https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7129

Masengeli & another v Wanangiti & 4 others (Civil Appeal E192 of 2022) [2026] KEHC 7129 (KLR) (Civ) (22 May 2026) (Judgment) Neutral citation: [2026] KEHC 7129 (KLR) Republic of Kenya In the High Court at Nairobi (Milimani Law Courts) Civil Civil Appeal E192 of 2022 AN Ongeri, J May 22, 2026 Between Herbert Masengeli 1st Appellant Edward Githae Wanjau 2nd Appellant and Emily Anne Wanangiti 1st Respondent The Kenya Railways Corporation 2nd Respondent Rift Valley Railways (K) Limited 3rd Respondent The Honourable Attorney General 4th Respondent The Kenya National Highway Authority 5th Respondent (Being an Appeal from the Judgment of Hon. D.O. Mbeja (PM) delivered in Milimani CMCC No. 7140 of 2016 delivered on 22/1/2021) Judgment 1.The1st Respondent Emily Anne Wanangiti filed Milimani CMCC No. 7140 of 2016 seeking both General damages and Special damages for injuries she sustained on 30/10/2017 in a road traffic accident that occurred at Mutindwa Railways – Level Crossing in Nairobi. 2.The 1st Respondent was a passenger in motor vehicle Registration No. KBQ 474C driven by the 2nd Appellant when it violently colluded with Commuter Train Engine Number 9213. 3.The 1st Respondent sustained the following injuries:_i.Head injury (Cerebral concussion)ii.Fracture of the orbital zygoma of the mandible (lower jaw)iii.Cut wound over the fore head.iv.Fracture of the lateral third of clavicle superiorv.Impacted fracture of the superior end plates vertebral/bodies of the lumber spinevi.Soft tissue injuries to the left ankle joint 4.The Appellants filed a Defence on 3/2/2017 denying liability and attributed the same to the negligence of the Commuter train for reasons that there was no barrier at the Mutindwa Level Crossing to prevent motor vehicles from accessing the crossing when a train was oncoming. They conjoined several 3rd parties. 5.The 1st Respondent’s evidence was that vehicle had stopped to give way to the train but the 2nd plaintiff overtook the vehicles and speed towards the railway crossing in an attempt to cross before the train arrived but he did not manage to cross. 6.She said after the accident, the driver fled the scene. She said the train kept on hooting but the 2nd Appellant ignored the warnings. 7.She lost consciousness and regained it at Aga Khan Hospital. 8.The 2nd Appellant testified as DW4 and he said he was acquitted in a traffic case. He said there was no signage and Police flagged him. 9.The trial Court found that the Appellants were 100% liable for the accident. 10.The trial Court assessed damages as follows:-i.General damages for pain and suffering Ksh. 3,000,000/=ii.Special damages Ksh. 20,000/=iii.Future medical expenses (removal of the plates) Ksh. 850,000/=Total Ksh. 3,870,000/= 11.The Appellants have appealed against the said Judgment on the following grounds:-i.That the learned trial Magistrate erred in law and in fact in holding the Appellants wholly and 100% liable for the accident that occurred on 30th October, 2013 despite all evidence and testimony adduced before him.ii.That the learned trial Magistrate erred in law and in fact in failing to apportion liability against the parties and the third parties despite all evidence and testimonies adduced thereto.iii.That the learned trial Magistrate failed to give any adequate or credible reasons as to why he failed to apportion liability on the third parties (the 2nd, 3rd, 4th and 5th Respondents herein) despite the evidence and testimonies adduced thereto.iv.That the learned trial Magistrate erred in law and fact by awarding General damages at Ksh. 3,000,000/= which was excessive in the circumstances considering the injuries sustained by the 1st Respondent and the evidence and testimonies adduced thereto.v.That the learned trial Magistrate erred in law and in fact by awarding the 1st Respondent Ksh. 850,000/= as future medical expenses which was excessive in the circumstances.vi.That the learned trial Magistrate consequently erred in law and in fact in awarding costs and interest thereto. 12.The parties filed written submissions as follows: the appellants submitted that in their defence they denied liability and pleaded that the accident was substantially contributed by the negligence on the part of the third parties. 13.DW1 testified that there were a lot of structures at the site of the junction on 2013. The vibandas were on all sides. The tarmac was not well done and there were no crossing signs. He indicated that the train had no specific timing and several months before the accident they reported that the place was a danger point. 14.The sacco additionally wrote a letter to the rift valley and that the blame was clearly set on them as they ignored the things they ought to have done. 15.DW2 produced a petition address to the cabinet secretary informing that the railway crossing was left incomplete and that the same was a hazard. 16.DW4, the 2nd appellant testified that he saw the train while on the railway crossing and that you could not tell whether the train passed the area at the time. 17.There was no barrier that had been erected and when he saw that the path was clear he proceeded to cross the railway. 18.PW2 also confirmed during cross examination that there was no barrier before the railway line. The 4th third party confirmed at cross examination that it was the duty of the railway institution to ensure safety of the railway line and to manage signage. 