https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10047

Kamau v Kamau (Civil Appeal E130 of 2025) [2026] KEHC 10047 (KLR) (9 July 2026) (Judgment) Neutral citation: [2026] KEHC 10047 (KLR) Republic of Kenya In the High Court at Nakuru Civil Appeal E130 of 2025 JK Sergon, J July 9, 2026 Between Mary Wambui Kamau Appellant and Peter Mwangi Kamau Respondent Judgment 1.Peter Mwangi Kamau, the Respondent herein filed a compensatory suit before the Chief Magistrate Court, Nakuru against Mary Wambui Kamau the Appellant herein for the injuries he sustained as a result of a road traffic accident which occurred on 18/7/2022 off the road along Delamere Road. The Appellant filed defence to deny the claim. 2.Hon. Linah Akoth heard the suit and in the end, she entered judgment in favour of the Respondent as follows:i.Liability - 90:10 against the appellantii.General damages – Kshs 800,000 less 10% contribution Ksh 720,000/=iii.Special damages – 18,760/= 3.The Appellant being dissatisfied with the decision preferred this appeal and put forward the following grounds of appeal:i.That the learned trial magistrate erred in law and in fact and misdirected herself in finding the appellants liable to at 90% when the Respondent/Plaintiff was much more substantially culpable as per the evidence before court.ii.That the learned trial magistrate erred in law and in fact in failing to dismiss the Respondent suit.iii.That the learned Magistrate finding on liability went against the weight of evidence.iv.That the learned trial magistrate erred and misdirected herself in law by making an assessment of damages.v.That the learned trial magistrate erred in law in failing to appreciate and apply the principles applicable in assessment of damages in personal injury claims.vi.That the learned trial magistrate award on damages was so inordinately high.vii.That the learned trial court was in error of law and fact in failing to take into account certain facts material to an estimate of evidence. 4.When this appeal came up for hearing this court gave directions to have the appeal disposed of by written submissions. Though the appellant put forward a total of seven (7) grounds of appeal those grounds may be summarised to two main grounds. First, whether the trial magistrate erred in her find on liability. Secondly, whether the trial magistrate failed to appreciate and apply the principles applicable in the assessment of damages and whether the award on damages was inordinately high. 5.On the first ground as to whether the trial court erred in finding the appellant 90% liable, it is the appellant’s submission that the Respondent failed to discharge the burden of proof of liability on the appellant’s part and therefore the Respondent’s suit should have been dismissed. 6.The appellant pointed out that the police officer who was summoned to testify was not the investigating officer and did not produce the police investigation file and therefore he did not help the court determine which party may have caused the accident. The appellant further submitted that the police officer testified and produced the police abstract dated 28/7/2022 which indicated that the accident was still pending investigation and did not lay blame for the accident on any person. 7.The appellant further argued that the Respondent did not tender any evidence to prove that the driver of Motor Vehicle registration No. KCT 089R was to blame for the accident. The appellant further pointed out that the Respondent exposed himself to a risk by walking on the side of the road where he could not see oncoming traffic and walking on a road with no pedestrian walkways. It is the proposal of the appellant that if this court is inclined to find that the Respondent proved that the accident occurred off the road, then it should apportion the Respondent liability of 50%. 8.On the other hand, it is the submission of the Respondent that the production of police abstract by a competent officer is sufficient proof that an accident occurred and that the absence of the investigating officer does not invalidate otherwise credible evidence. The Respondent also argued that the appellant failed to establish any grounds to persuade this court to interfere with the trial court’s finding on liability. 