https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12422

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI HIGH COURT** **CIVIL APPEAL NO. E1220 OF 2024** **ANGELINE NDINDA MWENDE………………………1ST APPELLANT** **WAMBUA NZIVO………………………………………..2ND APPELLANT** **VERSUS** **PETER MIRANO MWANIKI……………………………..RESPONDENT** ***(Being an appeal from the Judgment and decree of the Chief Magistrate Hon. S.N. Muchungi (Mrs) PM Milimani Case No. E4114 of 2022 delivered on 12th April, 2024)*** **JUDGMENT** 1. This is an appeal against the judgment of Hon. S.N Muchungi delivered on 12th April 2024 in CMC Milimani Commercial Courts Case No. E4114 of 2022. 2. By way of a brief background, the Appellants were sued by the Respondent out of a road accident involving 1st Appellant’s motor vehicle Reg No. KDD 089G, which was being driven by the 2nd Appellant and a motorcycle Reg No. KMDT 515U on 02/03/2022 along Mombasa Road at General Motors (GM). The Respondent was riding the motorcycle when the accident occurred. 3. The Respondent laid blame on the 2nd Appellant for the accident faulting him for negligence which he said caused the accident and listed the particulars of negligence attributed to him. He averred that the 1st Appellant was vicariously liable for the negligence of the 2nd Appellant being her servant/ authorized Agent. 1. The Appellants on the other hand defended themselves and denied that the 2nd Appellant was negligent and blamed the Respondent for negligence on his part. 2. Mr. Peter Mirano Mwaniki (PW1) the Respondent herein testified that he was rider of motorcycle Reg No. KMDT 515U when he was involved in a road accident on 2/03/2022 along Mombasa Road at General Motors (GM). 3. He adopted and relied on his witness statements dated 21/07/2022, the Plaint and his evidence in chief. He blamed the driver of the Motor Vehicle for carelessly driving the car and knocking him from behind causing him injuries which he was yet to heal from. He stated that he still feels pain during cold season. 4. He stated that the motor vehicle that knocked him was being driven by the 2nd Appellant. Upon search, it revealed that the 1st Appellant was the registered owner. He tendered a copy of a record from National Transport Services Authority. 5. On cross-examination, he stated that he sustained injuries at the leg and back. He pointed out that despite his written statements indicating that he rushed to the hospital, he clarified that he was taken to St. Mary’s Mission Hospital in Lang’ata by a good Samaritan who left him there. The good Samaritan did not testify as a witness. 6. He stated that he was examined at the hospital and X-ray done. He maintained he had the X-Ray films with him although they were not placed on the court record. He produced medical notes and prescription given. He stated that he paid for medical care although he had not filed the receipts in court. He also stated that he was reviewed by another doctor on the advice of his advocate. 7. PC Muchiri Nthiga, No. 72198 (PW2)testified and tendered a police abstract.He stated that he was stationed at Industrial Area undertaking traffic duties. He stated that the accident occurred on 2/03/22 at 11.30hrs along Mombasa Road at GM. He stated that the accident involved motor vehicle KDD 089G Isuzu lorry and motor cycle KMDT 515U which as a result, the rider Peter Mirano sustained injuries. He further testified that he was not the investigating officer but officers from his station visited the scene, documented it and an abstract was issued. He produced the Police abstract asan exhibit.He stated that theinvestigating officer was no longer at the Industrial Area station. 8. On cross examination, he maintained that the accident occurred on 2/3/2022. He indicated that the matter was pending under investigation. He stated that the investigations were yet to conclude and no one had been blamed for the accident. 9. The Appellants on the other hand relied on their written submissions and did not call any witness before the trial court. 10. The trial court evaluated the evidence tendered and evidence of PW 1 and PW 2 and found that the Appellants failed to call for any evidence to rebut any of the Respondent’s averments. The trial court found the appellants 100% liable and awarded the Respondent damages as follows; 11. ***General damages Kshs.350,000/-*** 12. ***Special damages Kshs. 5, 550/-*** 13. ***Costs of the suit and interest at court rates.*** 14. The Appellants felt aggrieved and filed this appeal on the following grounds: 15. ***That the learned trial Magistrate erred in law and fact by failing to consider adequately or at all, the submissions by the appellants and the authorities submitted.*** 16. ***That the learned trial Magistrate erred in law and fact by failing to appreciate the fact that the respondent failed to prove his case on a balance of probability.*** 17. ***That the learned trial Magistrate erred in law in awarding damages which were inordinately high considering the nature of the injuries.*** 18. ***That the learned Magistrate disregarded the findings by Judges of a superior court when awarding the damages.*** 19. The Appellants submitted that the Respondent failed to prove that the negligence of the 1st Appellant caused the accident. They also averred that the trial Magistrate arrived at the conclusion that the Appellants were liable for the accident on the basis of the Appellant’s failure to testify at the trial case. They cited ***Bwire v Wayo & Saitoti (Civil Appeal 032 of 2021 [2022] KEHC 7 (KLR) (24 January 2022)*** and ***Charter House Bank Limited (under statutory management) v Frank N. Kamau (2016) eKLR*** where the court held *inter alia* that ***“…..in civil cases, the failure by the defendant to adduce evidence in support of his defence means that the plaintiff’s case is proved on a balance of probabilities cannot possible be correct.”