) Neutral citation: [2026] KEHC 7746 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E670 of 2025 BW Murunga, J June 4, 2026 Between Informed Systems Limited Appellant and WAO (A Minor Suing Through the Mother and Next Friend CAO) Respondent (Being an appeal from the Judgment and Decree of the Senior Principal Magistrate, Hon. Ruguru N, delivered at Milimani Commercial Courts on 21st March, 2025 in Milimani CMCC No. E3229 of 2023) Judgment Background 1.This appeal arises from the judgment of the Senior Principal Magistrate, Hon. Ruguru N, delivered on 21st March, 2025 in Milimani CMCC No. E3229 of 2023. The background facts are largely uncontested. 2.On or about 26th October, 2022, WAO, a minor of 7 years, was involved in a road traffic accident along Enterprise Road, Nairobi, opposite Equity Bank. The minor was alleged to have been knocked down by motor vehicle registration number KCK 322E, belonging to Informed Systems Limited, the Appellant herein. As a result of the accident, the minor sustained injuries including a depressed frontal skull fracture and scalp laceration. She was initially treated at Lengo Medical Clinic and subsequently referred to Kenyatta National Hospital for further treatment. The Respondent, suing through her mother and next friend Caroline Atieno Owiti, filed suit against the Appellant in the subordinate court claiming general damages for pain, suffering and loss of amenities, together with costs and interest. 3.The matter was heard before Hon. Ruguru N who found in favour of the Respondent and apportioned liability at 100% against the Appellant. The learned Magistrate awarded the Respondent general damages of Kshs. 800,000/= together with costs and interest thereon. 4.Central to the procedural history of this matter is the fact that on 28th November 2024, when the matter came up for hearing, the Appellant’s counsel, Mr. Diru of the firm of Kiarie Kariuki & Associates Advocates, orally applied for an adjournment citing, among other reasons, non-compliance with Order 11 of the Civil Procedure Rules, the Respondent’s failure to attend a second medical examination, and the unavailability of the initial investigating police officer. The trial court declined to grant the adjournment and proceeded with the hearing. 5.Consequently, the Appellant was precluded from filing witness statements and documentary evidence in its defence. An application dated 21st January, 2025 to reopen the defence case was subsequently dismissed on 28th February, 2025 without reasons. A judgment was thereafter entered against the Appellant on 21st March, 2025, giving rise to the present appeal. Appellant’s Submissions 6.The Appellant, through Kiarie Kariuki & Associates Advocates, has filed written submissions dated 27th October 2025 challenging the trial court’s decision on two principal fronts: liability and quantum. 7.On liability, the Appellant submits that the trial court erred in finding that the Respondent had proved her case on a balance of probabilities. It is the Appellant’s case that the two witnesses called by the Respondent, being the minor’s mother (PW1) and a police officer (PW2), were not at the scene of the accident at the time it occurred and therefore could not give direct evidence of the cause or circumstances of the accident. Reliance is placed on section 63 of the Evidence Act (Cap 80), which requires oral evidence to be direct evidence, and on the authority in Benjamin Mwenda Muketha (suing as the legal representative of Mercy Nkirote) v Abdikadir Sheik & 2 Others [2018] eKLR, where the High Court at Meru dismissed a suit premised on hearsay evidence. 8.The Appellant further urges that the police abstract relied upon by the Respondent is not proof of the occurrence of an accident but merely evidence that an accident was reported, citing ZOS & CAO (Suing as the Legal Representatives in the Estate of SAO (Deceased)) v Amollo Stephen [2019] KEHC 9268 (KLR). 9.The Appellant further contends that the trial court violated its constitutional right to a fair hearing as enshrined under Article 50 of the Constitution of Kenya, 2010, by refusing to grant an adjournment and subsequently declining to reopen the defence case. The Appellant annexes an investigation report by Sunrays Investigators dated 20th January 2025 and an Occurrence Book entry which, it is submitted, raise genuine triable issues as to whether it was the Appellant’s motor vehicle KCK 322E or a motorcycle, registration number KMDE 926M, that was responsible for knocking down the minor. 10.The Appellant urges that these triable issues warranted either the granting of the adjournment or the reopening of the defence case, and that the trial court’s failure to do so condemned the Appellant unheard, contrary to the principle of audi alteram partem. Guidance is sought from David Kimani Gitau v Francis Wainaina [2016] eKLR, where Ngugi J (as he then was) held that pre-trial procedures must ensure procedural fairness to the parties. 