Mukiri & another v Odhiambo (Civil Appeal E847 of 2025) [2026] KEHC 9104 (KLR) (25 June 2026) (Judgment)

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COUNTY COURT NAME: MILIMANI HIGH COURT CASE NUMBER: HCCA/E847/2025 JOYCE WANGUI MUKIRI AND IAN KIRUMBA VS EMMANUEL ODHIAMBO JUDGMENT **JUDGMENT** INTRODUCTION 1. This is an appeal by Joyce Wangui Mukiri and Ian Kirumba (hereinafter the "1st Appellant" and "2nd Appellant" respectively, and the "Appellants" collectively) against the judgment of the Chief Magistrate's Court at Milimani delivered on 25th July 2025 in Civil Suit No. E647 of 2024. The learned Magistrate found in favour of the Respondent, held the Appellants wholly liable for a motor vehicle accident, and consequently awarded Kshs. 500,000 in general damages and Kshs. 3,550 in special damages. BACKGROUND 1. It is common ground between the parties that there exists a motor vehicle of registration number KCG 694Z (hereinafter "the motor vehicle"). On 25th November 2023, the motor vehicle was involved in an incident in respect of which the parties advance diverging accounts. It is that incident which occasioned the filing of the suit at the trial court, the essential particulars of which are summarised in the sections that follow. Pleadings at the Trial Court Plaint dated 2nd March 2024 1. The Respondent, as Plaintiff at the trial court, averred that at the material time the 1st Appellant was the registered owner and the 2nd Appellant the driver of the motor vehicle. The Respondent claimed that on or about 25th November 2023, while walking along the Northern Bypass as a pedestrian, the Appellants managed the motor vehicle negligently and at an excessive speed, causing an accident by knocking him down, as a result of which he sustained serious bodily injuries, endured pain and suffering, and suffered loss and damage. 2. The Respondent particularised the Appellants' negligence under six heads, namely: failing to keep any or adequate lookout for other road users; driving at a speed that was excessive in the circumstances; driving without due regard and attention; failing to have sufficient regard for the safety of other road users; failing to brake, stop, swerve, slow down or otherwise manage the motor vehicle so as to avoid the accident; and driving recklessly, carelessly and dangerously. The Respondent also invoked the doctrine of res ipsa loquitur. 3. The Respondent particularised his injuries as bruises in the lower limbs and a fracture of the left distal fibula. Special damages were particularised at Kshs. 3,550, comprising medical expenses of Kshs. 3,000 and a motor vehicle search fee of Kshs. 550. The Respondent further sought general damages, costs of the suit, and interest thereon at court rates. 4. Statement of Defence dated 14th March 2024 5. The 1st Appellant denied being the registered owner of the motor vehicle, while the 2nd Appellant denied being the driver or being in possession of the motor vehicle at the material time. Both Appellants denied the occurrence of the accident on the alleged date, time, manner, style and circumstance, and averred that they had no knowledge thereof. They additionally denied the particulars of negligence as alleged and denied receiving any Demand Letter from the Respondent. 6. In the alternative and without prejudice, the Appellants averred that if the accident did occur, it was solely or substantially contributed to by the negligence of the Respondent. They listed six particulars of alleged contributory negligence, including: attempting to cross at an undesignated section; walking carelessly in disregard of motor vehicles; failing to maintain a proper lookout; failing to move or stop to avoid the accident; not being alert on a busy road; and failing to heed the hooting of the motor vehicle. The Appellants also challenged the applicability of res ipsa loquitur and put the Respondent to strict proof of the alleged injuries and special damages. 7. Reply to Defence dated 15th May 2024 8. The Respondent joined issues with the Appellants on their Statement of Defence, reiterated the material averments of the Plaint, and denied the particulars of contributory negligence attributed to him. The Respondent further contended that the Statement of Defence consisted of mere general denials. Evidence at the Trial Court Respondent's Evidence 1. The Respondent listed himself, Dr. G.K. Mwaura and the relevant police officer as his witnesses. In his Witness Statement dated 2nd March 2024, the Respondent stated that on 25th November 2023, while walking along the Northern Bypass, the motor vehicle, being driven at an extremely high speed, struck him causing serious injuries. He testified to suffering bruises in the lower limbs and a fracture of the left distal fibula, and attributed these to the 2nd Appellant's negligence. The Respondent adopted his Witness Statement as his evidence-in-chief when he testified on 14th March 2025. The Doctor did not tender a witness statement. 