19.The appellants therefore argued that this showed that there was a tangent case against third parties which the trial court ought to have considered. 20.The appellants contended that the trial court ought to have apportioned liability upon the third parties. 21.A cursory look into the judgement showed no reasons were given by the court on its failure to apportion contributory liability which action went against the provisions of Order 21 Rule 4 of the Civil Procedure Rules which is grounds to uphold an appeal. 22.On quantum the appellants argued that as per the medical report by Dr Bhanji there was no assessment of any permanent disability to the plaintiff. 23.Additionally, there was no follow up report or medical examination that was done to confirm that the plaintiff had not fully healed at the time of testifying in the matter. 24.The appellants argued that an award of Kshs. 3,000,000 as general damages was excessive in the circumstances and proposed Kshs. 1,500,000 as an alternative. 25.In support of their argument, they cited Kenya Wildlife Service -Vs- Godfrey Kirimi Mwiti [2018] eKLR the plaintiff sustained more severe injuries which led to the Doctor assessing permanent incapacitation at 25% and the court awarded the plaintiff Kshs. 2,000,000 for general damages for pain and suffering. 26.On future medical expenses the appellants submitted that the award of Kshs. 850,000 was based on the assessment by the doctor for prices at a private hospital and argued that the implants could be removed at a cheaper cost at a public hospital and urged this court to review the award to a reasonable sum. 27.The 1st respondent submitted that the trial court in detail gave reasons for why it held the 2nd appellant 100% liable and discharged the third parties which was based on the professional responsibility. 28.Mitigating factors applied to avoid the accident and the conduct of the driver after the accident. 29.On general damages the 1st respondent submitted that the plaintiff produced a clinical summary which showed that she was involved in the accident and as a result sustained severe head injury, loss of consciousness for two days, fracture of the left orbital zygoma maxillary areas, fracture of the para-symphysis of the mandible (lower-jaw), cut wound on the left forehead, cut would over the left upper eyebrow, fracture of the lateral third of the clavicle, impacted fractures of the superior end-plates of L1and L2 vertebral bodies of the lumber spine, cut wound over the medial aspect of left wrist and soft tissue injury to the ankle joint and which injuries were not controverted. 30.The 1st respondent argued therefore that the award was not excessive but fair under the circumstances. 31.The 1st respondent on future medical expenses argued that she pleaded medical expenses totalling Kshs. 850,000. 32.During the trial the appellants did not provide any expert comparable costs and therefore the sum pleaded and supported by Dr. D. N. H. Bhanji was not challenged. 33.The 2nd respondent submitted that it beats no liability for the accident, neither partially nor fully which position is supported by the evidence on record. 34.At the time of the accident the 2nd respondent was not in control of the railway system and had no involvement in the day-to-day operations of the commuter train during the relevant period of the accident. 35.The 4th respondent submitted that the trial witnesses testified that the traffic police were present at the scene of the accident and they flagged the 2nd appellant to stop but he ignored them and overlapped other vehicles and proceeded to cross the railway line and hence causing the accident. 36.It was therefore the 4th respondent’s argument that the appellants cannot therefore blame the traffic police when their driver refused to heed to the directions of the said traffic officer. 37.The 5th respondent submitted that the road that is subject to this suit is outside its scope according to Part A of schedule under the Kenya Roads Act as it does not fall within the defined classes under their purview. 38.A review of the document provided by the 1st respondent at trial that includes the concession between Kenya Railways Corporation and Rift Valley Railways revealed that communications concerning the railway were exclusively maintained between Kenya Railways and Rift Valley Railways, without KENHA's involvement. 39.The mandate of ensuring safety of railways that cross public roads is properly defined under the Kenya Railways Corporation Act; Section 22 of the said Act provides as follows:“ 22.Constructions of railway crossinq public road(1)Where, in the exercise of powers under this Act, the Corporation proposes to construct a railway across a public road, the Cabinet Secretary responsible for public lands may, subject to subsection (3), require the Corporation to construct the railway in such a manner that it does not cross such road on the level and to execute such other works as may be necessary for the safety of the public and the Corporation shall comply with such requirements.(2)Where any railway has been constructed so as to cross a public road on the level, the Cabinet Secretary responsible for public lands may, subject to subsection (3), require the Corporation—(a)to erect such gates; or(b)to raise or lower the level of the public road so that it crosses the railway above or below and not on the level, and to execute such other works as may be necessary for the safety of the public, and the Corporation shall comply with such requirements." 