https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/6868

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL APPEAL NO. E630 OF 2024** **JOHN NYOIKE……………………………..……...…….…….……………APPELLANT** **VERSUS** **TABITHA WANJIRU………………………………………..…………. RESPONDENT** (**BEING AN APPEAL FROM THE JUDGMENT AND DECREE OF HON C.A OGWENO (SRM) DELIVERED ON 25th APRIL 2024 IN MILIMANI CMCC No. E12050 OF 2021)** **ARISING BETWEEN** **TABITHA WANJIRU…………….……………………………..……. PLAINTIFF** **VERSUS** **JOHN NYOIKE……………………..……..…….……………..…. DEFENDANT** **J U D G M E N T** 1. **Introduction** 2. The Appellant was the Defendant in the primary suit, where vide a plaint dated 25th October 2021, she sued by the respondent, claiming both special and general damages arising from a road traffic accident, which was alleged to have occurred on 15th February 2021 along Wangige -Kikuyu road at Kenjeru involving the respondent who was a pillion passenger on motorcycle registration Number ***KMDN 403D CAPTAIN, ( hereinafter referred to as the suit motor cycle )*** and the appellants motor vehicle registration Number ***KCS 437V TOYOTA WISH ( hereinafter referred to as the suit motor vehicle )*** driven by the Appellant herself, her driver and/or employee. 3. The respondent averred that on the afore-stated date, she was a pillion passenger on the suit motor cycle when the appellant, her employee, driver, servant and /or agent negligently drove, managed and/or controlled the suit motor vehicle along the said road, and allowed it to collide with the suit motorcycle and as a consequence thereof caused her to suffer serious bodily injury for which she claimed damages 4. The appellant herein filed her statement of defence dated 30th May 2023 where she denied all the averments made in the plaint and the occurrence of the accident. She stated in the alternative that if at all the accident did occur, (which was denied) then it was caused solely and/ or largely contributed to by the negligence of the rider of the suit motorcycle and outlined all particulars of the negligence of the said rider. She therefore prayed that the suit be dismissed with costs. 5. **Facts of the Case** 6. PW1 Tabitha Wanjiru adopted her witness statement and her claim supporting documents were all admitted as exhibits. The witness statement was a replica of the averments made in the plaint as to how the accident occurred and stated that as a result, she had suffered serious bodily injury and thus prayed to be compensated. Under cross examination, she insisted that the appellant was driving from the opposite direction and that she was wearing a helmet and reflector jacket as at the time of the said accident. 7. PW2 Cpl Abduba Malica who previously worked at Kabete police station confirmed that he was on duty, when they received a report concerning the accident in question. They went to the accident scene and found that the victims who were on the motorcycle had been rushed to hospital and later after the respondent had recovered, she recorded her statement and was issued with the police abstract. Under cross examination he confirmed that the suit motorcycle was not insured and it was carrying two pillion passengers at the time of accident. Finally, he also confirmed that neither of the drivers were charged in court and the matter was left pending under investigation. 8. DW1 Lucy Kirimi adopted her witness statement, where she stated that on the material day, she was driving along Wangige -kikuyu road towards Muthire shopping Centre and had slowed down and indicated that she was joining the service lane in order to proceed into the said shopping Centre. In the process the motorcycle which was behind her, carrying two pillion passengers and which was being driven at high speed opted to overtake from the left side, where she was turning and in the process rammed onto the front left side of the suit motor vehicle, which impact damaged her left door, side mirror, windbreaker and bumper. 9. She blamed the rider for driving an uninsured motorcycle, carrying two pillion passengers and for riding in a reckless manner. Under cross examination she reiterated her evidence and emphasized that the rider was overtaking from the left, while she had slowed down and indicated that she was slowing to enter the service lane. He was negligent and thus the person to blame for causing the said accident. 10. The learned magistrate considered the evidence adduced and parties’ submission and in her judgment delivered on 25th April 2024 apportioned Liability at 90:10 % as against the Appellant and proceeded to award the Respondent, General damages of **Kshs.1,200,000/=** less 10% contribution **Kshs.1,080,000/=**, for future medical expenses of **Kshs.150,000/=** and special damages of **Kshs.98,740/=** plus costs and interest of the suit. 11. The Appellant, being dissatisfied by the said judgement did file her memorandum of appeal dated 24th May 2024 where she raised several grounds of appeal namely: - 12. ***That the learned trial Magistrate erred in law and facts by failing to properly scrutinize and evaluate the evidence tendered by the appellants and correctly relate the same to the case law cited in court and thereby failed to arrive at a fair and reasonable assessment on the issue of liability, Quantum and compensation to the Respondent.