Ndung’u v Mwangi (Civil Appeal E015 of 2023) [2026] KEHC 10048 (KLR) (9 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CIVIL APPEAL NO. E015 OF 2023** **JOHN WAHOME NDUNG’U.....................................APPELLANT** **VERSUS** **FRANCIS MWAURA MWANGI.............................RESPONDENT** *(Being an appeal from the judgment and decree of the Honourable K. I. Orengo, Principal Magistrate, delivered on 7th December 2022 in Nakuru Chief Magistrate’s Court Civil Suit No. 1034 of 2013)* **JUDGMENT** 1. This is an appeal against the judgment of the trial court (Hon. K.I.Orengo , Principal Magistrate) delivered on 7th December 2022 in Nakuru Chief Magistrate’s Civil Suit No. 1034 of 2013.The trial court found the Appellant (then 2nd Defendant) 100% liable for a road traffic accident that occurred on 9th November 2011 and awarded the Respondent (then Plaintiff) Kshs. 1,000,000/= in general damages and Kshs. 145,000/= in special damages, plus costs and interest. 2. The Appellant, being aggrieved and dissatisfied with the said judgment, filed a Memorandum of Appeal dated 13th January 2023 raising seven (7) grounds of appeal. The Appellant prays that the judgment be set aside and substituted with a judgment that is reasonable and based on proper evaluation of evidence, and that the Respondent bear the costs of this appeal. 3. The Respondent opposes the appeal and prays that it be dismissed with costs. 4. The Appellant’s Memorandum of Appeal raises the following seven grounds: 1. ***THAT the learned trial Magistrate erred in law and fact in failing to properly evaluate and comprehend the evidence adduced on liability thereby making a finding on liability and holding the appellant wholly (100%) liable in negligence contrary to the evidence adduced in court.*** 2. ***THAT the learned trial Magistrate erred in law in totally misapprehending and misapplying the principles of negligence thereby coming to conclusions not supported by evidence on record.*** 3. ***THAT the learned trial Magistrate erred in law in disregarding evidence exculpatory of the appellant’s alleged negligence thereby coming to conclusions not supported by evidence on record.*** 4. ***THAT the learned trial court erred in law and fact in making an excessive award of Kshs. 1,000,000/= as general damages without evidential basis for making any such award in the circumstances of the case and contrary to the principles governing such awards.*** 5. ***THAT the learned trial court erred in law and fact in misapprehending and or failing to properly deal with the evidence adduced in court on quantum and misapprehending the law on the award of damages thereby making an award that is incongruent with the evidence, but also with authority and principle.*** 6. ***THAT the learned trial Magistrate erred in law in totally ignoring the submissions of the Appellants on quantum and thereby making an award of damages that is clearly not compensatory but enriching to the respondent.*** 7. ***THAT the judgement of the trial court is unreasonable, untenable and contrary to law, principle and facts of the case represented before that trial court.*** 5. The Respondent (then Plaintiff) filed a Plaint dated 15th October 2013 suing two defendants. The Respondent claimed that on 9th November 2011, while he was riding his motorcycle registration number KMCE 425V along Lower Bedi Road near KIE/Pivot area within Nakuru County, the Appellant so negligently drove, controlled and managed motor vehicle registration number KAD 051D that he lost control and hit the Respondent’s motorcycle, causing him very serious injuries. 6. The Respondent listed the following particulars of negligence against the Appellant: driving at a manifestly excessive speed; driving without due care and attention; failing to brake, slow down, stop or swerve to avoid the accident; driving in a zigzag and dangerous manner; having no regard for other road users; and failing to observe traffic rules. 7. The Appellant filed a Statement of Defence dated 5th December 2013 denying liability and pleading contributory negligence. He listed ten particulars of negligence against the Respondent, including; failing to heed the presence of the Appellant’s motor vehicle; failing to wear a reflector jacket while cycling; failing to swerve off the road; cycling in the middle of the road; cycling a defective motorcycle with no lights; engaging in horseplay on a busy road; erratically coming onto the pathway of the Appellant’s vehicle; failing to heed warnings; and failing to observe traffic rules and regulations. 