https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10995

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII** **CIVIL APPEAL NO. E107 OF 2025** **JOASH ARTHER MAANGI GONGERA…………………APPELLANT** **VERSUS** **JUSTINE ONDITI NYABUTO..............................................RESPONDENT** **(Being an appeal from the judgement and decree of the Magistrate’s Court at Kisii (Hon. W.C.Keter) dated 17th July, 2025 in Kisii CMCCC/E841/2022)** **BETWEEN** **JUSTINE ONDITI NYABUTO……………………………PLAINTIFF** **VERSUS** **JOASH ARTHER MAANGI GONGERA…………………DEFENDANT** **JUDGEMENT** 1. The Appeal arises from the judgement and decree of the **Hon. W.C.Keter (RM)** delivered on 17th July, 2025 in **Kisii CMCCC/E841/2022** in which the court entered judgement for the respondent against the appellant who was found wholly liable for causing an accident involving the respondent on 30th September, 2022. The respondent was awarded general damages of Ksh**. 400, 000/=** and special damages of Ksh**. 7, 050/=,** making a total of Kshs. 407,050/= under both headings of damages. The respondent was also awarded costs of the suit and interest. 2. The Appellant being aggrieved by the said judgement filed his memorandum of appeal dated **22nd July, 2025** and raised the following grounds of appeal which can be summarized as hereunder; 3. That the learned trial magistrate erred in law and fact by finding the appellant wholly liable for causing the accident alleged to have occurred on 30th September, 2022, and 4. That the learned trial magistrate erred in law and fact in her decision to award the respondent Kshs. 400,000/= in general damages for injuries that were not proved by the respondent. **BRIEF FACTS** 1. The suit, the subject matter of this appeal was initiated vide a Plaint dated **26th October, 2022**, by the Respondent herein who was claiming both general and special damages for injuries allegedly sustained by him arising from an alleged accident on **30th September, 2022** involving motor vehicle registration number **KCY 261 U** belonging to the appellant.The Respondent averred that he was hit by the appellant’s motor vehicle while lawfully walking as a pedestrian at Suneka area, near Mbale Hospital along Kisii-Migori road. 2. He blamed the occurrence of the accident in question on the negligence of the appellant and laid down the particulars of negligence attributable to the appellant under paragraph (3) of the plaint. 3. He claimed that as a result of the aforesaid accident, he sustained serious injuries involving: 4. Left 3rd and 4th rib fractures, 5. Multiple deep cut wounds on the face, 6. Blunt trauma to the chest, 7. Multiple bruises on the right upper limb, 8. Multiple bruises on the face, 9. Bruises on the right thigh, 10. Multiple bruises on the left upper limb, and 11. Bruises on the left thigh. 12. The respondent claimed to have suffered bodily injuries assessed as grievous harm that left him with 10% permanent disability. 13. The appellant entered appearance and filed his written statement of defence dated 18th November, 2022 in which he denied the occurrence of the accident as alleged by the respondent. In the alternative, he attributed the occurrence of the accident to the respondent or contribution to the occurrence by the respondent. The appellant averred that the accident was occasioned by the negligence of the respondent whose particulars have been stated in paragraph (4) of the statement of defence. **APPELLANT’S SUBMISSIONS** 1. On liability, the Appellant submitted that the Respondent had called a police officer who stated that a pedestrian was hit by a motor vehicle while crossing the road. 2. The Appellant submitted that, on cross-examination, the officer stated that the pedestrian was crossing the road while staggering as per police reports and documentation. However, the witness conceded that he was not the actual investigating officer and was testifying based on what was recorded in the police file. The appellant submits that the driver was not charged because of the previously mentioned accident. 3. The appellant also submitted that the respondent could not verify how the accident occurred as it was dark and that he could not say with certainty that the appellant’s motor vehicle was speeding. 4. It was the appellant submission that the trial court’s decision to hold the appellant wholly liable was erroneous, unsupported by any evidence on record and was contradictory to the manner the accident occurred. 5. The appellant also submits that there is no credible evidence linking the appellant’s driver to the accident or that he contributed to the occurrence of the same. 6. It is submitted for the appellant that the accident was caused when the respondent crossed the road while drunk and there is no evidence suggestive that the appellant was wholly responsible for causing the accident. It was his submission that the respondent had a duty to prove the case, on a balance of probabilities, and that the appellant was not duty bound to assist the respondent in proving its case. He relied on the case **Michael Wanjohi Mathenge V Lydiah Nyaguthii Agatha & Another [2007] eKLR** *in support of this proposition.* 7. On quantum, the Appellant relies on **Bashir Ahmed Butt vs. Uwais Ahmed Khan (1982-88** and submits that an appellate court will not interfere with an award in general damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. That 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. 