2. The Respondent produced the following documents in support of his claim: a Medico- Legal Report by Dr. G.K. Mwaura of Kinoo Medical Clinic dated 24th February 2024; a Police Surgeon/Medical Report from Mama Lucy Kibaki Hospital bearing a stamp dated 13th February 2024; an X-ray from Mama Lucy Kibaki Hospital; an Attendance Card for the same hospital; a Motor Vehicle Copy of Records obtained on 7th February 2024; the Kenya Police Medical Examination (P3) Report stamped 13th February 2024; a Police Abstract on Road Accident dated 30th January 2024; receipts for the motor vehicle search and medical clinic fees; and the Demand Letter dated 7th February 2024. The parties consented to produce these documents without calling their makers. (b) Appellants' Evidence 1. The Appellants' sole witness was the 2nd Appellant, whose Witness Statement was dated 20th May 2024. He admitted to being the driver in possession of the motor vehicle on 25th November 2023 and stated that he was driving lawfully and carefully along the Northern Bypass. He averred that upon reaching the Githogoro area, he heard a loud bang on his windscreen. He then attempted to drive further but stopped a few metres past a Rubis Petrol Station owing to cracks in the windscreen and rain. He stated that upon alighting the vehicle to seek assistance, he was mugged and fell into a ditch. His assailants ransacked the vehicle, affording him the opportunity to flee to the petrol station where he called his wife, who took him to hospital. 2. The 2nd Appellant further stated that on 26th November 2023, he visited the Police Station to which the vehicle had been towed, and was required to pay a cash bail of Kshs. 10,000, refundable after one month if no complaints arose. He maintained that no complaints arose and the bail was refunded. He concluded that he was unaware of any casualties and was surprised to receive a demand letter asserting that he had struck pedestrians. The 2nd Appellant testified on 14th March 2025 and adopted his Witness Statement. 1. The Appellants' sole documentary evidence was a Medico-Legal Report by Dr. Wambugu P.M. dated 14th October 2024, prepared following a second medical examination of the Respondent ordered by the Court on 24th September 2024. Dr. Wambugu's report concluded that the Respondent had suffered a closed incomplete fracture of the distal third of the left fibula and skeletal and soft tissue injuries, from which he had since made an adequate recovery, with the fracture having united and no permanent incapacitation resulting. Submissions at the Trial Court 1. The Respondent submitted that the Police Abstract not only established the occurrence of the accident but implicated the Appellants as blameworthy. He contended that cross- examination of the 2nd Appellant revealed that he was driving the motor vehicle along the Northern Bypass on the material date, that he failed to adduce evidence of what struck his windscreen, and that the only abstract produced confirmed the Appellants' culpability. The Respondent relied on Bash Hauliers Limited v Anastacia Ndinda Kimonye [2020] eKLR and sought general damages of Kshs. 700,000 in reliance on Joseph Njeru Luke & 3 others v Stellah Muki Kioko [2020] eKLR, Sayeed Abdul v Ruweida Salim MCC No. E4071 of 2023, and Vincent Mbogholi v Harrison Tunje Chilyalya [2017] eKLR. 2. The Appellants submitted that there was no nexus between them and the alleged accident. They raised concerns about the dates on the P3 Form and medical reports, which they contended were procured almost three months after the alleged accident, suggesting that the documents were an afterthought. They characterised the claim as fraudulent. On quantum, the Appellants relied on Dr. Wambugu's report to submit that the Respondent's injuries had healed and, citing Daniel Otieno Owini & another v Elizabeth Atieno Owuor [2020] eKLR and Kiama v Mutiso (Civil Appeal 40 of 2023) [2024] KEHC 5135, submitted that general damages of Kshs. 400,000 would be appropriate if liability were established. The Appellants conceded special damages of Kshs. 3,550. Judgment of the Trial Court 1. The learned Magistrate held the Appellants wholly liable for the accident, finding that the circumstances closely mirrored those in CMCC E648 of 2024 and that there was no reason to depart from the finding of liability made in that related matter. On quantum, the learned Magistrate found that the Respondent had established injuries of bruises in the lower limbs and a fracture of the left distal fibula. Relying on Godfrey Wamalwa Wamba & another v Kyalo Wambua [2018] eKLR, Wakim Sodas Limited v Sammy Aritos [2017] eKLR, and Vincent Mbogholi v Harrison Tunje Chilyalya [2017] eKLR, the learned Magistrate awarded Kshs. 500,000 as general damages for pain and suffering. Special damages of Kshs. 3,550 were also awarded, as were costs. THE APPEAL 1. Aggrieved by the decision of the learned Magistrate, the Appellants filed a Memorandum of Appeal dated 14th August 2025, raising nine grounds. The grounds, briefly stated, were that the learned Magistrate: erred by awarding excessive damages; failed to consider the authorities cited by the Appellants; erred in finding the Appellants 100% liable despite glaring discrepancies and inconsistencies in the evidence; erred in awarding Kshs. 500,000 for what the Appellants characterise as mere soft tissue injuries; failed to analyse the totality of the evidence; failed to adequately evaluate the suit and arrived at an award unsustainable in law; was biased against the Appellants; exercised her discretion capriciously and not judiciously; and failed to properly