9.I have considered the rival submissions on liability. I have also re-evaluated the evidence which were tendered before the trial court. The Respondent (PW2) testified and informed the trial court that on 18th July, 2022 at 8.40 am he was walking on the left side with his friend off the road along Delamere Road coming from Gilgil town heading towards GTI Company Ltd when he was suddenly hit from the back by motor vehicle registration No. KCT 089R. 10.PW2 said that as a result he bled profusely from the head. The Appellant (DW1) stated in her statement that on 18th July, 2022 she drove her vehicle Registration No. KCT 089R from Ol Jabet direction towards Nairobi. DW1 said that upon reaching Gilgil she turned into Lord Delamere Road and was going over a bump when the Respondent (PW2) tried to cross over the road and he hit the left side of the motor vehicle and landed on the windshield. DW1 blamed the Respondent for crossing the road without ascertaining clearance. After a critical examination and evaluation of the evidence tendered by both sides, it is apparent that the accident occurred along Delamere Road as indicated in the police abstract form. 11.What is not clear is who is to blame. The Respondent testified stating that the appellant is wholly to blame because her motor vehicle hit him from behind while walking off the road. On the other hand, the appellant blames the Respondent for the accident stating that he carelessly and abruptly crossed the road without proper look out. 12.It is apparent also that both the appellant and the Respondent did not summon independent witnesses at least to collaborate and or strengthen their assertions on who was wholly to blame. 13.Faced with this dilemma, the learned Resident Magistrate relied on the case of Masembe Vs Sugar Corporation and Another [200] 2 EA 434, to find the appellant 90% liable while the Respondent to shoulder 10% liability. If the court were to believe the evidence of the Respondent that he was hit at the back while walking besides the road, then it would appear he was walking on the side where he could not see oncoming traffic. 14.The highway code dictates that pedestrians should walk on the side of the road where they can see oncoming traffic. It would therefore appear that the Respondent exposed himself to the risk of walking on the side of the road where he could not see oncoming traffic and also walking on a road with no pedestrian walkway. 15.In the circumstances I would apportion liability to the appellant at 70% as against the Respondent who could have shouldered 30%. 16.On the other hand, if the court was to believe the assertion by the appellant that the Respondent carelessly without proper look out crossed the road, then this court would instead find the Respondent 40% liable and the appellant 60% liable since a greater degree of caution is places on the driver. 17.After a careful re-evaluation of the evidence, it is clear to this court that there is no evidence to show as to who is to wholly blame for the accident. In the circumstances this court will hold the parties equally to blame for the accident. In the case of Caroline Njoki Mwangi Vs Ndungu Mwangi [2004] eKLR in which the court held inter alia:“I would in the absence of an official police sketch map and on knowing who exactly is to blame on this matter and on a balance of probability hold that the parties are indeed equally to blame at the ration of 50% each” 18.In the end this court finds that the learned trial Resident Magistrate misdirected herself in finding the appellant 90% liable when the Respondent was much more substantially culpable. Consequently, the appeal as against the order on liability succeeds. The order apportioning liability at 90% and 10% as against the appellant and the Respondent respectively is set aside and is substituted with an order apportioning liability at 50:50%. 19.On the second main ground as to whether the trial magistrate failed to appreciate and apply the principles applicable the assessment of damages and whether the award on damages was inordinately high. In determining this issue, it is important to appreciate that the principles to be considered were restated in Butt Vs Khan [1977] 1 KAR inter alia as follows:“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 that 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”. 20.It is the appellant’s submission that the Respondent’s injuries differ in his respective medical documents and treatment notes. It is pointed out that the Respondent produced a treatment card from Gilgil sub-county Hospital dated 18th July, 2022 which indicates that the Respondent sustained bleeding from the head with a deep cut would with rugged edges and bruises on the upper lower limbs. The appellant argued that the Respondent sustained soft tissue injuries and that he walked out of hospital on his legs after receiving treatment. 21.The appellant further pointed out that the respondent produced a treatment card dated 29/7/2022 from Gilgil Hospital which indicates that he had been attended on 29th July, 2022 and that he had a fracture of the right fibular bone and a strain on the right ankle joint. It is stated that the treatment card was prepared and or generated on 29th July, 2022, approximately 8 days after the incident. 22.It is argued that the court cannot affirm that the injuries were as a result of the accident that occurred on 18th July, 2022. The appellant urged the court to reject the medical report, the injuries pleaded and the testimony of Dr. Okombo. The appellant also submitted that the Respondents did not sustain a fracture of the right medical malleolus or a fracture of the right fibula as alleged in the plaint. 