https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8090

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KISII COUNTY** **KISII HIGH COURT** **HCCA NO. E190/2024** **MACKENZIE ISAIAH MORIASI MOGESA ---------------- APPELLANT** * **VERSUS -** **DENNIS OYUGI MOMANYI -------------------------------- RESPONDENT** ***(Being an appeal from the Judgement delivered in the Senior Principal’s Magistrate’s court in CMCC No. E361 of 2022 by Hon. B.O. Omwansa delivered on 30th January 2024 at Kisii)*** **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 18th February 2022 involving a motor vehicle registration number KCG143S driven by the appellant and a motor cycle registration number KMFW 273 H in which its rider, the respondent allegedly sustained injuries. 2. At the trial court, the respondent relied on three witnesses; PW1- the respondent who adopted his statement dated 18th May 2022 and in which he blamed the appellant for the accident. During cross examination, he stated that he was not licensed to ride a motor cycle and that had two pillion passengers. He claimed to have sustained a fracture on his knee and was admitted at KTRH for one day; PW2 a police officer who testified that that from the details in the police abstract the motorcycle was hit from behind by the motor vehicle and therefore blamed the appellant. On cross examination he clarified he was not the investigating officer; and PW3: a senior clinician working at KTRH who produced a medical report, treatment notes and a clinical appointment card. He testified that he examined the respondent two weeks after the accident and that he had sustained multiple soft tissue injuries. 3. The appellant who was the defendant in the suit at the trial court testified that the respondent’s motor cycle was behind him, tried to overtake from the wrong side and that his car was hit on the left side of the front part. He testified that the rider was injured and that he took him to hospital. 4. The Learned Trial magistrate at the trial court delivered a judgement on 30th January 2024 attributing 100% liability to the appellant, awarding general damages of Kshs 250,000/= and special damages of Kshs. 11,710/= plus costs and interest. 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 not appreciating sufficiently that the respondent was a fraudulent complainant; failure to consider the second medical report, failure to consider the appellant’s submissions and authorities cited to award inordinately excessive general damages and error in apportioning liability to the appellant at 100%. 6. The appellant therefore prayed for the appeal to be allowed and the judgment of the trial be set aside and/or varied. The appellant supported his appeal with written submissions attributing 100% liability on the respondent for reckless riding, riding without a license, and over boarding with two pillion passengers. To this end, the appellant averred that the respondent had not proved his case as to the standards required by law. 7. On quantum, the appellant submitted that the respondent had failed to table any evidence on going treatment. He further cited comparable authorities to guide this court in arriving at a suitable quantum and proposed an award of Kshs 150,000/=. 8. The respondent on their side opposed the appeal argued that the trial court rightly apportioned 100% liability to the appellant using the evidence adduced in court. On quantum, the respondent submitted that no evidence was tendered to question the seriousness of the injuries. Citing comparable authorities they respondent supported the trial court’s award as just and fair. **Analysis and Determination** 1. The role of this court as an appellate court is to independently evaluate, reconsider the evidence adduced before the trial court and come to its own determination while bearing in mind that it neither saw nor heard the witnesses testify. (**See Selle & Another V. Associated Motor Boat Company Ltd (1968) EA 123, 126 paras H-I).** 2. I have carefully analyzed the appeal and trial record in its entirety as well as the evidence adduced and submissions by both parties. There is no contention that an accident did occur on 18th February 2022. However, the issue of both the liability and quantum are contested in this appeal. 3. The following are therefore the main issues for the determination of this court; 4. Who is to blame for the accident that occurred on 18th of February 2022? 5. What was the nature of injuries sustained by the respondent as a result of the accident? 6. What is a just and fair quantum to be awarded? 7. **Who is to blame for the accident that occurred on 18th of February 2022?** 8. At the trial, all the witnesses were in agreement that both the motor vehicle and motorcycle were headed in the same direction. However, the testimonies of how the accident occurred differ. The respondent claims that he was hit from behind by the motor vehicle of the appellant. This was corroborated by the police abstract that blamed the appellant. 9. The appellant on the other hand claims that the motor cycle was trying to overtake from the wrong side and in the process veered off the road and caused the accident. He further attributed the accident to the fact that the respondent did not have a license and had over boarded with 2 pillion passengers. 10. This court is alive to the settled principle that absence of a driving license does not in itself prove negligence. Likewise overloading on its own does not establish liability. However, both factors are relevant circumstances in assessing whether the respondent exercised reasonable care and whether he contributed to the occurrence of the accident. 11. The respondent relied on the evidence from a police abstract to corroborate his testimony. The abstract was produced by a police officer who confirmed he was not the investigating officer. 12. It is settled in law that an abstract is a record from the police and does not on its own constitute conclusive proof of liability. See cases **(ZOS & CAO (Suing as the Legal Representatives in the Estate of SAO (Deceased) v Amollo Stephen [2019] eKLR) , Kennedy Nyangoya v Bash Hauliers [2016**], wherethe courts have observed that the contents of a police abstract are "merely evidence that a report of an accident was made. It is prima facie evidence of the occurrence of the accident and the particulars of those involved", rather than conclusive proof of who is to blame. 