Musyoka v Oriwo (Civil Appeal E340 of 2025) [2026] KEHC 9413 (KLR) (2 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPEAL NO. E340 OF 2025** **JACKSON WAMBUA MUSYOKA ............................................................. APPELLANT** **VERSUS** **INNOCENT ODHIAMBO ORIWO ............................................................ RESPONDENT** *(Being an appeal from the whole judgment and decree of Hon. E. Riany (PM) delivered on 19th March, 2025 in Milimani Chief Magistrate's Commercial Court Civil Case No. E3025 of 2023)* **JUDGMENT** 1. This appeal arises from a tragic encounter on the night of 27th May, 2023, along the Mombasa Road. The Appellant, Jackson Wambua Musyoka, then a pedestrian standing near a transit point, was struck down with significant violence by motor vehicle registration number KCX 232U, an instrument under the operational control of the Respondent, Innocent Odhiambo Oriwo. 2. Subsequently, the Appellant instituted Milimani Chief Magistrate’s Commercial Court Civil Case No. E3025 of 2023, praying for general damages for pain, suffering, and loss of amenities, alongside specifically pleaded special damages arising from his medical expenditure. 3. By a judgment delivered on 19th March, 2025, the learned trial magistrate, Hon. E. Riany (PM), made a determination on both liability and quantum. The trial court found that while the Respondent was negligent, the Appellant had significantly contributed to his own misfortunes by failing to exercise proper vigilance while attempting to board a transit vehicle, thereby slicing liability equally at a 50:50 ratio. 4. Consequent upon this asymmetric finding, the court assessed general damages at a total sum of Kshs. 200,000, effectively reducing the net compensatory entitlement to Kshs. 100,000, while altogether dismissing the claim for special damages of Kshs. 17,850 on the stated ground that no supporting receipts existed on the record. Dissatisfied with this rendering, which he brands as both factually detached and legally frail, the Appellant moved this superior court on first appeal. 5. The Appellant, through the firm of M.L. Mulupi & Company Advocates, contends that the trial magistrate committed a serious error of law and fact by failing to appreciate the heavier duty of care imposed upon a motorist relative to a pedestrian. It is argued that the Respondent admitted that visibility was clear and the road was unobstructed, meaning that if the driver had maintained a proper lookout, the accident would have been completely avoided. Counsel submits that the court’s decision to penalize the pedestrian with 50% liability was based on an isolated, misconstrued statement during cross-examination regarding running across the lanes, which did not diminish the motorist's ultimate blameworthiness. 6. On quantum, the Appellant argues that the sum of Kshs. 200,000 was inordinately low and amounted to a miscarriage of justice given the severe nature of the head injuries, which included a fractured left frontal bone, pneumocephalus, and a subgaleal haematoma. 7. Counsel further submits that the special damages claim of Kshs. 17,850 was sufficiently pleaded and supported by medical report fees and clinical invoices within the lower court file, and that the trial magistrate’s total dismissal of this head of claim was a clear and reversible error of fact. 8. The Respondent, through Waruhiu K’owade & Ng’ang’a Advocates, defends the trial court’s decision as a flawless and mature exercise of judicial discretion. It is submitted that the trial magistrate had the distinct advantage of seeing and hearing the witnesses firsthand as they testified about the mechanics of the collision. Counsel emphasizes that the Appellant explicitly admitted on the stand that he ran into the path of oncoming traffic on a major highway at night while carrying tools unsafely, which fully justified the finding that he failed to take reasonable care for his own safety and directly contributed to the impact. 9. Regarding damages, the Respondent contends that the assessment of Kshs. 200,000 perfectly comported with established judicial parameters for injuries that healed conservatively without causing structural deformity or permanent neurological deficit. Furthermore, the Respondent supports the rejection of special damages, arguing that the Appellant relied on un-stamped, illegible duplicate carbon invoices rather than valid payment receipts, failing to discharge the rigorous statutory burden of strict proof. Consequently, the Respondent prays that the appeal be dismissed with costs. **Issues for Determination** 1. Having carefully examined the memorandum of appeal, the lower court record, and the submissions filed by both parties, this court considers the following two issues central to the determination of this appeal: 1. **Whether the learned trial magistrate erred in law or fact by apportioning liability equally at 50:50 between the parties.** 2. **Whether the award of general damages was inordinately low and whether the trial court erred in rejecting the claim for special damages.** **Analysis and Determination** 1. The mandate of a first appellate court is well-settled. This court is required to subject the entire record of evidence to a fresh, exhaustive re-evaluation, re-analysis, and re-assessment in order to reach its own independent conclusions. 2. In **Selle & Another v Associated Motor Boat Co. Ltd [1968] EA 123** the predecessor Court of Appeal described that duty as being to *“****reconsider the evidence, evaluate it itself and draw its own conclusions.”*** 3. However, as established in the foundational authority of **Peters v Sunday Post Limited [1958] EA 424,** an appellate court must always remind itself that it does not have the advantage of seeing or hearing the witnesses firsthand, an opportunity that belongs exclusively to the trial court. ***“It is a strong thing that 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.”*** 1. Therefore, the findings of a trial magistrate on matters of fact and credibility should not be lightly interfered with unless they are demonstrably perverse, unsupported by any evidence, or based on a clear misdirection of law. 2. In tackling the first issue regarding liability, the Appellant invites this court to set aside the 50% apportionment of blame on the ground that a driver always owes a higher duty of care to a pedestrian. While it is true that a motorist controls a potentially lethal machine, this principle does not grant a pedestrian absolute immunity from the duty to exercise basic vigilance when navigating a busy public highway. 