evaluate the Appellants' submissions, resulting in a miscarriage of justice. The Appellants prayed that the appeal be allowed, the decision set aside, and that there be no order as to costs. SUBMISSIONS ON APPEAL 1. This appeal was disposed of by way of written submissions. The Appellants' submissions are dated 17th February 2026 and the Respondent's submissions are dated 19th February 2026. Appellants' Submissions 1. The Appellants submitted that the Respondent claimed to have attended a clinic the day after the accident, on 26th November 2023, yet failed to produce treatment notes in support of that claim. The treatment notes filed were dated 13th February 2024, while the P3 Form was dated 29th January 2024 — approximately three months after the alleged accident. The Appellants contended that the absence of contemporaneous medical records raised legitimate doubt as to whether the accident occurred as alleged, and that the documents were procured as an afterthought. 2. The Appellants further argued that the P3 Form bore a handwritten date of 13th February 2023, predating the alleged accident of 25th November 2023, which they contended indicated that the document was doctored. They further argued that the Police Abstract was the only evidence adduced, without any police officer being called to testify as to the circumstances of the accident, and relied on Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR in support of the proposition that a Police Abstract was insufficient proof of an accident or liability. The Appellants also submitted that there was no basis for inferring that the cash bail established fault on the part of the 2nd Appellant, as no police officer testified to that effect. 3. On quantum, the Appellants submitted that the learned Magistrate failed to consider Dr. Wambugu P.M.'s Medico-Legal Report, which showed that the Respondent's injuries were skeletal and soft tissue in nature and that he had already recovered therefrom. Respondent's Submissions 1. The Respondent supported the decision of the learned Magistrate. He argued that his testimony was corroborated by the Police Abstract, which confirmed both the occurrence of the accident and the culpability of the Appellants' vehicle. He further submitted that the 2nd Appellant's own account confirmed the occurrence of an accident, as he admitted to driving the motor vehicle along the Northern Bypass when something struck his windscreen. The Respondent relied on Bash Hauliers Limited v Anastacia Ndinda Kimonye [2020] eKLR on the duty of care owed by a driver to other road users. 2. The Respondent contended that the Appellants' allegation of fraud had not been distinctly pleaded nor proven, and cited Gichinga Kibutha v Caroline Nduku [2018] KEELC 3981 (KLR) in support. He further pointed out that the Appellants had consented to the production of the documents without calling their makers, and could not now impugn their authenticity. The Respondent urged this Court to dismiss the appeal with costs. DETERMINATION 1. I have carefully considered the Record of Appeal, the parties' submissions, and the authorities cited. This appeal raises two substantive issues for determination: first, whether the Respondent established the Appellants' liability on a balance of probabilities; and second, whether this Court ought to interfere with the trial court's award of damages. 2. As a preliminary matter, this Court is mindful of the scope and limits of its appellate jurisdiction as a court of first appeal. The Court of Appeal in Gitobu Imanyara & 2 others v Attorney General [2016] eKLR stated the applicable principles thus: This being a first appeal, it is trite law, that this Court is not bound necessarily to accept the findings of fact by the court below and that an appeal to this Court from a trial by the High Court is by way of retrial and the principles upon which this Court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowances in this respect. 1. Consistent with these principles, I will carry out an independent assessment of the evidence while according appropriate deference to the learned Magistrate, who had the distinct advantage of observing the demeanour of the witnesses. Whether the Respondent Established the Appellants' Liability on a Balance of Probabilities 1. I have examined the entire record and I find that the claims in this appeal arise from the same facts as HCCA/E848/2025, Joyce Wangui Mukiri and Ian Kirumba v Mercy Atieno Omollo, in which I have delivered judgment today. A comparison of the pleadings, evidence and submissions in the two matters reveals that they are substantively similar, subject to one aspect which is addressed hereunder. I have therefore found the Appellants wholly liable for the accident in HCCA/E848/2025, and I make the same finding here. Given that the parties in both appeals are represented by the same advocates, I do not find it necessary to repeat the full analysis on liability, which is set out at length in HCCA/E848/2025. The Appellants' arguments regarding the absence of contemporaneous treatment notes, the delay in obtaining medical reports, the adequacy of the Police Abstract as evidence, and the significance of the cash bail have all been comprehensively addressed in that judgment. 