https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7647

Motana v Njambi & 2 others (Civil Appeal E1326 of 2024) [2026] KEHC 7647 (KLR) (Civ) (2 June 2026) (Judgment) Neutral citation: [2026] KEHC 7647 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E1326 of 2024 AN Ongeri, J June 2, 2026 Between Joel Okangi Motana Appellant and Joyce Wangari Njambi 1st Respondent Equity Bank (K) Ltd 2nd Respondent James Wanjiku 3rd Respondent (Being an appeal from the judgment of Hon. Z. K. KIBOSS (RM) in Milimani CMCC No. E7831 2020 delivered on 22/10/2024) Judgment 1.The appellant filed Milimani CMCC No. E7831 of 2020 seeking general damages for pain and suffering and special damages of kshs.3,850 for injuries the plaintiff sustained on 21/10/2019 while lawfully walking along Moi Avenue at the city centre when he was hit by motor vehicle registration no. KCD 582R. 2.The respondents filed a joint statement of defence denying the appellant’s claim. 3.The appellant’s evidence was that he was walking on the pavement when the motor vehicle registration no. KCD 582R hit him from the back. 4.The Appellant sustained the following injuriesi.Severe head injuriesii.Bruises on the left side of the headiii.Fits and vomitingiv.Loss of consciousnessv.Left sided brain (sub dura haemotoma) 5.The 3rd defendant who was driving motor vehicle registration no. KCD 582R said the appellant suddenly appeared on the road and started crossing the road when he was hit. 6.The trial court apportioned liability at 50:50% and assessed damages as follows:General damages for pain & suffering ksh.500,000Special damages ksh. 3,850Total ksh.503,850 7.The costs of the suit were granted to the appellant. 8.The appellant has appealed against the said judgment on the following grounds;i.That the learned magistrate erred in law and in fact in finding that the liability be shared 50%:50% which apportionment is contrary to the corroborative evidence adduced by the appellant.ii.That the learned magistrate erred in law and in fact by not considering the appellant’s documentary evidence and failure to grant an award based on the injuries sustained.iii.That the learned magistrate erred in law and in fact by not taking into account the written submissions of the appellant.iv.That the learned magistrate’s finding and decision were contrary to the weight of evidence adduced by the appellant. 9.The parties filed written submissions as follows; The appellant submitted that he is appealing a judgment and orders delivered on October 22, 2024, at the Milimani Chief Magistrate's Court in Civil Suit No. E7831 of 2020. 10.In the trial court's decision, judgment was entered in favor of the appellant against the first and third defendants. The trial court awarded the appellant Kshs. 1,000,000 for general damages for pain and suffering resulting from injuries sustained in a road accident, but subjected this amount to a 50% reduction due to a finding of contributory liability, alongside an award of Kshs. 3,850 for special damages. 11.The appellant is dissatisfied with both the 50% apportionment of liability and the quantum of general damages awarded, which effectively reduced his compensation for pain and suffering to Kshs. 500,000. 12.In challenging the first ground of appeal regarding the shared liability, the appellant argues that the trial magistrate erred in law and fact by ignoring the appellant's statement and the corroborative evidence adduced during the hearing. 13.The accident occurred on October 2, 2019, along Moi Avenue in Nairobi and involved motor vehicle registration number KCD 582R, which was driven by the third defendant. 14.The appellant emphasizes that the police abstract produced by Corporal Hassan Kerow on behalf of the investigating officer explicitly blamed the vehicle KCD 582R for causing the accident after investigations were completed. 15.Relying on precedent from the High Court at Kabarnet in the case of John Kibichi v John Mugo Mathai, the appellant submits that a police abstract is a public document compiled by trained officers, and its contents serve as sufficient proof on a balance of probabilities when left unrebutted. 16.The appellant argues that the subordinate court should have presumed the authenticity of the abstract under Section 80(2) of the Evidence Act, especially since the respondents did not produce any contradictory police documents and only submitted a medical report. 17.Consequently, the appellant asserts that the trial magistrate relied on the wrong authority to assign 50% blame to the appellant when the official investigations clearly faulted the third defendant. 