https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/13074

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MIGORI** **CIVIL APPEAL NO. E012 OF 2025** **JOEL ODHIAMBO NGAO ……………………………… 1ST APPELLANT** **GEORGE OPIYO UHURU …………………………………2ND APPELLANT** **VERSUS** **CHARLES OWINO ONYANGO ……….…………………. RESPONDENT** ***(Being an appeal from the Judgment and decree of the Chief Magistrate Hon. A. Munyuny RM Migori CMCC No. E28 of 2023 delivered on 18th December, 2024)*** **JUDGMENT** 1. This is an appeal against the judgment of Hon. A. Munyuny delivered on 18th December 2024 in CMCC Migori No. E28 of 2023. 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. KCS 087D, Isuzu F2R make TVS which was being driven by the 2nd appellant and a motorcycle Reg No. KMFL 407Z on 22/09/2022 along Chamkombe area. The Respondent was travelling as a pillion passenger aboard 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 his servant, agent, employee and/or driver. 4. The Appellants defended themselves and denied that the 2nd Appellant was negligent and blamed the Respondent for negligence on his part. 5. The suit proceeded to full trial and the trial court apportioned liability at 50:50 between the parties and awarded the Respondent general damages of Kshs. 1,000,000/= together with special damages of Kshs. 8,490/= plus interests on general damages from the date of Judgment and costs of the suit. 1. Being dissatisfied with the judgment, the appellants appealed against the award on quantum while the respondent cross-appealed against both liability and quantum. 2. Directions were subsequently taken that the appeal and the cross appeal be canvassed by way of written submissions. The Appellant’s counsel, through written submissions dated 11th May, 2026 submitted that the Appellants were aggrieved by the assessment of quantum and prays that this court sets aside the judgment and re-assesses quantum of damages. 3. On **liability,** the appellants submitted that although the trial court correctly declined to hold them wholly liable, the evidence justified a finding of substantially higher contributory negligence against the motorcycle rider/ the respondent. 4. The appellants submitted that PW2’s evidence was hearsay because he was not the investigating officer and did not personally investigate the accident. They further submitted that DW1 testified that the motorcycle was overloaded with three passengers, was being ridden recklessly and attempted to overtake from the left side while the rider was allegedly distracted by a mobile phone before losing control and veering into a ditch. 5. According to the appellants, the respondent did not call the rider of the motorcycle or any independent eyewitness to corroborate his account, nor were sketch maps, investigation files or charging documents produced to conclusively establish negligence on the part of the appellants. 6. The appellants relied on **Stapley v Gypsum Mines Ltd, Michael Hubert Kloss & Another v David Seroney & 5 Others, Lakhamshi v Attorney General [1971] EA 118 and Hussein Omar Farah v Lento Agencies**. The appellants argued that the respondent voluntarily boarded an overloaded motorcycle and that his cross-appeal seeking 100% liability against the appellants is without merit. They urged the court to uphold the apportionment of liability at 50:50 or alternatively increase contributory negligence against the motorcycle rider and/or the respondent to at least 60%. 7. On **quantum,** the appellants submitted that an appellate court may only interfere with an award of damages where the trial court acted on wrong principles, misapprehended the evidence, considered irrelevant factors, failed to consider relevant factors or where the award is so inordinately high or low as to represent an erroneous estimate. The appellants cited the case of **Kemfro Africa Ltd t/a Meru Express Services & Another v Lubia and Butt v Khan** to support their position. 8. The appellants submitted that the respondent sustained a fracture of the proximal left femur, fractures of the left ankle involving the lateral and medial malleolus, multiple soft tissue injuries and alleged leg shortening. They argued that the medical evidence on permanent disability was contradictory, one doctor assessing incapacity at 10% and another at 50%. According to the appellants, although the injuries were serious, they were not catastrophic and did not render the respondent permanently bedridden, wheelchair-bound or wholly incapable of gainful employment. 9. The appellants submitted that the trial court failed to sufficiently consider comparable awards and arrived at an excessive award. They referred to **Joseph Mwangi Thuita v Joyce Mwole, Daniel Otieno Owino v Elizabeth Atieno, Jitan Nagra v Abidnego Nyandusi Oigo, Gladys Lyaka Mwombe v Francis Namatsi & 2 Others and S.A.O (a minor suing through next friend M.O.O) v The Registered Trustees of the Anglican Church of Kenya Maseno North Parish.** They submitted that comparable awards for similar injuries range between Kshs. 450,000/= and Kshs. 700,000/= and therefore the award of Kshs. 1,000,000/= was excessive. They urged the court to set aside the award and substitute it with an award of between Kshs. 500,000/= and Kshs. 700,000/= or such other reasonable sum as the court may deem fit. 10. On loss of earnings and loss of earning capacity, the appellants submitted that the respondent alleged he earned Kshs. 1,500/= per day as a carpenter but he did not produce any documentary or independent evidence in support of those assertions. Reference was made to **Kenya Breweries Ltd v Saro and Southern Engineering Co. Ltd v Musingi Mutia.