https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10948

Taki v Maina (Civil Appeal E221 of 2025) [2026] KEHC 10948 (KLR) (16 July 2026) (Judgment) Neutral citation: [2026] KEHC 10948 (KLR) Republic of Kenya In the High Court at Thika Civil Appeal E221 of 2025 BW Murunga, J July 16, 2026 Between Julius Macharia Taki Appellant and Winnie Wanjiku Maina Respondent (Being an appeal from the judgment and decree of Hon. J.N. Wambilyanga delivered on 14th August, 2025 in Thika Chief Magistrate's Court Civil Case No. E426 of 2021) Judgment Background 1.This is an Appeal arising from the judgement of the Chief Magistrate’s Court at Thika delivered o 14th August 2025 by Hon J.N Wambilyanga in Thika Civil Suit E426 of 2021. 2.The Respondent (then Plaintiff) sued the Appellant (then Defendant) for special and general damages, future medical expenses as well as costs and interests arising from a road traffic accident that occurred on 31st January 2020. 3.The Respondent stated that she was carefully walking on the pavement along Thika Business Centre located on Mama Ngina Street when he was hit by motor vehicle registration number KCG 997T, make Toyota Hiace (allegedly belonging to the Appellant) thereby occasioning her grievous bodily injuries. The Respondent blamed the Appellant for causing the accident. 4.In response to the suit, the Appellant filed a Statement of Defence dated 27th March 2023 where he denied ownership of the motor vehicle registration number KCG 997T, make Toyota Hiace at the time of the accident or ever. 5.He also denied there being an accident on the material date and infers that if the accident did occur, it was due to the negligence of the Plaintiff. 6.The trial court conducted a hearing where the Respondent called three (3) witnesses and the Appellant called one witness before closing their respective cases. 7.In its Judgement dated 14th August 2025, the trial court found the Appellant 100% liable for causing the accident. The trial court further awarded the Respondent general damages of Kshs. 4,000,000/= and special damages of Kshs. 50,070/=. 8.Being aggrieved with the Judgment of the trial court, the Appellant filed his Memorandum of Appeal dated 20th August 2025 and relied on the following grounds that: -I. The learned trial magistrate gravely erred in law and in fact by failing to appreciate the fact that the appellant was not in any way liable for the accident as he had been wrongly sued.II. The learned trial magistrate gravely erred in law and in fact by failing to appreciate the applicable principles and the law in assessing quantum thereby arriving at an award that is so manifestly and inordinately high as to constitute an entirely erroneous estimate of the damages in the circumstances of the case.III. The learned trial magistrate gravely erred in law and in fact by awarding the respondents damages that were manifestly and inordinately high.IV. The learned trial magistrate gravely erred in law and in fact by failing to appreciate ad consider with fair measure the applicant’s submission in the writing of the judgement.V. The learned trial magistrate gravely erred in law and in fact by misapprehending the principle applicable in assessment of damages in personal injuries claims thus occasioning miscarriage of justice.VI. The learned trial magistrate gravely erred in law and in fact by failing to evaluate the evidence before it and disregarded important elements of the evidence, principles ad practice thus reaching an award on quantum so inordinately high in the circumstances. 9.Accordingly, the Appellant prayed that the appeal be allowed and judgment of the lower court on quantum be set aside and that the award on general damages be revised to commensurate levels as per the evidence on record. He also prayed for the costs of the appeal. Submissions by the Appellant 10.The Appellant’s written submissions faulted the trial magistrate for finding the appellant as the owner of the subject motor vehicle and averred that the respondent did not produce any car search documents to show ownership. The Appellant relied on the court’s decision in Ndung’u v Shah & 3 others (Civil Appeal E059 of 2021) [2023] KEHC 21906 (KLR) in which the court held that where no evidence is adduced to prove that a defendant was the driver of the motor vehicle involved in the accident, liability cannot attach to that defendant. On that basis, the Appellant submitted that, similarly, in the absence of evidence establishing ownership of the subject motor vehicle, the trial court erred in holding the appellant liable. 11.It was further the submission of the Appellant that despite the judgment being wrongly entered against him, the learned trial magistrate erred in her assessment of quantum and consequently made an award that was inordinately high in the circumstances. 12.In support of this contention, the Appellant relied on Bonareri v Ongeri (Civil Appeal E101 of 2021) [2024] KEHC 1401 (KLR), wherein the court reiterated that comparable injuries should, as far as possible, attract comparable awards and that the assessment of damages is a matter of judicial discretion. 13.The Appellant further reiterated that the trial magistrate came to the wrong conclusion that the Appellant was liable to pay damages to the respondent yet the respondent had not adequately proven ownership of the suit motor vehicle. Reliance was placed on the matter of Auka Maxwell Otieno t/a Modern Securities v Ng’ang’ai & 3 others (Civil Appeal 32 of 2022) [2024] KEHC 8811 (KLR) with the Appellant coming into the conclusion that they are an innocent party in the suit thus are not liable for said accident and should not pay any damages. Submissions by the Respondent 14.The Respondent’s written submissions maintained that the learned trial magistrate did not err in holding the Appellant 100% liable for the accident. 