23.The appellant proposed that an award of Ksh 100,000/= is reasonable compensation as general damages for the Respondent. The appellant further argued that if the court is inclined to find the Respondent proved the injuries as pleaded in the plaint, then the award of Ksh 800,000/= is manifestly excessive considering the injuries sustained. This court was asked to find that an award of Ksh 400,000/= is a reasonable compensation as general damages for the Respondent. 24.It is the submission of the appellant that the trial magistrate did not consider the principles of awarding general damages. The Respondent on the other hand is of the submission that the respondent sustained fractures of the right medical malleolus and right fibula and multiple soft tissue injuries and that the award of Ksh 800,000/= as general damages was modest and reasonable. 25.It is also the Respondent’s submission that the trial Magistrate properly evaluated the evidence and applied the correct legal principles and that the finding on liability and the award on damages are sound and supported by evidence. A critical examination of the judgment of the trial court will reveal that the trial magistrate found that the Respondent had sustained fractures of the right medical malleolus and on the right fibula. She also found that the Respondent suffered soft tissue injuries on the head, chest, left shoulder and on the left arm. In her judgment, the learned trial magistrate in assessing the nature of injuries the Respondent sustained, comparable awards and the inflationary trends. 26.Having re-evaluated the evidence tendered before the trial court and having considered the rival submissions, I have come to the following conclusions in this appeal. 27.In numerous decisions, courts have stated the principles to be considered in assessment of damages. The court will look at inter alia the nature of injuries sustained, comparable awards and the inflationary trends. In this appeal the Respondent pleaded in his plaint that he sustained the following injuries:Particulars of injuriesa.Fracture of the right medical malleolusb.Fracture of the fibulac.Soft tissue injuries of the parietal regiond.Soft tissue injuries of the cheste.Soft tissue injuries of the left shoulder jointf.Soft tissue injuries of the left armParticulars of special damagesi.Medical report - Kshs 16,000.00ii.Search - Kshs 550.00iii.Medical expenses - Kshs 3,110.00Total - Kshs 19,660.00And the plaintiff claims damages 28.In his evidence, the Respondent stated that he suffered a fracture of the leg and had injuries on the head. The Respondent produced a medical report prepared by Dr. Kiamba which indicated that the Respondent suffered fractures on the right medial malleolus and on the right fibula, soft tissue injuries. The appellant produced a medical report prepared by Dr. Malik indicating he examined the X-rays given to him which show that there were no fractures. Dr. Malik stated that he looked at the outpatient card which shows that the Respondent sustained a fracture of the fibula alone. 29.The trial magistrate noted the discrepancies between the medical report of Dr. Kiamba and Dr. Malik. Though she did not expressly state, it would appear she believed the evidence of Dr. Kiamba that the Respondent suffered fractures as pleaded. 30.After re-evaluating the evidence of the two doctors, I am also persuaded that the evidence of Dr. Kiamba is reliable. Therefore, this court is convinced that the Respondent tendered medical evidence showing that he actually sustained the injuries pleaded in the Respondent’s plaint. 31.In assessing damages, the trial magistrate took into account comparable awards and came to the conclusion that the sum of Ksh 800,000/= represented a reasonable award. This is satisfied that the trial court applied the correct principles in assessing damages. This court is also satisfied that the award of Ksh 800,000/= as general damages is excessive. The award on general damages by the trial court cannot be interfered with by the appellate court. 32.In the end this appeal partially succeeds. The order on liability apportioning liability in the ratio of 90:10% is set aside and is substituted with an order apportioning liability in the ratio of 50:50%. 33.The appeal as against the award on general damages is dismissed. 34.Therefore, the judgment sum on appeal is tabulated as follows:i.General damages Kshs 800,000/=ii.Special damages Kshs 18,760/=Kshs 818,760/=Less 50% contribution Ksh 409,380/=Net Amount Ksh 409,380/=iii.The above award to attract interest at court rates from the date of judgment ie 19th May, 2025 until full payment.iv.Each party to bear their own costs of the appeal since the appeal was partially allowed.v.Costs of the suit is awarded to the Respondent. DATED, SIGNED AND DELIVERED THIS 9TH DAY OF JULY, 2026 AT NAKURU.J. K. SERGONJUDGEIn presence of:Jamleck/Rutoh C/AMiss Kimathi for the AppellantBosibori holding brief for Ndubi for Respondent