Mutuma v Mugure (Civil Appeal E314 of 2023) [2026] KEHC 11153 (KLR) (9 July 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI CIVIL APPELLATE DIVISION** **CIVIL APPEAL NO. E314 OF 2023** **LILIAN NKATHA MUTUMA……..………………………….APPELLANT** **VERSUS** **JOHN KIHAGI MUGURE…………………………………..RESPONDENT** *(Being an Appeal from the judgement and decree* *of* *Hon. J.P.A. Aduke, Senior Resident Magistrate* *delivered* *on3rd April, 2023 in Milimani CMCC No. E725 of 2021 Lilian Nkatha Mutuma v John Kihagi Mugure.* **JUDGEMENT** 1. **INTRODUCTION.** 2. This appeal emanates from the judgement and decree of **Hon. J.P.A. Aduke,** Senior Resident Magistrate delivered on 3rd April, 2023 in *Milimani CMCC No. E725 of 2021 Lilian Nkatha Mutuma v John Kihagi Mugure.* 3. Although the appeal challenges both liability and quantum, its primary focus is on liability. The trial court found that the Appellant had failed to prove her case on a balance of probabilities and, on that basis, dismissed the suit with no order as to costs. Having found that the Respondent was not liable, the trial court did not proceed to consider or assess the issue of quantum. 4. The Appellant relies on the following grounds of appeal, as set out in the memorandum of appeal dated 19th April, 2023, in seeking to set aside the judgement and decree of the trial court: 5. **THAT the learned trial Magistrate erred in law and in fact in failing to appreciate the relevant principles, case law and the submissions on record and thereby failing to find the Respondent liable.** 6. **THAT the learned trial Magistrate misdirected herself and failed to give any due and proper consideration to the pleadings and evidence on record and submissions and thereby made an erroneous judgement in dismissing the suit.** 7. **THAT the learned trial Magistrate erred in law and in fact in failing to pay regard to authorities in the Appellant’s submissions that were guiding in the amount of quantum that is appropriate and applicable in similar cases as the case that she was deciding.** 8. The Appellant proposes that the appeal be allowed, that the trial court’s judgement be set aside, and that this court determines the issue of liability and proceeds to assess quantum. 9. **DUTY OF THIS COURT.** 10. As this is a first appeal, I am obligated, pursuant to *Section 78* of the *Civil Procedure Act* and as articulated in **Selle v Associated Motor Boat Co. Ltd *[1969] E.A. 123,*** to re-assess, re-analyze and re-evaluate the evidence presented before the trial court and to arrive at my own conclusions, bearing in mind that I neither saw nor heard the witnesses testify. 11. In ***Selle***, **Sir Clement De Lestang**observed that: ***“This Court must consider the evidence, evaluate it itself and draw its own conclusions, though in doing so it should always bear in mind that it neither heard witnesses and should make due allowance in this respect.*** ***However, this Court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he had 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.”*** 1. The duty of the first appellate court was also discussed by the Court of Appeal for East Africa in the case of ***Peters v Sunday Post Limited [1958] EA 424*** in which it was held that the appropriate standard of review established in cases of appeal can be stated in three complementary principles: ***“i. First, on first appeal, the Court is under a duty to reconsider and re-evaluate the evidence on record and draw its own conclusions;*** ***ii. In reconsidering and re-evaluating the evidence, the first appellate court must bear in mind and give due allowance to the fact that the trial court had the advantage of seeing and hearing the witnesses testify before her; and*** ***iii. It is not open to the first appellate court to review the findings of a trial court simply because it would have reached different results if it were hearing the matter for the first time.”*** 1. **THE PLEADINGS BEFORE THE TRIAL COURT.** 2. The matter before the trial court, based on tortious liability arising out of a road traffic accident that is said to have occurred on 10th August, 2019 in which the Appellant (the Plaintiff before the trial court) allegedly sustained bodily injuries. 3. The Appellant pleaded in the plaint dated 28th January, 2021 that at all material times, the Respondent was the registered and/or beneficial owner of Motor Vehicle Registration Number KCR 117A. She averred that on 10th August 2019, while lawfully walking as a pedestrian along Spine Road, the said motor vehicle was so negligently driven, managed and controlled that it was involved in an accident in which she sustained bodily injuries. 4. The Appellant attributed the occurrence of the accident wholly to the Respondent’s negligence. In particular, she alleged that the Respondent drove at an excessive speed, failed to keep a proper lookout, drove without due care and attention, failed to maintain proper control of the motor vehicle, and thereby caused the accident. She further pleaded that she would rely on the provisions of the *Traffic Act* and the *Highway Code* at the hearing. 