11.On quantum, the Appellant submits that even if the Court were to find liability established, the award of Kshs. 800,000/= as general damages is inordinately high and disproportionate to the injuries proved. It is submitted that the minor suffered a depressed frontal skull fracture and scalp laceration only, with no permanent incapacitation, and that an award of Kshs. 400,000/= would be sufficient compensation. Reliance is placed on Gekari v Nyaberi [2025] KEHC 9682 (KLR), in which the High Court reduced an award of Kshs. 2,000,000/= to Kshs. 500,000/= for a respondent who had suffered a depressed skull fracture of the frontal bone, head injury with 2-degree brain contusion, deep disfiguring cuts on the forehead, multiple lacerations on the face, and cut tendons at the wrist, injuries the Appellant contends are considerably more severe than those sustained by the minor herein. 12.The Appellant prays that the appeal be allowed, the judgment set aside, and if liability is found, that general damages be substituted with an award of Kshs. 400,000/= or, in the alternative, that the matter be remitted for retrial before a different magistrate. Respondent’s Submissions 13.The Respondent, through Waiganjo Wachira & Co. Advocates, filed written submissions dated 30th September 2025 opposing the appeal and urging this Court to affirm the trial court’s findings in their entirety. 14.On liability, the Respondent submits that the trial magistrate properly analysed the evidence before her and decided the case on a balance of probabilities before apportioning 100% liability on the Appellant. 15.It is the Respondent’s case that the two witnesses who testified established the occurrence of the accident and the involvement of the Appellant’s motor vehicle. The police abstract, it is submitted, constitutes prima facie evidence which the Appellant, having adduced no evidence of its own, did not rebut. Reliance is placed on Wellington Nganga Muthiora v Akamba Public Road Services Ltd & Another [2010] eKLR, where the Court of Appeal held that a police abstract which is produced and not rebutted by a defendant may be relied upon as proof in civil cases within the standards of probability. 16.The Respondent further submits that the Appellant, having been given the opportunity to adduce evidence, failed to do so, and accordingly the Respondent’s evidence remained uncontroverted. 17.On the question of the trial court’s procedural decisions, the Respondent submits that the trial court properly exercised its discretion in declining to grant the adjournment and in dismissing the application to reopen the defence case. It is submitted that the minor was aged 7 years at the time of the accident and therefore cannot be found to have been contributorily negligent, relying on Butt v Khan (1981) 1 KAR 1982-1988 249, where the Court of Appeal held that a child of tender years cannot be found to have been contributorily negligent unless it is proved that the child knew or ought to have known that it should not do the act or make the omission. The Respondent urges that the Appellant’s failure to adduce any documentary evidence or call any witness was a deliberate election and not a consequence of procedural unfairness. 18.On quantum, the Respondent submits that the award of Kshs. 800,000/= was properly arrived at after the trial court considered and balanced the submissions of both parties and took into account the applicable law and the prevailing inflation rate. The Respondent had submitted before the trial court two authorities: Kyoga Hauliers (K) & Another v Philip Mahiu Nyingi [2017] eKLR, where an award of Kshs. 1,000,000/= was made; and Gerald Nzoia Ndonga v Susan Mukoma & Anor [2019] eKLR, where Kshs. 1,500,000/= was awarded for pain, suffering and loss of amenities for comparable injuries. The Respondent further relies on Francis Ngungu Wambui & 2 Others v VK (A minor suing through next friend and mother MCWK) (2019) Civil Appeal No. 62 of 2017, where the High Court at Embu affirmed an award of Kshs. 1,000,000/= as general damages for a minor. The Respondent accordingly prays that the appeal be dismissed with costs. Issues for Determination 19.Having regard to the grounds of appeal and the rival submissions, the issues that commend themselves for determination are as follows:a.Whether the trial court erred in law and in principle in its findings on liability;b.Whether the trial court’s refusal to grant an adjournment and to reopen the defence case violated the Appellant’s right to a fair hearing; andc.Whether the learned trial magistrate erred in awarding Kshs. 800,000/= as general damages. Analysis and Determination 20.Before embarking on the substantive issues, it is necessary to delineate the scope of this Court’s jurisdiction. This is a first appeal from the subordinate court, and this Court is accordingly under a duty to conduct an exhaustive re-evaluation of the evidence tendered before the trial court and to reach its own independent conclusions therefrom. The standard was authoritatively articulated by the Court of Appeal in Kenya Urban Roads Authority & Another v Belgo Holdings Limited (Civil Appeal E011 of 2021) [2025] KECA 764 (KLR) where the court held that a first appellate court must subject the entire evidence and judgment to fresh and exhaustive examination with a view to reaching its own conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses. Departure from the findings of the trial court is however warranted only where the trial court acted on a misapprehension of the evidence, acted on no evidence, made a perverse finding, or committed a demonstrable error of principle. 