*** 1. The Appellants contend that the Respondent was expected to demonstrate that he was injured by the negligence or omission of the Appellants and there was nothing brought before the court to demonstrate any blameworthiness on the Appellants’ part. 2. The Appellants further submitted that the police officer, PW 2 admitted that he was not the investigating officer and was not able to state who was to blame for the accident since the matter was still pending under investigations. The court could not therefore rely on his evidence in holding the Appellants 100% liable. 3. **On quantum,** the Appellants submit that the general damages awarded to the Respondent amounted to erroneous award that was oppressive considering that the burden of proof was not discharged by the Respondent at the trial court. 4. They further submitted that there was no uniformity in quantum for similar injuries. The trial court awarded damages which were more than what the Respondent quoted in the authorities relied on in his submissions. 5. On the other hand, the Respondent has opposed this appeal through written submissions by his learned counsel M/s Waiganjo & Co Advocate dated 26/1/2026. 6. **On liability**, the Respondent supported the finding of the trial court that the Appellants were 100% to blame for the accident. He argued that the Appellants never adduced any evidence to rebut the fact that the accident occurred and the Police Abstract confirmed the same. He cited ***Wellington Nganga Muthiora vs. Akamba Public Road Services Ltd & Another, (2020) eKLR*** on police abstract being *prima facie* evidence if not rebutted and ***Regina Wangechi v. Eldoret Express Co. Ltd [2008] KLR***on proof of negligence. 7. **On quantum,** the Respondent supported the trial court’s findings. He submitted that the trial court analyzed the evidence before it and relied on the correct principles in arriving at the award of Kshs. 350,000/= as general damages and urged the court to reaffirm the same. He cited the case of ***Jane Chelagat Bor vs. Andrew Otieno Onduu [1988-92] 2KAR 288: [1990-1994] EA 47*** on re-evaluation and analysis by the trail court in considering award of damages. 8. He further submitted that the Appellants did not offer any estimate as to quantum and did not cite any cases in support of the same. 9. On whether the trial court disregarded the Appellants’ evidence, the Respondent submitted that the court relied on the documents and testimonies adduced by both parties. He submitted that the Appellants did not call any witnesses and did not produce any documentary evidence to rebut the Respondent’s evidence. He argued that the Appellants had the opportunity to discharge the burden of proof in their favor but failed to do so. 10. This court has evaluated the Appellants’ case as well as the opposition by the Respondent. This appeal is on both **liability and quantum.** This being a first appeal, the role of this court is to re-evaluate the evidence tendered during trial with a view to making its own conclusions and findings giving room to the fact that the trial court had the advantage of observing the witnesses first hand as they testified. (***Selle & Ano. vs. Associated Motor Boat Co. Ltd (1968) EA 123****).* This court nevertheless appreciates that an appellate Court will not ordinarily interfere with findings of fact by the trial Court unless they were based on no evidence at all, or on a misapprehension of it or the Court is shown demonstrably to have acted on wrong principles in reaching the findings. This was the holding in ***Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278*** and***Kiruga –versus- Kiruga & Another (1988) KLR 348*).** 11. This appeal as evaluated by this court raises two issues for consideration and determination; ***Whether the trial court reached a correct decision in finding the appellants 100% liable for causing the accident; and whether the trial court applied the correct principles in arriving at the quantum payable.*** 12. On **liability**, I have already highlighted the evidence tendered by both sides in this appeal at the trial court. What is apparent from the record is that the trial court relied mainly on the evidence and submissions of PW1**.** Evidence ofPW2, PCMuchiri, to a large extent is not reliable on whom to blame for the accident. 13. PC Muchiri testified that he was attached to Industrial Area police station and he was in court to produce a Police Abstract. He pointed out that he was not the investigating officer in the traffic case and that he did not visit the scene of the accident and he could not tell what the officers who visited the scene found. He maintained that the matter was pending under investigations and did not state whether it had been concluded. On cross examination, he admitted that without conclusion of investigations, it was not possible to lay blame on any party. 1. In his evidence, he further stated that the investigating officer was no longer at the Industrial Area Police station. He did not state whether the investigating officer on being transferred handed over the file to a new investigating officer as is the usual practice with the police. Section 33 of the Evidence Act is clear that when an expert witness testifying on behalf of a colleague who cannot be found or who cannot be procured without incurring expenses deemed unnecessary or unreasonable by court, he must lay basis before stepping on the shoes of the author of a document which in this case was the Police Abstract. 