Tabuche & another v Muyaka (Civil Appeal E077 & E075 of 2025 (Consolidated)) [2026] KEHC 12416 (KLR) (30 July 2026) (Judgment)

 **REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KAKAMEGA** **CIVIL APPEAL NO. E077 OF 2025** **KEVIN OLUNGA TABUCHE …………………………….…….……………..…… APPELLANT** **VERSUS** **PETER OMBUKU MUYAKA ...……..………………..……………………….…. RESPONDENT** **(Being an appeal from the Ruling and or decision of Hon. R. S. Kipng’eno (PM) delivered on 7th January 2025 in Butali PMCC No. E046 of 2024)** **(CONSOLIDATED WITH CIVIL APPEAL NO. E075 OF 2025)** **FABIANO INGABO SABAI (Suing as the legal and personal representative of the estate of ALEXANDER MULELE (Deceased) ……….…….……………..…… APPELLANT** **VERSUS** **PETER OMBUKU MUYAKA ...……..………………..……………………….…. RESPONDENT** **(Being an appeal from the Judgement and or decision of Hon. R. S. Kipng’eno (PM) delivered on 20th May 2025 in Butali PMCC No. E099 of 2024)** **JUDGEMENT** **Background** 1. The Appellants herein filed two separate suits in which both claimed general damages, special damages as well as costs of suit against the Respondent herein arising from a road traffic accident that they alleged occurred on 1st September 2022. 2. The facts as stated in the plaint were that on the material date, while the deceased in MCCC. No. E099/2024 and the Appellant in MCCC. No. E046/2024 were travelling towards Kabras on a motor cycle as pillion passengers along Kakamega-Webuye Road near “M” area, the Respondent’s driver, agent or servant so negligently, recklessly and carelessly drove motor vehicle registration No. KTBC 589S Tractor that it lost control, veered off the road and knocked down the deceased and the Appellant pillion passenger. It was averred that as a result of the accident, the tractor run over the deceased and caused his demise while the surviving pillion passenger who is one of the Appellants herein sustained serious bodily injury. 3. The particulars of negligence, particulars of loss, special damages and general damages were pleaded in both plaints wherein both Claimants also pleaded the doctrine of *res ipsa loquitor*. 4. The Respondent filed a statement of defence in which he denied liability and in the alternative, claimed that the deceased and the injured Plaintiff contributed to the accident by failing to wear a helmet, failing to take any adequate precautions for their own safety, and causing the accident. 5. The matter proceed to hearing in which the Appellant and his witness in MCCC. No. E046 of 2024 adopted their respective statements then closed his case. The evidence of PW2 was by consent, adopted by the Appellant in MCCC. No. E099 of 2024. 6. At the close of the Appellants’ case, the Respondent gave a defence in which he adopted his statement. Once more, the Respondents’ evidence as tendered in MCCC. No. E046/2024 was adopted in MCCC. No. E099/2024. 7. In two separate Judgements delivered on 20/5/2025, the trial Magistrate entered judgement in favor of the Appellants and apportioned liability at 50:50 in MCCC. No. E046/2024 and at 50:50 in MCCC. No. E099/2024. Consequent to the said finding, the trial Magistrate proceeded to make the following awards:- 8. MCCC. No. E046 of 2024 Liability 50:50 in favour of the Plaintiff General damages Ksh. 1,000,000/= Loss of earning capacity Ksh. 200,000/= Future medical expenses Ksh. 1,500,000/= Special damages Ksh. 16,730/= Total Ksh. 2,716,730/= Less 50% contribution **Total Award Ksh. 1,358,365/=** 1. MCCC. No. E099 of 2024 Liability 50:50 in favour of the Plaintiff Pain and Suffering Ksh. 50,000/= Loss of expectation of life Ksh. 250,000/= Loss of dependency 12,522.70 x 70 x 12 x 32 x 2/3 Ksh. 3,205,811,82 Special damages Ksh. 138,640/= Total Ksh. 3,644,451/= Less 50% contribution **Total Award Ksh. 1,822,225.50** 1. In Civil Appeal No. E077 of 2025, the Appellant set down the following grounds of appeal:- *a) The trial magistrate erred in law and facts by subjecting the plaintiff to a liability of 5O% when the plaintiff was not in control of the mother cycle hence arriving at a wrong decision.* *b) The trial magistrate erred in law and fact by awarding the plaintiff an Kshs. 1,000,000/= as General damages instead of Kshs. 4,0O0,00O/: as the plaintiff suffered grave injuries that negated his life.* *c) The trial magistrate erred in law by not awarding interest on special damages which should run from the date of filling the suit.