https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/9169

 REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NAIROBI COUNTY COURT NAME: MILIMANI HIGH COURT CASE NUMBER: HCCA/E848/2025 JOYCE WANGUI MUKIRI AND IAN KIRUMBA VS MERCY ATIENO OMOLLO JUDGMENT **JUDGEMENT** 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. E648 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 gave rise to the filing of the suit at the trial court. a. Pleadings at the Trial Court 1. Plaint dated 2nd March 2024 2. 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, she was knocked down by the motor vehicle, which was being driven negligently and at an excessive speed. She averred that she sustained serious bodily injuries, endured pain and suffering, and suffered loss and damage as a consequence. 3. The Respondent particularised the Appellants' negligence under six heads: failing to keep any or adequate lookout for other road users; driving at an excessive speed 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. 4. The Respondent particularised her injuries as bruises in the upper limbs, pain and tenderness in the hip region, and a fracture of the hip (rami). Special damages were claimed 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. 5. Statement of Defence dated 14th March 2024 6. 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 and circumstance, and averred that they had no knowledge thereof. They additionally denied the particulars of negligence as alleged and denied receipt of any Demand Letter. 7. In the alternative and without prejudice, the Appellants averred that if the accident did occur, it was solely or substantially contributed to by the Respondent's own negligence. Six particulars of alleged contributory negligence were listed, 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 applicability of res ipsa loquitur was denied, and the Appellants also challenged the jurisdiction of the trial court. 8. Reply to Defence dated 15th May 2024 9. The Respondent joined issues with the Appellants on their Statement of Defence, reiterated the material averments of the Plaint, denied the particulars of alleged contributory negligence, and contended that the Statement of Defence consisted of mere general denials. Evidence at the Trial Court Respondent's Evidence 1. The Respondent listed herself, Dr. G.K. Mwaura and the relevant police officer as her witnesses. In her Witness Statement dated 2nd March 2024, she stated that on 25th November 2023, while walking along the Northern Bypass, she was struck by the motor vehicle, which was being driven at an extremely high speed. She sustained three injuries: bruises in the upper limbs, pain and tenderness in the hip region, and a hip fracture involving the rami. She attributed these injuries to the 2nd Appellant's negligence. The Respondent testified on 7th May 2025 and adopted her Witness Statement as evidence-in- chief. The parties' advocates agreed on 30th April 2025 that neither the doctor nor the police officer needed to testify, and the relevant documents were accordingly admitted without calling their makers. 2. The Respondent produced the following documents: 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 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. (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 carefully along the Northern Bypass. He averred that upon reaching the Githogoro area, he heard a loud bang on his windscreen. He stopped a few metres past a Rubis Petrol Station owing to the cracks in the windscreen and rain, and upon alighting to seek assistance, he was mugged and fell into a ditch. His assailants ransacked the vehicle, giving him the opportunity to flee to the petrol station where his wife collected him and 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, and that he was unaware of any casualties until he received the Respondent's demand letter. 3. 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 4th March 2025. Dr. Wambugu's report stated that the Respondent denied having taken any X-rays and concluded that she had suffered only minor soft tissue injuries with no total permanent incapacitation. Submissions at the Trial Court 1. The Respondent submitted that the Police Abstract established both the occurrence of the accident and the culpability of the Appellants' vehicle. She pointed out that the 2nd Appellant's own account corroborated the accident, noting that he admitted to driving the motor vehicle along the Northern Bypass when something struck his windscreen. She relied on Bash Hauliers Limited v Anastacia Ndinda Kimonye [2020] eKLR on the duty of care owed by a driver. On quantum, she sought Kshs. 700,000 in general damages, relying 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. She maintained her claim for special damages of Kshs. 3,550. 