13. In this present case, although the police abstract corroborates with the respondent’s testimony, no tangible explanation was given as to how that conclusion by the police was arrived. There was no investigation report, no oral evidence by the investigating officer or sketch maps to solidify this finding. The appellant on the other hand maintained the motor cycle which was overloaded tried to overtake on the wrong side. 14. This court is therefore faced with two competing narratives of the accident. One supported by a police abstract and the other supported by circumstantial evidence that point to the rider having contributed to the accident by failing to take reasonable care. 15. In the case of **Lakhamshi v Attorney General (1971) EA 11,** the courts held that ***where there is a collusion between two vehicles and the evidence does not satisfactorily establish who was solely to blame, the court is entitled to apportion liability according to the degree of blameworthiness disclosed by the evidence.*** 16. In the prevailing evidence adduced in this suit, I am not inclined to conclude that the appellant was solely responsible for the accident. The evidence taken as a whole, points to negligence by both parties. Doing the best, I can with the evidence before this court, I find that liability ought to be apportioned on a ratio of 70:30 in favour of the respondent as against the appellant. 17. **What was the nature of injuries sustained by the respondent as a result of the accident?** 18. There is no doubt that the respondent sustained injuries as a result of the accident. This was indeed affirmed by the appellant who testified that he took the respondent to hospital. What is in contention is the nature of the injuries. 19. In this case there are two contradicting medical reports that were adduced at the trial court. The first produced by the respondent/plaintiff from Dr. Nyameino who examined the respondent on the 18th of February 2022 and with reliance on treatment notes and physical examination concluded that the injuries incurred were multiple soft tissue injuries. 20. The second medical report was from the appellants Dr.Walter Odero who re-examined the respondent and indicated glaring gaps in the history and documents presented as to the alleged fracture of left leg and cautioned a possible fraud, Unfortunately he did not give his findings of the injuries sustained. From the trial court records, this court does not see a claim for a fracture of the left leg. 21. On the issue of fraud, he who alleges must prove. Section 107(1) of the Evidence acts places the burden upon the party who asserts a fact to prove it by providing that: 22. ***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.*** 23. ***When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.*** 24. It therefore is more probable that the respondent sustained multiple soft tissue injuries. 25. **What is a just and fair quantum to be awarded?** 26. The respondent corroborated with the first medical report enumerates the injuries sustained as follows; *Whiplash neck injuries, severe back contusion, left elbow region and forearm contusion and bruising and left leg and ankle joint contusions.* As highlighted above these are multiple soft tissue injuries and to determine a fair and just award this court will analyze the parties’ cited authorities and other cases with comparable injuries. 27. The appellant cited the following authority: **Lilian Anyango Otieno v Philip Mugoya Ogila (2022) EKLR** where the high court substituted an award of **Kshs. 100,000/= with Kshs. 150,000**/=for soft tissue injuries. The appellant submitted that an award between **Kshs 150,000 to Kshs. 180,000** would be sufficient. 28. The respondent on their side cited 5 authorities and the following is the most recent one of those submitted: In **Anthony Nyamwaya v. Jackline Moraa Nyandemo (2022) EKLR** an award of **Kshs. 250,000/=** was given as general damages for multiple soft tissue injuries. 29. I have also undertaken an analysis of recent authorities of comparable soft tissue injuries as follows: In the case of **Omondi v. Anzofu (2024 KEHC 2675 (KLR)**, an accident involving a pedestrian and a motor vehicle, that resulted in multiple soft tissue injuries, the courts awarded Ksh. 300,000/=. In the case of **National Industrial Credit Ltd & 2 others v MNO (Minor Suing Thro’ Next of Friend and Mother (FNM) (2024) KEHC 3824 (KLR)** the courts observed that the range for non-permanent soft tissue injuries is between Kshs. 250,000/= to Kshs. 300,000/=. 30. For this court to arrive at a determination of an appropriate quantum award, I am guided by the principle that an appellate court will not interfere with findings unless it is shown that the trial court acted on no evidence, misapprehended the evidence or applied the wrong principles, which is not in this case. This has further been elaborated in **Kiruga v Kiruga & Another (1988) KLR 348** where the courts stated that: ***“An appellate court cannot properly substitute its own factual findings for that if a trial court unless there is no evidence to support the findings or unless the trial court can be said to be plainly wrong”.*** 1. From the above analysis, I find that the quantum given by the trial court for general damages falls within the range of comparable awards. I therefore find no basis upon which to interfere with the quantum award of the trial court Magistrate. **Disposition** Consequently, I make the following orders; 1. That the appeal on liability partially succeeds 2. Liability is apportioned at the ratio of 70: 30 in favour of the respondent as against the appellant 3. The allegation of fraud is rejected for want of proof 4. The award of Kshs. 250,000/= for general damages to be reduced to factor in the 30% contributory liability by the respondent 5. Each party shall bear their own costs of this appeal It is so ordered. **DELIVERED VIRTUALLY, DATED AND SIGNED AT NAIROBI THIS 4TH DAY OF JUNE 2026** 1. **M. OKUTOYI** **JUDGE** In the presence of : Mr. Kiprono for the appellant N/A respondent Zainab Ghana court assistant