* *d) The trial magistrate erred in law and fact by apportioning liability on special damages.* 1. Each Plaintiff was dissatisfied with their judgement and lodged separate Appeals in which the Appellant in Civil Appeal No. E075 of 2025 set down the following grounds of appeal:- 2. *The trial Magistrate erred in law and facts by awarding the plaintiff Ksh. 50,000/= for pain and suffering instead of Ksh. 1,500,000/=.* 3. *The trial Magistrate erred in law and fact by not awarding interest on special damages which interest should run from date of filing the suit.* 4. *The trial Magistrate erred in law by not apportioning liability of 50:50% contribution when the deceased was not to be blamed (sic).* 5. *The trial Magistrate erred in law by not giving reasons of apportioning liability of 50:50 contributions.* 6. *The trial Magistrate erred in law and fact by not framing issues hence arriving at a wrong decision.* 7. The two appeals were consolidated for purposes of the Judgement after the parties had filed and exchanged their submissions. 8. The Appellant in Civil Appeal No. E077 of 2025 submitted that the trial Magistrate erred in awarding Ksh. 1,000,000/= for general damages instead of the Ksh. 4,000,000/= prayed for. Reliance was placed on **P.N. Mashru Limited v. Omar Mwakoro Makenge [2018] eKLR**, **Bernard Ondieki v. Boniface Ndege Orayo [2020] eKLR**, **James Wambua Kimila v. Sinohydro Corporation Limited & Another [2020] eKLR** and **Dhokia Transporters Limited v. Azere [2024] KEHC 7090.** 9. The Appellant further submitted that since he was not in control of the motor cycle, and since the Respondent did not sue the owner of the motorcycle as a third party, then liability ought to have been 100%. 10. The Appellants further faulted the learned trial Magistrate for failure to frame issues, analyze the same and discuss them or give reasons for his findings, an omission which they submitted was grave. 11. On apportionment of liability, the Appellants submitted that the deceased was a rider and had put on a helmet and reflection jacket which evidence was corroborated by the witness whereas the Respondent was not a driver of the tractor that caused the accident and since his defence was never corroborated, he should be held 100% liable. It was submitted that he never brought the police officers whom he alleged were with him during the accident and that he gave contradictory evidence by lying first that he was a passenger on the tractor then on cross-examination, claiming that he was the driver. It was submitted that no sketch map was availed to court by the police officers who were at the scene and the photographs were taken by the Respondent in person and since the Respondent did not avail even one witness, liability should wholly rest on him. Reliance was placed on the case of **David Mwangi Kamunyu v. Rachael Njambi Ruguru [2022] eKLR**. 12. On behalf of the estate of the deceased, it was submitted that the award of Ksh. 50,000/= was too little as the deceased did not die instantly and underwent great pain and suffering. The Appellant urged the court to award them of Ksh. 1,500,000/= and relied on the case of **Daniel Kuria Nganga v. Nairobi City Council [2013] eKLR**. 13. On the issue of interest on special damages, the trial Magistrate was faulted for failure to award interest on special damages from the date of filing of the suit. The Appellant cited **Mara Tea Factory Limited v. Lillian Bosibori Nyandika [2021] eKLR** and submitted that interest on special damages should run from the date of filing of the suit and not from the date of Judgement. 14. Regarding apportionment of liability on special damages, it was submitted that it is trite law that only general damages can be subjected to liability. **Respondent’s Submissions** 1. On Civil Appeal No. E077, the Respondent advanced the same arguments as in Civil Appeal No. E075 regarding liability and interest. 2. Regarding pain and suffering, the Respondent contended that the award of Ksh. 1,000,000/= was reasonable compensation and that the trial court neither adopted a wrong approach nor misapprehended the facts when arriving at the said award. He placed reliance on **Power Lighting Company Ltd & Another v. Zakayo Saitoti Naingola & Another [2008] eKLR**, **Regina Mpinda v. Reuben Muthiora Johny [2022] eKLR** among other cases. He maintained that for the injuries and 42% disability suffered by the Appellant, the award by the trial court was proper. He posited that the cases relied upon by the Appellant did not in any way support the Appellant’s claim for Ksh. 4,000,000/=. 