*** 13. ***That the learned trial Magistrate erred in law and fact in deciding the case against the weight of the evidence on record and apportioning liability at 90% against the Appellant.*** 14. ***That the learned trial Magistrate erred in law and fact in awarding Kshs 1,200,000/= as general damages as the said award is excessively high considering the nature of injuries sustained by the respondent.*** 15. ***That the learned trial Magistrate erred both in law and fact in making an award on quantum which is too high and was not supported by relevant authorities guided by the doctrine of precedent, case law of similar facts and guided by the laws of natural justice and/or commensurate with the injuries suffered by the plaintiff.*** 16. ***That the award on general damages and special damages was against the weight of the evidence before the court and was without consideration to the submissions of the defendant/Appellants counsel whilst failing to take into account the amounts claimed by the respondent did not relate to the injuries as per the medical reports produced in court*** 17. She therefore prayed that the court be pleased to allow the appeal and to re-assess the award on liability and quantum 18. **Parties Submissions**. 19. **Appellant’s Submission** 20. The Appellant submitted that the award on liability was not supported by the facts on record as the respondent had boarded an overloaded motorcycle, whose rider was also negligent by riding at high speed and due to the extra pillion passenger carried could not properly control the said motorcycle. The appellant explanation as to how the accident occurred was also truthful and no negligence could be attributed on her. Reliance was placed the case of ***Ephantus Mwangi & Another Vs Duncan Mwangi Wambugu CA 77 OF 1982, Mwana Sokoni Vs Kenya Bus Service Limited CA 35 OF 1985, Rosemary Kaari Muriithi Vs Benson Njeru Muthitu & 3 others {2020} Eklr & Statpack Industries Vs James Mbithi Munyao Civil Appeal No 152 of 2013***, where causation and negligence were discussed. 21. On quantum, the appellant submitted that though the respondent did prove the injuries sustained, considering similar injury awarded, they urged the court to find that the award of ***Kshs.1,200,000/=*** was excessive in the circumstance and that an award of **Ksh.400,000/=** would have sufficed. Reliance was placed in the case of ***Lynn Kambua Enterprise Vs Edith Vaati Simon (2021) Eklr, George Kinyanjui T/A Climax Coaches & Another Vs Hassan Musa Agoi (2016) Eklr & Telkom Orange Kenya Limited Vs S.O ( Minor suing through next friend and mother)(2018) Eklr*** , to support this proposition. 1. The Appellant urged this court to find that their Appeal has merit, allow the same both on liability and quantum and be pleased to re assess the same. **(ii) Respondent Written submission** 1. The Respondent gave a background of the pleadings and facts relating to the accident, which resulted in the respondent sustaining serious injuries and insisted that based on the evidence adduced, the respondent had adequately discharged the burden of proof and shown that the accident was occasioned by the appellants negligence and the respondent being a pillion passenger could not have substantially contributed to the same. The award on liability was thus fair and should not be disturbed. Reliance was placed in the case of ***Anne Wambui Ndiritu Vs Joseph Kiprono Ropkoi & Another (2005)1EA 334*** to support this contention. 2. Similarly on quantum awarded it had not been shown that the trial court had departed from the known parameters of determining the same by taking into consideration irrelevant factors or applying the wrong principle as and/or misapprehending the evidence so as to arrive at a figure which is inordinately high or low so as to represent an entirely erroneous estimate. The award arrived at was proportionate to the injuries suffered and they urged the court not to interfere with the same. 3. The respondent thus this court to dismiss this appeal with cost. **Analysis and Determination**. 