5. As a consequence of the accident, the Appellant pleaded that she sustained a blunt injury to the right shoulder, a deep cut wound on the right hand, bruises to the left knee, bruises to the right lower leg, bruises to the right ear and a fracture of the right clavicle. She further averred that the injuries resulted in a permanent incapacity assessed at 20%. 6. The Appellant also pleaded special damages of Ksh.5,000/- being the cost of obtaining a medical report. 7. She averred that despite issuing a demand and notice of intention to institute legal proceedings, the Respondent had failed and/or refused to admit liability, thereby necessitating the filing of the suit. She consequently prayed for general damages for pain, suffering and loss of amenities, special damages of Ksh.5,000/-, costs of the suit and interest. 8. The Respondent resisted the Appellant’s claim and to that end filed a statement of defence dated 16th March, 2021. In his defence, the Respondent denied that he was at any material time the registered, ostensible or beneficial owner of Motor Vehicle Registration Number KCR 117A and put the Appellant to strict proof thereof. 9. The Respondent further denied that the accident occurred in the manner alleged by the Appellant or at all. He specifically denied that the motor vehicle was negligently driven, managed or controlled and denied each of the particulars of negligence pleaded in the plaint, putting the Appellant to strict proof of the same. 10. Without prejudice to the foregoing denials, the Respondent pleaded, in the alternative, that if any accident occurred as alleged, then the same was solely occasioned or substantially contributed to by the Appellant’s own negligence. In that regard, he alleged that the Appellant failed to keep to the pedestrian walkway, walked carelessly on the roadway, failed to keep a proper lookout for oncoming motor vehicles, failed to take reasonable steps to avoid the accident and failed to have due regard to other road users, including Motor Vehicle Registration Number KCR 117A. 11. The Respondent also denied the nature and extent of the injuries and loss pleaded by the Appellant and put her to strict proof thereof. He denied the averments relating to the demand and notice to sue for want of knowledge, pleaded that the plaint disclosed no reasonable cause of action against him and prayed that the suit be dismissed with costs. 12. **THE EVIDENCE BEFORE THE TRIAL COURT.** 13. The Appellant testified and adopted the contents of her witness statement dated 28th January, 2021 in which she stated that on 10th August 2019, while lawfully walking as a pedestrian along Spine Road, she was involved in a road traffic accident involving Motor Vehicle Registration Number KCR 117A, which she asserted was owned by the Respondent. She attributed the occurrence of the accident to the Respondent’s negligent manner of driving the said motor vehicle. 14. The Appellant reiterated that the Respondent was negligent in driving at an excessive speed, failing to keep a proper lookout, driving without due care and attention, failing to maintain proper control of the motor vehicle and thereby causing the accident. 15. She further stated that as a consequence of the accident, she sustained a blunt injury to the right shoulder, a deep cut wound on the right hand, bruises to the left knee, bruises to the right lower leg, bruises to the right ear and a fracture of the right clavicle. 16. The Appellant also testified that efforts to have the matter resolved amicably were unsuccessful as the Respondent showed no interest in settling the claim out of court despite being served with a statutory demand through her advocates. 17. She added that there were no previous or pending proceedings between the parties in respect of the accident and consequently prayed for general damages, special damages, costs of the suit, interest and any other relief that the trial court deemed just and appropriate. 18. The Appellant produced the following documents in support of her case: * P3 Form. * Police Abstract. * Dr. J.L. Okere’s Medical report and receipt for Ksh.5,000/-. * Demand letter/statutory notice. * Treatment record from a pharmacy. * Letter to the police surgeon from Lucy Kibaki Hospital 1. Upon cross-examination, the Appellant testified that the accident was reported to the police. She, however, stated that she was unaware whether any person had been charged before a traffic court with any traffic offence arising from the accident. 2. The Respondent did not call any witness. 3. **THE TRIAL COURT’S FINDINGS.** 4. In its judgment delivered on 3rd April, 2023, the trial court identified the issues for determination as liability and quantum of damages. The court reviewed the pleadings, the evidence adduced by the Appellant,and the parties’ written submissions, noting that although the Respondent had filed a statement of defence, he did not call any witnesses at the trial. 5. Upon considering the issue of liability, the trial court observed that the police abstract produced by the Appellant merely confirmed the occurrence of the accident and the particulars of the motor vehicle involved but did not apportion blame to the Respondent. 