https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/11269

**Republic of Kenya** **In the High Court of Kenya at thika** **Thika Law Courts** **Civil Appeal No. E126 of 2024** **JUSTIN MUGE MOCHAMA...…................................................................. Appellant** ***-Versus-*** **PATRICK NJOROGE MURIGI………......................................................... Respondent** ***(Being an appeal from the judgment and decree of Hon. O. Wanyaga (PM) delivered on 15th May 2024 in Thika CMCC No. 154 of 2023)*** **Judgment** **Background** 1. This appeal arises from the Judgment of Hon. O. Wanyaga (PM) delivered on 15 May 2024 in Thika CMCC No. E154 of 2023, *Justin Muge Mochama v Patrick Njoroge Murigi*. In the suit before the subordinate court, the Appellant sought general damages for pain, suffering and loss of amenities, damages for diminished earning capacity, future medical expenses, special damages together with costs and interest arising out of a road traffic accident that occurred on 17November 2022. 2. The Appellant pleaded that on 17 November 2022, while lawfully riding motorcycle registration number KMEM 015P along the Thika–Mangu Road at Ngoigwa Centre, the Respondent negligently drove motor vehicle registration number KCV 065Q, lost control thereof, veered onto the Appellant's lane and collided with the motorcycle, occasioning him serious bodily injuries. In the Plaint dated 3 April 2023, the Appellant set out the particulars of negligence attributed to the Respondent and the injuries sustained as a consequence of the accident. The Respondent filed a Statement of Defence dated 15 May 2023, denying the occurrence of the accident and liability thereof and, in the alternative, pleaded that should the accident be found to have occurred, the same was wholly or substantially caused or contributed to by the Appellant's own negligence. The Appellant subsequently filed a Reply to Defence joining issue with the Respondent and reiterating the averments contained in the Plaint. 3. Upon hearing the parties, the learned trial magistrate found the Respondent 80% liable and the Appellant 20% contributorily negligent. The court awarded the Appellant Kshs.1,000,000/= as general damages for pain and suffering, Kshs.100,000/= as future medical expenses, Kshs.5,500/= as special damages, together with costs and interest, while declining the claim for diminished earning capacity. 4. Dissatisfied with both the finding on liability and the assessment of damages, the Appellant preferred the present appeal. **The Appeal** 1. *Vide* a Memorandum of Appeal dated 12 June 2024, the Appellant raises the following grounds of appeal: 2. *That the learned trial magistrate erred in law and in fact in holding that the police had blamed the Respondent without giving basis for the same.* 3. *That the learned trial magistrate erred in law and in fact in apportioning liability of 80:20 in favour of the Appellant who had been hit while on his lane.* 4. *That the learned trial magistrate erred in law and in fact in awarding the Appellant General Damages of kshs. 1,000,000/= which was inordinately low.* 5. *That the learned trial magistrate erred in law and in fact in failing to award the Appellant loss of earnings as pleaded and proved.* 6. *That the learned trial magistrate erred in law and in fact in subjecting special damages and costs to the apportioned liability of 80:20.* 7. *That the learned trial magistrate erred in law and in failing to take into account the Appellant’s submissions and the authorities relied on.* 8. *That the learned trial magistrate erred in law and in fact in failing to independently analyze the police abstract and the contents of the OB as read out by the police officer and thereby arriving at the wrong conclusion.* 9. *That the learned trial magistrate erred in law and fact in holding that the Appellant was somehow to blame despite overwhelming evidence to the contrary.* 10. *That the learned trial magistrate erred in law and fact in taking into account irrelevant issues and arriving at a wrong conclusion.* 11. *That the learned trial magistrate erred in law and fact in failing to consider all pleadings on record.* 12. *That the learned trial magistrate erred in law and facts in failing to take into account all the relevant factors in awarding reliefs and therefore arrived at a wrong figure.* 13. Consequently, the Appellant prays that this Court allows the appeal, sets aside the findings of the trial court on liability and quantum, substitutes the apportionment of liability with a finding that the Respondent was wholly liable for the accident, enhances the award of general damages, awards damages for diminished earning capacity, exempts future medical expenses and special damages from apportionment, awards the Appellant full costs of the proceedings before the subordinate court together with the costs of this appeal, and grants such further or other orders as the Court may deem just. Pursuant to the directions of the Court, the appeal was canvassed by way of written submissions. The Appellant filed written submissions dated 31October 2025, while the Respondent filed written submissions dated 9 March 2026. **The Appellant Case** 1. On liability, the Appellant submits that the evidence adduced before the trial court unequivocally established that the Respondent lost control of motor vehicle registration number KCV 065Q, crossed onto the Appellant's lawful lane and collided with his motorcycle. He argues that both his testimony and that of the police officer were consistent that the Respondent was blamed for the accident by the investigating officer. It is further submitted that the Respondent admitted the occurrence of the accident and failed to produce any independent evidence, including a sketch map or inspection report, to rebut the Appellant's account of the accident. According to the Appellant, there was no evidential basis upon which the trial court could attribute any contributory negligence to him. Reliance is placed on ***Mwangi & Another v Wambugu [1984] eKLR*** to support the proposition that the evidence of a police officer regarding investigations ought not to be disregarded without cogent reasons. 