8. The Respondent filed a Reply to the Statement of Defence denying all allegations of contributory negligence and joining issues with the Appellant. 9. On 15th April 2014, the 1st Defendant (Sammy K. Tanui) was withdrawn from the suit by a Notice of Withdrawal. The matter therefore proceeded against the Appellant alone. 10. On 20th May 2014, the trial court ordered the parties to file a List of Agreed Issues. The parties filed an Agreed Issues document listing seven issues for determination, including whether the Appellant was solely liable for the accident and whether the Respondent was entitled to the prayers sought. 11. The Respondent (PW1) testified on 15th July 2014. His evidence in chief was that he was riding his motorcycle on the left side of the road, wearing a helmet and a reflector jacket. He saw the Appellant’s motor vehicle coming from the opposite direction at excessive speed. The Appellant’s vehicle tried to avoid a pothole but instead lost control and hit his right leg. He was taken to Provincial General Hospital Nakuru, then transferred to A.I.C. Kijabe Hospital where he was admitted. 12. Under cross-examination by the Appellant’s advocate, the Respondent admitted that he did not produce his driving license in court. He admitted that his driving license did not authorize him to ride a motorcycle. He stated that family friends contributed to his medical expenses but he personally paid Kshs. 140,000/=. 13. The Appellant (DW1) testified on 16th September 2014. His evidence in chief was that on 9th November 2011 at 9:30 pm, he was driving his motor vehicle KAD 051D from Shabab to Kiti heading home. He was driving at 15 km/h. His lights were on. The road had potholes. He saw a motorcyclist (the Respondent) coming from the opposite direction. The motorcyclist was overspeeding, had no reflective jacket, did not have lamp on. The motorcyclist hit his driver’s side and fell. He stated that he was not able to see the motorcyclist. 14. Under cross-examination by the Respondent’s advocate, the Appellant made a critical admission. He admitted that he was charged with a traffic offence of careless driving, pleaded guilty, and was fined Kshs. 5,000/=. He also admitted that police came to the scene of the accident while he was still there. 15. From the seven grounds of appeal and the written submissions filed by both parties, the following issues arise for determination by this court; 1. ***Whether the trial court erred in its finding on liability.*** 2. ***Whether the trial court erred in its award of general damages of Kshs. 1,000,000/=.*** 3. ***Whether the trial court’s judgment is unreasonable, untenable or contrary to law.*** 4. ***What orders should this court make regarding costs of the appeal?*** 16. The Court of Appeal for Eastern Africa in the celebrated case of ***Selle and Another vs. Associated Motor Boat Company Ltd & Others [1968] EA 123*** stated: ***“This 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 into account of particular circumstances or probabilities materially to estimate the evidence.”*** 17. On the issue of quantum, the Court of Appeal in ***Catholic Diocese of Kisumu vs. Sophia Achieng Tete [2004] 2 KLR 55*** held; ***“It is true law that the assessment of general damages is at the discretion of the trial court and an appellate court is not justified in substituting a figure of its own for that awarded by the court below simply because it would have awarded a different figure if it had tried the case at first instance. The appellate court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, (as by taking into account some irrelevant factor leaving out of account some relevant one) or misapprehended the evidence and so arrived at a figure so inordinately high or low as to represent an entirely erroneous estimate.”*** 18. The Appellant filed written submissions dated 2nd February 2026. 19. On liability, the Appellant submitted that the trial court erred by using his guilty plea in a traffic offence to hold him 100% liable. He argued that there are many reasons why an accused person may plead guilty in a criminal case, including to avoid wasting time, and that such a plea should not be used against a party in a civil case to determine the extent of liability. He submitted that a plea of guilty in a traffic offence can only infer that a party was negligent to a certain extent but cannot show to what extent. He relied on Section 47A of the Evidence Act and the case of ***Queens Cleaners and Dryers Ltd vs. East African Community and others [1972] EA 229***. In the alternative, he submitted that liability should be apportioned equally at 50/50, relying on ***Farah vs. Lento Agencies [2006] 1 KLR 123.