40.The 5th respondent argued that as per the above provision the duty of ensuring that where any railway has been constructed so as to cross a public road, as was the case in the present suit, the Kenya Railway Corporation and the Cabinet Secretary for public roads shall ensure that the necessary works for the safety of the public are done by the corporation. 41.The 5th respondent submitted that from the Appellant's own assessors, the persons to blame for the accident was the Kenya Railways Corporation and not the 5th Respondent herein. The Appellants did not produce any evidence showing the nexus between the mandate of KENHA and the accident that occurred. 42.The third-party notice was therefore wrongly issued against the 5th respondent. 43.The issues for determination in this appeal are as follows;i.Whether the trial court erred in apportioning 100% liability against the Appellants, instead of against the 2nd, 3rd, 4th and 5th Respondents.ii.Whether the award of Kshs. 3,000,000 as general damages was inordinately high to amount to an erroneous estimate of the injuries suffered.iii.Whether the award of Kshs. 850,000 as future medical expenses were excessive. 44.The Appellants challenged the trial court’s finding that they were 100% liable for the road traffic accident in which the 1st Respondent was injured. 45.This court has a duty as the first appellate court to re-evaluate the evidence afresh and draw its own conclusions, as established in Selle v Associated Motor Boat Co. & others [1968] E.A. 123. 46.On the issue of liability, the evidence of the 1st Respondent (PW1) was that the motor vehicle had stopped to give way to the oncoming train, but the 2nd Appellant overtook other vehicles and sped towards the railway crossing in an attempt to beat the train. 47.She testified that the train was continuously hooting but the 2nd Appellant ignored these warnings. 48.This evidence was corroborated by the fact that the driver fled the scene immediately after the accident, a piece of conduct that points to a consciousness of guilt and recklessness on his part. 49.While the Appellants argued that the level crossing lacked barriers and signage, thereby imputing negligence on the Kenya Railways Corporation and the Kenya National Highway Authority, the primary duty of care rested with the driver of the motor vehicle. 50.The 2nd Appellant admitted seeing the train while on the crossing. Under the Traffic Act (Cap 403), a driver approaching a railway crossing must ensure the crossing is clear before proceeding. 51.The presence or absence of a barrier does not absolve a driver of the duty to look and listen for an approaching train. 52.A court will only disturb a finding on liability if it is clearly wrong. In this case, the driver’s action of speeding to overtake a stationary line of vehicles to beat a train is the sole cause of the collision. 53.Consequently, the trial court did not err in dismissing the third-party claims against the Kenya National Highway Authority, whose mandate under the Kenya Roads Act, Cap 408, concerns roads and not the operational safety of railway crossings. 54.Section 22 of the Kenya Railways Corporation Act, Cap 397 vests the duty of erecting gates and ensuring safety at level crossings upon the railway corporation, not the highways authority. 55.However, even assuming a lack of signage, it does not diminish the overwhelming negligence of the driver. 56.The appeal on liability therefore fails. 57.On the issue of quantum, the appellate court will only interfere where the trial court acted on wrong principles or the award is so inordinately high as to be an erroneous estimate. 58.The 1st Respondent suffered multiple severe injuries including cerebral concussion, fracture of the orbital zygoma and mandible, fracture of the clavicle, and impacted fractures of the lumbar spine. 59.The trial court awarded Kshs. 3,000,000 for pain and suffering. The Appellants propose Kshs. 1,500,000, citing Kenya Wildlife Service v Godfrey Kirimi Mwiti [2018] eKLR where the plaintiff had a 25% disability. 60.Considering the multiplicity of the 1st Respondent’s fractures, including the jaw and spine, and taking into account the inflationary trend since 2016, the award of Kshs. 3,000,000 is not excessive. 61.It aligns with comparable awards for grievous harm involving multiple fractures and head injury. 62.Regarding future medical expenses, the trial court awarded Kshs. 850,000 for the removal of metal plates. 63.This figure was based on the uncontroverted medical report of Dr. D. N. H. Bhanji, a specialist who estimated the cost of the necessary surgery. 64.The Appellants argued that a public hospital would be cheaper, but they did not tender any expert evidence or a costing schedule from a public facility to challenge the doctor’s estimate. 65.It is settled law that future medical expenses must be specifically pleaded and strictly proved. 66.The 1st Respondent met this threshold. Without contrary medical evidence, the trial court was bound to accept the doctor’s assessment. 67.This ground also fails. In conclusion, the appeal lacks merit and is dismissed with costs to the 1st Respondent. 68.The judgment of the trial court is hereby upheld in its entirety. DATED, SIGNED AND DELIVERED ONLINE VIA MICROSOFT TEAMS AT NAIROBI THIS 22ND DAY OF MAY, 2026.A. N. ONGERIJUDGEIn the presence of:Mr Awino holding brief for Miss Kahiti for the 1st Appellant & 2nd AppellantMiss Buluma for the 1st RespondentMr Mwangi for the 2nd RespondentNo appearance for the 3rd RespondentMr Ngumbi for the 4th RespondentNo appearance for the 5th RespondentChrispine – Court Assistant