2. Regarding quantum, the Appellant submits that the award of Kshs.1,000,000/= as general damages was inordinately low considering that he sustained an open right mid-shaft femur fracture, open fractures of the right tibia and fibula, and continued to experience pain, limping and an inability to walk without support. He argues that both medical reports confirmed the injuries and the need for future surgery to remove implants. It is further contended that the learned trial magistrate misapprehended the Appellant's submissions by erroneously stating that he had sought Kshs.1,500,000/= whereas he had in fact prayed for Kshs.2,500,000/= and relied on comparable authorities supporting a higher award. The Appellant also challenges the dismissal of the claim for diminished earning capacity, contending that the evidence demonstrated that he was unable to work for several months following the accident, and urges this Court to award the equivalent of five months’ salary. Finally, he argues that future medical expenses, special damages and costs ought not to have been subjected to apportionment on account of contributory negligence. **The Respondent's Case** 1. The Respondent opposes the appeal and urges the Court to uphold the judgment of the subordinate court in its entirety. He maintains that the learned trial magistrate properly evaluated the evidence and correctly found that both parties contributed to the occurrence of the accident in light of the prevailing road conditions, including rainfall and road construction. 2. It is further submitted that the finding on liability was founded upon the totality of the evidence and that there exists no legal basis for this Court to interfere with the trial court’s exercise of discretion. The Respondent contends that the police abstract and the opinion expressed therein were not conclusive proof of negligence and that the trial court was entitled to independently assess all the evidence before it. 3. On quantum, the Respondent submits that the award of Kshs.1,000,000/= as general damages was fair, reasonable and consistent with comparable awards for similar injuries. He further contends that the Appellant failed to establish any legal basis for interference with the trial court's exercise of discretion, particularly regarding the dismissal of the claim for diminished earning capacity and the awards made under the remaining heads of damages. Accordingly, the Respondent urges the Court to dismiss the appeal with costs. **Analysis and Determination** 1. I have considered the grounds of appeal advanced by the Appellant alongside the submissions by the parties. The grounds are unnecessarily verbose and defy the time-tested rule of brevity in appellate litigation but they disclose the following issues: 2. *Whether the learned trial magistrate erred in apportioning liability at 80:20 in favour of the Appellant;* 3. *Whether the learned trial magistrate erred in the assessment of damages; and* 4. *Who should bear the Costs of the Appeal.* 5. ***Whether the learned trial magistrate erred in apportioning liability at 80:20 in favour of the Appellant*** 6. The principles governing liability in negligence are well settled. The legal burden rests upon the claimant to establish negligence on a balance of probabilities. Equally, contributory negligence is not presumed merely because an accident occurred. It must be proved by evidence demonstrating that the claimant failed to take reasonable care for his own safety and that such failure materially contributed to the occurrence of the accident. Consequently, where a trial court attributes contributory negligence to a claimant, there must exist an evidential basis demonstrating the particular negligent act or omission attributable to him. 7. The duty of a first appellate court has long been settled. In ***Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123***, the former Court of Appeal for East Africa held that: …*I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the High Court is by way of a retrial and the principles upon which this court acts in such an appeal are well settled. Briefly put they are that 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 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 (Abdul Hammed Saif vs. Ali Mohamed Sholan (1955), 22 E.A.C.A. 270)* 1. From the record, there is no dispute that the road traffic accident occurred on the night of 17 November 2022 at approximately 10.00 p.m. along the Thika–Mangu Road. There is equally no dispute that the Appellant sustained the injuries pleaded in the plaint. The only issue before the trial court was the manner in which the accident occurred and whether the learned trial magistrate correctly apportioned liability. 