https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12281

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA** **AT NAKURU** **CIVIL APPEAL NO. E256 OF 2023** **JOB OMONDI ONYANGO..................................1ST APPELLANT** **LYDIA WAMUYU KINYUA.................................2ND APPELLANT** **VERSUS** **JOSEPH KIMUTAI NGENY..................................RESPONDENT** **AND** **ANTONY MAHUA alias WA MAHUA alias** **NJOROGE WAMAHUA ANTONY..........................THIRD PARTY** *(Being an Appeal from the Judgement of the Honourable Chief Magistrate E.G. Nderitu delivered on 15th August 2023 in Molo Chief Magistrate's Court Civil Suit No. E007 of 2020)* **JUDGMENT** [1] This is an appeal against the judgment of the Honourable E.G. Nderitu, Chief Magistrate, delivered on 15th August 2023 in Molo CMCC No. E007 of 2020. The learned trial magistrate found both parties equally liable for the road traffic accident that occurred on 18th August 2019 and awarded the Respondent damages in the sum of Kshs. 1,044,351/- before deducting 50% contributory negligence, resulting in a net award of Kshs. 522,175.50/-. [2] The Appellants, being dissatisfied with the said judgment, lodged the instant appeal vide a Memorandum of Appeal dated 13th September 2023. The appeal was subsequently argued by way of written submissions, which both parties have duly filed. [3] The Appellants challenge the trial court's judgment on the following seven grounds: 1. ***THAT the Learned Trial Magistrate erred in fact and in Law and further misdirected herself in failing to appreciate that the Respondent's act of crossing the dual carriage highway in a dark hour of the night at an undesignated point, constituted an illegality and accordingly ought to have been held 100% culpable for the accident.*** 2. ***THAT the Learned Trial Magistrate erred in law and in fact in finding that the Appellant could not escape full liability, when the evidence on record was clear it was the Respondent who jumped and hit the left wing and side mirror of the Appellant's motor vehicle, in a bid to escape being hit by the trailer and was therefore the author of his own misfortune.*** 3. ***THAT the Learned Trial Magistrate erred in law and in fact and further misdirected herself by holding the Appellant 50% liable for the accident despite making a finding that the Respondent was found to blame by the police, for crossing the road via the spaces, (which spaces did not exist) on the barrier.*** 4. ***THAT the Learned Trial Magistrate erred in law and in fact and further misdirected herself in holding that the Appellant ought to have seen the Respondent and had been driving at a reasonable speed and applied evasive tactic including slowing down to allow the Respondent finish crossing, yet this was impossible in the circumstances painted at the hearing and captured in the judgment.*** 5. ***THAT the Learned Trial Magistrate erred in law and in fact in awarding the Respondent a sum of Kshs 800,000/= general damages which is manifestly excessive and inordinately high considering the injuries sustained by the respondent and conventional awards made in respect to cases of similar injuries as suffered by the Respondent.*** 6. ***THAT the Learned Trial Magistrate erred in fact and law by not taking into account the cited authorities in the submissions filed by the Defendants/Appellants on quantum.*** 7. ***In all the circumstances of the case, the findings of the Learned Trial Magistrate are insupportable in law or on the basis of evidence adduced.*** [4] The Appellants filed their written submissions dated 13th October 2025. On liability, the Appellants submitted that the trial court grossly erred in its finding of liability. They contended that the evidence on record clearly demonstrated that the Respondent was solely or substantially to blame for the accident. The Appellants relied on the evidence that the accident occurred at approximately 7:00 pm, in the dark, while it was drizzling. The Respondent was crossing a dual carriageway at an undesignated point where there was no zebra crossing. The Respondent admitted in cross-examination that there was a corner at the accident scene. The 1st Appellant testified that the Respondent jumped from in front of a trailer onto his vehicle and that the act was so sudden that he could not apply emergency brakes. The 1st Appellant was driving on the inner lane next to a barrier and could not swerve to either side. The Respondent was intoxicated, as testified by the 1st Appellant. The police blamed the Respondent for the accident, as evidenced by the police abstract. The Appellants relied on the principle that a pedestrian who crosses a road at an undesignated point is guilty of contributory negligence. The Appellants urged this court to find the Respondent 100% liable, or in the alternative, to apportion liability at a much higher percentage against the Respondent. [5] On quantum, the Appellants submitted that the award of Kshs. 800,000/- in general damages is manifestly excessive. They relied on the cases of ***Reamic Investment Limited v Joaz Amenya Samuel [2021] eKLR***, where the court reduced an award from Kshs. 700,000 to Kshs. 350,000 for an open left femur fracture, and ***EAA (Minor) v Abdalla [2024] eKLR***, where the court upheld Kshs. 350,000 for a fracture of the right femur. The Appellants