6. The court further noted that the Appellant had neither produced a motor vehicle search from the Registrar of Motor Vehicles nor included such a document in her list of documents to prove that the Respondent was the registered owner of Motor Vehicle Registration Number KCR 117A. 7. The trial court held that, in the absence of proof of ownership of the motor vehicle and without conclusive evidence establishing who was to blame for the accident, the Appellant had failed to prove liability against the Respondent on a balance of probabilities. 8. In reaching that conclusion, the court relied on section 8 of the Traffic Act and the decision in ***Wellington Nganga Muthiora v Akamba Public Road Services & Another [2010] eKLR.*** 9. Consequently, the trial court dismissed the Appellant’s suit with no order as to costs, finding it unmeritorious. Having found that liability had not been established, the court did not proceed to assess or determine the issue of quantum of damages. 10. **THE PARTIES’ SUBMISSIONS ON APPEAL.** 11. Now to this appeal, the Appellant submits that, as a first appellate court, this Court is under a duty to re-evaluate the evidence on record and arrive at its own independent conclusions, while bearing in mind that it did not have the advantage of seeing and hearing the witnesses testify. 12. In support of this proposition, the Appellant relies on ***Bundi Murube v Joseph Omkuba Nyamuro [1982–88] 1 KAR 108*** for the principle that an appellate court may interfere with findings of fact where they are based on no evidence, a misapprehension of the evidence, or where the trial court acted on wrong principles. 13. On liability, the Appellant submits that she proved on a balance of probabilities that she was a lawful pedestrian walking off the roadway when the Respondent’s motor vehicle, which was being driven at an excessive speed, lost control, veered off the road and knocked her, causing the injuries pleaded and proved at the trial. She contends that the Respondent neither testified nor called any witness to rebut her evidence and that the defence therefore remained a mere denial unsupported by evidence. 14. The Appellant submits that a party who merely files a defence without tendering evidence does not thereby controvert the claimant’s evidence. In that regard, she relies on ***Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR,*** where the court held that pleadings are not evidence and that where no evidence is adduced in support of a defence, the Plaintiff’s evidence remains uncontroverted. She also relies on ***Autar Singh Bahra & Another v Raju Govindji HCCC No. 548 of 1998*** for the proposition that where a Defendant fails to call evidence, the Plaintiff’s case stands unchallenged and the allegations contained in the defence cannot succeed. 15. The Appellant further submits that the Respondent owed her, as a fellow road user, a duty of care. In support thereof, she relies on ***Jumaa Mwarua Kaphutsu v Pallet Logistics Limited [2020] eKLR,*** in which the court, while citing reiterated that motorists owe a common law and statutory duty to exercise reasonable care, keep a proper lookout, avoid excessive speed and observe traffic rules so as not to endanger other road users. 16. The Appellant faults the trial court for holding that ownership of the offending motor vehicle had not been proved merely because no official search from the Registrar of Motor Vehicles had been produced. She submits that the police abstract produced at the trial constituted *prima facie* proof of ownership, particularly since it was admitted without objection and the Respondent did not adduce any evidence to challenge its contents. 17. In that regard, she relies on ***JRS Group Limited v Kennedy Odhiambo Andwak [2016] eKLR*** for the proposition that where a Defendant disputes ownership of a motor vehicle, the evidential burden shifts to him to rebut the documentary evidence tendered by the Plaintiff. 18. The Appellant further relies on ***Fredrick Odongo Otieno v Al-Husnain Motors Limited [2020] eKLR,*** wherein the court held that a police abstract may constitute sufficient proof of ownership in the absence of any rebuttal. She also cites ***Joel Muga Opija v East African Sea Foods Ltd [2013] eKLR*** for the proposition that although a search from the Registrar of Motor Vehicles is the best evidence of ownership, an unchallenged police abstract is sufficient proof in civil proceedings, where the applicable standard is proof on a balance of probabilities and not beyond reasonable doubt. 19. In further support of the foregoing proposition, the Appellant relies on ***Superfoam Limited & Another v Gladys Nchororo Mbero [2014] eKLR,*** where the court, approving the decision in ***Wellington Nganga Muthiora v Akamba Public Road Services Ltd & Another [2010] eKLR,*** held that an uncontroverted police abstract may be relied upon as *prima facie* proof of ownership in civil proceedings. 