*** 20. On quantum, the Appellant submitted that the award of Kshs. 1,000,000/= is inordinately high. He proposed an award of Kshs. 400,000/= or less and relied on the cases of ***Jitan Nagra vs. Abidnego Nyandusi Oigo [2018] eKLR, Daniel Otieno Owino & another vs. Elizabeth Atieno Owuor [2020] eKLR,*** ***Ndwiga & another vs. Mukimba [2022] KEHC 11793***, and ***Magembe & 2 others vs. Shisia [2025] KEHC 11720.*** 21. The Respondent filed written submissions dated 30th January 2026. 22. On liability, the Respondent submitted that the Appellant admitted that he was charged with careless driving, pleaded guilty, and was fined Kshs. 5,000/=. The Respondent argued that the trial court correctly applied Section 47A of the Evidence Act, which makes a final criminal conviction conclusive evidence of guilt. 23. On quantum, the Respondent relied on ***George William Awuor vs. Beryl Awuor Ochieng [2020] eKLR*** where the appellate court reduced an award to Kshs. 1,200,000/= for fractures of the right femur and left tibia and fibula, and ***Pestony Limited & another vs. Samuel Itonye Kagoko [2022] eKLR*** where the appellate court upheld an award of Kshs. 800,000/= for a fracture of the mid-shaft left femur and soft tissue injuries. The Respondent argued that given the injuries sustained and the future surgery required, the award of Kshs. 1,000,000/= was reasonable. 24. The Appellant contends that the trial court erred in finding him 100% liable for the accident. This court has carefully re-evaluated the evidence on liability. 25. The Appellant admitted under cross-examination that he was charged with a traffic offence of careless driving, pleaded guilty, and was fined Kshs. 5,000/=. He did not appeal against that conviction. 26. Section 47A of the Evidence Act (Cap 80) provides; ***“A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limited for appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence as charged.”*** 27. In ***Queens Cleaners and Dryers Ltd vs. East African Community and others [1972] EA 229***, the court interpreted this provision and held; ***“Careless driving necessarily connotes some degree of negligence, and in those circumstances, it may not be open to the respondent to deny that his driving in relation to the accident, was negligent.......... Section 47A makes it impossible to hold that the person convicted was not negligent at all for the conviction is conclusive evidence that he was, i.e. the court can find that his blameworthiness was small enough; it cannot find that he had none.”*** 28. Applying this principle to the instant case, the Appellant’s conviction for careless driving is conclusive evidence that he was negligent. The trial court was bound to accept this fact. The Appellant cannot now argue that he was not negligent. 29. However, this court agrees with the Appellant that a conviction does not automatically translate to 100% civil liability. The **Queens Cleaners** case makes it clear that while the conviction proves negligence, the issue of contributory negligence remains alive. The trial court must still determine whether the other party contributed to the accident. 30. In this case, the trial court did consider contributory negligence. The Appellant alleged that the Respondent had no lights on in his motorcycle, no reflector jacket, and no valid driving license. The burden of proving these allegations lay on the Appellant under Sections 107 to 109 of the Evidence Act. Section 107(1) provides: ***“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.”*** 31. The Appellant called no witness to support his allegations of contributory negligence. He did not call the police officer who investigated the accident. He did not produce any photographs or sketch plan of the scene. He did not produce any evidence that the Respondent’s motorcycle had no lamp on. His allegations remained unsubstantiated. The trial court was therefore entitled to reject the Appellant’s claim of contributory negligence. 