3. Every road user, whether driving an automobile or walking on foot, is under a permanent legal obligation to take reasonable care for their own safety and the safety of others. Where a pedestrian chooses to cross a dual carriageway at night outside designated crossing points, they voluntarily expose themselves to substantial risks that cannot be shifted entirely to the motorist. 4. A review of the trial court record reveals that the trial magistrate’s apportionment of liability was solidly anchored upon the Appellant’s own explicit admissions during cross-examination. The record shows that the Appellant admitted he did not look carefully in both directions before stepping off the transit island and was actually running across the lanes to catch a bus. This behavior is a textbook example of contributory negligence. A pedestrian who steps or runs into a busy road without ensuring that it is safe to do so cannot escape blameworthiness if an accident occurs, as he is the primary author of the dangerous situation. 5. Furthermore, principles of appellate review strictly limit interference with a trial court’s apportionment of liability. As a matter of law, apportionment is primarily an exercise of judicial discretion by the magistrate who tried the case. The Court of Appeal in **Mbogo & Another v. Shah [1968] EA 93** laid down the unyielding rule that an appellate court will not disturb an exercise of judicial discretion unless it is satisfied that the judge misdirected himself on a matter of principle, or that he took into account irrelevant matters, or failed to take into account relevant matters, or that his decision is plainly wrong. 6. In the instant case, the learned magistrate carefully balanced the motorist’s failure to swerve timely against the pedestrian’s reckless dash, and this court finds absolutely no error of principle to justify upsetting that 50:50 balance. 7. We turn to the second issue, which challenges the trial court’s assessment of general damages for pain, suffering, and loss of amenities. The law governing appellate intervention on quantum is equally restrictive and clear. An appellate tribunal will not alter an award of damages unless it is shown that the trial court applied a wrong principle, or took into account irrelevant factors, or that the award is so inordinately low or high that it represents a total misapprehension of the evidence. 8. This statutory discipline was restated by the Court of Appeal in **Butt v. Khan [1981] KLR 349,** confirming that the assessment of damages is a matter of impression and discretion, and must be treated with substantial deference by superior courts unless a gross error is apparent on the face of the record. The court held that: ***“An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low ”*** 1. The Appellant points to his medical report which documents a fractured left frontal bone and pneumocephalus to argue that Kshs. 200,000 is a mere token. However, a close look at the treatment notes reveals that these injuries, while initially alarming, were entirely resolved through conservative, non-surgical management without any permanent neurological impairment or structural disability. 2. In comparable precedents, such as **Egara v. Kenya Bus Services Ltd [2012] eKLR**, the court upheld that where a head injury heals completely without causing long-term cognitive or functional deficits, moderate awards are perfectly justified to prevent over-compensation. The trial magistrate’s assessment of Kshs. 200,000 was well within reasonable judicial boundaries for temporary, fully-recovered head trauma, and cannot be described as inordinately low. 3. Regarding the complete rejection of special damages amounting to Kshs. 17,850, this court must re-examine whether the strict statutory threshold of proof was met. It is an elementary principle of civil litigation that special damages must not only be specifically pleaded, but they must also be strictly proved by tangible, undeniable evidence. The Court of Appeal in the leading authority of ***Hahn v. Singh [1985] KLR 716*** made it clear that: “Special damages are not a matter of speculation or assumption”. The Court of Appeal in Hahn v Singh stated that: ***“…special damages which must be not only claimed specially but proved strictly for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act. The degree of certainty and particularity of proof required depends on the circumstances and the nature of the acts themselves. This has been adumbrated by Bowen, LJ in Ratcliffee v Evans (1892), 2 QB 524, 532, 533, Lord Macnaghten in Stroms Bruks Aktic Bolag v John & Peter Hutchinson, [1905] AC 515, 525, 526, Lutta, JA in Kampala City Council v Nakaye, [1972] EA 446, 447 and Chesoni, J, in Ouma v Nairobi City Council, [1976] KLR 297, 304.”*** 1. A plaintiff who seeks to recover out-of-pocket expenses must present explicit receipts or absolute proof of payment, as mere estimates or unauthenticated invoices cannot suffice.The law demands certainty because special damages represent actual monetary losses already incurred by the litigant. 2. In the case before the trial court, the Appellant merely annexed generic, carbon-copy treatment orders and un-stamped professional medical invoices without delivering corresponding formal cash receipts or official banking slips to confirm that these sums were actually paid out of his pocket. Invoices represent a demand for payment, whereas the law demands proof of actual financial detriment before a claim for special damages can succeed. 3. The learned trial magistrate was entirely correct to hold that the statutory standard of strict proof had not been discharged by the production of unauthenticated fiscal demands. Consequently, there is no sound factual or legal basis to disturb the lower court’s dismissal of the special damages claim, and the entire judgment must be upheld. **Court Orders** 1. *The Appeal is hereby dismissed in its entirety.* 2. *The judgment and decree of the trial court delivered on 19th March, 2025 in Milimani Chief Magistrate’s Commercial Court Civil Case No. E3025 of 2023, regarding both liability and quantum, is hereby affirmed and upheld.* 3. *Each party shall bear its own cost of this appeal* Orders accordingly. DATED and DELIVERED at Nairobi this 2nd day of July , 2026. ……………………………………… **BW MURUNGA, J** **JUDGE OF THE HIGH COURT** *Delivered on a virtual platform in the presence of:* *(N/A) ML Mulupi for the Appellants* *Kamau instructed by Waruhiu Kowade & Nganga for the Respondents* *Kevin Babu - Court Assistant*