18.Regarding the remaining grounds of appeal, the appellant contends that the trial magistrate failed to properly consider the documentary medical evidence concerning the grievous harm injuries he sustained, particularly to his head, as outlined in a report by Dr. G. K. Mwaura. 19.The appellant claims that the trial court ignored his submissions and the cited authorities when assessing quantum, noting that a proper consideration would have resulted in an award exceeding one million shillings for pain and suffering. 20.Ultimately, the appellant urges the High Court to correct the errors committed by the subordinate court, enhance the general damages award upwards in tandem with the adduced evidence, and grant a fair and just final determination. 21.The respondent on their part submitted that the High Court should uphold the lower court’s decision and dismiss the appeal with costs. 22.The dispute arose a from road traffic accident that occurred on October 22, 2019, along Moi Avenue in Nairobi. 23.The Appellant claims he was standing off the road when he was struck from behind by a motor vehicle, registration number KCD 582R. 24.Conversely, the Respondents maintain that the driver was traveling at a safe and reasonable speed of approximately 45 kilometers per hour amidst heavy traffic when two pedestrians suddenly stepped directly into his path. 25.The driver asserts that he hooted, swerved, and braked, but could not avoid the impact due to the abrupt nature of the crossing, which occurred at a non-designated point roughly 150 meters away from the nearest traffic light and zebra crossing. 26.Following the incident, the driver transported the injured Appellant to Kenyatta Hospital and reported the matter to the Central Police Station, notably without being charged with any traffic offense. 27.The Respondents contend that a testifying police officer was unable to clarify how the accident happened, did not possess the official police file, and had not investigated the scene, rendering the police testimony unhelpful in determining fault. 28.Consequently, the Respondents argue that the trial court was entirely justified in finding that both parties were equally to blame, as the evidence from both sides made it impossible to attribute exclusive fault to either party. 29.Regarding the quantum of damages, the medical evidence reveals that the Appellant sustained a head injury with a subdural hematoma, which was successfully removed via surgery. 30.Medical assessments by Dr. G.K. Mwaura and Dr. Wokabi indicated that the Appellant had made an adequate recovery, with no remaining threat of permanent disability or incapacity. 31.The trial magistrate evaluated these injuries alongside relevant case law and deemed the Appellant’s proposed compensation figure too high for a case involving complete healing. 32.The Respondents support the trial court's award of 500,000 Shillings in general damages, citing multiple judicial precedents, including regional High Court decisions, where similar head injuries and fractures that resulted in no permanent disability attracted comparable awards. 33.They note that higher awards exceeding 1,000,000 Shillings are legally reserved for far more severe or complicated conditions, such as multiple permanent fractures or lifelong cognitive impairments, which are distinct from the Appellant's circumstances. 34.Pointing to established appellate principles, the Respondents emphasize that a first appellate court should only interfere with a trial court's assessment of damages if the award is shown to be so inordinately high or low as to represent an entirely erroneous estimate, which is not the case here. 35.They further submitted that because the trial court properly balanced the facts, witnessed the demeanor of the parties, and applied the law correctly, the shared liability and the quantum of damages should remain undisturbed. 36.The issues that arise for determination in this first appeal are as follows;i.Whether the trial magistrate erred in fact and in law by apportioning liability at 50:50% between the appellant and the respondents, andii.whether the assessment of general damages for pain and suffering at Kshs. 1,000,000 before apportionment was inordinately low, considering the nature and gravity of the injuries sustained by the appellant. 37.As a first appellate court, the duty of this court is to subject the entire evidence adduced before the subordinate court to a fresh and exhaustive evaluation, making independent findings while remaining mindful of the fact that the trial court had the distinct advantage of seeing and hearing the witnesses firsthand. 