15.The Respondent averred that she successfully discharged her legal burden of proof on a balance of probabilities by presenting ten uncontroverted documentary exhibits. 16.These included a motor sales agreement showing the Appellant purchased the vehicle on 22nd December 2018 and sold it on 29th July 2020 after the accident had already occurred. 17.The Respondent relied on the court’s decision in Evans Otieno Nyakwana v Cleophas Bwana Ongaro (2015) KLR and Sections 107 and 108 of the Evidence Act to emphasize that the legal burden of proof lies upon the party asserting facts. On that basis, the Respondent submitted that since the Appellant failed to produce any corroborating documents to prove he was a mere broker or wrongfully sued, his unsubstantiated denials were rightly dismissed by the trial court. 18.It was further the submission of the Respondent that the learned trial magistrate acted within her judicial discretion in the assessment of quantum and that the final award was fair and reasonable given the severe injuries sustained. In support of the damages awarded, the Respondent relied on Brian Muchiri Waihenya v Jubilee Hauliers Ltd & 2 others (2017) eKLR and Tado v Odaa & another (Civil Appeal E079 of 2023) (2024) KEHC 10633 (KLR), wherein the courts upheld substantial awards ranging from five to eight million shillings for comparable spinal and severe bodily injuries. The Respondent highlighted that the Appellant failed to propose any counter-figure for quantum during the trial and merely prayed for a dismissal. Consequently, the Respondent submitted that the awards for general damages, special damages, and costs were fully supported by the evidence and should not be disturbed on appeal. Issues For Determination 19.The issue for determination by this appellate Court are:(a)Whether the evidence adduced by the Respondent was sufficient to prove ownership of the motor vehicle and hence liability of the Appellant.(b)Whether the trial court erred in its assessment of general damages and whether the award of Kshs. 4,000,000/= was excessive and inordinately high in the circumstances. Analysis And Determination 20.This being a first appeal, the appellate court is encouraged to re-evaluate, re-assess and analyse in a fresh and exhaustive manner, all the evidence on record before making its own inferences of fact and arriving at its own independent conclusions as has been established in a plethora of cases including Selle & Anor Vs. Associated Motor Boat Co. Ltd & Others [1968] EA 123;Peters Vs. Sunday Post Ltd. 21.On the issue of ownership of the suit motor vehicle, the question before the court is whether the evidence adduced by the Respondent was sufficient to prove ownership of the motor vehicle. The Respondent relied on a sale agreement of the suit motor vehicle between the Appellant and KENJAP Motors Limited dated 22nd December 2018 as well as the Police Abstract issued on 9th April 2020. 22.It is established in law that he who alleges, must prove. The burden Denning J. in Miller –vs- Minister Of Pensions [1947]2 All ER 372 while discussing the burden of proof stated that:-“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un) convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.” 23.Section 107 -109 of Evidence Act Cap 80 provides who bears the burden of proof in a case. Those sections provide-“ 107.(1)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.When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 108.The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. 109.The burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person.”” 24.The law on ownership is captured in Section 8 of the Traffic Offences Act which provides that:-“The person in whose name a vehicle is registered shall, unless the contrary is proved, be deemed to be the owner of the vehicle.” 25.This section shows that registration is not conclusive proof of ownership. Indeed, the court of appeal in Jared Magwaro Bundi & Another v Primarosa Flowers Limited [2018] eKLR held that“the registration book or Registrar’s extract is only prima facie evidence of title to a vehicle, and the person in whose name the vehicle is registered is presumed to be the owner unless the contrary is proved.” 26.While highlighting other means to prove ownership of a motor vehicle, the court in Joel Muga Opinja v. East Africa Sea Food Ltd [2013] eKLR opined as follows:-“We agree that the best way to prove ownership would be to produce to the Court a document from Registrar of Motor Vehicles showing who the registered owner is but when the abstract is not challenged and is produced in Court without any objection, the contents cannot later be denied” 27.In Ignatius Makau Mutisya v Reuben Musyoki Muli [2015] KECA 612 (KLR), the Court stated that presumption that the person registered as owner of a motor vehicle in the log book is the actual owner is rebuttable. Where there exists other compelling evidence to prove otherwise, then the Court can make a finding of ownership that is different from that contained in the log book. Each case must however be considered on its own peculiar facts. 28.As observed by this Court in the case of Francis Nzioka Ngao vs Silas Thiani Nkunga,Civil Appeal No.92 of 1998,“whether the property in a chattel being sold has or has not been passed to the buyer is a question of fact to be determined on the facts of each individual case." 29.In this case, the Respondent produced a Police Abstract from Thika Police Station dated 9th April, 2020 in court which clearly stated and blamed the suit motor vehicle for the accident. 