2. The Appellants submitted that there was no nexus between them and the alleged accident. They contended that medical documents produced almost three months after the alleged accident were an afterthought, and characterised the claim as fraudulent. They challenged the reliance on the Police Abstract without calling a police officer to testify. On quantum, relying on Dr. Wambugu's report, they submitted that the Respondent suffered only minor soft tissue injuries and cited Ephraim Wagura Muthui & 2 others v Toyota Kenya Limited & 2 others in support of an award of Kshs. 100,000 if liability were established. They conceded special damages of Kshs. 3,550. Judgment of the Trial Court 1. The learned Magistrate confirmed jurisdiction over tortious claims and framed liability and quantum of damages as the issues for determination. On liability, the learned Magistrate found that the Police Abstract unequivocally apportioned liability to the driver of the motor vehicle, that the 2nd Appellant failed to produce evidence corroborating his account, and that his concession on cross-examination that a cash bail is not issued to a complainant undermined his credibility. The Appellants were accordingly found wholly liable. 2. On quantum, the learned Magistrate found that the Respondent had established bruises in the upper limbs, pain and tenderness in the hip region, and a hip fracture in the rami. 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 in general damages and Kshs. 3,550 in special damages, together with costs. THE APPEAL 1. Aggrieved by that decision, the Appellants filed a Memorandum of Appeal dated 14th August 2025 raising nine grounds, which may be distilled as follows: that the learned Magistrate erred in awarding excessive damages; failed to consider the Appellants' authorities; erred in finding the Appellants 100% liable despite alleged discrepancies and inconsistencies in the evidence; awarded Kshs. 500,000 for what the Appellants characterise as mere soft tissue injuries; failed to analyse the totality of the evidence; arrived at an award unsustainable in law; was biased against the Appellants; exercised her discretion capriciously; 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 yet failed to produce treatment notes in support. The treatment notes filed bore a date of 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 serious doubt as to whether the accident occurred on the alleged date, and that the documents were procured as an afterthought. 2. The Appellants further submitted that the only evidence relied on was the Police Abstract, and that no police officer was called to testify as to the circumstances of the accident. They relied on Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR. They additionally argued that the learned Magistrate improperly drew an adverse inference from the cash bail, in circumstances where no police officer testified to that effect. 3. On quantum, the Appellants faulted the learned Magistrate for failing to consider Dr. Wambugu P.M.'s Medico-Legal Report, which indicated that the Respondent denied having taken any X-rays and concluded that she had suffered only minor soft tissue injuries. Respondent's Submissions 4. The Respondent supported the decision of the learned Magistrate. She argued that her testimony was corroborated by the Police Abstract, which confirmed the occurrence of the accident and the culpability of the Appellants' vehicle. She further submitted that the 2nd Appellant's own account confirmed the accident, as he admitted to driving the motor vehicle along the Northern Bypass when something struck his windscreen and that the matter was thereafter taken to the police station where he was required to pay a cash bail — an incident which, as he himself conceded in cross-examination, is associated with accused persons rather than complainants. 5. The Respondent contended that allegations of fraud must be distinctly pleaded and proved, and that the Appellants had done neither. She further argued that having unconditionally consented to the production of the documents without calling their makers, the Appellants could not at this stage impugn their authenticity. She cited Gichinga Kibutha v Caroline Nduku [2018] KEELC 3981 (KLR) in support. The Respondent urged this Court to dismiss the appeal with costs. 1. On quantum, the Respondent maintained the three injuries established at trial — hip fracture involving the rami, upper limb bruises, and pain and tenderness in the hip region — were corroborated by the medical reports of Mama Lucy Kibaki Hospital and Dr. G.K. Mwaura. She supported the award of Kshs. 500,000, relying on Joseph Njeru Luke & 3 others v Stellah Muki Kioko [2020] eKLR, Sayeed Abdul v Ruweida Salim MCC No. E4071 of 2023, Vincent Mbogholi v Harrison Tunje Chilyalya [2017] eKLR, and Godfrey Wamalwa Wamba & another v Kyalo Wambua [2018] eKLR. DETERMINATION 1. I have carefully considered the Record of Appeal, the parties' submissions, and the authorities cited. This appeal raises two issues for determination: whether the Respondent established the Appellants' liability on a balance of probabilities; and whether this Court ought to interfere with the trial court's finding on quantum of damages. 