2. The Appellant's case before the subordinate court was that he was lawfully riding motorcycle registration number KMEM 015P on his proper lane when motor vehicle registration number KCV 065Q, owned and driven by the Respondent, lost control, veered onto his lane and collided with the motorcycle. Although PW1, Police Constable Paul Muthengi, was not the investigating officer, he produced the Police Abstract and testified from the police records. The Police Abstract indicated that the Respondent's motor vehicle was to blame for the accident. On the other hand, the Respondent denied negligence and maintained that the accident occurred under difficult weather conditions as it had rained, it was dark and the road was under construction. 3. In arriving at its decision, the trial court observed that the police had blamed the Respondent but had not provided any basis for that conclusion. The learned magistrate further reasoned that since the accident occurred at night, after it had rained and on a road under construction, both parties ought to have exercised greater caution and consequently apportioned liability at 80:20 in favour of the Appellant. 4. This Court agrees with the learned trial magistrate that the Police Abstract, standing alone, is not conclusive proof of negligence. Likewise, the opinion of a police officer, particularly one who neither investigated the accident nor produced the investigation file, cannot bind the court. It was the duty of the trial court to independently evaluate the entire evidence and determine liability. Indeed, the Court of Appeal in ***Mwangi & Another v Wambugu [1984] eKLR*** held that while police evidence is relevant, the court is not bound by the opinion contained in a Police Abstract or police records and must itself determine negligence from the totality of the evidence. 5. However, having discounted the police opinion as insufficient to conclusively establish negligence, the learned trial magistrate was still required to identify the evidential basis upon which contributory negligence could properly be attributed to the Appellant. That exercise does not seem to have been undertaken. 6. The record discloses no evidence that the Appellant was riding at an excessive speed, failed to keep a proper lookout, rode on the wrong side of the road, overtook improperly, rode without lights or committed any other act of negligence that contributed to the occurrence of the accident. Similarly, no sketch plan, inspection report, photographs of the scene, measurements or reconstruction evidence were produced before the trial court to demonstrate any fault on the part of the Appellant. Indeed, apart from the Respondent's general denial of liability, no evidence was tendered identifying any negligent act attributable to the Appellant. 7. The learned trial magistrate appears to have inferred contributory negligence solely from the prevailing road conditions, namely that the accident occurred at night, after rainfall and on a road under construction. While those circumstances undoubtedly called for greater vigilance from all road users, they could not, without more, constitute proof of contributory negligence. They merely established the conditions under which the accident occurred; they did not establish that the Appellant failed to exercise reasonable care for his own safety. 8. The Court of Appeal in ***Khambi & Another v Mahithi & Another [1968] EA* 70** which was cited with approval in the case of ***Kwamboka & another (Suing as the Legal Representatives of the Estate of Fredrick Mayaka Manyara – Deceased) v Mose [2026] KEHC 4451 (KLR)*** held that; *where a trial court has apportioned liability between the parties, an appellate court should not interfere unless it is satisfied that the trial court acted on wrong principles or that the apportionment is plainly erroneous.* 1. In the present appeal, the record does not disclose any evidential foundation upon which the Appellant could properly be held 20% contributorily negligent. While the trial court was entitled to discount the police opinion as not being conclusive, it was not open to the court to fill the resulting evidential gap by speculating that because it was dark, raining and the road was under construction, the Appellant must necessarily have contributed to the accident. Such a conclusion was not supported by the evidence on record. 2. Having independently re-evaluated the evidence as required of a first appellate court, I am satisfied that the learned trial magistrate misdirected himself in attributing contributory negligence to the Appellant without identifying any negligent act or omission proved against him. Consequently, I find merit in the appeal on liability. The finding apportioning liability at 80:20 in favour of the Appellant is hereby set aside and substituted with a finding holding the Respondent 100% liable for the accident. 3. ***Whether the learned trial magistrate erred in the assessment of damages*** 4. The principles upon which an appellate court may interfere with an award of damages are equally well settled. An appellate court will only interfere where it is shown that the trial court acted on a wrong principle of law, took into account an irrelevant factor, failed to take into account a relevant factor or where the award is so inordinately high or low as to represent an entirely erroneous estimate of the damage suffered. See ***Butt v Khan [1981] KLR 349.