** 11. They further submitted that the contradictory medical evidence did not establish that the respondent was permanently incapable of pursuing gainful employment as a carpenter and therefore the trial court properly declined to make substantial awards under that head. 12. The appellants submitted that the respondent’s cross-appeal lacked both factual and legal basis as the trial court properly analyzed the evidence, appreciated the applicable legal principles and exercised its discretion judiciously. They argued that there was no demonstration that the court ignored material evidence, applied wrong principles or arrived at findings unsupported by the record and urged the court to dismiss the cross-appeal with costs. 13. On costs, the appellants relied on Section 27 of the Civil Procedure Act and submitted that costs follow the event. They prayed that the court upholds the finding on liability at 50:50, allow the appeal on quantum and reduce the award of Kshs. 1,000,000/= to Kshs. 700,000/= or such other reasonable sum as the court may deem fit, dismiss the respondent’s cross-appeal and award costs of both the appeal and cross-appeal to the appellants. 14. On liability, the **respondent** submitted that he proved negligence against the appellants on a balance of probabilities and that there was clear evidence establishing negligence on their part. He referred to **Michael Hubert Kloss & Another v David Seroney & 5 Others [2009] eKLR,** where the Court reproduced the observations in **Stapley v Gypsum Mines Ltd.** to support his assertions. 15. The respondent further referred to **Lakhamshi v The Attorney General (1971) KLR** and submitted that equal apportionment only applies where it cannot be precisely determined who between the parties was to blame for an accident. The respondent argued that the circumstances of the accident were clear from the evidence of PW2, PW3 and DW1 and therefore the trial court erred in apportioning liability equally. 16. The respondent submitted that the trial court did not find any fault on his part as he was merely a pillion passenger. He argued that the appellants owed him a duty of care which they breached and that the driver, being behind the motorcycle, was under an obligation to maintain a safe distance. He urged the court to enter judgment on liability at 100% against the appellants jointly and severally. 17. On **quantum**, the respondent submitted that he suffered a fracture of the femur, fracture of the malleolus and medial malleolus, fracture of the left ankle joint and multiple soft tissue injuries. He referred to the evidence of Dr. Elijah Mwitah, who assessed permanent disability at 50%, observed that the respondent’s leg had shortened and confirmed that the shortening was permanent. The respondent also referred to the medical report by Dr. Obondi dated 29th May 2023, which indicated that the fracture had not united, leading to four inches shortening of the left lower limb and the possibility of a future medical procedure. Dr. Obondi assessed permanent incapacity at 10%. 18. The respondent submitted that he suffered severe injuries resulting in permanent incapacity and proposed an award of Kshs. 3,000,000/= as general damages. He referred **to Kakuli v Ngase & another (*Suing as the legal representatives of the Estate Stanley Alemba Chavasi - Deceased*) (Civil Appeal E192 of 2021) [2022] KEHC 12132 (KLR) (Civ) (21 July 2022) (Judgment)**, where the plaintiff was awarded Kshs. 1,300,000/= for fibula injuries. The respondent urged the court to consider the severity of the injuries, permanent incapacity and possibility of future surgery in assessing damages. 19. On loss of earnings and future earnings, the respondent submitted that he had been forced to remain indoors due to the injuries and that he earned approximately Kshs. 1,500/= per day and Kshs. 30,000/= per month as a carpenter. He stated that the injuries affected his ability to stand, walk and effectively carry out his trade and that he had closed his workshop following the accident. The respondent submitted that the trial court only addressed loss of future earnings and failed to conclusively determine the claim for loss of earnings. He argued that even if his exact income was not proved, the court ought to have resorted to the minimum wage. He further submitted that both medical doctors confirmed that he had a shortened leg which would adversely affect his work. 20. The respondent therefore urged the court to dismiss the appellants’ appeal, allow the respondent’s cross-appeal, enter judgment on liability at 100% against the appellants, enhance the award of damages and award costs of the appeal to the respondent. **Analysis and Determination** 1. This court has evaluated the appellants’ appeal and well the cross-appeal, the submissions, proceedings at the trial court and the judgment. 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. See ***Mwanasokoni – versus- Kenya Bus Service Ltd. (1982-88) 1 KAR 278*** and***Kiruga –versus- Kiruga & Another (1988) KLR 348*).