32. The Respondent admitted during cross-examination that his driving license did not authorize him to ride a motorcycle. This admission is concerning. However, the trial court was entitled to find that this did not contribute to the accident, given that the Appellant hit the Respondent off the road. The lack of a valid license, without more, does not cause an accident. The cause of the accident was the Appellant’s vehicle leaving the road and hitting the Respondent. 33. The Appellant relies on ***Farah vs. Lento Agencies [2006] 1 KLR 123*** for the proposition that liability should be apportioned equally at 50/50. In that case, the Court of Appeal held; ***“In our view, it was not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who was to blame for the accident. In this state of affairs... if there is no concrete evidence to determine who was to blame, the court should hold both equally to blame.”*** 34. That principle applies where the evidence is so evenly balanced that the court cannot determine who is to blame. In this case, the evidence is not evenly balanced. The Respondent testified that he was hit off the road. This clearly points to the Appellant’s fault. The Farah principle does not apply. 35. The trial court did not rely solely on the conviction. The court considered the totality of the evidence, including the Respondent’s testimony that he was hit off the road and the Appellant’s failure to explain why his vehicle left the road. The finding of 100% liability is sound and is supported by the evidence. Therefore, grounds 1, 2 and 3 of the appeal are hereby dismissed. 36. The Appellant contends that the award of Kshs. 1,000,000/= in general damages is excessive. This court has carefully re-evaluated the evidence on quantum and the authorities cited by both parties. 37. The trial court found that the Respondent sustained a closed right femur fracture, a compound fracture of the right tibia, and severe soft tissue injuries of the left leg. The court also found that the Respondent has a metal implant, a SIGN nail, that will require future removal at a cost of Kshs. 50,000/=. 38. The Respondent relied on ***George William Awuor vs. Beryl Awuor Ochieng [2020] eKLR***. In that case, the respondent suffered fractures of the right femur and left tibia fibula. The tibia fibula fractures were compound. The appellate court reduced the award from Kshs. 2,000,000/= to Kshs. 1,200,000/=. 39. The Respondent also relied on ***Pestony Limited & another vs. Samuel Itonye Kagoko [2022] eKLR.*** In that case, the respondent suffered a fracture of the mid-shaft left femur and soft tissue injuries. The appellate court upheld an award of Kshs. 800,000/=. 40. The Appellant relied on ***Jitan Nagra vs. Abidnego Nyandusi Oigo [2018] eKLR***. In that case, Majanja J held; ***“I find that a compound fracture of the right femur is more serious than a simple fracture coupled with further fractures of the metacarpal bones. Considering the general trend of awards in comparable cases and the need to maintain consistency, I find the award of Kshs. 1,000,000/- inordinately high. I set aside the award of general damages and substitute it with an award of Kshs. 450,000/-.”*** 41. The injuries in that case were a compound fracture of the right tibia and fibula and a segmental distal fracture of the right femur which was open. These injuries are more severe than the Respondent’s closed femur fracture. Yet the court awarded only Kshs. 450,000 in 2018. 42. The Appellant also relied on ***Daniel Otieno Owino & another vs. Elizabeth Atieno Owuor [2020] eKLR.*** In that case, the appellate court upheld the trial court’s award of Kshs. 600,000 for compound fractures of the tibia and fibula, a deep cut wound on the right leg, a head injury with a cut wound on the nose, a blunt chest injury, and soft tissue injury on the left lower limb. The injuries in that case were more extensive than the Respondent’s. 43. The Appellant further relied on ***Ndwiga & another vs. Mukimba [2022] KEHC 11793*** where the court awarded Kshs. 500,000 for a fracture of the tibia and fibula without a compound fracture and without a femur fracture. 44. The Appellant also relied on ***Magembe & 2 others vs. Shisia [2025] KEHC 11720*** where Musyoka J held; ***“Based on that review, it would appear that the award made by the trial court was on the higher side. Consequently, I shall set it aside and substitute it with an award of Kshs. 500,000.00 general damages.”