3. On Civil Appeal No. E075, the Respondent submitted that the trial court was right in apportioning liability at 50:50 as the evidence adduced before the trial court showed that the deceased did not have a helmet or a reflector jacket, nor was he wearing boots as required of Boda-boda riders. He also submitted that while the Appellant submitted that the deceased was a qualified driver, no driving licence was produced, and the number plate remained unknown to the date of the appeal. He submitted that all the aforesaid facts plus the fact that the deceased crushed into a stationary vehicle made the court apportion liability equally. 4. On the Ksh. 50,000/= award for pain and suffering, the Respondent maintained that it was reasonable compensation and referred to **Hyder Nthenya Musili & Another v. China Wu Yi Limited & Another [2017] eKLR** and **Sukari Industries Ltd v. Clyde Machimbo Juma [2016] eKLR**. He contended that the award of Ksh. 1,500,000/= made in **Daniel Kuria Nganga v. Nairobi City Council (Supra)** was unique to the cause of death, which was asphyxia due to drowning. 5. To fortify his submissions, the Respondent cited the cases of **Mercy Muriuki & Another v. Samuel Mwangi Nduati & Another (Suing as the Legal Administrator of the Estate of the later Robert Mwangi [2019] eKLR**, **Alex Koech & Another v. Nelson M. Mulama (Suing as the legal representative of the estate of Kevin Kinyanjui (Deceased) [2018] eKLR**, and **Abraham Kuira Civil Appeal No. 49 of 2022 [2023] KEHC 1740 (KLR)** where the court upheld an award of Ksh. 10,000/= on pain and suffering where the deceased died on the same day. 6. Pertaining to interest on special damages, the Respondent asserted that according to Section 26 (1) of the Civil Procedure Act, the award of interest was discretionary to the court provided the award was made judiciously. The Respondent relied on the case of **Jane Wanjiku Wambui v. Anthony Kigamba Hato & 3 others 2018] eKLR**. **Analysis and Determination** 1. This is a first appeal and the duty of the court is as was held in **Selle v. Associated Motor Boat Co. [1968] EA 123** that:- ***“…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 demeanor of a witness is inconsistent with the evidence in the case generally.”*** 1. The holding in the aforesaid case means that this court is duty bound to revisit the facts as presented to the trial court through a fresh lense, analyze the same and arrive at its own independent conclusion without ever losing sight of the reality that it did not have the privilege of hearing and observing the witnesses as they tendered evidence and hence giving due allowance on that account. 2. Nonetheless, in **Peters v. Sunday Post Limited [1958] EA 424,** the court observed that the jurisdiction to review the record of evidence should be exercised cautiously and held that:- ***“Whilst an appellate court has jurisdiction to review the evidence to determine whether the conclusions of the trial judge should stand, this jurisdiction is exercised with caution; if there is no evidence to support a particular conclusion, or if it is shown that the trial judge has failed to appreciate the weight or bearing of circumstances admitted or proved, or has plainly gone wrong, the appellate court will not hesitate so to decide...”*** 1. The Appellants having been dissatisfied with the apportionment of liability, it is evident that this appeal revolves around the question as to whether the Appellants proved their case to the required standard. The burden of proof is always on the party who alleges as is stipulated in Section 107 to 109 of the Evidence Act. 2. In **Evans Nyakwana v. Cleophas Bwana Ongaro [2015] KEHC 8440 (KLR)**, it was held:- ***“…As a general proposition the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue.*** ***17.The Court of Appeal in Jennifer Nyambura Kamau Humphrey Mbaka Nandi [2013] eKLR considered the applicability of these provisions as follows;*** ***We have considered the rival submissions on this point and state that section 107 and 109 of the***[***Evidence Act***](https://new.kenyalaw.org/akn/ke/act/1963/46)***places the evidential burden upon the appellant to prove that the signature on these forms belong to the Respondent. Section 107 of the***[***Evidence Act***](https://new.kenyalaw.org/akn/ke/act/1963/46)***provides that “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.” Section 109 stipulates that the burden of proof as to any particular fact lies on the person who wishes the court to believe in its existence. If an expert witness was necessary, the evidential burden of proof was on the appellant to call the expert witness. The appellant did not discharge the burden and as Section 108 of the***[***Evidence Act***](https://new.kenyalaw.org/akn/ke/act/1963/46)***provides, the burden lies on that person who would fail if no evidence at all were given on either side.”*** 1. The question as to what amounts to proof on a balance of probabilities was considered by the Court of Appeal in **Palace Investment Ltd v. Geoffrey Kariuki Mwenda & Another [2015] KECA 616 (KLR)**, which cited with approval, the case of **Miller v. Minister of Pensions [1947] 2 ALLR ER 372** in which Denning J. stated:- “**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.”** 1. Additionally, in **William Kabogo Gitau v. George Thuo v. 2 others [2010] 1 KLR 526**, the Court held that:- ***“In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case are more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51% as opposed to 49% of the opposite party is said to have established his case on a balance of probabilities. He has established that it is probable than not that the allegation that he made has occurred.”*** 1. Flowing from the above, there is no doubt that the Appellants were under duty to adduce sufficient evidence to prove the facts constituting the negligence on the part of the Respondent. That duty could not shift to the Respondent save once the Appellants discharged the evidential burden. 2. The Appellants adduced evidence through two witnesses who were at the scene. The pillion passenger Kevin Olunga Tabuche whom I shall refer to as the 1st Appellant for ease of identification testified that he was a pillion passenger and had on his helmet and a reflector jacket and that the rider of the motor cycle indicated that he wished to overtake the subject tractor which was ahead of them and that the subject tractor indicated left paving the way for the rider to overtake. That in the process of overtaking, the tractor driver abruptly turned on the right side of the road and violently hit him and the rider thereby causing them to fall on the tarmac road whereby he sustained serious injuries which shall be discussed later in this judgement. 3. On cross-examination, the 1st Appellant said that the speed was moderate. He was shown photographs of the scene which he said he could not tell when they were taken. He produced a police abstract report which showed that the matter was still pending under investigations. 4. PW2 was an independent eye witness who adopted his written statement in which he had stated that on the material date while riding his motor cycle along Kakamega-Webuye road facing Webuye direction and having kept to his left hand side of the road, ahead of him was tractor registration number KCTB 589S which was being driven in a zig zag manner. He saw the tractor indicating right as a motorcycle was trying to overtake it after it had indicated left as a sign to pave way for overtaking. PW2 stated that in the process of overtaking the said tractor, it turned right and violently hit the 1st Appellant and the rider both of whom fell down. The witness stated that he recalled a police officer asking for his number as he had witnessed the accident and later, he recorded a statement at the police. He said that both the rider and the Appellant had reflector jackets and helmets and blamed the subject tractor for the accident. 5. In defence the Respondent in his evidence in chief adduced via a written witness statement said that he was aboard the subject tractor which had a trailer attached to it, when his driver and he were driving his tractor was stopped by police officers on patrol at “M”. They stopped by the side of the road and alighted and while the police were checking his driver’s driving licence and other details of the tractor, there was a loud bang from the back and on checking, they realized that a motor cycle had hit the trailer attached to the tractor from behind, thereby causing the accident despite it being broad daylight. 