1. I will however address one argument that was not raised or applicable in HCCA/E848/2025 but which requires determination in this appeal. The Appellants contend that the P3 Form bears a handwritten date of 13th February 2023, which predates the accident of 25th November 2023, and that this indicates the document was doctored. 2. I have examined the P3 Form and I am unable to accept the Appellants' contention that this date discrepancy is, in itself, indicative of fraud or tampering. I am guided by the observations of Justice M.W. Muigai in Kieti v Jumbo Foam Mattresses Industries (Civil Appeal E047 of 2020) [2022] KEHC 14325 (KLR) at paragraphs 23 and 40, where the court dealt with alleged irregularities on the face of a P3 Form and found that such discrepancies did not necessarily render the document inadmissible, particularly where the party challenging authenticity had consented to its production without calling the maker. 3. In the present case, it is significant that the first page of the P3 Form shows the Police Officer's request for medical examination was dated 29th January 2024. Moreover, beside the impugned handwritten date of 13th February 2023 there is a stamp dated 13th February 2024. This stamped date is identical to the stamp date on the Police Surgeon/Medical Report from Mama Lucy Kibaki Hospital filed in the same matter. The Medico-Legal Report of Dr. G.K. Mwaura further corroborates the P3 Form, referring to it explicitly. The discrepancy in the year of the handwritten date does not, when the totality of the documentary evidence is considered, indicate that the P3 Form was made before the accident. 4. I am further of the view that the handwritten date discrepancy admits of a straightforward and common explanation entirely unconnected with fraud. The difference between the handwritten date and the stamp date is solely with regard to the year. James Reason, writing in Human Error (1990) at page 5, observed: The more usual type of prediction is illustrated by the following example. It can be forecast with near certainty that during next January the banks will return a large number of cheques with this year's date on them. We cannot necessarily predict the exact number of the misdated cheques... nor can we say precisely who will make this error, or on which day. But we do know that such strong habit intrusions are among the most common of all error forms; that dating a cheque, being a largely routinised activity (at least with respect to the year), is particularly susceptible to absent-minded deviations of this kind; and that the early part of the year is the period in which these slips are most likely to happen. 1. What is most likely to have happened is that the medical officer, through force of habit acquired in the course of routinely dating documents in 2023, inadvertently carried that habit into February 2024, the second month of the immediately subsequent year. This is an entirely ordinary and well-documented form of human error. I cannot attribute to fraud what is readily explicable as a common slip of the pen. 1. I make this finding pursuant to the mandate conferred by section 119 of the Evidence Act, which provides that the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. 2. For these reasons, I dismiss the challenge to the P3 Form and uphold the learned Magistrate's finding that the Appellants were wholly liable for the accident. Whether this Court ought to Interfere with the Trial Court's Finding on Quantum of Damages 1. The applicable standard for appellate intervention on quantum of damages is well settled. The Court of Appeal in Catholic Diocese of Kisumu v Sophia Achieng Tete, Civil Appeal No. 284 of 2001 [2004] 2 KLR 55, stated at paragraph 8: It is trite law that the assessment of general damages is at the discretion of the trial court and an Appellate Court is not justified in substituting a figure of its own for that awarded by the Court below simply because it would have awarded a different figure if it had tried the case at first instance. The Appellate Court can justifiably interfere with the quantum of damages awarded by the trial court only if it is satisfied that the trial court applied the wrong principles, as by taking into account some irrelevant factor or leaving out of account some relevant one, or misapprehended the evidence and so arrived at a figure so inordinately high or low as to present an entirely erroneous estimate. 1. I have reviewed both medical reports forming part of the record and I am satisfied that they both confirm the injuries alleged by the Respondent. In my view, the learned Magistrate applied the correct principles in assessing general damages. The award of Kshs. 500,000 is not so inordinately high as to constitute an entirely erroneous estimate of the appropriate compensation in the circumstances of this case. I decline to interfere with it. ORDERS For all the foregoing reasons, this appeal is dismissed with costs to the Respondent. The Respondent shall have costs of the trial court as well. Judgement delivered virtually on 25th June 2026 In the presence of; Kichwen for the Respondent Karuhaga for the Appellant C/A Irene Chelangat SIGNED BY/FOR: **★ TH E JUDICIAR Y O F KENY A ★** **HON. LADY JUSTICE CHELANGAT MUTAI** Milimani High Court High Court Civil Appellate Division Date: 2026-06-25 13:44:48