21.The first issue is whether the trial court erred in its findings on liability. The Appellant’s central attack is that the evidence adduced by the Respondent was inadmissible hearsay and fell short of the required standard of proof. PW1, the minor’s mother, was not present at the scene of the accident, and PW2, the police officer, was admittedly not the investigating officer, had not visited the scene, and could not independently confirm which of the two vehicles, the Appellant’s motor vehicle KCK 322E or the motorcycle KMDE 926M, had knocked down the minor. 22.In cross-examination, PW2 explicitly stated: "I do not know which of the two knocked down the minor." The Appellant urges that in those circumstances, the police abstract was the only documentary evidence before court, and that a police abstract, by itself, does not prove how or by whom an accident was caused. This Court finds merit in this submission. As correctly stated in ZOS & CAO (Suing as Legal Representatives in the Estate of SAO (Deceased)) v Amollo Stephen [2019] KEHC 9268 (KLR), a police abstract is proof that an accident was reported, not proof of its occurrence or its cause. The further authority in David Kajogi M'mugaa v Francis Muthoni is equally instructive, holding that the evidence of a police officer who was not present at the scene cannot be conclusive as to who is to blame. 23.The Respondent seeks to meet this challenge by invoking the authority in Wellington Nganga Muthiora v Akamba Public Road Services Ltd & Another [2010] eKLR, which holds that an unrebutted police abstract may constitute sufficient proof in civil cases within the standard of probability. That principle is sound as far as it goes, but it does not apply in the present case without qualification. The authority in Wellington stands for the proposition that a police abstract that is produced and not challenged or rebutted may support a finding of liability. 24.However, in this matter, the police abstract was actively challenged in cross-examination by the Appellant’s counsel, who elicited from PW2 that the abstract did not identify which of the two vehicles had struck the minor. The Respondent’s advocate did not re-examine PW2 to rehabilitate or clarify his evidence. 25.In those circumstances, the police abstract, though admitted into evidence, did not discharge the Respondent’s burden of identifying the Appellant’s vehicle as the proximate cause of the accident. The evidential gap is significant and cannot be cured by invoking the principle of uncontroverted evidence. 26.This Court is therefore alive to a serious difficulty on the question of liability. The Occurrence Book entry at page 56 of the Record of Appeal specifically records that the minor was knocked down by a motorcycle, registration number KMGE 926M, and not by the Appellant’s motor vehicle KCK 322E. 27.The referral note at page 57 of the Record of Appeal similarly records the culprit vehicle as a motorcycle. These documents, which were annexed to the Appellant’s application to reopen the defence case, raise a genuine and substantial question as to whether the Appellant’s vehicle was involved in the accident at all. 28.Critically, the trial court, in its judgment, failed to engage with these documents or to explain why, notwithstanding the ambiguity in PW2’s evidence and the contents of the OB entry, it was satisfied that the Respondent had proved liability against the Appellant on a balance of probabilities. 29.In Kenya Power and Lighting Company Limited v Nathan Karanja Gachoka & Another [2016] eKLR, the court held that uncontroverted evidence must still bring out the fault and negligence of a defendant, and that a court ought not to accept it as truthful without interrogation. The trial court's failure to interrogate the discrepancy between the police abstract and the OB entry is, in this Court's view, a demonstrable error of principle. 30.The second issue is whether the trial court’s refusal to adjourn the hearing on 28th November, 2024, and its subsequent dismissal of the Appellant’s application to reopen the defence case, violated the Appellant’s right to a fair hearing. 31.The right to be heard is one of the foundational pillars of natural justice. It is constitutionally protected under Article 50(1) of the Constitution of Kenya, 2010, which guarantees every person the right to have any dispute that can be resolved by the application of law decided in a fair and public hearing before a court. The weight of this constitutional guarantee must be measured against the exigencies of court management and the legitimate interests of the opposite party in the expeditious resolution of disputes. 32.However, it was observed in David Kimani Gitau v Francis Wainaina [2016] eKLR, a court may not sacrifice due process to the exigencies of circumstances and expedition. Where procedural fairness requires that a party be given time to present its case, the court must provide that time, even if it means some delay in the resolution of the matter. 