2. As a preliminary matter, I restate the scope of this Court's 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 evaluation of the evidence while according appropriate deference to the learned Magistrate, who had the advantage of observing the witnesses. Whether the Respondent Established the Appellants' Liability on a Balance of Probabilities 1. This issue is examined under two sub-questions: first, whether the Respondent proved that an accident occurred on 25th November 2023 involving herself and the Appellants; and second, whether the Respondent proved that the Appellants were wholly liable for that accident. Whether the Respondent Proved the Occurrence of the Accident 1. The Respondent's Plaint and Witness Statement assert that she was walking along the Northern Bypass on 25th November 2023 when she was struck by the motor vehicle. In cross-examination, she stated that she did not know the number plate of the vehicle at the time of the accident but confirmed this detail at the Police Station, where the owner of the motor vehicle was also present. 1. The Respondent produced a Police Abstract dated 30th January 2024, which records an accident on the alleged date at approximately 2230 hours, identifying both the Respondent and the 2nd Appellant as parties, and referencing OB Number 09/26/11/2023. She also produced a P3 Form dated 29th January 2024, which bore the identical OB number and recorded that a report was made to the police on 26th November 2023 at 0200 hours. The P3 Form requested the medical examination of the Respondent, who was named therein, on account of injuries sustained in a road traffic accident. Part II of the P3 Form was completed by a Medical Officer bearing reference number A8745, who concluded that the probable cause of the injuries was a blunt object, and affixed a stamp confirming that the examination was conducted on 13th February 2024 at Mama Lucy Kibaki Hospital. 2. The Appellants argued that the absence of treatment notes showing the Respondent sought medical attention in the days immediately following the alleged accident, combined with the fact that the Abstract, P3 Form and hospital medical report were prepared approximately three months after the incident, indicated that these documents were an afterthought. At the trial court, the Appellants went further and characterised the claim as fraudulent. Although the fraud allegation was not expressly reiterated in submissions before this Court, the Appellants' position on the absence of contemporaneous records was maintained. 3. This Court has held in multiple instances that the absence of treatment notes is not fatal to a Plaintiff's case in an accident claim. In Erick Juma & 2 others v Fredrick Gacheru & another [2016] KEHC 1106 (KLR), this Court held at paragraph 16 as follows: …It is true that treatment notes are part of the evidence of the involvement in the accident and injury. I however reject the argument that without treatment notes one cannot prove involvement in an accident or injury. The duty of the court is to examine the entire evidence and make a finding whether the facts alleged are proved on the balance of probabilities. The existence of treatment notes would assist establishing consistency and corroborating the other evidence but are not necessarily decisive. 1. In Beatrice Nthenya Sila v Ruth Mbithe Kitsisa & 3 others [2014] KEHC 3936 (KLR), this Court disagreed with the contention that reliance on medical reports prepared months after an accident, in the absence of initial treatment notes, was fatal to a claim, and pointed to the evidence in the police abstracts and the oral testimony of the Respondent as sufficient to establish involvement in the accident. 2. I am equally guided by the observations of Nga'rng'ar J. in Nyakwana v Mogiso [2026] KEHC 6644 (KLR) at paragraphs 21 to 23, where the court reaffirmed that the omission of treatment notes is not fatal and that the court must consider the totality of the evidence, including unchallenged oral testimony and medical reports whose veracity was not contested. 1. In the present case, the Respondent testified that she went to a local dispensary before proceeding to Mama Lucy Kibaki Hospital on 26th November 2023, and thereafter attended for further review on 13th February 2024, when the medical report and P3 Form were completed. This account is consistent and not suggestive of fabrication. 2. Furthermore, Dr. Wambugu P.M.'s report — which was intended to controvert the Respondent's medical evidence — does not unequivocally refute the occurrence of injury. His opinion reads as follows: 3. OPINION & PROGNOSIS: Atieno's injuries, IF ANY, involved the soft tissues only and were minor in nature. I assert that no total permanent incapacitation occurred. 4. The conditional formulation "IF ANY" does not amount to an unequivocal denial that the Respondent suffered injuries. At most, it casts doubt as to the extent and nature of those injuries. It does not displace the Respondent's account of the accident. 5. The Appellants additionally argued, relying on Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR, that the Police Abstract was insufficient proof of the accident without a police officer being called to testify as to its contents and provenance. This argument cannot succeed. The record shows that on 30th April 2025, the Appellants' counsel unconditionally consented to the production of the relevant documents, including the Police Abstract, without calling their makers. On 7th May 2025, when the Respondent produced her documents in evidence, counsel for the Appellants raised no objection. Having so consented, the Appellants are not at liberty to impugn the authenticity of the Police Abstract on appeal. 