20. The Appellant therefore submits that the learned trial Magistrate erred in requiring production of a motor vehicle search and thereby imposed a higher standard of proof than that required in civil cases. 21. The Appellant consequently urges this Court to set aside the trial court’s finding on liability and substitute it with a finding that the Respondent was wholly liable for the accident. 22. On quantum, the Appellant submits that although the trial court did not assess damages, the evidence on record established that she sustained a blunt injury to the right shoulder, a deep cut wound on the right hand, bruises to the left knee, bruises to the right lower leg, bruises to the right ear and a fracture of the right clavicle. She submits that she was treated at Mama Lucy Kibaki Hospital and was subsequently examined by **Dr. Okere,** who confirmed the injuries and assessed permanent incapacity at 20%. 23. The Appellant further submits that, should this Court find in her favour on liability, it should proceed to assess damages on the basis of the evidence already on record. She relies on ***Board of Trustees Anglican Church of Kenya Diocese of Marsabit v Adano Isacko [2019] eKLR,*** in which an award of Ksh.700,000/- was made for comparable injuries, and urges this Court to award her Ksh.800,000/- as general damages together with Ksh.5,000/- as special damages. 24. Lastly, the Appellant cites ***Said Sweilem Gheithan Saanum v Commissioner of Lands (sued through the Attorney General) & 5 Others [2015] eKLR,*** which in turn adopted the principles in ***Mrao Ltd v First American Bank of Kenya Ltd & 2 Others [2003] KLR 125,*** for the proposition that an appellate court may interfere with the exercise of judicial discretion where the trial court misdirected itself on the law or facts, took into account irrelevant considerations, failed to consider relevant matters, or arrived at a plainly wrong decision. 25. She also relies on ***Joseph Kimanthi Nzau v Johnson Macharia [2019] eKLR*** and urges the Court to allow the appeal with costs, set aside the judgement of the trial court, find the Respondent 100% liable, and award the damages sought. 26. On its part, the Respondent submits that the appeal is principally concerned with the issue of liability, the trial court having properly dismissed the Appellant’s suit for failure to prove her case. The Respondent urges this Court to uphold the impugned judgement and dismiss the appeal with costs. 27. The Respondent submits that although the Appellant pleaded that he was the owner of Motor Vehicle Registration Number KCR 117A, no certificate of official search or other documentary evidence was produced to establish ownership. It is contended that the police abstract merely identified the Respondent as the driver of the motor vehicle and not its owner, contrary to the Appellant’s pleadings. 28. The Respondent argues that, on the basis of the police abstract, he could only have been the driver or agent of the actual owner of the motor vehicle and not its owner. Consequently, the Appellant failed to establish that he was the proper party to be sued as owner of the offending motor vehicle. 29. In support of that proposition, the Respondent relies on ***Lukungu v Lobia [2003] 1 EA 129,*** in which the court held that the owner or bailee of a motor vehicle is vicariously liable for the negligence of its driver only where the driver is acting as the owner’s servant in the course of employment or as the owner’s authorised agent. 30. Based on the foregoing, the Respondent submits that the Appellant neither proved that he was the owner of the motor vehicle nor demonstrated the legal relationship necessary to impose liability upon him. He therefore contends that the trial court correctly found that liability had not been established and urges this Court to dismiss the appeal. 31. On quantum of damages, the Respondent submits, in the alternative and only if this Court is minded to interfere with the trial court’s finding on liability, that the Appellant would be entitled to a substantially lower award than that proposed. 32. To that end, the Respondent relies on ***Gerald Muhuthia Mwangi v John Mburugu & Another [2022] eKLR,*** where an award of Ksh.280,000/- was made for a distal right clavicle fracture accompanied by bruises and soft tissue injuries; ***Robert Kithinji Kithaka v Attorney General [2018] eKLR,*** where Ksh.250,000/- was awarded for fractures of the tibia, fibula and collar bone together with multiple bruises; and ***Lawrence Wairimu Wainyoike & Another v Joseph Letting [2021] eKLR,*** where Ksh.350,000/- was awarded for a deep cut wound on the forehead, a fractured left clavicle and blunt injuries to the chest and shoulder. 33. On the strength of the foregoing authorities, the Respondent urges the Court, should it find in favour of the Appellant on liability, to award general damages in the region of Ksh.250,000/- rather than the amount proposed by the Appellant. 34. Ultimately, however, the Respondent maintains that the appeal lacks merit and should be dismissed with costs. 35. **ISSUES FOR DETERMINATION.