33.The Appellant’s application for an adjournment was premised on three grounds: non-compliance with Order 11 of the Civil Procedure Rules; the Respondent’s failure to attend a second medical examination; and the unavailability of the initial investigating officer. These were not frivolous grounds. The Respondent had not filed a Reply to Defence, and no Pre-trial Conference Questionnaire had been exchanged in accordance with Order 11 Rule 6 of the Civil Procedure Rules. 34.The practical consequence was that the Appellant had not been able to file witness statements or documents. When the trial court refused the adjournment without providing reasons, and when it thereafter dismissed the application to reopen the defence case also without reasons, the Appellant was left without any meaningful opportunity to present its defence. 35.This Court further notes that no prejudice was demonstrated by the Respondent that could not have been cured by an award of costs, which the Appellant explicitly volunteered to pay. In circumstances where a party offers to pay costs and the opposite party demonstrates no prejudice beyond the loss of expedition, a trial court’s refusal to adjourn requires compelling reasons. None were provided here. 36.It is trite that courts must balance the objective of expeditious justice against the imperative of substantive justice. The Court of Appeal has consistently held, in keeping with the principle articulated in Nicholas Salat v IEBC & 6 Others, CA (Application) 228 of 2013, that the general trend following the introduction of the overriding objective in various statutes and Article 159 of the Constitution is that courts strive to sustain rather than strike out pleadings and proceedings on purely technical grounds. 37.The denial of an adjournment in circumstances where procedural non-compliance was partly attributable to both parties and where the consequence was the complete exclusion of the defendant's evidence, represents a disproportionate response. The OB entry and the private investigator's report, which the Appellant was unable to place before the trial court as a result of the refusal, were directly relevant to the central question of which vehicle caused the accident. Their exclusion, in the view of this Court, materially affected the fairness and completeness of the proceedings below. 38.Having found that there are demonstrable errors of principle both in the assessment of liability and in the conduct of the proceedings, this Court must now consider the appropriate remedy. The Appellant prays for either an outright dismissal of the Respondent’s claim or a retrial before a different magistrate. 39.This Court is of the considered view that the interests of justice are best served by a retrial. The question of which vehicle caused the accident is a factual one, and it requires proper evidence to be placed before a court of first instance that has the advantage of seeing and hearing the witnesses. 40.However, on the issue of quantum, which stands as an independent ground of appeal, and which the Respondent has the right to have determined, this Court, in the interest of judicial economy, makes the following observations for the guidance of the court on retrial. 41.The minor suffered, as recorded in the medical evidence, a depressed frontal skull fracture and scalp laceration with no permanent incapacitation. In Gekari v Nyaberi [2025] KEHC 9682 (KLR), the High Court, in a case involving more extensive cranial and facial injuries including a 2-degree brain contusion, deep disfiguring cuts on the forehead, multiple facial lacerations and cut tendons reduced the award from Kshs. 2,000,000/= to Kshs. 500,000/=. 42.The trial court’s award of Kshs. 800,000/= in the present matter, for injuries that appear less extensive on the medical evidence, would require more careful reasoning and calibration to the injuries actually proved than was provided in the impugned judgment. These observations are, of course, not binding on the court conducting the retrial, which will assess quantum on the evidence placed before it. Orders 43.In the result, and for the reasons stated above, this Court makes the following orders:a.The Appeal is hereby allowed.b.The Judgment and Decree of the Senior Principal Magistrate, Hon. Ruguru N, delivered on 21st March, 2025 in Milimani CMCC No. E3229 of 2023, including the award of Kshs. 800,000/= as general damages, is hereby set aside.c.The matter is hereby remitted for retrial before a different magistrate at the Milimani Commercial Courts, other than Hon. Ruguru N.d.In view of the divided nature of the issues, and having regard to the procedural lapses that contributed to the situation at the trial court, each party shall bear its own costs of this appeal.e.The sum of Kshs. 800,000/= deposited by the Appellant in a joint interest-earning account as a condition for stay of execution pending the hearing and determination of this appeal shall be released to the Appellant/Applicant. DATED AND DELIVERED AT NAIROBI THIS 4TH DAY OF JUNE 2026.BENARD WAFULA MURUNGAJUDGEDelivered on virtual platform in the presence ofBunyasi for the AppellantMs. Mwende for the RespondentsKevin Babu - Court Assistant