*** **a. *General Damages*** 1. The medical evidence adduced before the trial court was substantially consistent and left little room for controversy regarding the injuries sustained by the Appellant. The medical report prepared by Dr. Titus Ndeti Nzina dated 29 January 2023 confirmed that the Appellant sustained an open right mid-shaft femur fracture together with open fractures of the right tibia and fibula. The doctor classified the injuries as grievous harm, observed that they had interfered with the Appellant's normal daily routine for a period exceeding one year and recommended future surgery for removal of the implants at an estimated cost of approximately Kshs.100,000/=. 2. Similarly, the Respondent's medical report prepared by Dr. Ambrose Nyangao dated 27 September 2023 corroborated the nature and severity of the injuries. The doctor equally classified the injuries as grievous harm, confirmed that the Appellant would be unable to perform his normal duties for a period of not less than one year and estimated the cost of removing the implants at between Kshs.150,000/= and Kshs.200,000/=. It is therefore evident that both medical experts were *ad idem* that the Appellant sustained serious orthopaedic injuries involving multiple open fractures, prolonged incapacity and the need for further surgical intervention. 3. The learned trial magistrate awarded the Appellant Kshs.1,000,000/= as general damages. The Appellant contends that the award was inordinately low, whereas the Respondent urges this Court to uphold the same. 4. In assessing damages, courts are guided by the principle that comparable injuries should, as far as possible, attract comparable awards, while making allowance for the passage of time, inflation and the prevailing economic conditions. Uniformity in awards promotes certainty and consistency in the administration of justice, although no two cases are exactly alike. This was underscored by this court in [***Okumu v Oloo [2026] KEHC 8170 (KLR)***](https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8170/eng%402026-06-11) as follows: *23. …The court is ... reminded that it has a duty to demonstrate transparency in how the award is arrived at. Transparency is an important tenet in the administration of justice. Absent a general guideline in the law on award of damages, a court must then look at comparable awards made in the past and take into account other necessary factors like inflation.* 1. The Appellant relied on authorities involving comparable multiple fractures of the lower limb. In ***Patrick Kinyanjui Njama v Evans Juma Mukweyi [2017] eKLR***, the claimant sustained a segmental fracture of the right femur, an open segmental fracture of the right tibia, a fracture of the right fibula and a fracture of the left third metatarsal. The High Court upheld an award of Kshs.1,000,000 as general damages. Likewise, in ***George William Owuor v Beryl Awuor Ochieng [2020] eKLR*** which was cited with approval in the case of ***Ombeva & another v Muli (Civil Appeal E811 of 2024) [2025] KEHC 18309 (KLR) (Civ) (26 November 2025) (Judgment)****,* whereby the claimant sustained a fracture of the femur together with compound fractures of the tibia and fibula requiring surgical fixation. On appeal, the High Court upheld an award of Kshs.1,200,000 as reasonable compensation. 2. Although those authorities are not binding as to quantum, they provide useful guidance. More importantly, they demonstrate that awards for comparable orthopaedic injuries have progressively increased over time. The award of Kshs.1,000,000 in ***Patrick Kinyanjui Njama*** was made in 2017, while the award of Kshs.1,200,000 in ***George William Owuor*** was made in 2020. Since then, courts have consistently recognised that the depreciating value of the Kenya shilling and inflation are relevant considerations in maintaining consistency in awards. 3. In the present case, the Appellant sustained multiple open fractures involving both the femur and the tibia/fibula, injuries which both medical experts classified as grievous harm. The evidence further established that the injuries interfered with his daily activities for more than one year and necessitated future surgery to remove the implants. These are undoubtedly serious injuries attracting substantial compensation. At the same time, there was no evidence of amputation, paralysis, permanent total disability or other catastrophic complications that would justify the significantly higher award of Kshs.2,500,000 sought by the Appellant. 4. Upon considering the nature of the injuries, the comparable authorities cited by the parties, the prevailing trend in awards and the effects of inflation since the comparable decisions were rendered, I am persuaded that the award of Kshs.1,000,000 fell below the range of reasonable compensation for injuries of this nature. In the circumstances and guided by the principle that comparable injuries should receive comparable awards, I am satisfied that an award of Kshs.1,500,000 for pain, suffering and loss of amenities would constitute fair, reasonable and just compensation. I therefore interfere with the award made by the trial court and substitute it with an award of Kshs.1,500,000 under this head. ***b. Loss of Earnings*** 1. The Appellant further faults the learned trial magistrate for declining to award damages for loss of earnings. 