Migot v Thuo (Civil Appeal E312 of 2024) [2026] KEHC 9763 (KLR) (12 June 2026) (Judgment)

Migot v Thuo (Civil Appeal E312 of 2024) [2026] KEHC 9763 (KLR) (12 June 2026) (Judgment) Neutral citation: [2026] KEHC 9763 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E312 of 2024 AN Ongeri, J June 12, 2026 Between Luke Uhuru Migot Appellant and Paul Ngure Thuo Respondent (Being an Appeal from the Judgement of HON. DAFFLINE NYABOKE SURE (PM) in KANGUNDO PMCC NO. E256 of 2022 delivered on 26/11/2024) Judgment 1.In a road traffic accident that occurred on 20th February 2022 along the Ruai-Kamunyu road, the Respondent, Paul Ngure Thuo, was the rider of a motorcycle that collided with a motor vehicle driven by the Appellant, Luke Uhuru Migot. 2.The Respondent sued for injuries sustained, and after a full hearing, the trial court found the Appellant 100% liable for the accident. 3.The trial court stated in its judgment that the Appellant had attempted to overtake the Respondent when it was unsafe to do so, and upon encountering an oncoming vehicle, he swerved back and collided with the motorcycle. 4.The trial court noted that the police officer who testified (PW1) supported the Respondent’s version of events as recorded in the Occurrence Book 5.Although the Appellant denied responsibility and argued that the Respondent had hit his vehicle while speeding, the trial court was persuaded by the Respondent’s evidence and the demeanor of the witnesses, particularly noting that the Appellant, a former police commissioner and legal advisor to the DCI, was unlikely to have been arrested or prosecuted despite a notice of intended prosecution having been issued. 6.Consequently, the court entered judgment for the Respondent on liability. 7.On quantum, the court awarded Kshs 3,000,000 as general damages for pain and suffering for the severe injuries sustained, which included fracture of the neck of the right femur, shaft femur fractures, double compound fractures of the right tibia and fibula, and cut tendons of the left forearm, with a 50% disability assessment by Dr. Wokabi. 8.The court also awarded a global sum of Kshs 1,500,000 for loss of future earnings/capacity, noting that the Respondent could no longer engage in boda boda work or any work requiring full hand and leg function. 9.From this global sum, the court specifically allocated Kshs 300,000 for repair of cut tendons and Kshs 150,000 for removal of metal implants. 10.Special damages of Kshs 50,000 (covering medical expenses, medical report, and motor vehicle search) were proved and awarded. 11.The Respondent was also granted costs and interest on the suit. 12.The appellant appealed against the said judgment on the following grounds;i.That the Learned magistrate erred in law in finding that liability to a road traffic accident is founded upon the Notice of Intended Prosecution (Form P 72) instead of a Police Abstract (Form P 10) as by law required.ii.That the Learned magistrate erred in law in finding the appellant 100% liable while investigations were ongoing and before liability was formally established by the police.iii.That the Learned magistrate erred in fact and in law by failing to find that a claim for damages can only be entertained after Traffic Court makes its finding following completed investigations.iv.That the learned magistrate misapprehended and ignored crucial testimony of DWI which was of paramount importance to a just conclusion.v.That the Learned magistrate erred in law by awarding damages to PW1 despite insufficiently authenticated medical report and without calling the examining surgeon for testimony and cross examination.vi.That the Learned magistrate erred by disregarding critical facts and critical information in the Appellant's testimonies for a just and fair conclusion.vii.That the Learned magistrate erred in law and in fact by failing to acknowledge that the Respondent had not reported back for a Notice of Intended Prosecution, then made a finding of liability purely on that account, a power statutorily reposed in police not the magistrate.viii.That the Learned magistrate misapprehended the facts and the law by failing to provide comprehensive analysis of factual evidence and discussion on errors of law and facts leading to the erroneous decision.ix.That the learned magistrate erred in law by disregarding and misinterpreting section 63 of the Evidence Act Cap 80 Laws of Kenya and made a finding against the hearsay evidence rule.x.That the learned magistrate erred in law by awarding damages which were not sufficiently proven.xi.That the learned magistrate erred in law by failing to acknowledge that the claim was defective and premature, brought before police concluded investigations or any party was formally blamed and charged before the Traffic Court. 13.The parties filed written submissions as follows; The Appellant submitted that the lower court judgment was unlawful and unprocedural. 