Kiu Construction v Nderitu (Civil Appeal E210 of 2024) [2026] KEHC 9590 (KLR) (2 July 2026) (Judgment)

Kiu Construction v Nderitu (Civil Appeal E210 of 2024) [2026] KEHC 9590 (KLR) (2 July 2026) (Judgment) Neutral citation: [2026] KEHC 9590 (KLR) Republic of Kenya In the High Court at Kisii Civil Appeal E210 of 2024 AM Okutoyi, J July 2, 2026 Between Kiu Construction Appellant and Dennis Josphat Murithi Nderitu Respondent (Being an appeal from the Judgement delivered by Hon. Mutai Paul Kipkemoi delivered on 7th November 2024 in Kisii CMCC E728 OF 2023) Judgment Background of the appeal 1.This appeal emanates from a suit filed at the Chief Magistrates court in Kisii with regards to a road accident that occurred on 22nd July 2023 involving a motor vehicle registration number KCH 075 Z belonging to the Appellant and motorcycle registration number KMFW 921 W in which the Respondent was the rider. 2.At the trial court, the Respondent testified as PW1and adopted his witness statement dated 5/9/2023 as evidence in chief in which he testified how the accident occurred. The Respondent produced treatment notes, clinical appointment card, P3 form, medical report, receipts, police abstract, demand notice, copy of identity card and an NTSA search. 3.The Appellant produced a second medical report dated 23.4.2024, did not call any witnesses and closed the defence. 4.The learned trial Magistrate at the trial court delivered a judgement on 11th July 2024 attributing 100% liability to the Appellant and awarded the Respondent general damages of Kshs 400,000/= and special damages of Kshs. 6,460/=. 5.Aggrieved with the decision of the Trial Court Magistrate, the appellant filed this instant appeal on the following summarized grounds: That the learned trial Magistrate erred in law and fact by awarding general damages which were excessive in the circumstances, erred in fact and in principle by adoption wrong approach on computation of the general damages and by departing from the trends contained in the authorities cited by the Appellant; erred in law and in fact in finding the Appellant 100% liable and failing to consider the evidence adduced by the Defendant; based his judgment on extraneous issues which were never pleaded before him to award Kshs. 400,000/= as general damages thereby reaching an erroneous decision; and erred in law in not taking into account entirely the written submissions of the Appellant. 6.The Appellant therefore prayed for the appeal to be allowed with costs and the judgment of the trial court be set aside or quashed and that this court makes a finding on liability and re-assesses the quantum of general damages. Appellant’s Submissions 7.The Appellant supported his appeal with written submissions dated 21st of March 2026 focusing on both liability and quantum. On liability, the Appellant submitted that the Respondent did not call any eye witness or produce any images to prove that the Appellant caused the accident. 8.The Appellant submitted that the allegation of negligence was never proved as the police never witnessed the accident nor was an investigation report produced and that further the evidentiary threshold was never met. 9.On quantum, the Appellant submitted that the trial court failed to properly interrogate the severity, consistency and healing status of the alleged injuries in light of the totality. The Appellant further averred that the trial court did not use comparative cases to give the award. Citing two authorities, the Appellant proposed an award of Kshs.200,000/=. Respondent’s Submissions 10.The Respondent on their side filed written submissions dated 6th March 2026 opposing the appeal and addressing both liability and quantum. On quantum the Respondent reiterated on the injuries sustained and submitted that the trial court correctly applied itself to the right principles and adhered to comparative decisions. 11.On liability, the Respondent submitted that he proved on a balance of probability that the accident was wholly caused by the Appellant through the production of a police abstract, copy of a search from NTSA as well as the testimony at the plaintiff’s hearing. The Respondent submitted that the Appellant did not call any witness to controvert the evidence nor produced any documents that exonerated their driver from liability. The Respondent called on this court to dismiss the appeal with costs. Analysis and Determination 12.This being a first appeal, this court is under a duty to reconsider and re-evaluate the evidence tendered before the trial court and draw its own independent conclusion, while bearing in mind that it neither saw nor heard the witnesses testify See Selle v. Associated Motor Boat Co. Ltd (1968) EA 123. 13.The same principle was reiterated in Peters v Sunday Post Ltd (1958) EA 424 where the Court observed that although an appellate court has jurisdiction to review the evidence in order to determine whether the conclusions reached by the trial court should stand, that jurisdiction must be exercised with caution, recognizing that the trial court had the advantage of seeing and hearing the witnesses. 14.Having carefully analyzed the entire record of trial court and appeal as well as the parties’ submissions, the following are the main issues for determination:a.Whether the learned trial magistrate erred in law and fact in wholly apportioning liability to the Appellant; andb.Whether the learned trial applied the right principles in assessing general damages. Whether the learned trial magistrate erred in law and fact in wholly apportioning liability to the Appellant 15.The starting point is that negligence is never presumed. A plaintiff who alleges negligence bears the legal burden of proving the same. This is clearly espoused in Sections 107, 108 and 109 of the Evidence act which provides as follows;107.Burden of proof.i.