6. Moreover, the authority cited by the Appellants does not advance their case. In Peter Kanithi Kimunya v Aden Guyo Haro [2014] eKLR, the court held that the failure to produce a Police Abstract was not fatal to a claim. In the present case, the Police Abstract was produced and is supported by the P3 Form, the medical reports, and the Respondent's oral testimony. The Respondent's evidentiary foundation is therefore materially stronger than that of the claimant in the cited case. 7. With regard to the allegation of fraud, I reaffirm that fraud must be distinctly pleaded and proved to the requisite standard. The Appellants did neither. Moreover, they contradicted their own position by consenting at trial to the production of the very documents they now characterise as fraudulent. That allegation is accordingly dismissed. The 2nd Appellant's Account 1. Given that the 2nd Appellant was the only other person in a position to give direct evidence of events on the material night, it is necessary to examine his account and determine whether it satisfactorily controverts the Respondent's evidence. 2. The 2nd Appellant admitted in his Witness Statement that he was driving the motor vehicle along the Northern Bypass on the night of 25th November 2023. He stated that he heard a loud bang on his windscreen at Githogoro, stopped near the Rubis Petrol Station, and was then mugged upon alighting. He claimed his assailants ransacked the vehicle, allowing him to flee to the petrol station where his wife collected him. 1. Several aspects of this account are difficult to reconcile with ordinary human conduct and invite scrutiny. First, the 2nd Appellant made no mention of reporting the mugging to the police. A person who is mugged by multiple individuals, falls into a ditch, and has his vehicle ransacked within moments of a suspected collision would be expected to report that incident. No such report is mentioned, and no details of the alleged mugging — neither the number of assailants nor the items taken — are provided. The incident is entirely unexplained. 2. Secondly, the 2nd Appellant's own submissions at the trial court stated that he went to the Police Station on 26th November 2023 to report the broken windscreen and to obtain a police abstract for insurance purposes. Yet no copy of that abstract was produced. No copy of his statement made at the Police Station was availed. No evidence was produced that the abstract was forwarded to the insurer or that any repair claim was submitted for a broken windscreen. 3. Thirdly, the 2nd Appellant stated in his Witness Statement that he had, of his own volition, stopped driving because of the cracked windscreen and rain. Yet, according to his submissions at trial, the motor vehicle subsequently had to be towed to the police station because it was unable to move. No explanation is given for this deterioration in the vehicle's condition. 4. Fourthly, the 2nd Appellant stated in his Witness Statement that he was issued a cash bail of Kshs. 10,000 at the Police Station. During cross-examination, he conceded that cash bail is not ordinarily issued to complainants. In this Court, however, the Appellants have sought to portray the cash bail finding as something the learned Magistrate introduced without evidential basis, submitting at paragraph 7 of their submissions: Further, the learned magistrate stated that the 2nd Appellant was issued with a cash bail and that seemed to have informed the basis of why the Appellants were found liable. We however submit that there was no evidence tendered to show that the 2nd Appellant was issued with the said cash bail and no police officer testified to that particular allegation and could not therefore stand as a basis for finding that the Appellant 100% liable. 1. This submission is plainly inconsistent with the record. It was the 2nd Appellant himself who deposed in his Witness Statement and testified under oath that he was issued a cash bail. The Appellants' attempt in this Court to attribute this assertion to the learned Magistrate, and to deny that any evidence supported it, amounts to a misrepresentation of the record. Such conduct does nothing to enhance the credibility of the Appellants' defence. 2. I am also mindful of the internal inconsistencies within the Appellants' own pleadings. At paragraph 3 of the Statement of Defence, the 2nd Appellant denied being the driver or being in possession of the motor vehicle on the alleged date. Yet the very first paragraph of his Witness Statement reads: "That on 25th day of November, 2023 I was the driver in possession of motor vehicle registration number KCG 694Z." Additionally, paragraph 12 of the Statement of Defence denied receipt of any demand letter, while paragraph 7 of the 2nd Appellant's Witness Statement states: "I was not aware of any casualties and I was surprised to receive a demand letter claiming that I hit some pedestrians." 