6. The Respondent produced photographs of the scene which this court has seen. It is noted that the subject tractor was on the road and not “*on the side of the road away from the highway*” as stated in the Respondent’s statement. I also note that the trailer is a distance from the body. 7. On cross-examination, the Respondent who did not produce a driving licence said that he was the one driving the tractor on the spot and that his driver had driven the tractor from home to Kambi ya Mwanza where he took over. He said that he was a passenger on the tractor but conceded that there are no seats for passengers on the tractor. He also said that he took the tractor for inspection but did not produce the Inspection Report in evidence nor call Vincent the driver as a witness nor produce the sketch map. He stated that he personally took the photos but denied the suggestion that the tractor was moved to facilitate the taking of the photo. He denied lying to the court and said the deceased’s boy was lying behind the tractor. 8. It is against the backdrop of the two divergent versions as to how the accident occurred that the court has to determine whether the trial Magistrate erred in apportioning liability in the manner that he did. 9. In **Michael Hurbet Kloss & Another v. David Seroney & 5 others [2009] KECA 146 (KLR)**, the Court of Appeal quoted Lord Reid in Stapley v. Gypsum Mines Ltd (2) [1953] A.C. 663 as follows:- ***“The determination of liability in a road traffic case is not a scientific affair. Lord Reid put it more graphically in Stapley v Gypsum Mines Ltd (2) (1953) A.C. 663 at p. 681 as follows:*** ***“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation it is quite irrelevant in this connection. In a court of law this question must be decided as a properly instructed and reasonable jury would decide it………………….……………………*** ***“The question must be determined by applying common sense to the facts of each particular case. One may find that as a matter of history several people have been at fault and that if any one of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly caused the accident. I doubt whether any test can be applied generally.”*** 1. The said court further held that:- ***“While multiple people may be at fault, the court must discriminate between those faults which must be discarded as being too remote and those which must not.”*** 1. An analysis of the evidence adduced by the parties herein leads to the conclusion that each party was not telling the whole truth. Although the Appellants claim that both the rider and his passenger were dressed in reflector jackets and helmets, the photographs of the deceased only show the deceased dressed in a red jacket without reflectors. His head is blurred and so the court cannot tell whether he had a helmet or not. However, the inference I can draw from the scene is that there were no helmets, for if there were, the deceased would not have suffered head injuries. I also note from the P3 form produced by the 1st Appellant Kevin Olunga Tabuche, that he had a head injury leading to loss of consciousness as well as a blunt injury to the neck. 2. On the part of the Respondent, I find his credibility suspect for his statement is vague as to who was driving the tractor at the time of the accident yet he claims that when the police stopped them, they checked the driver’s licence. The police would not have checked his driver’s licence if it was the Respondent who was driving. Besides, the OB extract which was produced indicated that a report had been made that while one Vincent Kaskon Muyeka was driving the subject tractor, a motor cycle rammed into the tractor as a result of which the rider died on the spot and the pillion passenger was rushed to Kakamega County Referral Hospital for treatment. 3. During cross-examination of the Respondent, he said that he was driving the tractor although he had not brought Vincent as a witness. The question that begs an answer from the Respondent’s evidence is; why did he not avail Vincent, the designated driver of the tractor to corroborate his claim that the accident was caused by the deceased rider? 