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.ii.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.Incidence of burden. 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.Proof of particular fact.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. 16.These provisions place the initial legal burden squarely upon the Respondent. Equally settled is that in civil proceedings, the applicable standard of proof is on a balance of probabilities. In the case of Miller v. Pensions (1947) 2 All ER 372, Lord Denning explained that:“If the evidence is such that the tribunal can say, ‘we think it more probable than not’, then the burden is discharged” 17.From the trial record, the Respondent in his witness statement, which was adopted as his evidence in chief, testified that the Appellant’s motor vehicle was being driven at a very high speed and lost control subsequently knocking his motor cycle. 18.During cross examination he strengthened this testimony by affirming that he had a helmet and a reflector jacket. The police abstract confirmed that an accident did occur on 22. 7 2023 involving the Appellant’s motor vehicle and the Respondent’s motor cycle. 19.The Appellant did not rebut this narrative of how the accident occurred either by unveiling material inconsistencies during cross examination or adducing witnesses to give another alternative narrative of the accident. The defence in this case therefore remained a mere denial unsupported by evidence. 20.Liability in a civil claim is not established exclusively through police investigations. The Respondent testified as an eye witness to the occurrence The police abstract corroborated the occurrence of the accident and identified both the Appellant’s motor vehicle as well the Respondent at the site of the accident. 21.Consequently, the Appellant’s defence cannot, without supporting testimony or evidence displace the Respondent’s sworn testimony. 22.The Appellant further argued that the police abstract merely confirmed that an accident occurred but did not attribute blame. There is merit in this argument only to the extent that a police abstract is ordinarily not conclusive proof of negligence. However, the same police abstract corroborated that an accident did indeed occur. 23.Having re- evaluated the evidence, I am satisfied that, on a balance of probability, the Respondent’s testimony constituted direct evidence as to how the accident occurred and this evidence has not been rebutted by the Appellant. 24.The learned trial magistrate cannot therefore be faulted for finding the Appellant wholly liable. Whether the learned trial applied the right principles in assessing general damages 25.It is not in contention that Respondent sustained the following injuries as a result of the accident; Bruises on the right leg, physical and psychological pains, bruises on the right shoulder blunt trauma to the neck, left knee, back, right knee and right shoulder. 26.Upon re-examination by the Appellant’s doctor on 23/4/2024, the Respondent was certified to be in good health and healed with no permanent physical disability. This being a later medical examination, the courts will rely on it to assess the extent of the Respondent’s healing. 27.Having established the injuries sustained by the Respondent, what then would be the comparable award. The Appellant faults the trial magistrate for awarding Kshs. 400,000/= as general damages for what it describes as minor soft tissue injuries. He has submitted that the trial court failed to apply the principles governing assessment of damages and failed to consider the authorities cited by the Appellant, consequently arriving at an award that was manifestly excessive. 28.The Appellant cited the following authorities to support an award of Kshs. 200,000/=; Adembesa & another v Gweno (Civil Appeal E192 of 2023) [2024] KEHC 5379 (KLR) where the Respondent therein sustained multiple soft tissue injuries and the court set aside the award of Kshs. 1,200,000.00 awarded as general damages and substitute it with an award of Kshs. 120,000.00; National Industrial Credit Ltd & 2 others v MNO (Minor Suing Thro’ Next of Friend and Mother FNM) (Civil Appeal E035 of 2023) [2024] KEHC 3824 (KLR); where the Respondent who had sustained multiple soft tissue injuries was awarded Kshs. 250,000/= as general damages. 29.The Respondent in support of the trial award of Kshs. 400,000/= relied on the authority of Anthony Nyamweya v. Dorca Gesare Mounde (2022) eKLR . 30.For this court to arrive at a determination of an appropriate quantum award, I am guided by the case of Kiruga v Kiruga & Another (1988) KLR 348 where the courts stated that:“An appellate court cannot properly substitute its own factual findings for that of a trial court unless there is no evidence to support the findings or unless the trial court can be said to be plainly wrong”. 31.From the above analysis, I find that the quantum given by the trial court was inordinately high as per the comparative awards for similar injuries of multiple soft tissue injuries. As such, this court is disturbing the trial court award and awarding Kshs. 200,000/= which would fairly compensate the Respondent. Disposition 32.Consequently, the appeal succeeds only on quantum and fails on liability. I accordingly make the following orders;a.The appeal on liability is dismissedb.The finding of the trial court that the Appellant was 100% liable is upheldc.The award of Kshs. 400,000/=as general damages is hereby set aside and substituted with an award of Kshs 200,000/=d.Since the Appellant has succeeded only partially on quantum but failed on liability, each party shall near their own costs of this appeal.It is so ordered. DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 2ND DAY OF JULY 2026.A. M. OKUTOYIJUDGEIn the Presence of:Ms. Achieng’ for the AppellantMr. Maeche for the RespondentRuth Mokeira -Court Assistant