38.In evaluating the first issue regarding the apportionment of liability, the record reveals a stark contradiction between the appellant’s assertion that he was hit from behind while walking lawfully on the pavement along Moi Avenue, and the driver’s defence that the appellant suddenly stepped into traffic at a non-designated crossing point. 39.However, the trial magistrate failed to give proper weight to the crucial statutory and documentary evidence presented by the appellant, most notably the police abstract produced by Corporal Hassan Kerow. 40.Under Section 80 of the Evidence Act (Chapter 80 of the Laws of Kenya), there is a statutory presumption of authenticity attaching to official public documents prepared by public officers in the discharge of their duties. 41.The police abstract explicitly blamed the motor vehicle registration number KCD 582R for causing the accident following official investigations. 42.This court relies on the settled principle restated in the case of John Kibichi v John Mugo Mathai(supra) that a police abstract, being a public document compiled by trained officers, constitutes sufficient proof of fault on a balance of probabilities when left unrebutted by any contradictory official record. 43.The respondents merely offered the subjective testimony of the driver and failed to produce the police file or any abstract exonerating themselves. 44.A pedestrian on a busy city street like Moi Avenue is a vulnerable road user, and motorists owe a high duty of care to keep a proper lookout. 45.By ignoring the probative value of the police abstract and assigning equal blame to the pedestrian without a clear evidentiary basis to displace the police findings, the trial magistrate erred in law and fact. 46.Liability is therefore re-assessed, the finding of contributory negligence is set aside, and full liability is attributed to the respondents at 100%. 47.Turning to the second issue regarding the quantum of general damages, the principles governing an appellate court’s interference with an award of damages are well-established under Kenyan jurisprudence, as articulated in Selle v Associated Motor Boat Company Ltd. 48.An appellate court will not disturb an award of damages unless it is demonstrated that the trial court applied wrong legal principles, took into account irrelevant factors, missed relevant ones, or that the award itself is so inordinately low or high as to represent an entirely erroneous estimate of damages. 49.In this case, the medical evidence from Dr. G. K. Mwaura establishes that the appellant sustained a left-sided subdural hematoma, which is a severe brain injury requiring major surgical intervention to remove the blood clot from the skull, alongside severe head injuries, consciousness loss, fits, and vomiting. 50.While the medical assessments by Dr. Mwaura and Dr. Wokabi indicate that the appellant made a good recovery with no permanent cognitive disability, the trial magistrate treated the injury too lightly by assessing the global sum at Kshs. 1,000,000. 51.The sheer trauma of a brain haemorrhage, the necessity of cranial surgery, and the harrowing experience of post-traumatic fits and vomiting place this case in a higher category of suffering than standard tissue injuries or minor fractures. 52.An award of Kshs. 1,000,000 is inordinately low and fails to offer a realistic cosmetic and compensatory solace for the gravity of a skull-opening procedure. 53.A just and reasonable award that aligns with recent judicial trends for serious head injuries involving surgical intervention is Kshs. 1,500,000. 54.Consequently, this court finds that the appeal has merit and the same be and is hereby allowed. 55.The judgment of the subordinate court in Milimani CMCC No. E7831 of 2020 delivered on October 22, 2024, is hereby set aside and substituted with an order entering judgment for the appellant against the respondents jointly and severally at 100% liability. 56.The award of general damages for pain and suffering is enhanced from the gross sum of Kshs. 1,000,000 to Kshs. 1,500,000. 57.The trial court's award of Kshs. 3,850 for special damages, which was strictly proved by documentary evidence, is undisturbed. 58.The final decretal amount awarded to the appellant is therefore Kshs. 1,503,850, which will attract interest at court rates from the date of the trial court’s judgment until payment in full. 59.The appellant is also awarded the costs of this appeal and the costs of the suit in the trial court. 60.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE 2026ASENATH ONGERIJUDGEIn the presence ofMr Ochaka for the AppellantNo appearance for the RespondentChrispine - Court Assistant