distinguished the Respondent's reliance on ***Daneva Heavy Trucks & Another v Chrispine Otieno [2022] eKLR***, arguing that the injuries in that case were far more serious. The Appellants urged this court to substitute the award of general damages with an award of Kshs. 350,000 or less. [6] The Respondent filed written submissions dated 21st November 2025 opposing the appeal. On liability, the Respondent submitted that the trial court's apportionment of liability at 50:50 was proper and should not be disturbed. The Respondent argued that the trial court had the advantage of seeing and hearing the witnesses and was best placed to assess credibility. An appellate court should be slow to interfere with findings of fact made by a trial court. Both parties contributed to the accident. The accident occurred at 7:00 pm in poor visibility conditions, and the 1st Appellant ought to have exercised heightened caution. The 1st Appellant was driving on a downward gradient and ought to have reduced speed and exercised greater vigilance. The 1st Appellant's inability to brake supports an inference that he was driving too fast. Even when a pedestrian crosses at an undesignated point, a driver still has a duty to exercise due care. The police abstract is not conclusive proof of liability.The Respondent relied on the following authorities: ***Kyalo Mwangangi & 2 Others v Republic [2019] KECA 611*** on appellate restraint; ***Multiple Hauliers (E.A.) Ltd v Ustus Mutua Malundu & 2 Others [2017] eKLR*** on the duty of a driver to exercise heightened caution in poor conditions; and ***Gatonye & Another v Kinyae & Co Ltd [2025] KEHC 11706*** on police abstract not being conclusive proof of liability. [7] On quantum, the Respondent submitted that the award of Kshs. 800,000/- in general damages is reasonable and should be upheld. The Respondent argued that he sustained a serious and permanently disabling injury which required surgery and prolonged treatment. The Respondent requires future surgery to remove implants and may require total knee replacement. The award is within the range of comparable Kenyan authorities. The Respondent relied on ***Daneva Heavy Trucks & Another v Chrispine Otieno [2022] eKLR,*** where the court upheld Kshs. 800,000 for serious fractures. The Respondent urged this court to dismiss the appeal in its entirety. [8] The duty of the first appellate court is well settled. In ***Selle v Associated Motor Boat Co. Ltd [1968] EA 123***, the Court of Appeal held: ***"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 are that the 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 allowance in that respect."*** [9] In ***Gitobu Imanyara & 2 Others v Attorney General [2016] eKLR***, the Court of Appeal further emphasized that the appellate court must subject the evidence to fresh scrutiny and arrive at its own conclusions on the issues of both law and fact. However, it is equally well established that an appellate court will be slow to interfere with findings of fact made by a trial court, particularly where such findings are based on the credibility of witnesses. In ***Kyalo Mwangangi & 2 Others v Republic [2019] KECA 611,*** the Court of Appeal stated: ***"The court will not normally interfere with concurrent findings of fact by the two courts below unless such findings are based on no evidence, or are based on a misapprehension of the evidence, or the courts below are shown demonstrably to have acted on wrong principles in making the findings."*** [10] In ***Peters v Sunday Post Ltd [1958] EA 424,*** the court held that an appellate court will not interfere with the exercise of judicial discretion by a trial court unless it is satisfied that the trial court misdirected itself, acted on a wrong principle, or arrived at a decision that is plainly wrong. [11] The Appellants contend that the trial magistrate erred in failing to appreciate that the Respondent's act of crossing the dual carriageway at night at an undesignated point constituted an illegality and should have resulted in 100% liability against the Respondent.The evidence on record establishes that the accident occurred at approximately 7:00 pm, in the dark, while it was drizzling. The Respondent was crossing a dual carriageway at a point where there was no zebra crossing. The Respondent admitted in cross-examination that there was a corner at the accident scene. The 1st Appellant testified that there was no opening at the barrier at that point. [12] In ***Tangent Supplies Limited & another v Ndiriru [2024] KEHC 13118 (KLR)*** , the court addressed a similar situation where a pedestrian crossed a road at an undesignated point. The court held: ***"The police officer blamed the deceased for the occurrence of the accident for she did not cross the road at a safe point. It is clear from the evidence that she crossed the road at a point that was not designated for crossing and obviously exposed herself to great******danger of being run over. The deceased authored her misfortune to a great extent."*** The court further emphasized: ***"Pedestrians must know that zebra crossings on our roads mean something and are not colorful decorations of the road by the National Highways Authority. What then is the fate of those that choose to ignore such points and out of recklessness on their part choose to cross at other points that are not designated? Such pedestrians must exercise utmost care ensuring that the road is free from traffic so as for one to safely cross the road. Persons such as the deceased who choose not to utilize the designated crossing points must bear the consequences of their actions."