1. I have considered the pleadings, evidence presented and submissions of the parties in this appeal. This court first and foremost is enjoined to subject the whole proceedings to fresh scrutiny and make its own conclusions. As held in **Selle & Another Vs Associated Motor Boat Co ltd & others (1968) EA 123** it was stated that; “***I accept counsel for the respondent’s proposition that this court is not bound necessarily to accept the findings of fact by the court below. An appeal to this court from a trial by the high court is by way of retrial and the principals 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 conclusion though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. In particular, this court is not bound necessarily to follow the trial judge’s findings of fact if it appears either that he has clearly failed on some point to take account of particular circumstances or probabilities materially to estimate the evidence or if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally. (Abduk Hammed Saif V Ali Mohammed Sholan(1955), 22 E.A.C.A 270,*** 1. Also in the court of appeal case of **Ephantus Mwangi and Another Vs Duncan Mwangi Civil Appeal No 77 of 1982{ 1982 -1988}1KAR 278** the appellate court did state that; **“A *member of an appellate court is not bound to accept the learned judge’s findings of fact if it appears either that (a) he has clearly failed on some point to take account of particular circumstances or probabilities material to an estimate of the evidence, or (b) if the impression based on the demeanor of a witness is inconsistent with the evidence in the case generally.”*** 1. The issues which arise for determination in this appeal, is whether liability was correctly apportioned and whether the quantum awarded was inordinately high to warrant a review of the same by this court. 2. **Liability** 3. The court in **Khambi & Another vs. Mahithi and Another [1968] EA 70**, held that: **“*It is well settled that where a Trial Judge has apportioned liability according to the fault of the parties, his apportionment should not be interfered with on appeal, save in exceptional cases, as where there is some error in principle or the apportionment is manifestly erroneous, and an appellate court will not consider itself free to substitute its own apportionment for that made by the trial Judge.”*** 1. In the case of **Haybourhill –V- Young (1942) 2 ALL ER 396** quoted in the case of **Benson Dulo v Joseph Waire Njoroge [2022] eKLR** in which **Lord Porter** held thus; ***“The duty is not to the world at large it must be tested by asking with reference to each several complainants was a duty hold to him or her. If no one of them was in such a position that direct physical injury could reasonably be anticipated to them or other relations or flames, normally I think no duty would be owed. In the same court Lord Macmillan expressed himself as follows “on the duty in terms of proper care it connotes avoidance of excessive speed, keeping a good lookout, observing traffic rules and signals and so on. Then to whom is the duty owed? To persons to placed that they may reasonably expected to be injured by the omission to take such care. The duty to take care is the duty to avoid doing or omitting to do anything, the doing or omitting to do which may have as it is reasonable and probable consequence injury to others and the duty is owed to those to whom injury may reasonably and probably be anticipated if the duty is not observed.”*** 1. I also mindful of the provisions under ***Section 40, 46, 47, 49 of our Traffic Act Cap 403 of the Laws of Kenya*** which emphasizes that the driver of a motor vehicle shall observe the following rules “to drive the motor vehicle with due care and attention, not to drive on the road recklessly or at a speed or in a manner which is dangerous to the public, in a manner so as to overtake traffic unless the driver has a clear and unobstructed view of the road ahead.” 2. From the evidence adduced it was confirmed that the suit motorcycle was not insured and carried two pillion passenger, which was an offence, but the rider also critically committed a more serious blunder by overtaking the suit motor vehicle from the left side, which in clear proof of negligence on his side. The learned trial court failed to consider this fact and thus arrived at an erroneous finding on liability. Considering the circumstances herein, while bearing in mind the that the too appellant was also turning to join the service lane, liability apportion at 50;50 % would be more appropriate in the circumstance of the case. 3. ***Whether Quantum Awarded was Excessive.*** 4. In **Woodruff vs. Dupont [1964] EA 404** it was held by the East African court of appeal that: “***The question as to quantum of damage is one of fact for the trial Judge and the principles of law enunciated in the decided case are only guides. When those rules or principles are applied, however, it is essential to remember that in the end what has to be decided is a question of fact. Circumstances are so infinitely various that, however carefully general rules are framed, they must be construed with some liberality and too rigidly applied. The court must be careful to see that the principles laid down are never so narrowly interpreted as to prevent a judge of fact from doing justice between the parties. So to use them would be to misuse them...The quantum of damages being a question of fact for the trial Judge the sole question for determination in this appeal is not whether he followed any particular rules or the orthodox method in computing the damage claimed by the plaintiff, but whether the damages awarded are “such as may fairly and reasonable be considered as a rising according to the usual course of things, from the breach of the contract itself.” The plaintiff is not entitled to be compensated to such an extent as to place him in a better position than that in which he would have found himself had the contract been performed by the defendant.”