4. Without forgetting who bears the burden of proof, it is noted that neither the Appellants nor the Respondent summoned the traffic police officers who visited the scene to adduce evidence and produce a sketch map. Where a sketch is not produced, the court cannot determine the exact point of impact and in light of the two conflicting narratives that are diametrically opposed as to how the accident occurred, the court is unable to determine causation. Consequently, the court must fall back to the long held principle that where the court cannot determine who is at fault in a collision due to conflicting evidence, then the fault must be apportioned equally as underscored by the Court of Appeal in the case of **Hussein Omar Farah v. Lento Agencies [2006] KECA 388 (KLR)**. In the premises, despite the fact that the trial court did not give reasons for his finding on liability, I am of the view that the finding was sound. 5. The general principle to be observed by an appellate court in deciding whether to disturb an award on quantum were set out in **Kemfro Africa Ltd t/a Meru Express Services (1976) & Another v. Lubia & Another [1985] eKLR** and restated by the Court of Appeal in **Arrow Car Ltd v. Elijah Shamalla Bimomo & 2 others [2004] KECA 136 (KLR)** where it held that:- ***“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 by the former Court of Appeal of Eastern Africa 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.”*** See also **Kenya Bus Services ltd v. Jane Karambu Gituma Civil Appeal no. 241 of 2000**. 1. On the award of general damages, pain and suffering it has been consistently held that it is not meant to enrich the victim but to compensate for injuries sustained, which compensation should be commensurate with the injuries sustained and, which take account of previous awards for similar injuries. The guiding principle is that comparable injuries should attract comparable awards as held by the Court of Appeal in **Odinga Jactone Ouma v. Moureen Achieng Odera [2016] eKLR**. 2. Regarding the award of general damages in Civil Appeal No. E077, the Respondent did not contest the claim that the 1st Appellant suffered the following injuries:- painful swelling and bruise over the left forehead; blurred vision to both eyes, toothache, neck pains, chest pains, pain on both flanks and swollen forearm; painful swollen and deformed left hand 2nd to 4th fingers; painful right upper limb; total blindness in the left eye; fractures to the 2nd, 3rd and 4th proximal (upper) phalanx (bones); and traumatic haemorhage in the front and ethmoidal-nasal sinuses. Percentage disability was assessed at 42%. 3. The P3 form confirmed that the 1st Appellant suffered the said injuries and classified the injury as grievous harm. The findings, according to Dr. Mulianga Ekesa’s medical report as produced in court was that the 1st Appellant suffered total blindness of the left eye assessed at 30%, a fixed deformity of the 3rd left finger assessed at 2% and psychological trauma assessed at 10%. 4. There is no doubt whatsoever, that the total loss of an eye is a traumatic and painful experience that not only impacts on a person physically but also psychologically. However, in the cases cited by the 1st Appellant, the injuries were vastly different from the injuries suffered by the Appellant herein. In **Butter v. Butter [1984] KR, 225**, the Court of Appeal held:- ***“In awarding damages, a Court should consider the general picture of all prevailing circumstance and effect of the injuries of the claimant but some degree of uniformity is to be sought in the awards, so regard would be paid to recent awards in comparable cases in local Courts. The fall of value of monies generally, the levelling up and down of the facts of exchange between currencies…should be taken into consideration.”*** 1. In **Robert Misioki Kitavi v. Coastal Bottlers Limited [1985] KECA 79 (KLR)**, the Court of Appeal observed that the loss of an eye was a devastating experience that significantly impairs one’s visual amenities and awarded the Claimant Ksh. 475,000/=. Indeed, eye loss limits one’s employment options and has a permanent negative impact on one’s life. See also **Peter Njoroge Mburu & Another v. Collins Mutua Kinge [2024] KEHC 1889 (KLR)** where an award of Ksh. 2,500,000/= was made as general damages for loss of eye sight assessed at 30%, among other injuries albeit more severe than in the present case. 2. In the case of **Charles Komoso Toton v. Reuben Cherutich Chebon & Another, Civil Suit No. 55 of 2004 [2012] eKLR**, an award of Ksh. 1,600,000/= was made to the Plaintiff who had suffered severe head injury with a fracture of the base of the skull resulting in the loss of sight of the right eye, fracture of the right humerous head with dislocation of the right shoulder joint, and fracture of the left humerous in the lower one third. 