*** [13] However, while the Respondent's act of crossing at an undesignated point was negligent, I cannot accept the Appellants' argument that this alone should result in 100% liability against the Respondent. A driver still has a duty to exercise reasonable care, even when faced with a negligent pedestrian. The 1st Appellant's failure to anticipate the possibility of a pedestrian crossing at the undesignated point constitutes some degree of negligence. I therefore find that Ground 1 partially succeeds. The trial magistrate erred in not giving sufficient weight to the Respondent's illegal crossing, but I decline to find the Respondent 100% liable. [14] The Appellants contend that the trial magistrate erred in finding that the Appellant could not escape full liability when the evidence showed the Respondent jumped and hit the left wing and side mirror of the vehicle. The 1st Appellant testified that he was driving on the inner lane next to the barrier with a trailer on his left. He testified that the Respondent came from in front of the trailer and jumped onto his vehicle, hitting the left wing and side mirror. He testified that the act was so sudden that he could not apply emergency brakes. The Respondent, on the other hand, testified that he was crossing the road when a vehicle without lights hit him. [15] The trial magistrate appears to have accepted the Respondent's version of events, finding that the 1st Appellant ought to have seen the Respondent and taken evasive action. However, the 1st Appellant's testimony was consistent and corroborated by other evidence. The police abstract blamed the Respondent. The 1st Appellant's testimony that the Respondent jumped from in front of a trailer is consistent with the physical constraints of the road. The Respondent's own testimony was contradictory: he claimed the vehicle had no lights, but the 1st Appellant testified his lights were on, and there was no independent evidence to corroborate the Respondent's claim. [16] In Tangent Supplies, the court addressed a similar factual scenario where a pedestrian crossed at an undesignated point. The court held that the pedestrian "authored her misfortune to a great extent." However, the court also held that the driver could not escape liability entirely, stating: ***"The 2nd appellant cannot escape liability altogether. The 2nd appellant should have anticipated heavy traffic of pedestrians within that vicinity. Driving within such areas calls for greater caution by drivers even as we demand good behavior by pedestrians on the road."*** [17] I find that the Respondent's contributory negligence was significant, but I cannot say that the trial magistrate's finding that the 1st Appellant bore some liability was erroneous. The 1st Appellant was driving at night in poor visibility conditions and ought to have exercised heightened caution. I therefore find that Ground 2 partially succeeds. The Respondent's conduct was the predominant cause of the accident, but the 1st Appellant was not entirely blameless. [18] The Appellants contend that the trial magistrate erred in holding the Appellant 50% liable despite making a finding that the Respondent was found to blame by the police.The police abstract (PEx 3) was produced by the Respondent himself. It indicates that the police blamed the Respondent for the accident. The trial magistrate acknowledged this fact in her judgment, stating: ***"It is no wonder that the police found him to blame as noted on the police abstract produced as evidence."*** [19] Despite this finding, the trial magistrate proceeded to apportion liability equally at 50:50. This was a clear inconsistency. If the police blamed the Respondent, and the trial magistrate acknowledged this, it was incumbent upon the trial magistrate to give this fact significant weight in apportioning liability. [20] The Respondent argues that a police abstract is not conclusive proof of liability. While this is correct, it does not mean that the police abstract should be ignored. In ***Gatonye & Another v Kinyae & Co Ltd [2025] KEHC 11706,*** the court held: ***"A police abstract is not in itself proof of liability. It remains merely a record of the versions given to the police, and unless corroborated by other independent evidence, a police abstract alone cannot be relied upon to establish liability."