30.A sale agreement between the Appellant and Kenjap Motors dated 22nd December 2018 indicates that he acquired the motor vehicle, which was subsequently delivered to him based on the delivery note dated same date and later sold on 29th July 2020, few months after the accident occurred. 31.Even though the Appellant argued that he was merely a broker and never bought the suit motor vehicle, the sale agreement contradicts the statement as it shows possession passed to him. 32.Clause 3 of the Car Sales Agreement provides in part that “the seller guarantees that he/she is the true and lawful owner of the above-described vehicle…………….” 33.The fact that the Appellant also admitted selling the said motor vehicle to a third party in 29th July 2020 is an acknowledgement by the appellant that he was indeed the owner of the suit motor vehicle and should therefore have been held liable for the accident in question. 34.It is my view that the evidence adduced by the Respondent was sufficient to prove ownership of the motor vehicle and hence liability of the Appellant. 35.Regarding damages, special damages of Kshs. 50,070/= were awarded against the Kshs. 406,804/= pleaded by the Respondent. The trial court was correct in this award as special damages ought to be proved, as indicated in numerous cases including Hanh v Singh Civil Appeal No. 42 of 1983 [1985] KLR 716. The Respondent provided receipts of only Kshs. 50,070/=. The court is therefore not inclined to disturb this award. 36.Regarding general damages, it has been held time and again that no two cases are precisely the same, and it is inevitable that there will be a disparity in awards made by different courts for similar injuries as established in Southern Engineering Company Ltd. v Musingi Mutia Civil Appeal No 46 of 1983 [1985] eKLR. However, the Court of Appeal in Odinga Jacktone Ouma v Moureen Achieng Odera [2016] eKLR stated that “comparable injuries should attract comparable awards.” 37.The courts have also laid down the circumstances in which the Appellate court may interfere with quantum on damages. In Butt v. Khan [1981] KLR 349 when it held as per Law, J.A 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.” 38.Similarly, in Ken Odondi & 2 others v James Okoth Omburah T/A Okoth Omburah & Company advocates [2013] KECA 252 (KLR) the court stated: -“We agree that this court will not ordinarily interfere with the findings of a trial judge on an award of damages merely because this court may take the view that had it tried the case it would have awarded higher or lower damages different from the award of the trial judge. To so interfere this court must be persuaded that the trial judge acted on wrong principles of law or that the award was so high or so low as to make it an entirely erroneous estimate of the damages to which the plaintiff is entitled." 39.This Court follows the same principles. In this case, the Respondent suffered the following injuries: -a.Complete spinal injuryb.Left radioulnar fracturec.Hemothorax (left) 40.This court will proceed to determine similar fact cases in relation to damages as applicable in this Appeal. In the case of Simon Taveta v Mercy Mutitu Njeru (2014) eKLR the claimant suffered complete paralysis of the limbs. She was completely paralysed from the waist downwards. The accident occurred on 10th December, 2009. The High Court awarded her Kshs. Four million (Kshs. 4,000,000) as general damages. The award was reduced to Kshs. 3,500,000 by the Court of Appeal in 2014. 41.In Charlene Njeri Kuria v Gitu Geoffrey & another [2016] KEHC 1236 (KLR), the claimant suffered injury to the spine, fracture dislocation, became paraplegic and lost sensation on the lower limbs distally. The court awarded her general damages of Kshs. 5,000,000. 42.In Alex Otieno Amolo v Hellen Akinyi Otieno (2016) eKLR the claimant was hospitalized for one year. She suffered complete spinal transection with paraplegia, multiple fractures of both side ribs plus other soft tissue injuries. She also suffered comminuted fracture of the left tibia. Justice Majanja awarded Kshs. 6,000,000 as general damages and Kshs. 1,036,800 as loss of earning capacity. 43.From the above authorities, comparable injuries have attracted an award of between Kshs. 3,500,000 to Kshs.6,000,000. The trial court award of Kshs. Four Million (Kshs.4,000,000) was reasonable compensation as general damages for pain and suffering and this court shall not disturb the award. Disposition 44.Having re-evaluated the entirety of the evidence on record and considered the written submissions of the parties, this Court finds that the appeal lacks merit and is hereby dismissed. Accordingly, the following orders are made:a.The finding of the trial court holding the Appellant 100% liable for the accident is upheld.b.The award of general damages in the sum of Kshs. 4,000,000/= and special damages in the sum of Kshs. 50,070/= made by the subordinate court is upheld.c.The judgment of the subordinate court is hereby affirmed in its entirety.d.The Respondent shall have the costs of this appeal. It is so ordered. DATED AND DELIVERED AT NAIROBI THIS 16TH DAY OF JULY, 2026.BENARD WAFULA MURUNGAJUDGE OF THE HIGH COURTDelivered on virtual platform in the presence of:Kanyi instructed by Kanyi Kiruchi for the AppellantsMacharia h/b for Kariuki instructed by Jesse Kariuki for the RespondentKevin Babu - Court Assistant