1. Parties are entitled to plead in the alternative in cases involving genuine uncertainty as to facts. However, where a party is the one in possession of the relevant facts and advances contradictory accounts of those facts, that conduct reflects poorly on the reliability of the evidence. This observation was made by the Court of Appeal in Raghbir Singh Chatte v National Bank of Kenya Limited [1996] KECA 99 (KLR), where alternative defences that were plainly evasive and contradictory were commented upon unfavourably. As R.E. Megarry warned in Miscellany at Law: A Diversion for Lawyers and Others (1955) at page 46: Not all that is licit is prudent. Thus, pleading in the alternative is an expedient which, like most expedients, can be carried too far. 1. I am guided 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. Taking the totality of the evidence into account, I am satisfied that the Respondent has proved on a balance of probabilities that an accident occurred on 25th November 2023 involving her as a pedestrian and the 2nd Appellant as the driver of the motor vehicle. Whether the Respondent Proved the Appellants' Wholesale Liability 1. The Respondent's case is that she was walking at the side of the road when she was struck by the motor vehicle. In cross-examination, she maintained this account. Significantly, the Appellants' counsel did not cross-examine the Respondent on the particulars of negligence pleaded in the Plaint. 2. The Police Abstract concluded that the driver of KCG 694Z was to be blamed for the accident, a finding based on police investigations recorded in the Occurrence Book. 3. The Appellants' defence was directed almost entirely at denying the occurrence of the accident altogether. The particulars of contributory negligence raised in the Statement of Defence — alleging that the Respondent was attempting to cross at an undesignated section, was not alert, and failed to heed the vehicle's hooting — were not pursued either through the 2nd Appellant's testimony or in cross-examination of the Respondent. Having advanced no affirmative evidence in support of contributory negligence, the Appellants cannot avail themselves of that defence. 4. I am guided by this Court's decision in Nairobi United Services & another v Nyathuo Kabuba [2020] KEHC 3880 (KLR), where the court stated at paragraph 15: "As I see it, in a civil matter such as this, what the court looks at is the totality of the evidence adduced as at the close of the trial; what story does the cumulative evidence on record tell?" 1. The 2nd Appellant admitted that something struck his windscreen but did not stop to ascertain what it was. He did not testify to having seen the Respondent walking by the road, which is itself consistent with the allegation that he was not keeping a proper lookout. This Court finds that case persuasive in John Kirimi Stanley v Evergreen Agencies Ltd & another [2014] KEHC 8766 (KLR), where the court held: The Appellant pleaded, among other acts of negligence, that the 2nd Respondent drove the accident motor vehicle without due care and attention, and failing to keep a proper look out. The obtaining circumstances contain a set of facts which raise a prima facie inference that the accident was caused by the 2nd Respondents' negligence, as there is no explanation why he did not see the Appellant while driving. The evidence before the trial magistrate established, on a balance of probabilities, that the Appellant was walking off the road when he was hit by the Respondents' motor vehicle. I reiterate that the 2nd Respondent failed to see the Appellant and does not state that the Appellant was walking in the path of the vehicle. In my evaluation, there can be no clearer evidence of negligence than this. 1. I am further guided by Trakana Mombasa Limited & another v George Amwayi Isaya [2020] KEHC 6162 (KLR), where the court at paragraph 32 observed: "The fact that the 3 pedestrians were knocked from behind while walking places higher responsibility on the driver who should have been in a position to see them; if he was driving carefully, he should have been able to control the vehicle to avoid the accident or reduce impact of the accident." 2. The decision in Muraya v Mwangi [2004] KEHC 1258 (KLR) is also instructive. Despite the driver's argument that poor visibility affected his ability to see the pedestrian, the court found him wholly liable, observing: "The Respondent was not keeping a proper look-out, and given that the weather conditions were poor, he had a greater duty to keep a proper look- out." 3. On the totality of the evidence, I find that the Respondent's evidence that she was walking at the side of the road was not controverted. The 2nd Appellant's failure to see her at all is itself compelling evidence of negligent driving. The cumulative evidence satisfies me that the 2nd Appellant was driving without adequate care and attention, thereby causing the accident. I accordingly uphold the learned Magistrate's finding that the Appellants were wholly liable for the road accident on a balance of probabilities. Whether this Court ought to Interfere with the Trial Court's Finding on Quantum of Damages 1. The standard for appellate intervention on quantum is 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. The central question on quantum is the evidential weight to be accorded to the competing medical reports. Four medical documents are before this Court. First, the Medical Report from Mama Lucy Kibaki Hospital dated 13th February 2024, which recorded tenderness in the hip areas, bruises in the upper limbs, and an X-ray finding of a pelvic fracture (# pelvis), with recommended treatment of