14.Further, that it relied on an interim police abstract marked “Pending Under Investigations” (PUI) and a Notice of Intended Prosecution, rather than a final Police Accident Abstract (Form P10A) which is required to formally blame a party after investigations are completed. 15.The Appellant maintains that civil claims cannot be brought against any accident participant before police investigations are concluded, and that the Respondent himself has since been charged with careless riding and other traffic offences in a separate criminal case, proving the Appellant was not at fault. 16.The Appellant heavily criticizes the evidence of a police officer who testified for the Respondent, noting that this officer was not present at the accident scene and was not the investigating officer; therefore, his testimony is inadmissible hearsay under Section 63 of the Evidence Act. 17.The Appellant challenges the medical documents produced by the Respondent, claiming they were uncertified, not original, and not authored or produced by their maker in court, which violates Section 35 of the Evidence Act. 18.The Appellant contends that the lower court’s award of damages was arbitrary and excessive because it was based on unsubstantiated evidence and did not follow proper evidentiary rules. 19.Citing numerous case laws, the Appellant argues that police evidence alone, especially from a non-investigating officer, cannot prove negligence, and that the burden of proof remains on the claimant to provide direct, admissible evidence. 20.The Appellant seeks to have the lower court judgment set aside and the Respondent’s suit dismissed with costs. 21.The Respondent’s submissions oppose an appeal against the judgment delivered on 26th November 2024 in Kangundo Civil Suit No. E256 of 2022, where the trial court found the Appellant 100% liable for a road traffic accident that occurred on 20th February 2022. 22.The accident caused the Respondent severe injuries, including fractures of the neck and shaft of the right femur, shattered double compound fractures of the right tibia and fibula, cut tendons to the left forearm causing inability to flex the wrist and three middle fingers, and a permanent disability assessed at 50%. The trial court awarded general damages of Kshs. 3,000,000/-, special damages of Kshs. 50,000/-, future medical expenses of Kshs. 450,000/-, and loss of earning capacity of Kshs. 1,500,000/-, plus costs and interest, which the Appellant now challenges on both liability and quantum. 23.Regarding liability, the occurrence of the accident was not contested, and police abstracts confirmed it; a traffic officer testified that the police Occurrence Book recorded both vehicles travelling from Ruai towards Kamulu when the Appellant attempted to overtake, swerved back, and collided with the motorcycle from behind. 24.The Respondent himself testified that he was lawfully riding in his proper lane when the Appellant’s vehicle lost control and rammed him from behind, and that the Appellant was attempting to overtake at the time of the collision. 25.The Appellant, a retired police officer, claimed the motorcycle was overlapping and struck his vehicle’s right headlamp as he turned into a junction, but the Respondent notes that the Appellant admitted he did not stop before the junction, only “considerably slowed down,” and that no proper inspection report was produced. 26.The Appellant was issued a Notice of Intended Prosecution for careless driving, and the Respondent argues that the Appellant’s version is implausible because if the motorcycle had struck the right headlamp while the Appellant was at the extreme right edge of the road, the point of impact would more likely have been the left headlamp. 27.Applying the balance of probabilities standard, the Respondent submits it is more probable than not that the Appellant knocked down the Respondent from behind, and therefore the trial court was correct in finding 100% liability. 28.On quantum for general damages, the Respondent argues that Kshs. 3,000,000/- is reasonable given the seven serious injuries and 50% permanent disability, citing authorities such as Eric Ndambuki Ndemange (Kshs. 2,500,000/- for 55% incapacity), Lucy Waruguru Gatundu (Kshs. 2,000,000/- for femur and tibia fractures), and Frankline Chilibasi Spii (Kshs. 1,800,000/- for compound fractures). 29.For loss of earning capacity, the Respondent relies on the principles in Mumias Sugar Company Ltd v Francis Wanalo, noting that such an award compensates for the risk of future unemployment or diminished chances of suitable employment regardless of whether the plaintiff was employed at trial. 30.The Respondent led evidence that before the accident he was a boda boda rider earning Kshs. 2,000/- per day, that he was aged 24 years, and that he has never resumed work and is unlikely to do so due to a paralysed left forearm, need for multiple surgeries, and 50% permanent disability, making the award of Kshs. 1,500,000/- justified. 