2. Although PW2 was producing the document for continuity of operations or business within the station, failure to produce the conclusive report from the investigating officer, on assumption that PW2 was acting on behalf of the investigating officer in the normal cause of business, renders the evidence tendered of little probative value on liability. 1. PW2 failed to lay sufficient basis on reasons why he was stepping in for the investigating officer. He simply stated that he was a police officer attached to Industrial Area police station. He did not give information on whether he had been assigned investigation duties of the traffic incident after the traffic officer handling the matter was transferred. He also crucially did not give details on how the accident occurred. He did not have witness statements. This is what he stated in his examination; ***“Officers from our station visited the scene of the accident…….I can’t tell what they found…………the matter was placed under investigations……the investigating officer is not currently at our station….I am not aware if the investigations are concluded……..No one is yet to be blamed. A party can only be blamed after conclusion of investigations…………”*** 1. The evidence given by PW2, with regard to whom was to blame for the accident was unreliable given that he was not the investigating officer and there was compliance with Section 33 of the Evidence Act which rendered his evidence hearsay and of little value to the Respondent’s case in regard to the issue of liability. The respondents’ case in light of the above only rested on the evidence of PW1and the Police Abstract. That is what the trial court missed in the evaluation of the evidence tendered. 1. The evidence of PW1 indicate that the driver of the Motor Vehicle carelessly drove the car and knocked him from behind causing him injuries. He stated that a good Samaritan took him to hospital. The Good Samaritan was not called to testify and it is difficult to tell how the accident happened and how the Respondent got to the hospital. This court however takes cognizance, according to the Medical Report produced in court, that the Respondent was attended to at St. Mary’s Mission Hospital Langata for the injuries sustained. The degree of injury is classified in the P3 form as grievous harm. 2. Based on this analysis, this court finds that the trial court fell into error by finding that the appellant was solely or 100% liable for the accident based on the evidence of PW1 alone and the police abstract could not sufficiently lay entire blame on the Appellants. 1. Although the Appellants relied on their written statements and did not produce any witness to rebut the same, this is distinguishable from the cited caseof***Wellington Nganga Muthiora vs. Akamba Public Road Services Ltd & Another, (2020) eKLR*** on police abstract being *prima facie* evidence if not rebutted. The evidence of PW2 was challenged on cross examination where he admitted that he was not the investigating officer and he was not sure what the officers found. He was also not sure if the investigations had been concluded. He could not lay blame on any party. He did not produce any sketch map nor any other document apart from the Police Abstract. 2. I find that the circumstances of this case leave doubt as to who caused the accident. I therefore rely on the court of Appeal’s decision in ***Hussein Farah Vs. Lento Agencies [2006] eKLR***where the Court held that;***“… where the circumstances leave doubt as to who caused the accident, liability may properly be apportioned between the parties”*** and hold that liability should be shared between the Appellants and the Respondent at the ratio of 50:50. 3. **On quantum**, this court finds that the trial court applied the correct principles in assessing the quantum payable. The Appellants argued that the trial court did not consider uniformity in in its method of approach. They submitted that the possible comparable injuries should be compensated by comparable awards. They further submitted that the authorities relied on ranged between Kshs.300,000/= to Kshs.305,000/=. The trial court awarded Kshs.350,000/=which is more than what the Respondent had quoted in his submissions. I do not find merit in the Appellants’ contention on this matter. The Respondent in his submissions quoted Kshs.400,000/- as adequate compensation. The Appellants failed to make any proposal on quantum. The trial court considered the ages of the cited authorities and inflation in arriving at the award of Ksh.350,000/=. This cannot be said to be so excessive to call for an intervention of this court. The same is therefore upheld. 4. In summary, this appeal is allowed for the aforesaid reasons. The decision on liability by the trial court is set aside. In its place, liability is entered against the Appellants at 50% and the Respondent at 50%. The award on quantum is upheld. 1. For avoidance of doubt, judgment is entered against the Appellants as follows; 2. ***Liability 50%*** 3. ***General damages Kshs.350,000/-*** 4. ***Special Damages Kshs. 5,550/-*** ***Total Kshs. 355,550/-*** ***Less 50% Kshs.177,775/-*** ***Net Total Kshs. 177,775/-*** 1. ***Interest at court rates*** The Respondent will have costs in the lower court but the Appellants will have costs of this appeal. **DELIVERED, DATED** and **SIGNED** at **NAIROBI** this **30th** day of **JULY, 2026.** **W.N. MOLONKO** **JUDGE** ***Judgment delivered virtually court*** ***In the presence of:*** *Mr. Odiyo for the Appellants.* *Ms. Maina for the Respondent.* *Jackline Kurui – Court Assistant*