8. The Appellant submits that the injuries as captured in the plaint being 3rd and 4th rib fractures, multiple deep cut wounds on the face, blunt trauma to the chest, multiple bruises on the right upper limb, multiple bruises on the face, bruises on the right thigh, multiple bruises on the left upper limb and bruises on the left thigh differ from the treatment notes/clinic appointment card from Kisii Teaching and Referral Hospital. The appellant submits that the initial treatment documents shows that the injuries were multiple cut wounds on face, blunt trauma to the chest, bruises on the right thigh, multiple bruises on the left upper limb and bruises on the left thigh as opposed to those enumerated in the respondent’s medical report. 9. It is further submitted that the medical report produced for the respondent contains exaggerations on the nature of injuries suffered which were not captured in the treatment notes. Further, that no X-ray was done to confirm rib fractures and that the respondent’s medical doctor produced no radiology report. The appellant contends that the future medical expenses estimated at Ksh. 200, 000/= for reconstructive surgery mentioned in the medical report was unnecessary as no fractures were proved. That the soft tissue injuries contained in the medical reports did not require metal implants for fixation of fractures. 10. It is also submitted that the second medical re-examination by Dr. Jenipher Kahuthu and her medical report dated **20/2/2025** (Supplementary record of appeal) did not appreciate any rib fractures, as the same were not in the initial treatment notes. The appellant contends that no X-ray was availed and therefore the rib fractures could not be proved. 11. The Appellant argues that the trial court placed reliance on wrong precedents and arrived at erroneous estimates on damages awardable for the soft tissue injuries that were suffered. He relied on **HB (Minor suing through mother & next friend DKM) v Jasper Nchonga Magari & another [2021] eKLR** where the claimant sustained blunt object injury to the head, neck, thorax, abdomen and limbs. The medical doctor opined that the same were soft tissue injuries in terms of gravity to which the lower court awarded Ksh. 70, 000/= which was upheld on appeal. He also relied on **LNK (a minor suing through CNK as next friend) & 2 others v Simon Gatuni Njukia [2022] eKLR** where Justice Kariuki reduced the award from Ksh. 250, 000/=, Ksh.150,000/= and **Homabay Civil Appeal E111 of 2021-James Kwanya Rege v Lizzy Awuor (minor suing through the father & next friend George Adhiambo Arao).** **RESPONDENT’S SUBMISSIONS** 1. The Respondent submits that he adduced credible oral and documentary evidence through PW1, PW2 and PW3, which confirmed the occurrence of the accident and involvement of the Appellant and their motor vehicle KCY 261 U and the resultant injuries sustained by the Respondent. 2. It was also his submission that although the Appellant testified in support of his defence, he did not adduce any independent or corroborative evidence to substantiate his allegations and therefore his evidence stood unsupported and remained a mere denial with no probative value. He relied on the case of **Motex Knitwear Limited v Gopitex Knitwear Mills Limited, HCCC No. 834 of 2002** and **Trust Bank Limited v Paramount Universal Bank Limited & 2 Others HCCC No. 1243 of 2001** 3. The Respondent submitted that the award of Ksh. 400, 000/= in general damages was fair, reasonable and commensurate with the injuries sustained by the Respondent. That the trial magistrate considered the evidence on record, the medical reports produced, the parties respective submissions and the applicable authorities before arriving at the award of damages. 4. It was submitted that assessment of damages is a matter within the discretion of the trial court and that an appellate court will not interfere with such an award unless it is demonstrated that the trial court took into account an irrelevant factor, failed to take into account a relevant factor, applied the wrong principles of law, or that the award is so inordinately high or low as to represent an entirely erroneous estimate of the damages payable. 5. The Respondent submitted that the appellant attempted to submit on documents that were not properly before the court’s record. That the appellant had attempted to rely on documents that did not form part of the record of appeal and which were neither produced nor admitted in evidence before the trial court. That such documents could not properly be considered by the court in determining the present appeal as they had not been produced as exhibits before the trial court and their makers were not called to testify and that they were never subjected to cross-examination. There was also no consent admitting the documents into evidence and as such remained outside the evidentiary record and could not be relied upon at the appellate stage. 