** 2. This appeal as evaluated by this court raises two issues for consideration and determination; ***Whether the trial court reached a correct decision in apportioning liability at 50:50; and whether the trial court applied the correct principles in assessing the quantum payable.*** 3. **On liability,** the respondent, (PW3) testified that he was aboard a motor cycle travelling from Kakrao towards Migori on the left side of the road when the motorcycle was hit from behind by the appellants’ motor vehicle KCS 089D when the motor cycle had slowed down to pass over a bump. He stated that the driver of the subject motor vehicle was entirely to blame as he did not keep a safe distance. He stated that the vehicle was being driven at a high speed and lost control. 4. He testified that he had not recovered from the injuries sustained in the accident and requires continuous treatment. He stated that he had closed his carpentry workshop because he could no longer work and was relying on well-wishers for support. 5. On cross-examination, PW3 stated he was wearing a helmet at the time of the accident. He testified that he was travelling from Kakrao towards Migori on the left side of the road. They were three people on the motorcycle. He stated that doctors recommended surgery on his legs but he was unable to raise the funds required for the procedure. He further testified that he is unable to work and depends on assistance from well-wishers. 6. No. 49012, PC Julius Nyerere, (PW2)testified and tendered a police abstract.He stated that he was stationed at Migori Traffic base. He stated that the accident involved motor vehicle KCS 087D Isuzu lorry FRR and a motor cycle registration No. KMFL 407Z along Kisii Migori Road both heading to the same direction. He further stated that the driver of KCS 087D knocked the rider and threw him into the ditch on the left side of the road where the respondent being a pillion passenger, sustained serious injuries on both legs. 1. On cross examination, he stated that he was not the investigating officer but he had accompanied the investigating officer. He stated that the motor vehicle was driven away from the scene but it was later brought back. He stated that the matter was still pending under investigations and no one had been charged. In his view the driver of motor vehicle KCS 087D was to blame for failing to maintain a safe distance. He further stated that the point of impact was approximately 2.5 metres beyond the speed bumps and he did not have sketch maps for the accident. 2. George Opiyo Ohuru (DW1) stated that he was the driver of the subject motor vehicle. He testified that at about 9.00 a.m. on the material day he was driving towards town at Chamkombe when he observed a motorcycle carrying three pillion passengers. He stated that the rider was using a mobile phone and attempted to overtake on the left side. According to him, a lorry was offloading nearby and part of it protruded onto the road, causing the rider to veer into a ditch in an attempt to avoid a collision. 3. On cross-examination, DW1 stated that he reported the incident to the police and that traffic officers visited the scene and directed him to report the matter at the station. He maintained that the motorcycle was overtaking from the left side and stated that his vehicle had been inspected, though he did not produce the inspection report in court. He testified that he had not been charged with any offence arising from the accident and was unaware of any investigation report attributing blame to him. 4. On liability, this court has already highlighted the evidence tendered by both sides in this appeal at the trial court. What is apparent from the record is that the evidence ofPW2, PCNyerere, to a large extent was not conclusive on whom to blame for the accident. PC Nyerere testified that he was attached to Migori Traffic base and he was in court to produce a police Abstract. He pointed out that he was not the investigating officer in the traffic case but he had accompanied the investigating officer. He maintained that the matter was pending under investigations and did not state whether it had been concluded. He also admitted that he did not have sketch maps regarding the accident. It was in his opinion that the driver of the subject motor vehicle was to blame for the accident. 5. In his evidence, he did not state whether the investigating officer had handed over the file to him as a new investigating officer as is the usual practice with the police. The provisions of Section 33 of the Evidence Act are 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. 6. Although PW2 was producing the document for continuity of operations 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. 7. PW2 failed to lay sufficient basis on reasons why he was stepping in for the investigating officer. He simply stated that he had accompanied the investigating officer. He did not give information or details on how the accident occurred. He did not have sketch maps or a comprehensive report. This is what he stated in his examination; ***“I’m not the investigating officer…….I was with the investigating officer…………the accident is still pending under investigations……driver of motor vehicle KCS is to blame for not keeping distance….I have not charged anyone……..I have no entry in court. I don’t have sketch maps for the accident…………”*** 1. The evidence given by PW2, with regard to whom was to blame for the accident was not conclusive, unreliable 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 as there was no other independent witness who testified in the case. 1. Based on this analysis, this court finds that the trial court did not fall into error by apportioning liability at 50:50% as the circumstances of this case left doubt as to who caused the accident. 