*** [21] In the present case, the police abstract was the only independent evidence of liability. Both the Respondent and the 1st Appellant gave conflicting accounts of how the accident occurred. In the absence of independent witnesses, the police abstract should have been given significant weight.I therefore find that Ground 3 succeeds. The trial magistrate's decision to apportion liability equally, despite acknowledging that the police blamed the Respondent, was inconsistent and erroneous. [22] The Appellants contend that the trial magistrate erred in holding that the Appellant ought to have seen the Respondent and applied evasive tactics, yet this was impossible in the circumstances. The 1st Appellant testified that he was driving on the inner lane next to a barrier, with a trailer on his left. He testified that the Respondent jumped from in front of the trailer onto his vehicle. He testified that the act was so sudden that he could not apply emergency brakes. He testified that he could not swerve to the right due to the barrier or to the left due to the trailer. The trial magistrate, however, found that the 1st Appellant ought to have seen the Respondent and applied evasive tactics. The 1st Appellant's testimony was consistent and uncontroverted. There was no evidence to suggest that the 1st Appellant had any opportunity to avoid the accident. The Respondent's own testimony was that he did not see the vehicle until it was very near him, which supports the 1st Appellant's assertion that the Respondent's actions were sudden and unforeseeable. [23] In Tangent Supplies, the court considered a similar argument and held: ***"If other drivers as per the evidence of the 2nd appellant were able to avoid hitting her, the 2nd appellant ought to have tried to avoid hitting her. He who sits behind the wheel of a car has an inherent duty of care to others that he or she finds on the road. It is precisely for that reason drivers must drive at a speed they can comfortably halt the car and more so, in highly populated areas such as where this accident occurred."*** [24] However, in the present case, there is no evidence that other drivers avoided the Respondent. The Respondent jumped from in front of a trailer onto the 1st Appellant's vehicle. The 1st Appellant had no time to react and no room to swerve. The situation is distinguishable from Tangent Supplies where other drivers were able to avoid the pedestrian. I find that the trial magistrate's finding that the 1st Appellant ought to have seen the Respondent and applied evasive tactics was not supported by the evidence. The evidence suggested that the Respondent's actions were sudden, unpredictable, and left the 1st Appellant with no reasonable opportunity to avoid the accident. I therefore find that Ground 4 succeeds. [25] The Appellants contend that the award of Kshs. 800,000/- in general damages is manifestly excessive and inordinately high. The principles governing appellate interference with quantum are well established. In ***Kemfro Africa Ltd v Lubia & Another [1987] KLR 30***, the Court of Appeal held: ***"The principles to be observed by an appellate court in deciding whether it is justified in disturbing the quantum of damages awarded by a trial judge........ were held to be that it must be satisfied that either that the judge, in assessing the damages , took into account an irrelevant factor, or left out of account a relevant one, or that, short of this, the amount is so inordinately low or so inordinately high that it must be a wholly erroneous estimate of the damage."*** [26] In ***Butt v Khan [1981] KLR 349***, the Court of Appeal emphasized: ***"An appellate court will not interfere with the trial court's discretion on quantum unless it is satisfied that the trial court acted on a wrong principle or the award is manifestly excessive or inadequate*."** [27] The Respondent sustained a fracture of the lower end of the left femur. This is a significant injury that required emergency treatment, surgery (ORIF with intramedullary nailing), post-operative physiotherapy, and ongoing treatment. The Respondent has 15-25% permanent disability and continues to use a cane or crutch. He has limited mobility and cannot flex his knee fully. He requires future surgery to remove implants and may require total knee replacement. [28] The Appellants rely on ***Reamic Investment Limited v Joaz Amenya Samuel [2021] eKLR***, where the court reduced an award from Kshs. 700,000 to Kshs. 350,000 for an open left femur fracture, and ***EAA (Minor) v Abdalla [2024] eKLR***, where the court upheld Kshs. 350,000 for a fracture of the right femur. [29] The Respondent relies on ***Daneva Heavy Trucks & Another v Chrispine Otieno [2022] eKLR***, where the court upheld Kshs. 800,000 for fractures of the pelvis, tibia, and fibula. [30] I have carefully considered these authorities. The injuries in the present case are serious and have long-term consequences. The Respondent's fracture was at the lower end of the femur (distal femur), which is closer to the knee joint and carries a higher risk of long-term complications, including arthritis and total knee replacement. The Respondent has significant permanent disability and ongoing limitations. While I acknowledge that the Appellants' authorities suggest that Kshs. 350,000 may be appropriate for femur fractures, I must also consider the specific circumstances of this case. The distal femur fracture is more serious than a mid-shaft femur fracture. The Respondent's ongoing pain, limited mobility, and future medical needs are significant. I find that the award of Kshs. 800,000/- is on the higher side but not so inordinately high as to warrant interference. The trial magistrate considered the evidence, assessed the injuries, and applied the relevant principles. I see no basis to disturb the award. I therefore find that Ground 5 fails. [31] The Appellants contend that the trial magistrate erred by not taking into account the cited authorities in the submissions filed by the Defendants/Appellants on quantum. The trial magistrate, in her judgment, stated: ***"The plaintiff has referred the court to Daneva heavy truck and Another Vs Chrispin Otieno (2022)eKLR and considering the said authority and the injuries herein, I do find a sum of Kshs. 800,000 reasonable and do award the same."