Rachuonyo v Ooko (Civil Appeal E252 of 2024) [2026] KEHC 11703 (KLR) (28 July 2026) (Judgment)

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT KISUMU COUNTY COURT NAME: KISUMU HIGH COURT CASE NUMBER: HCCA/E252/2024 KENNEDY ONYANGO RACHUONYO VS KENNEDY OCHIENG OOKO JUDGMENT ***(Being an Appeal from the Judgment of Hon. E.N. Mwenda, delivered on 4th November, 2024, in Kisumu CMCC No. E255 of 2023)*** # INTRODUCTION * 1. This Appeal arises from the Judgment delivered on 4th November, 2024, in Kisumu CMCC No. E255 of 2023, by Hon. E.N. Mwenda. 2. Before the trial court, the Plaintiff, now the Appellant, instituted a suit founded on the tort of negligence against the Defendant, now the Respondent, seeking general damages for pain and suffering arising from bodily injuries sustained in a road traffic accident, future medical expenses assessed at Kshs. 200,000/=, special damages of Kshs. 50,912/=, together with costs of the suit and interest thereon. 3. The Appellant's case was that on the morning of 6th Februar,y 2023, he was lawfully riding motorcycle registration number KMCG 013Q along the left side of the Katito–Homa Bay Road, while heading towards Pap Onditi. He averred that the Respondent's motor vehicle registration number KDD 049R was negligently managed and/or controlled such that it entered his lane of travel, thereby colliding with motorcycle registration number KMCG 013Q. * 1. The Appellant contended that, as a result of the accident, he sustained multiple bodily injuries. The Respondent denied the occurrence of the accident as pleaded, denied liability, and further denied that the Appellant sustained the alleged injuries. Without prejudice to the foregoing denials, the Respondent pleaded contributory negligence against the Appellant, alleging that he negligently rode his motorcycle into the Respondent's motor vehicle, lacked a valid riding licence, was operating an unroadworthy motorcycle, and failed to wear the requisite protective gear. 2. Upon considering the pleadings, the evidence adduced, and the submissions filed by the parties, the trial court dismissed the Appellant’s suit, holding that it could not countenance or aid conduct that was in contravention of the law. The court found that the Appellant was riding an uninsured motorcycle and did not possess a valid driving licence at the time of the accident. 3. The trial court reasoned that insurance operates on the principle of pooling resources for the purpose of transferring risk, with the ultimate beneficiary being the public at large. In its view, the Appellant was seeking to benefit from an insurance framework to which he had not contributed, contrary to the requirements of the law. In addressing the issue of whether a party who is in deliberate breach of the law should be permitted to obtain relief arising from such unlawful conduct, the court held that granting the Appellant's claim would amount to condoning and facilitating his breach of the law. 4. Notwithstanding its finding on liability, the trial court observed that it was nonetheless obligated to assess quantum of damages even where a suit is dismissed. Having considered the evidence and submissions placed before it, the court stated that, had the claim succeeded, it would have awarded the Appellant general damages in the sum of Kshs. 1,200,000/=. 5. The trial court further ordered that each party would bear its own costs, noting that the dismissal of the suit was founded on considerations of public policy. Being dissatisfied with the entirety of the said judgment, the Appellant lodged the present Appeal through a Memorandum of Appeal dated 3rd December, 2024, setting out twelve (12) grounds of appeal. # SUBMISSION BY PARTIES ## Appellants Submissions 1. The Appellant submitted that, as a first appellate court, this court is obligated to re-evaluate and re-analyze the evidence on record, relying on ***Selle v Associated Motor Boat Co. Ltd* (1968) EA 123 and *Mbogo v*** ***Shah*.** The Appellant principally challenged the trial court’s decision to dismiss the suit on grounds of public policy. 1. It was submitted that the trial court’s judgment was contradictory in that, while the learned magistrate correctly acknowledged that the absence of a driving licence or insurance does not, by itself, establish negligence on the part of a motorcyclist, the court nevertheless proceeded to dismiss the suit solely on account of the Appellant’s lack of a driving licence. 2. The Appellant further contended that the trial court improperly transformed the matter into a traffic offence inquiry by focusing on alleged breaches of the Traffic Act, thereby shifting the burden and standard of proof applicable in a civil claim. 3. Reliance was placed on ***Aoro v Were (Civil Appeal E024 of 2022) [2022] KEHC 14716 (KLR)*,** where the court held that the absence of a driving licence is not, of itself, evidence of negligence unless it is shown to have contributed to the occurrence of the accident. 1. On liability, the Appellant faulted the trial court’s finding of equal liability, arguing that the evidence demonstrated that the Respondent’s driver was wholly to blame for the accident. It was submitted that the Respondent’s driver admitted he was exiting Pap Onditi County Hospital and joining the main road when the accident occurred, thereby corroborating the Appellant’s account. The Appellant also pointed to inconsistencies between the driver’s oral testimony and his witness statement regarding whether he had already joined the main road at the time of impact. 