3. In **Glad Toto Apartment Ltd v. Fredrick Moody Mugasia [2025] KEELRC 3721 (KLR)** the Court upheld an award of Ksh. 2,000,000/= for permanent loss of the right eye having relied on the cases of **Pioneer Holdings (Africa) Limited v. Francis Shitsukane Abakala & Another [2017] eKLR** and **Peter Oduor Shikuku v. Magnum Engineering & General Contractors Ltd & Another [2021] eKLR** where the courts awarded Ksh. 2,500,000/= and Ksh. 2,000,000/= respectively for total loss of one eye. 4. Having carefully reviewed the evidence and considered the relevant case law, I find that the award of Ksh. 1,000,000/= was so inordinately low taking into account the nature and extent of the injuries and the inflationary trends. In my view, an award of Ksh. 2,500,000/= is more appropriate. 5. As for the award of Ksh. 50,000/= for pain and suffering where the deceased died instantly, there is a number of authorities that the award of Ksh. 10,000/= is sufficient. In Civil Appeal No. E075, the post-mortem report produced by the Appellant indicated that the deceased died on the spot. Death on the spot equates to instantaneous death and so any pain suffered by the deceased was minimal. The award of Ksh. 50,000/= was well within the normal range and I am not persuaded that it should be disturbed. 6. Regarding the claim for interest on special damages from the date of filing of suit, although Section 26 (1) of the Civil Procedure Act empowers the court to apply its discretion in awarding interest, established case law dictates otherwise. In the case of **Jane Wanjiku Wambu v. Anthony Kigambo Hato & 3 others [2018] eKLR**, Ngugi J, as he then was held that in claims for liquidated damages, unless there is good cause, the interest should be calculated from the date of filing of the suit. Similarly, in **Martin Gicimu Kamanga v. Board of Governors St. Anne’s Junior School, Lubao**, Musyoka J, awarded interest from the date of filing of suit in an appeal against a Judgement which was silent on interest on special damages. 7. Guided by the aforesaid, I find that the trial court erred in failing to award interest on special damages without reason. 8. It is noted that the Respondent is not opposed to the lifting of apportionment of liability on special damages as it is an established principle that liability should not be apportioned on special damages. 9. In the end, the two appeals partially succeed. Regarding costs, it is a well settled principle that costs follow the event. In **Jasbir Singh Rai & 3 others v. Tarlochan Singh Rai & others S.C Petition No. 4 of 2012 [2014] *KESC 31 (KLR),*** the Supreme Court pronounced itself as follows:- ***“18. It emerges that the award of costs would normally be guided by the principle that “costs follow the event”: the effect being that the party who calls forth the event by instituting suit, will bear the costs if the suit fails; but if this party shows legitimate occasion, by successful suit, then the defendant or respondent will bear the costs. However, the vital factor in setting the preference, is the judiciously-exercised discretion of the Court, accommodating the special circumstances of the case, while being guided by ends of justice.”*** 1. The upshot is that the trial court’s findings on liability are upheld. However, the appeals on quantum must succeed. The awards on general damages are hereby set aside and substituted as follows:- **CIVIL APPEAL NO. E077 OF 2025** 1. The award of general damages in the sum of Ksh. 1,000,000/= is set aside and substituted with an award of Ksh. 2,500,000/=. 2. The aforesaid sum of Ksh. 2,500,000/= shall be subjected to 50% contribution. 3. The special damages shall attract interest from the date of filing of suit until the date of settlement. 4. The Appellant shall have the costs of the appeal to be agreed upon between the parties or taxed. **CIVIL APPEAL NO. E075 OF 2025** 1. The award of Ksh. 50,000/= general damages for pain and suffering is upheld. 2. The special damages shall attract interest at court rates from the date of filing suit till the date of settlement. 3. The Appellant shall have the costs of the appeal assessed at Ksh. 30,000/=. 4. Orders accordingly. Dated, signed, and delivered at Kakamega, this 30th day of July 2026. **A. C. BETT** **JUDGE** **In the presence of:** No appearance for the Appellants No appearance for the Respondent Court Assistant: Polycap