31.For special damages and future medical expenses, the Respondent urges an award of Kshs. 1,000,000/- as pleaded and proved, comprising Kshs. 46,450/- for medical expenses, Kshs. 3,000/- for the medical report, Kshs. 550/- for a motor vehicle search, and Kshs. 950,000/- for future medical expenses including hip replacement surgery (Kshs. 500,000/-), tendon repair (Kshs. 300,000/-), and implant removal (Kshs. 150,000/-). 32.The Respondent refutes the Appellant’s argument that the medical report by Dr. Wokabi was not substantiated or certified, pointing out that it is clearly signed and stamped and that no issue was raised during the hearing. 33.The Respondent also dismisses the Appellant’s complaint about the P3 form being filled at Mama Lucy Hospital instead of Nairobi Area, stating that the form was filled by a government doctor at a government hospital. 34.The Respondent concludes by urging the appellate court to dismiss the appeal in its entirety with costs to the Respondent. 35.The issues emerge for determination in this appeal are as follows;i.Whether a civil claim for damages arising from a road traffic accident is dependent upon the conclusion of police investigations or a final traffic court conviction;ii.Whether the testimony of a police officer who relies on the official police Occurrence Book is admissible or falls foul of the hearsay rule under Section 63 of the Evidence Act;iii.Whether the trial court erred in finding the Appellant 100% liable for the accident.iv.Whether the medical report and injuries were sufficiently authenticated and proved in accordance with Section 35 of the Evidence Actv.Whether the trial court’s award of general damages, special damages, and loss of earning capacity was arbitrary, excessive, or based on proper legal principles. 36.Regarding the first issue, the Appellant's argument that the suit was premature because investigations were marked as "Pending Under Investigations" and no traffic court finding had been made is entirely unsustainable in law. 37.It is a foundational principle that civil liability and criminal culpability are distinct legal concepts governed by completely separate standards of proof and procedures. 38.The right of an injured person to seek civil remedies for negligence arises the moment the cause of action accrues, in this case, on the date of the accident on 20th February 2022. 39.The filing of a civil suit is never conditional upon the police concluding criminal investigations, the production of a final Form P10A Abstract, or the conviction of a party by a traffic court. 40.A civil court is tasked with independent determination of negligence based on the evidence presented before it, and its jurisdiction is not fettered or postponed by pending or parallel criminal proceedings. 41.Furthermore, even if the Respondent was later charged in a traffic court, a criminal charge or subsequent acquittal has no binding or conclusive effect on a civil court's independent assessment of tortious liability. 42.Consequently, the trial court did not err in entertaining the claim before the completion of criminal processes. 43.On the second issue of hearsay evidence, the Appellant contends that the testimony of the police officer (PW1) was inadmissible under Section 63 of the Evidence Act because he was not the specific investigating officer and did not witness the accident. 44.This argument misapprehends the law on public records. The officer testified directly regarding records regularized and maintained in the ordinary course of police duties, specifically the Occurrence Book (OB). 45.Under Section 38 of the Evidence Act (Cap 80), entries made in official books or registers by public servants in the discharge of their official duties are themselves admissible facts. 46.Official police records such as the OB or Traffic Register can be produced by any officer who has lawful custody of those records, and such production does not violate the hearsay rule as they constitute entries in public records. 47.The officer was not testifying as an eyewitness to the impact itself, but as a custodian of the state's official contemporaneous record of the report. 48.The Notice of Intended Prosecution (Form P 72) was simply part of the procedural history of the police file and, while it does not establish civil liability on its own, its presence in the record is an admissible factual item. 49.The trial court was therefore perfectly entitled to consider PW1's evidence alongside the rest of the record. 50.The third issue addresses the trial court's finding of 100% liability against the Appellant. 51.In a first appeal, this Court is under an obligation to re-evaluate the evidence, analyze it, and come to its own independent conclusion, while keeping in mind that the trial court had the distinct advantage of seeing and hearing the witnesses firsthand. 