6. It was submitted that as per Order 42 Rule 13(4) of the Civil Procedure Rules, 2010 an appeal is determined on the basis of the pleadings, proceedings, exhibits, judgement, decree or order and such other documents as properly formed part of the proceedings before the trial court. The appellate court, it was suggested, is confined to the record before it and could not entertain evidence that was never part of the trial record and that a document does not become evidence merely because it is filed in court or referred to by a party. He relied on the case of **Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] eKLR**. **ISSUES FOR DETERMINATION** 1. From the foregoing, the issues which arise for determination are: 2. **Whether the finding of liability against the Appellant was supported by the evidence on record, and if not, whether the finding ought to be set aside or the apportionment varied; and** 3. **Whether or not the general damages awarded were commensurate with the injuries suffered by the respondent.** 4. **ANALYSIS & DETERMINATION** 5. This being a first appellate court, I’m cognizant of the duty to reassess or to re-evaluate the evidence and reach my own conclusions as was held in the case of **Selle –vs- Associated Motor Boat Co. [1968] EA 123:** **“The appellate court is not bound necessarily to accept the findings of fact by the court below. An appeal to the Court of Appeal form a trial by the High Court is by way of a retrial and the principles upon which 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. Similarly, in **Peter v Sunday Post Ltd (1958) EA 424**. The court stated that; “**Whilst an appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand, this jurisdiction is exercised with caution.**” **I Whether the finding of liability against the Appellant was supported by the evidence on record, and if not, whether the finding ought to be set aside or the apportionment varied.** 1. It is trite that in a civil suit founded on negligence, the burden lies on the plaintiff to prove his case on a balance of probabilities. **Section 107 of the Evidence Act, Cap. 80** provides that: 2. **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.** 3. **When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person** 4. The Appellant is right in saying that the mere occurrence of an accident does not, without more, establish negligence. That burden, however, is assessed against the whole of the evidence properly before the trial court, including the Appellant's own testimony. 5. The Respondent called three witnesses (PW1, PW2, and PW3) whose evidence, as per the Respondent's submission, was not seriously dislodged in cross-examination beyond the point that PW2 was not the investigating officer. 6. The Appellant, on his part, testified in his own defence but called no independent witness. I accept the Respondent's submission to the limited extent that a single party's own testimony, uncorroborated, is ordinarily to be weighed against the rival evidence from the opposing side. 7. It is considerable that the Appellant admitted in cross-examination that the accident occurred at night, that it had rained, that the road was "pitch black," and that he applied brakes in an attempt to avoid the collision. A driver owes a heightened duty of care in conditions of very poor visibility, and is generally expected to proceed at a speed, and maintain a lookout, sufficient to allow him to stop in case of an emergency. Failure to decelerate and do heightened lookout for other road users in times of darkness and rain is a material factor to be considered in matters negligence. 8. The fact that the Appellant braked "to avoid hitting" the Respondent is consistent with the Respondent's account that he was on or near the carriageway and was struck, it does not establish that the Respondent was crossing recklessly rather than walking along the road, which the parties dispute. 9. Taken as a whole the Respondent's largely unchallenged account of the collision and injuries, against the Appellant's own admission of hazardous driving conditions which he did not adequately negotiate, I find that the trial court's finding of negligence against the Appellant is supported by the record and should not be disturbed as regards the finding of negligence. 10. A significant part of the Appellant's challenge to the rib-fracture finding rests on the proposition that Dr. Kahuthu's re-examination report of 20th February, 2025 "did not appreciate any rib fractures." This cannot be the case. The record shows that the appellant unsuccessfully attempted to call Dr. Kahuthu to come to court and testify, his last attempt to produce the 2nd medical report by consent was declined by the opposing side. The Respondent, in exercising his right to have documentary evidence tested through its maker rather than admitted untested, declined to grant the consent. The defence, thereafter, closed its case without producing the report. 