2. The law is settled that a claim for loss of earnings represents a claim for actual pecuniary loss and must therefore be specifically pleaded and strictly proved. While the standard of proof is on a balance of probabilities, the claimant must nevertheless place before the court credible evidence demonstrating that the alleged income was indeed lost as a consequence of the injuries sustained. Mere assertions are insufficient. 3. The Appellant produced a salary increment letter dated 7th September 2022 together with a payslip for November 2022, demonstrating that he earned a monthly salary of Kshs.18,966. Those documents sufficiently established his employment and earnings prior to the accident. However, they did not establish that he actually lost his employment or that he ceased earning the stated salary for the period claimed. No termination letter, suspension letter, payroll records, evidence from the employer or any other documentary evidence was tendered to demonstrate that the Appellant was deprived of his salary for one year as pleaded. 4. It is true that both Dr. Titus Ndeti Nzina and Dr. Ambrose Nyangao opined that the Appellant would be unable to perform his normal duties for a period exceeding one year. While those medical opinions sufficiently established physical incapacity, they did not, without more, establish actual financial loss. Proof of incapacity is not synonymous with proof of lost income. The burden remained upon the Appellant to demonstrate that he indeed suffered the pecuniary loss claimed, a burden which was not discharged. 5. Similarly, although the pleadings alluded to loss of future earnings and loss of earning capacity, the evidence tendered did not establish permanent diminution of the Appellant's earning capacity. Both medical reports anticipated continued recovery following treatment and removal of the implants and no evidence was led to demonstrate that the Appellant's future competitiveness in the labour market had been permanently impaired. 6. I therefore find no basis upon which to interfere with the learned trial magistrate's decision declining to award damages under that head. *c.* ***Future Medical Expenses*** 1. The award of Kshs.100,000/= for future medical expenses was specifically pleaded and supported by the evidence of both medical experts, each of whom confirmed that the Appellant required future surgery for removal of the implants. Although Dr. Ambrose Nyangao estimated the cost at between Kshs.150,000 and Kshs.200,000, the court could not award more than was pleaded. I therefore find no error in the trial court's award under this head and uphold the same. ***d. Special Damages*** 1. The Appellant specifically pleaded special damages in the sum of Kshs.5,500 and produced documentary evidence in support thereof. Having found that the Respondent bears 100% liability for the accident, the proved special damages are recoverable in full. Consequently, the reduction of that award following the trial court's apportionment of liability cannot stand and the Appellant shall be entitled to the entire amount proved. 2. ***Who should bear the costs of Appeal*** 3. As regards costs, Section 27(1) of the Civil Procedure Act vests the discretion to award costs in the court, the general rule being that costs follow the event unless the court, for good reason, orders otherwise. The Appellant has substantially succeeded in this appeal, and no sufficient reason has been advanced to warrant a departure from that general principle. Accordingly, the Appellant shall have the costs of this appeal. **Conclusion** 1. In the final analysis, I find that the learned trial magistrate erred in attributing 20% contributory negligence to the Appellant in the absence of any evidence demonstrating negligence on his part. The evidence on record established, on a balance of probabilities, that the Respondent was solely responsible for the occurrence of the accident. I further find that the award of Kshs.1,000,000/= as general damages did not reflect the prevailing range of awards for comparable injuries and therefore warrants interference. However, I find no basis for interfering with the learned trial magistrate's decision declining the claim for loss of earnings or with the award of future medical expenses. Consequently, the appeal succeeds substantially. 2. Accordingly, the appeal is hereby allowed and the judgment of the subordinate court is varied. Judgment is entered for the Appellant against the Respondent as follows: | **Award** | **Amount / Order** | | --- | --- | | Liability | **100% against the Respondent** | | General damages for pain, suffering and loss of amenities | **Kshs. 1,500,000.00** | | Future medical expenses | **Kshs. 100,000.00** | | Special damages | **Kshs. 5,500.00** | | **Total Award** | **Kshs. 1,605,500.00** | 1. Costs of the appeal and interest on the above, from the date of this judgment until payment in full, are awarded to the Appellant. 2. Orders accordingly. **Delivered, Dated** and **Signed** at **Nairobi** this **23rd** day of **July,** **2026.** **Nabil M. Orina** **Judge** ***Judgment virtually delivered virtually in the presence of:*** ***Ms. Nekesa h/b for Mr. Ngigi for the Appellant*** ***Ms. Kemunto for the Respondent*** ***Linda - Court Assistant***