*** 1. The Court of Appeal in **Southern Engineering Company Ltd. vs. Musingi Mutia [1985] KLR 730** also restated these principles which should guide the court in awarding damages, where it was held that: ***“It is trite law that the measurement of the quantum of damages is a matter for the discretion of the individual Judge, which of course has to be exercised judicially and with regard to the general conditions prevailing in the country generally, and prior decisions which are relevant to the case in question to principles behind the award of general damages enumerated…The difficult task of awarding money compensation in a case of this kind is essentially a matter of opinion judgement and experience. In a sphere in which no one can predicate with complete assurance that the award made by another is wrong the best that can be done is to pay regard to the range and limits of current thought. In a case such as the present it is natural and reasonable for any member of the appellate tribunal to pose for himself the question as to award he, himself would have made. Having done so, and remembering that in this sphere there are invariably differences of view and of opinion, he does not however proceed to dismiss as wrong a figure of an award merely because it does not correspond with the figure of his own assessment…It is inevitable in any system of law that there will be disparity in awards made by different courts for similar injuries since no two cases are precisely the same, either in the nature of the injury or in age, circumstances of, or other conditions relevant to the person injured.*** 1. Since the decision on the quantum of damages is an exercise of discretion, barring the failure to adhere to the foregoing principles the decision on whether or not to interfere with an award by the trial court must necessarily be restricted. 2. The Appellant, proposed that an award of **Kshs.400,000/=** would suffice for the injuries suffered and relied on the court decision in ***Lynn Kambua Enterprises Vs Edith Vaati Simon Kasika (2021) Eklr & George Kinyanjui T/A Climax Coaches & Ano Vs Hassan Musa Agoi (2016) Eklr*** . The respondent on the other hand urged the court to uphold the said award, stating that she had suffered grievous shoulder injury, which left her unable to lead a normal life and the award was fair when considered with similar injury judgment and inflationary trends. 3. The appellate court is only entitled to interfere an award of damages by the Trial Court if it is so inordinately high or low that it represents an entirely erroneous estimate***.*** While the court appreciates that one person’s injuries will never be fully comparable to another person’s injuries, the same still has to consider as far as possible and compared to another person’s similar injuries and its after effect. 4. The trial court considered several authorities including ***Board of Trustee Anglican Church of kenya, Diocese of Marsabit Vs Adano Isacko (2019), Joseph Kimanthi Nzau Vs Johnson Macharia (2019) Eklr AND Lawarence Wairimu Wainyoike & Ano Vs Joseph Letting (2021) Eklr*** where the awarded ranged from ***Kshs.800,000/= to Kshs.1,000,000/=***. Upon factoring in when the awards were given and inflationary rates she did hold that an award of **Kshs.1,200,000/=** would be adequate compensation, less 10% contribution. This court is unable to fault the trial court assessment and how it was arrived at. The Appeal on this score therefore fails. 5. **DISPOSITION** 6. Having exhaustively analyzed all the issues raised in this appeal, I do set aside the trial courts finding liability and reduce the same to each party bearing 50: 50% contributory negligence. Judgment is therefore entered in favour of the respondent on the following terms 7. Liability at 50:50% 8. General damages at **Kshs.1,200,000/=** less 50% contribution thus **Kshs.600,000/=.** 9. Future medical expenses of **Kshs.150,000/=** 10. Special damages of **Kshs.98,740/=** 11. Costs of the primary suit 12. Interest on (b), (c) and (d) at court rates from the date of judgment till payment in full. 13. Each party will bear their own costs of this Appeal 14. It is so ordered. **Dated, signed,** and **delivered** in open court at **MARSABIT** this **18th** day of **MAY 2026.** **FRANCIS RAYOLA OLEL** **JUDGE** Delivered on the virtual platform, Team this **18th** day of **May, 2026.** **In the presence of**: - ………………………………………………………..Appellant ………………………………………………………. Respondent ………………………………………………………. Court Assistant