11. The Court of Appeal has held, in terms squarely applicable here, that a document passes through distinct stages before it can be treated as evidence: filing does not make it part of the judicial record; it becomes part of the record only when tendered and admitted as an exhibit, whether through a testifying witness or by consent; and even then, admission is not the same as proof. In [**Kenneth Nyaga Mwige v Austin Kiguta & 2 others [2015] KECA 334 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2015/334/eng%402015-10-16) the court of appeal held that,” **The mere marking of a document for identification does not dispense with the formal proof thereof. How does a document become part of the evidence for the case? Any document filed and/or marked for identification by either party, passes through three stages before it is held proved or disproved. First, when the document is filed, the document though on file does not become part of the judicial record. Second, when the documents are tendered or produced in evidence as an exhibit by either party and the court admits the documents in evidence, it becomes part of the judicial record of the case and constitutes evidence; mere admission of a document in evidence does not amount to its proof; admission of a document in evidence as an exhibit should not be confused with proof of the document. Third, the document becomes proved, not proved or disproved when the court applies its judicial mind to determine the relevance and veracity of the contents – this is at the final hearing of the case. When the court is called upon to examine the admissibility of a document, it concentrates only on the document. When called upon to form a judicial opinion whether a document has been proved or disproved or not proved, the Court would look not at the document alone but it would take into consideration all facts and evidence on record.** 12. Dr. Kahuthu's report never passed beyond the first stage. It was neither produced through her testimony nor admitted by consent, and accordingly forms no part of the evidentiary record. The trial magistrate cannot be faulted for failing to "consider" a document that was never properly before her. 13. This conclusion is reinforced, not undermined, by the fact that the report resurfaced in the supplementary record of appeal, which this Court struck out on 13th April, 2026 for having been filed without the leave of the court. A document excluded from the trial record cannot be re-introduced at the appellate stage through an improperly filed supplementary record; and in any event, under Order 42 Rule 13(4) of the Civil Procedure Rules, 2010, this appeal falls to be determined on the record of what was properly before the trial court, not on extraneous material. **II Whether or not the general damages awarded were commensurate with the injuries suffered by the respondent** 1. The governing principle on quantum is that 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, or it is shown that the trial court proceeded on a wrong principle or misapprehended the evidence in some material respect **(Bashir Ahmed Butt v Uwais Ahmed Khan (1982–88) KAR 5 and Kemfro Africa Ltd t/a Meru Express Service v A.M. Lubia & Olive Lubia (1982–88) 1 KAR 727**). 2. Comparable injuries should, so far as possible, attract comparable awards as was the holding in [**Simon Taveta v Mercy Mutitu Njeru [2014] KECA 755 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/keca/2014/755/eng%402014-02-05)where it was held 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. Once Dr. Kahuthu's report is properly excluded, the evidential picture is that the Respondent's medical report which was produced through a testifying doctor records fractures of the left 3rd and 4th ribs and associated soft-tissue injuries, with permanent disability assessed at 10%. The Appellant's remaining challenge which is that the initial treatment notes do not themselves record a rib fracture, and that no X-ray was produced goes to the weight of that report rather than its admissibility, and was a matter squarely within the trial magistrate's province to assess having heard the doctor testify and be cross-examined. 4. On comparable authorities the general damages for rib fractures and associated soft tissue injuries range from approximately **Kshs. 400,000/=** to **Kshs. 800,000/=**. In [**Wakim Sodas Limited v Sammy Aritos [2017] KEHC 3427 (KLR)**](https://new.kenyalaw.org/akn/ke/judgment/kehc/2017/3427/eng%402017-09-28)a victim with a fracture of the 4th rib together with a compound tibia/fibula fracture was awarded Kshs. 400,000, which was upheld on appeal. By contrast, where only soft-tissue injury without fracture is proved, the awards are markedly lower, for example in **HB (Minor) v Jasper Nchonga Magari & another [2021] eKLR** an award of Kshs. 70,000/= in general damages was upheld on appeal. This is the case that the Appellant has placed much emphasis on but which is distinguishable precisely because it did not involve a proven fracture. 5. Given that the rib fracture finding stands as the only serious challenge to the award on general damages, largely based on excluded evidence, the award of Kshs. 400,000/= sits at the lower end of, but squarely within, the range established by comparable authorities for this category of injuries. I am not satisfied that the trial magistrate proceeded on a wrong principle, misapprehended the evidence, or arrived at a figure so inordinately high as to represent an entirely erroneous estimate. The award of special damages of Kshs. 7,050/= was not seriously contested on appeal and I see no basis to disturb it. 6. The upshot of it is that appeal is dismissed in its entirety. Costs of the appeal are awarded to the Respondent and the same to be borne by the Appellant. **Judgment read, dated, signed and delivered virtually this 16th day of July, 2026** **Richard K. Koech** **JUDGE** In the presence of; Roselyne Makali, courts assistant present physically in court No appearance for both the appellant and respondent though duly notified. Right of appeal within 30 days.