1. The Appellant further submitted that the trial magistrate erred in apportioning liability equally between the parties solely on the basis that they had presented two differing versions of the circumstances leading to the accident. According to the Appellant, the learned magistrate failed to take into consideration the applicable traffic laws and regulations, which provide that a motorist plying the main highway has the right of way over a vehicle entering or joining the highway from a junction, access road, or other adjoining road. It was therefore contended that, since the Appellant was lawfully travelling along the main road while the Respondent’s driver was joining the same from Pap Onditi County Hospital, the evidence and the applicable law warranted a finding that the Respondent was wholly liable for the accident. 2. The Appellant further submitted that the trial court erred in failing to award future medical expenses despite uncontroverted medical evidence showing that a further procedure for removal of implanted hardware would cost Kshs. 200,000/=. The court was also faulted for failing to award damages for diminished earning capacity notwithstanding evidence that the Appellant had not fully recovered and could no longer effectively earn a livelihood as a motorcyclist. 3. Consequently, the Appellant prayed that the appeal be allowed, the judgment of the trial court be set aside, the dismissal of the suit on grounds of public policy be vacated, liability be apportioned wholly against the Respondent, and awards be made for future medical expenses, diminished earning capacity, costs, and any other appropriate relief. ## Respondents Submissions 1. The Respondent supported the trial court’s decision to dismiss the suit on grounds of public policy. It was submitted that the Appellant admitted that he was riding a motorcycle on a public road without a valid driving licence and without insurance cover. Reliance was placed on Sections 15(1) and 30(1) of the Traffic Act, Cap 403, Laws of Kenya. The Respondent argued that these provisions are intended to safeguard road users by ensuring that drivers and riders are properly licensed, trained, and insured. According to the Respondent, the Appellant ought not to benefit from a legal framework whose requirements he had deliberately disregarded, and the trial court was therefore justified in dismissing the suit. 1. On liability, the Respondent maintained that the accident of 6th February 2023 was solely caused by the negligence of the Appellant. Reliance was placed on Section 107 of the Evidence Act, with the Respondent submitting that the Appellant had failed to discharge the burden of proving negligence on a balance of probabilities. The Respondent further noted that PW2, the investigating police officer, testified that investigations were still pending and that he could not determine who was to blame for the accident. 2. The Respondent further argued that had the Appellant been a duly licensed rider, he would have received proper training on road usage, including the need to exercise caution and reduce speed when approaching a junction, thereby avoiding the accident. It was therefore submitted that the Appellant should not be insulated from the consequences of his own conduct. 3. In the alternative, and without prejudice to the foregoing submissions, the Respondent urged the court to uphold the trial court’s apportionment of liability at 50:50, contending that where the evidence does not clearly establish which party was more to blame, liability should be shared equally. 4. On quantum, the Respondent outlined the injuries sustained by the Appellant as a comminuted fracture of the left mid-shaft femur, segmental fractures of the left tibia and fibula, multiple cut wounds on the left leg, neck tenderness, backache, chest tenderness, and tenderness of the shoulders and elbows. 5. The Respondent further submitted that the evidence on record, particularly the Appellant’s testimony during re-examination, showed that he had substantially healed from his injuries, save for some difficulty in walking which was observable in court. 6. It was also submitted that the assessment of general damages is a discretionary exercise that must be undertaken judiciously and in accordance with established legal principles. 7. Regarding the claim for future medical expenses of Kshs. 200,000/=, the Respondent submitted that such damages must be specifically pleaded and strictly proved, relying on ***Susan Kipturu v Susan Chepkatam Limarus*** ***(2019) eKLR*.** The Respondent further relied on the medical report of Dr. Odira, produced as DExh. 1, which indicated that the Appellant’s femur and tibia-fibula fractures had healed, leaving only a residual disability assessed at 5%. Accordingly, the Respondent prayed that the Appeal be dismissed with costs. 