*** 45. After careful consideration of all these authorities, this court makes the following findings. First, the trial court did not ignore the Appellant’s submissions. The judgment explicitly states that the court considered the authorities cited by both parties. Ground 6 is therefore without merit. Secondly, the trial court did not misapprehend the law on damages. The court correctly stated the principles and applied them. Ground 5 is also without merit. Thirdly, the award of Kshs. 1,000,000 is at the higher end of the reasonable range but it is not so inordinately high as to represent an entirely erroneous estimate. The trial court properly considered the nature and extent of the injuries, the fact that the injuries included a compound fracture of the tibia, the metal implant in situ requiring future surgery, and the comparable authorities. 46. However, this court is of the respectful view that a modest reduction is appropriate. The **Jitan Nagra** case(Supra) awarded Kshs. 450,000 in 2018 for more severe injuries. Adjusting for inflation over four years, that award would be approximately Kshs. 550,000 to Kshs. 600,000 in 2022. The Daniel Otieno Owino case upheld Kshs. 600,000 in 2020 for compound fractures with additional head and chest injuries. The Pestony case awarded Kshs. 800,000 for a femur fracture only. The Awuor case awarded Kshs. 1,200,000 for a femur fracture and compound tibia fracture. 47. Taking all these authorities into account, this court finds that an award of Kshs. 850,000 would be more proportionate to the Respondent’s injuries. This figure is higher than the Kshs. 800,000 awarded in Pestony case to reflect the additional compound tibia fracture. It is lower than the Kshs. 1,200,000 awarded in Awuor case to reflect that the injuries in that case may have been slightly more extensive. 48. This court sets aside the trial court’s award of Kshs. 1,000,000 in general damages and substitutes it with an award of Kshs. 850,000. Grounds 4, 5 and 6 succeed only to this limited extent. 49. The Respondent pleaded special damages of Kshs. 145,015/=. The trial court awarded Kshs. 145,000/= as reflected in the judgment. 50. In ***Hahn vs. Singh [1985] KLR 716***, the Court of Appeal held; ***“Special damages must not only be specifically claimed (pleaded) but also strictly proved… for they are not the direct natural or probable consequence of the act complained of and may not be inferred from the act.”*** 51. The trial court, having seen the receipts and heard the evidence, was satisfied that special damages of Kshs. 145,000 were proved. This court has no basis to interfere with that finding. The trial court had the advantage of seeing the witnesses and examining the documentary evidence. This court does not. The special damages award of Kshs. 145,000 is upheld. 52. Having found that the trial court’s findings on liability were sound and supported by the evidence, and having found that the quantum award was only moderately excessive, this court cannot say that the judgment is unreasonable. The trial court correctly applied Section 47A of the Evidence Act, correctly considered the issue of contributory negligence, and correctly assessed the authorities on quantum. The fact that this court has made a modest reduction in the quantum award does not mean the trial court’s judgment was unreasonable. It simply means that this court, exercising its appellate mandate, has arrived at a slightly different figure. Ground 7 of the appeal is dismissed. 53. For the reasons set out above, this court makes the following orders; 1. ***The Appellant’s appeal is partially allowed to the extent that the trial court’s award of Kshs. 1,000,000 in general damages is hereby set aside and substituted with an award of Kshs. 850,000.*** 2. ***The Appeal as against liability is dismissed. Consequently, the finding of the trial court that the Appellant is 100% liable for the accident is upheld.*** 3. ***The trial court’s award of special damages of Kshs. 145,000 is also hereby upheld.*** 4. ***Interest on special damages shall accrue at court rates from the date of filing the suit in the trial court in 2013 until payment in full. Interest on general damages shall accrue at court rates from the date of the trial court’s judgment on 7th December 2022 until payment in full.*** 5. ***Given that the appeal has succeeded partially, each party shall bear their own costs of the appeal.*** 54. It is so ordered. **Dated, signed and delivered at Nakuru this 9th day of July, 2026.** **J. K. SERGON** **JUDGE** **In the presence of:** Jamleck/Rutoh C/A Muriithi Kisilah for Appellant Mboga for the Respondent