*** [32] The trial magistrate did not mention the authorities cited by the Appellants. However, the failure to mention an authority does not necessarily mean that the authority was not considered. The trial magistrate was entitled to exercise her discretion in assessing quantum, and her decision must be evaluated in light of the evidence and the principles applicable. In any event, I have independently reviewed the authorities cited by the Appellants and have found that they do not compel a different conclusion. The trial magistrate's award of Kshs. 800,000/- was within the permissible range for the injuries sustained. I therefore find that Ground 6 fails. [33] Ground 7 is a general ground that encompasses the other grounds. Having considered Grounds 1 to 6, I find that the appeal partially succeeds on liability (Grounds 1, 2, 3, and 4) but fails on quantum (Grounds 5 and 6). I therefore find that Ground 7 partially succeeds. [34] On liability, the evidence on record clearly establishes that the accident occurred at approximately 7:00 pm, in the dark, while it was drizzling. The Respondent was crossing a dual carriageway at an undesignated point where there was no zebra crossing. The Respondent was intoxicated, as testified by the 1st Appellant. The Respondent jumped from in front of a trailer onto the 1st Appellant's vehicle. The 1st Appellant was driving on the inner lane next to a barrier, with a trailer on his left. The 1st Appellant could not swerve to the right due to the barrier or to the left due to the trailer. The Respondent's act was so sudden that the 1st Appellant could not apply emergency brakes. The police who visited the scene blamed the Respondent for the accident. [35] The Respondent's negligence was the predominant cause of the accident. The Respondent's decision to cross a busy dual carriageway at night, in the rain, at an undesignated point, while intoxicated, was reckless and demonstrated a complete disregard for his own safety. The 1st Appellant, on the other hand, was driving in his lane, with his lights on. He had no reasonable opportunity to avoid the accident given the suddenness of the Respondent's action and the physical constraints of the road. However, I cannot say that the 1st Appellant was entirely blameless. A driver has a duty to exercise reasonable care, even when faced with a negligent pedestrian. The 1st Appellant was driving at night in poor visibility conditions and ought to have exercised heightened caution. I find that the Respondent's contributory negligence was substantial and should be assessed at 70%. The Appellants' liability should be assessed at 30%. This apportionment reflects the degree of fault of each party: the Respondent's negligence was significantly greater than the Appellants' negligence, but the Appellants are not entirely absolved of liability. [36] I have considered the Appellants' argument that the Respondent is wholly liable and the Respondent's argument for 50:50. I find that 70:30 is the most just and equitable apportionment in all the circumstances of this case. The Respondent's negligence was the predominant cause of the accident, but the 1st Appellant's failure to exercise heightened caution in poor visibility conditions constitutes some degree of negligence. [37] On quantum, the Respondent sustained a fracture of the lower end of the left femur. This injury required emergency treatment and surgery. The Respondent has 15-25% permanent disability and continues to use a cane or crutch. The Respondent has limited mobility, ongoing pain, and requires future surgery to remove implants. The award of Kshs. 800,000/- in general damages is reasonable. The injuries are serious and have long-term consequences. The award of Kshs. 150,000/- for future medical expenses is also reasonable. The special damages of Kshs. 94,351/- were proved and are not contested. [38] Having found that the Respondent was 70% liable and the Appellants 30% liable, I now set out the calculations as follows; General Damages: Kshs. 800,000.00 Future Medical Expenses: Kshs. 150,000.00 Special Damages: Kshs. 94,351.00 Total: Kshs. 1,044,351.00 The Appellants' liability is assessed at 30%. 30% of Kshs. 1,044,351.00 = Kshs. 313,305.30 [39] Consequently, the appeal partially succeeds giving rise to issuance of the following orders; 1. ***The trial court's finding on apportionment of liability is set aside and substituted with a finding that the Respondent is 70% liable for the accident and the Appellants are 30% liable.*** 2. ***Judgment is entered for the Respondent against the Appellants in the sum of Kshs. 313,305.30 (Three Hundred and Thirteen Thousand, Three Hundred and Five Shillings and Thirty Cents).*** 3. ***The Respondent shall have interest on the decretal amount at court rates from the date of the trial court's judgment, being 15th August 2023, until payment in full.*** 4. ***Given that the appeal has partially succeeded, each party bears own costs of this appeal*** It is so ordered. **Dated, signed, and delivered at Nakuru this 30th day of July, 2026** **J. K. SERGON** **JUDGE** **In the presence of:** Jamleck/Rutoh C/A Miss Kiarie holding brief for Mrs Oloo for Appellant