** 36. Having carefully considered the record of appeal, the judgement of the trial court, the grounds of appeal and the rival submissions by the parties, in my respectful view the following issues arise for determination: 1. Whether the learned trial Magistrate erred in finding that the Appellant had failed to prove liability against the Respondent on a balance of probabilities. 2. Whether the learned trial Magistrate erred in failing to assess quantum of damages after dismissing the Appellant’s suit. 3. If the answer to the first issue is in the affirmative, what quantum of damages is payable to the Appellant. 4. Who should bear the costs of this appeal and of the proceedings before the trial court. 37. The first issue for me to address is whether the learned trial Magistrate erred in finding that the Appellant had failed to prove liability against the Respondent on a balance of probabilities. 38. It is common ground that the Respondent filed a statement of defence but elected not to testify or call any witness during the trial. Consequently, the only *viva voce* evidence before the trial court was that of the Appellant. 39. Although pleadings serve the important purpose of defining the issues in controversy, they are not evidence. A party who files pleadings but tenders no evidence leaves those pleadings as mere allegations incapable of displacing evidence adduced by the opposing party. 40. The legal position on this point is now well settled. In ***Linus Nganga Kiongo & 3 Others v Town Council of Kikuyu [2012] eKLR,*** the court reiterated that where a party fails to adduce evidence in support of its pleadings, such pleadings remain mere statements of fact and the evidence tendered by the opposing party remains uncontroverted. 41. The learned trial Magistrate dismissed the Appellant’s claim principally because the Appellant did not produce an official search from the Registrar of Motor Vehicles proving that the Respondent was the registered owner of Motor Vehicle Registration Number KCR 117A. With tremendous respect to the learned Magistrate, that approach overlooked the manner in which the evidence had actually unfolded before the court. 42. Whereas ownership of a motor vehicle may become relevant where liability is sought to be imposed upon a person as the registered or beneficial owner, liability in negligence may equally attach to the person who was actually driving and controlling the motor vehicle at the material time. 43. The tort complained of is negligent driving. It is therefore the negligent driver who bears primary liability, while ownership ordinarily becomes relevant in determining whether another person should be held vicariously liable for the driver’s negligence. 44. In the present case, the Appellant consistently testified that it was the Respondent who was driving and controlling Motor Vehicle Registration Number KCR 117A when he lost control and knocked her as she walked by the roadside. 45. During cross-examination, that evidence was not shaken. More importantly, the Respondent elected not to enter the witness box to deny that he was the driver of the vehicle on the material day. 46. Indeed, the police abstract produced by the Appellant lends further support to that evidence. While the learned trial Magistrate considered the abstract only from the perspective of ownership, the document equally identified the Respondent as the driver of the motor vehicle involved in the accident. The exact words in the abstract are: ***“Driven by John Kihagi Mugure.”*** 1. That aspect of the documentary evidence was never rebutted. 2. Once the Appellant adduced evidence identifying the Respondent as the driver of the offending motor vehicle and describing how the accident occurred, the evidential burden shifted to the Respondent to controvert that evidence. *Sections 107* and *109* of the *Evidence Act* do not require a Plaintiff to prove facts which have been peculiarly placed within the knowledge of the opposite party once a *prima facie* case has been established. 3. The Respondent was best placed to explain whether he was indeed the driver, how the accident occurred and whether he exercised reasonable care. He chose not to do so. 4. Equally significant is the fact that the Respondent’s defence itself pleaded, in the alternative, contributory negligence on the part of the Appellant. Such a pleading presupposed the occurrence of the accident and was inconsistent with the complete absence of evidence from the Respondent explaining the circumstances under which it occurred. 5. I therefore find that the learned trial Magistrate fell into error by treating proof of ownership as determinative of liability while overlooking the uncontroverted evidence that the Respondent was the person who was driving and controlling the offending motor vehicle. The issue before the court was not merely who owned the vehicle but whether the person alleged to have driven it negligently was liable in negligence. 