[2025] KEHC 2878 (KLR)

Kirui v Mills & another (Civil Appeal E1365 of 2023) [2025] KEHC 2878 (KLR) (Civ) (12 March 2025) (Judgment)

Neutral citation: [2025] KEHC 2878 (KLR)

Republic of Kenya

In the High Court at Nairobi (Milimani Law Courts)

Civil

Civil Appeal E1365 of 2023

AC Mrima, J

March 12, 2025

Between

Julius Kirui

Appellant

and

Fredrick George Mills

1st Respondent

James Moss Gibbons

2nd Respondent

(Being an appeal from the judgment and decree of the Nairobi [Milimani] Chief Magistrate’s Commercial Court Civil Case No. E2319 of 2022 (Hon. Wendy Micheni, CM) delivered on 24/11/2023)

Judgment

1. The Appellant herein, Julius Kirui, filed Nairobi [Milimani] Chief Magistrates Commercial Courts Case No. E2319 of 2022 [hereinafter referred to as ‘the civil suit’] as a motor cyclist riding motor cycle registration number KMEK 961Q [hereinafter referred to as ‘the motor cycle’] against Fredrick George Mills and James Moss Gibbons, the Respondents herein, as the owner and driver respectively of Motor Vehicle registration number KAY 222B [hereinafter referred to as ‘the vehicle’] in respect of a collision between the motor cycle and the vehicle on 26th April 2021 along Olenguruone road in Nairobi County a result of which the Appellant allegedly sustained injuries.

2. It was the Respondents’ case that the Appellant was solely to blame since he negligently and without due care and attention rode the motor cycle on the wrong side of the road and failed to give way to the motor vehicle even after other motorists had done so.

3. The civil suit was heard. The Appellant testified as PW1 and did not call any witness. The 2nd Appellant testified on behalf of the Respondents as DW1 and did not also call any witness. Both relied on their witness statements and were examined accordingly. Various documents were produced as exhibits.

4. Judgment was rendered on 24th November 2023 in which the Appellant, on one hand, and the Respondents, on the other hand, were held to be equally liable for the accident. The Appellant was then awarded Kshs. 200,000/= on General damages, Kshs. 11,000/= on special damages together with costs and interest. It was that decision which aggrieved the Appellant thereby filing the instant appeal.

5. Directions were taken and the appeal was to be heard by way of written submissions. Both parties complied. Relying on various decisions, the parties argued in favour of their rival positions and each urged this Court to find in their respective favour. Whereas the Appellant prayed for the appeal to be allowed and he be found not to be liable but the Respondents and for enhancement of the award on general damages, the Respondents prayed for the dismissal of the appeal with costs.

6. This is a first appeal against the impugned judgment. The role of the first appellate Court was discussed by the Court of Appeal in Abdul Hammed Saif vs. Ali Mohamed Sholan (1955) 22 E.A.C.A. 270. Even though the case was an appeal from the High Court to the Court of Appeal still the applicable legal principles are similar to appeals from the lower Courts to the High Court, hence, its relevance.

7. The Court of Appeal stated as follows: -…. An appeal to this court from a trial by the High Court is by way of 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….

8. See also Selle & Another vs. Associated Motor Boat Co. Ltd. & Others (1968) EA 123.

9. In this appeal, the Appellant contested both the aspect of liability and quantum of damages. As such, this Court will deal with each of them in turn.

10. On the liability between the parties, there were two divergent positions on how the accident occurred. The Appellant stated that he was riding off the main road at a junction when the vehicle hit him. The 2nd Respondent stated that he was given way by an oncoming vehicle at the junction to turn to the other side of the road and that as he did so, the Appellant rode passed the stationary vehicle and rammed into the vehicle. There was no other evidence on how the accident occurred. The Appellant relied on the police finding in the Police Abstract which apportioned blame to the 2nd Respondent. However, the police did not testify to accord the Appellant and the Court an opportunity to examine the manner the decision was reached at. The decision by the police in the Police Abstract may be right or wrong. It is, therefore, for the Court to make that determination and that can be fairly reached upon evidence.

11. In cases where there is no evidence or where the evidence is contradictory, it is wrong for a trial Court to solely rely on the police finding, without more, and find a party to blame. The manner in which an accident occurs is purely an issue of fact. It must be proved otherwise Courts usually take the longstanding position that liability be equally apportioned between the parties involved in the accident. [See Platinum Car Hire and Tours Limited -vs- Samuel Arasa Nyamesa & Another (2019) eKLR, Hussein Omar Farah -vs- Lento Agencies CA NAI Civil Appeal 34 of 2005 [2006] eKLR, Lakhamshi vs. Attorney General (1971) EA 118, among many others].

12. On the basis of the above and given the unsettled and contradictory nature of the evidence between the Appellant and the 2nd Respondent as to how the accident occurred, the Learned trial Court was right in apportioning liability equally. Therefore, the appeal on liability fails.

13. Next is the issue of damages. The Appellant’s gravamen is that the award ought to have been more than the sum of Kshs. 200,000/= considering the current harsh economic times. The Court of Appeal in Kemfro Africa Ltd v A. M. Lubia & Another (1988)1 KAR 727 discussed the principles to be observed when an appellate Court is dealing with an appeal on assessment of damages. The Court expressed itself clearly thus: -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 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.[Also see Arrow Car Limited -vs- Bimomo & 2 others (2004) 2 KLR 101 and Denshire Muteti Wambua -vs- Kenya Power & Lighting Co. Ltd (2013) eKLR].

14. Applying the above in this case and having considered the medical evidence on record and the various decisions referred to before the trial Court and before this Court, this Court is equally satisfied that the award is reasonable in the circumstances in balancing competing interests between fair compensation to an injured and guarding against making astronomical awards. The appeal on quantum also fails.

15. Having found as much, the upshot is that the appeal is wholly unsuccessful. It is hereby dismissed with each party bearing its costs.

Orders accordingly.

DELIVERED, DATED AND SIGNED AT NAIROBI THIS 12TH DAY OF MARCH, 2025. A. C. MRIMAJUDGEJudgment virtually delivered in the presence of:Mr. Kiptanui, Learned Counsel for the Appellant.Miss. Muranda, Learned Counsel for the Respondents.Michael – Court Assistant.Judgment – Nairobi [Milimani] High Court Civil Appeal No. E1365 of 2023 Page 3 of 3