1. This being a first appeal, this court is duty-bound to re-evaluate, re-analyze and reconsider the evidence on record and arrive at its own independent conclusions, while bearing in mind that it neither saw nor heard the witnesses testify. As was held in **Selle & Another v Associated Motor** **Boat Co. Ltd & Others (1968) EA 123**, a first appellate court must reconsider the evidence, evaluate it itself and draw its own conclusions, while giving due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses. # ISSUES FOR DETERMINATION 1. Whether the trial court erred in dismissing the Appellant's suit on grounds of public policy on account of the Appellant riding an uninsured motorcycle and without a driving licence. 2. Whether the trial court properly apportioned liability at 50:50. 3. Whether the trial court properly assessed quantum of damages. # ANALYSIS ON THE ISSUES FOR DETERMINATION ## Whether the trial court erred in dismissing the suit on grounds of public policy 1. There is no dispute that the Appellant admitted that he did not possess a valid riding licence and that the motorcycle was uninsured at the time of the accident. The Respondent relied on Sections 15(1) and 30(1) of the Traffic Act and argued that a party who deliberately violates the law should not benefit from the protections afforded by that same legal framework. 2. The trial court agreed with that position and held that allowing the claim would amount to aiding or condoning the Appellant's breach of the law. It therefore dismissed the entire suit notwithstanding its findings on liability and quantum. 3. This court agrees with the trial court to the extent that compliance with the Traffic Act is not optional and that licensing and insurance requirements are enacted for the protection of the public. However, the crucial question is whether the absence of a driving licence and insurance automatically disentitles an injured claimant from pursuing a civil claim in negligence. The answer is in the negative. 1. The trial court itself correctly observed: *“the notion that the Plaintiff is negligent because he is not license to drive is inapt. Many licensed drivers cause accidents daily the fact of being unlicensed by itself does not impute that the plaintiff was negligent, it however casts a doubt as to whether the Plaintiff was a competent driver, having not been instructed on the traffic laws.”* 2. That position is consistent with the holding in ***Aoro v Were (Civil Appeal E024 of 2022) [2022] KEHC 14716 (KLR*)** where the court expressly stated: ### “I must however warn that the fact that the motor cycle rider had no driving licence had nothing to do with the cause of the accident. Once the plaintiff discharges the burden of proof as required under Section 107 of the Evidence Act, that the driver was to blame for the accident for driving the vehicle in a negligent manner as pleaded in the plaint, and as per the evidence adduced in court on oath, the failure to have a driving or riding licence cannot be the reason for the accident unless ***there is proof that the rider drove in such a manner that the failure to have the driving licence was the contributory factor to the material accident.”*** 1. The burden remained on the Respondent to demonstrate that the Appellant's lack of a licence contributed to the occurrence of the accident. No such evidence was tendered. 2. Indeed, the trial court expressly found that being unlicensed does not, by itself, establish negligence. Having made that finding, it was contradictory to proceed and dismiss the suit solely on public policy grounds without demonstrating a nexus between the breach of the Traffic Act and the occurrence of the accident. 3. The tortious claim before the court was founded on negligence and not on the enforcement of the Traffic Act. The primary inquiry therefore remained whether negligence had been proved on a balance of probabilities. The Appellant's failure to possess a licence may expose him to sanctions under the Traffic Act, but it does not automatically extinguish a civil cause of action arising from injuries sustained in a road traffic accident. 4. Accordingly, this court finds that the learned magistrate fell into error in dismissing the suit solely on grounds of public policy. ## Whether the trial court properly apportioned liability at 50:50 1. The Appellant contended that the Respondent's driver was wholly liable because he was joining the main road from Pap Onditi County Hospital and therefore ought to have yielded to traffic already using the highway. 2. The Respondent on the other hand maintained that the Appellant rode negligently and collided with the motor vehicle. 3. The evidence before the trial court disclosed two competing versions; The Appellant testified that he was already travelling along the main road when the Respondent's vehicle suddenly emerged from the hospital junction and rammed into his motorcycle. Conversely, DW1 testified that he had already joined the road when it was clear and that the Appellant rode into the front left side of his vehicle. 1. The learned magistrate analyzed the evidence and found that both narratives could not simultaneously be true. The court therefore concluded that where doubt exists as to how the accident occurred, liability ought to be apportioned equally. This court associates itself with that reasoning. 1. Significantly, PW2, the police officer, testified that investigations were still pending and he could not determine who was to blame for the accident. 