1. On quantum, this court has considered the evidence on record, the pleadings and submissions by the parties. The Appellants argued that the trial court did not consider comparable awards and arrived at an excessive award. They submitted that the possible comparable injuries should be compensated by comparable awards. They submitted that comparable awards for similar injuries range between Kshs. 450,000/= and Kshs. 700,000/= and therefore the award of Kshs. 1,000,000/= was excessive. They urged the court to set aside the award and substitute it with an award of between Kshs. 500,000/= and Kshs. 700,000/= or such other reasonable sum as the court may deem fit. 2. The respondent on the other hand submitted that he suffered severe injuries resulting in permanent incapacity and proposed an award of Kshs. 3,000,000/= as general damages. He had proposed Ksh 1,300,000/= at the lower court. 3. The trial court extensively analyzed the authorities relied upon, factored in the extent of the injuries, future medical requirements, the extent of disability, the effluxion of time and inflationary trends and awarded Kshs. 1,000,000/=. I have also considered the authorities relied on and this Court finds the award of Kshs. 1,000,000/= being reasonable and cannot be said to be so excessive to call for an intervention of this court. The same is therefore upheld. 4. On loss of future earnings, PW3 testified that he had not recovered and was not able to carry out his work as a carpenter. He stated that he was earning approximately Kshs. 30,000/= per month from his carpentry work. He did not produce any documentary evidence to support the allegations. 1. Under this head, the case of **Mumias Sugar Company limited Vs Francis Wanalo** as quoted in **Hamo Transporters Company Limited& another vs Dorcus Wangui Kiriro (2019)** can offer some guidance on this, where the court stated; ***“……... loss of earning capacity can be claimed and awarded as part of general damages for pain, suffering, and loss of amenities or as a separate head of damages, as a token, modest or substantial depending on the circumstances of each case. The court added that there is no formula for assessing loss of earning capacity.”*** 1. In the case of **Butler Vs Butler (1984) KLR 225**the Court of Appeal enumerated the principles to be considered in a claim of this nature as follows; ***1) A loss of earning capacity occurs where as a result of the injury, his chances in the future of any work in the labor market or work, as well paid as before the accident are lessened by his injury.*** ***2)Loss of earning capacity is a different head of damages from actual loss of future earnings. The difference is that compensation for loss of future earnings is awarded for real assessable loss proved by evidence whereas compensation of diminution of earning capacity is awarded as part of general damages.*** ***3) Damages under the head of loss of earning capacity and loss of future earnings, which in English law were formerly included as an unspecified part of the award for pain, suffering and loss of amenity, are now qualified separately and no interest is recoverable on them.*** ***4) Loss of earning capacity can be a claim on its own, as where a claimant has not worked before the accident giving rise to the incapacity, or a claim in addition to another, as where the claimant was in employment and/or at the date of the trial.*** ***5) Loss of earning capacity or earning power may and should be included as an item within general damages but where it is not so included it is not proper to award it under its own heading; and*** ***6) The factors to be taken into account in considering damages under the head of loss of earning will vary with the circumstances of the case, and they include such factors as the age and qualifications of the claimant, his remaining length of working life, and his disabilities and previous service if any.”*** 1. In the instant case, there is no documentary evidence adduced by the respondent to support his earnings from the carpentry. Although the injuries he sustained left him with some degree of incapacity, meaning that he will not be able to earn a living at the rate at which he was earning before the accident, it is difficult to quantify any amount without any proof of his earnings under this head. In the circumstances, it is the view of this court that trial court did not err on this point. 2. The upshot is that the appeal and cross-appeal lack merit and hereby dismissed. The findings at the trial court are hereby upheld. 3. Each party to bear its own costs of the appeal and cross-appeal. **DELIVERED, DATED** and **SIGNED** at **NAIROBI** this **18th** day of **AUGUST, 2026.** **W.N. MOLONKO** **JUDGE** ***Judgment delivered virtually court*** ***In the presence of:*** *Appellants - Absent* *Respondent - Absent* *Ivan and Susan- Court Assistants*