6. The Appellant’s testimony that she was walking by the roadside when the vehicle lost control and knocked her remained wholly uncontroverted. There was absolutely no evidence suggesting that she contributed to the occurrence of the accident. In those circumstances, I am satisfied that the Appellant discharged the burden placed upon her by proving her case on a balance of probabilities. 7. I therefore set aside the finding of the trial court on liability and substitute it with a finding that the Respondent was wholly liable for the accident. Liability is accordingly apportioned at 100% against the Respondent. 8. The second issue for determination is whether the learned trial Magistrate erred in failing to assess quantum of damages after dismissing the suit. 9. Having found that liability had not been established, the learned trial Magistrate declined to assess damages altogether. With respect, that approach was erroneous. 10. It is firmly settled that even where a trial court dismisses a claim on liability, it should nevertheless proceed to assess the damages it would have awarded had the claim succeeded. Such an assessment assists the appellate court in the event that the finding on liability is reversed on appeal and obviates the necessity of remitting the matter to the trial court merely for assessment of damages. 11. Trial courts ought to assess damages notwithstanding dismissal of a suit. The practice promotes the overriding objective of the civil process by facilitating the just, expeditious and proportionate disposal of disputes while avoiding unnecessary remittals and delay. 12. The learned trial Magistrate therefore erred in law by failing to assess quantum after dismissing the Appellants claim. 13. The third issue is the quantum of damages payable, pursuant to my findings on the preceding issues. 14. Ordinarily, upon finding that the trial court failed to assess damages, this Court would remit the matter to the trial court for that purpose. However, in the circumstances of this case, I find that it would not serve the ends of justice to do so. Given that the suit was instituted in 2021 and this appeal has remained pending since 2023, I consider it appropriate to finally determine the matter by assessing the damages on the basis of the evidence already on record, thereby avoiding further delay and unnecessary expense. 15. The medical evidence produced before the trial court established that the Appellant sustained a blunt injury to the right shoulder, a deep cut wound on the right hand, bruises to the left knee, bruises to the right lower leg, bruises to the right ear and a fracture of the right clavicle. **Dr. J.L. Okere** further assessed permanent incapacity at 20%. 16. I have considered the injuries suffered, the authorities relied upon by both parties and the passage of time since those decisions were rendered. I have also borne in mind that comparable injuries should, as far as possible, attract comparable awards while making allowance for inflation and the unique facts of each case. 17. In my view, the Appellant’s proposed award of Ksh.800,000/- would be excessive, while the Respondent’s suggested figure of Ksh.250,000/- would not adequately compensate the Appellant for the injuries sustained, which included a fracture, and the assessed permanent incapacity. 18. Doing the best I can in the circumstances and guided by the comparable authorities cited by the parties, which are all relevant, although they address varying degrees of severity of injuries, I consider that an award of Ksh.450,000/- as general damages for pain, suffering and loss of amenities fairly and reasonably compensates the Appellant. 19. The Appellant specifically pleaded and proved special damages of Ksh.5,000**/-** being the cost of obtaining the medical report. The same is therefore awarded as pleaded and strictly proved. 20. With regard to costs, which is the last issue for determination, the same ordinarily follow the event under *Section 27* of the *Civil Procedure Act* unless good reason exists for ordering otherwise. The Appellant has succeeded both in the appeal and in the underlying claim. I find no reason to deprive her of costs. 21. In the result, this appeal succeeds and I make the following orders: 1. The judgement and decree of the Senior Resident Magistrate delivered on 3rd April, 2023 in *Milimani CMCC No. E725 of 2021* are hereby set aside. 2. Judgement is hereby entered for the Appellant against the Respondent on 100% liability. 3. The Appellant is awarded general damages of Ksh.450,000**/-** for pain, suffering and loss of amenities. 4. The Appellant is awarded special damages of Ksh.5,000**/-.** 5. The awards shall attract interest at court rates, special damages from the date of filing suit and general damages from the date of the judgement of the trial court until payment in full. 6. The Appellant shall have the costs of the suit before the trial court together with the costs of this appeal. 22. It is so ordered. 23. This file is hereby closed. DELIVERED (virtually), DATED & SIGNED this 9th day of July, 2026. **JOE M. OMIDO** **JUDGE** FOR APPELLANT: **Mr. Kulecho.** FOR RESPONDENT: No appearance. COURT ASSISTANTS: **Mr. Ngoge** & **Mr. Juma.**