bed rest, analgesics and orthopaedic management. Second, the P3 Form filled on 13th February 2024 by Medical Officer Ref No. A8745 at Mama Lucy Kibaki Hospital, which recorded injuries of pelvic fracture and bruised upper limbs, assessed as grievous harm. Third, the Medico-Legal Report of Dr. G.K. Mwaura of Kinoo Medical Clinic, which confirmed three injuries — upper limb bruises, pain and tenderness in the hip region, and a rami fracture — noted that X-rays had been taken and that healing remained incomplete, with the Respondent continuing to experience pelvic pain on exertion and being unable to lift objects, assessed as grievous harm. Fourth, Dr. Wambugu P.M.'s report of 14th October 2024, which noted that the Respondent denied having taken any X-rays, and concluded on that basis that she had suffered only minor soft tissue injuries with no permanent incapacitation. 2. The Appellants contend that the learned Magistrate ignored Dr. Wambugu P.M.'s report. Before addressing that contention, I wish to echo the concern expressed by Odunga J. in Joseph Kimanthi Nzau v Johnson Macharia [2019] KEHC 6491 (KLR) at paragraph 27: In this case, what has troubled me is the decision by the parties to throw at the court two medical reports. The said medical reports were however not the same in terms of their contents. In my view parties and their counsel ought not to just throw medical reports or expert opinion reports for that matter which are divergent in material aspects without calling the makers thereof. To my mind once parties agree on liability they ought to endeavour to harmonise the various medical or expert reports on record and agree at a common ground regarding the basis upon which assessment of damages is to be undertaken. If they are unable to do so, the makers of those reports ought to be called where the reports are conflicting for cross-examination. It is however unfair to the court to just throw all manner of reports at the court and expect the court to decide which ones to rely on and which ones to discard… 1. Despite this difficulty, I will examine the evidential weight of each report. The three reports produced by the Respondent are consistent: all three record injuries including a pelvic fracture, and two of them specifically note that an X-ray was taken confirming that fracture. Dr. Wambugu P.M.'s report, on the other hand, reached its contrary conclusion — that there was no fracture — exclusively on the basis of an alleged admission by the Respondent that she had never had an X-ray taken. 1. I have two reservations about the weight to be accorded to Dr. Wambugu P.M.'s conclusion. First, the alleged admission by the Respondent that she had taken no X-rays is, in essence, hearsay evidence given through the doctor's report. If this admission were true and material, one would expect the Appellants to have raised it with the Respondent directly during cross-examination. The record reveals that no such question was put to the Respondent. The Appellants' written submissions at the trial court and before this Court make no mention of the Respondent having been cross-examined on this point. The Respondent was accordingly never given the opportunity to confirm, explain or refute the alleged admission. 2. Second, the Respondent's own testimony during cross-examination and re-examination is that she attended Mama Lucy Kibaki Hospital on 26th November 2023, the day after the accident, for initial treatment. This is at variance with another statement attributed to her by Dr. Wambugu P.M., namely that she attended hospital much later after the accident. The Respondent's testimony thus already contradicts at least one of the alleged admissions recorded in Dr. Wambugu's report. This further undermines the reliability of that report's foundational premise. 3. The standard of proof in civil matters is on a balance of probabilities. The High Court in William Kabogo Gitau v George Thuo & 2 Others [2010] KEHC 4124 (KLR) explained this threshold as follows: In ordinary civil cases, a case may be determined in favour of a party who persuades the court that the allegations he has pleaded in his case is more likely than not to be what took place. In percentage terms, a party who is able to establish his case to a percentage of 51%, as opposed to 49% of the opposing party, is said to have established his case on a balance of probabilities. 1. Applying that standard, I am satisfied that the Respondent has demonstrated that there is a higher probability that an X-ray was taken and that it revealed a pelvic fracture. The three medical reports produced by the Respondent, all of which bear the names and reference numbers of the responsible medical officers, consistently record a fracture and note that it was detected by X-ray. That evidence is more persuasive than a report whose sole basis for denying the fracture is an alleged admission never tested in cross- examination. 2. I therefore confirm the learned Magistrate's finding that the Respondent proved she sustained bruises in the upper limbs, pain and tenderness in the hip region, and a fracture of the pelvis in the rami. I am satisfied that 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. FINAL ORDERS 1. 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 14:00:55