2. The Court of Appeal in ***Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR*** stated: ### “The determination of liability in a road traffic case is not a scientific affair... The question must be determined by applying common sense to the facts of each particular case.” 1. The court further observed that where the evidence does not clearly establish a sole cause, more than one party may properly be regarded as having jointly caused the accident. 2. Similarly, in ***Lakhamshi v Attorney General [1971] EA 118***, the East African Court of Appeal held that where the evidence leaves the court unable to determine with precision who was more to blame, apportionment of liability is appropriate. 3. Although the Appellant argued that a motorist travelling on the main road enjoys the right of way, the mere existence of the right of way does not relieve such a motorist from the duty to exercise reasonable care. The evidence on record did not conclusively establish the point of impact, speed, or precise movements of either party. 4. In those circumstances, the trial court cannot be faulted for apportioning liability equally if the suit was not dismissed. This court therefore finds that the apportionment of liability at 50:50 was justified by the evidence and ought not to be disturbed. ## Whether the trial court properly assessed quantum 1. The trial court assessed damages despite dismissing the suit and found that had the claim succeeded, it would have awarded General Damages – Kshs. 1,200,000/= and Special Damages – Kshs. 50,912/= proved. 2. The Appellant sustained: comminuted fracture of the left femur, segmental fractures of the left tibia and fibula, multiple cut wounds on the left leg, neck tenderness, backache, chest tenderness, tenderness of the shoulders and elbows. 3. The trial court further found that the injuries resulted in permanent disability ranging between 5% and 10% and that the Appellant underwent open reduction and internal fixation and was hospitalized for approximately three weeks. 4. The principles governing interference with an award of damages are settled. In ***Kemfro Africa Limited t/a Meru Express Service, Gathogo Kanini v A.M. Lubia & Olive Lubia (1982-88) 1 KAR 727****,* the court held: ### “The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge were held ... to be that it must be satisfied that either that the judge, in assessing the damages took into account an irrelevant factor, or left out of account a relevant one, or that; short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage.” 1. There is nothing on record to suggest that the learned magistrate applied wrong principles or considered irrelevant factors in arriving at the figure of Kshs. 1,200,000/=. The assessment was based on the nature of the injuries, degree of disability and comparable authorities cited by the parties. 1. Regarding future medical expenses, the evidence indicated that removal of the implants would cost Kshs. 200,000/=. Such expenses are in the nature of special damages and must be specifically pleaded and strictly proved. The Appellant pleaded the claim and produced a medical evalution in support thereof (captured at page 36-37 of the Record of Appeal) while the Respondent merely relied on a subsequent medical report indicating substantial healing. The fact that healing had occurred did not negate the need for future removal of implants if recommended by medical experts. 2. Consequently, had the suit succeeded, this court would have upheld the award of Kshs. 200,000/= as future medical expenses. 3. On the claim for diminished earning capacity, the Appellant submitted that he could no longer effectively earn a livelihood as a motorcyclist due to the injuries sustained. However, beyond that assertion, no evidence was tendered to demonstrate that he was permanently incapable of continuing with his occupation or that his earning capacity had been substantially impaired. The medical evidence on record indicated that the fractures had healed, with only a residual disability assessed at between 5% and 10%. An award for diminished earning capacity is discretionary but must be supported by cogent evidence demonstrating a real loss or reduction in the claimant’s ability to earn income. In the absence of such evidence, this court finds no basis for making an award under this head. # DISPOSITION 1. Upon re-evaluating the evidence and the law, this court finds that the trial court erred in dismissing the suit solely on grounds of public policy. However, the trial court properly analyzed the evidence on liability and correctly apportioned liability at 50:50. The court is also satisfied that the assessment of general damages, future medical expenses, and special damages was supported by the evidence on record. 2. Accordingly, the following orders shall issue: 1. The dismissal of the Appellant's suit on grounds of Public Policy is hereby set aside. 2. Liability shall remain apportioned at **50:50** between the Appellant and the Respondent. * 1. General Damages of **Kshs. 1,200,000/=** are hereby awarded. 2. Future medical expenses of **Kshs. 200,000/=** are hereby awarded. * 1. Special Damages of **Kshs. 50,912/=** are hereby awarded. 2. The Total Award of **Kshs. 1,450,912/=** shall be subject to the 50:50 apportionment of liability, leaving the Appellant entitled to **Kshs. 725,456/=**. * 1. Interest shall accrue at court rates. It is so ordered. SIGNED BY/FOR: **□ TH E JUDICIAR Y O F KENY A ★** **HON. JUSTICE ABDI M. HASSAN** Kisumu High Court High Court Civil Date: 2026-07-28 12:49:26