52.The Respondent provided direct, unwavering eye-witness testimony that he was riding lawfully in his lane when the Appellant rammed him from behind while attempting an unsafe overtaking movement. 53.In contrast, the Appellant's narrative, that the motorcycle hit his right headlamp while he was turning right, defies spatial logic, as an impact under those conditions would logically affect the left side of his vehicle if he were positioned correctly. 54.The trial court also properly assessed the demeanor of the witnesses, noting that the Appellant’s prominent past status as a senior police official and DCI advisor provided a highly plausible explanation for the sluggish or circular nature of the criminal police process, which failed to move past an initial notice. 55.Negligence in civil matters is proved on a balance of probabilities and where a vehicle strikes another from behind, there is a strong prima facie presumption of negligence on the part of the trailing or overtaking vehicle. 56.The Appellant failed to displace this presumption with credible evidence. The trial court's allocation of 100% liability was fully supported by the weight of probabilities and remains undisturbed. 57.Turning to the fourth issue regarding the authentication of the medical reports, the Appellant objects to Dr. Wokabi's report under Section 35 of the Evidence Act on the grounds that the doctor was not called to be cross-examined. 58.This objection is raised too late. The record reveals that the medical reports, including the statutory P3 Form filled out by a government doctor at Mama Lucy Hospital, were duly signed, stamped, and produced during the trial without any formal objection from the Appellant’s legal counsel. 59.A party cannot permit documents to be produced without objection during trial and then attempt to challenge their admissibility or certification on appeal. 60.Section 35 of the Evidence Act allows for the admission of documentary evidence concerning facts in issue, and where the correctness or authorship of a medical report is not actively challenged by an application for summon or cross-examination during the hearing, the court is fully entitled to accept it as proof of the medical opinions and disability assessments contained therein. 61.Finally, on the fifth issue regarding quantum, the Appellant describes the awards as arbitrary and excessive. 62.An appellate court will only interfere with an award of damages if it is shown that the trial court applied wrong principles of law, misapprehended the evidence, or arrived at a figure that is so inordinately high or low as to represent a total misestimation of the claim. 63.The Respondent suffered catastrophic, life-altering multiple injuries, including a fractured neck of the right femur, shaft fractures, double compound tibia/fibula fractures, and severed tendons causing permanent impairment of his left arm, culminating in a 50% permanent disability. 64.For general damages, the trial court's award of Kshs 3,000,000 is entirely consistent with judicial precedents for comparable devastating orthopaedic and neurological trauma. 65.Regarding special damages, the sum of Kshs 50,000 was strictly proved through receipts and statutory search fees, satisfying the standard set in Hahn v. Singh [1985] KLR 716. 66.For future medical expenses, the separate allocation of Kshs 300,000 for tendon repairs and Kshs 150,000 for metal implant removal was specifically supported by Dr. Wokabi’s medical recommendations. 67.The Appellant's appeal against the Kshs 1,500,000 global award for loss of earning capacity also fails. 68.The Respondent was a 24-year-old boda boda rider who can no longer execute any manual labor requiring coordinated limb functions. 69.Where a plaintiff's capacity to compete in the open labor market has been drastically diminished by permanent disability, a court may properly award a reasonable global sum to compensate for that lost capacity, independent of precise mathematical computations of past earnings. 70.Considering the Respondent's youth and complete professional displacement, the global sum of Kshs 1,500,000 is modest and legally sound. 71.In the final analysis, this Court finds that the trial court properly evaluated both the law and the facts. The appeal lacks merit on all grounds of liability and quantum. 72.Accordingly, the final decision of this Court is that the appeal is hereby dismissed in its entirety, and the judgment and decree of the trial court in Kangundo Civil Suit No. E256 of 2022 are affirmed. 73.Each party to bear its own costs of this appeal. 74.Orders to issue accordingly. DATED, SIGNED AND DELIVERED AT NAIROBI THIS 12TH DAY OF JUNE 2026ASENATH N. ONGERIJUDGEIn the presence ofMr Odero for the AppellantMiss Mwongeli for the RespondentChrispin - Court Assistant