https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/12589

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT MURANG’A** **CIVIL APPEAL NO. E039 OF 2022** **PETER NJANE NJOROGE ..……………..…………………………………APPELLANT** **VERSUS** **METROTRANS LOGISTICS LTD……………….………………………RESPONDENT** **JUDGMENT** 1. Being dissatisfied with the Judgment of the Principal Magistrate’s Court at KANDARA delivered on 15th June, 2022 the appellant hereby Appealed to the High Court at MURANG'A against the entire decision. 2. The Appeal was filed vide the Memorandum of Appeal dated 13th July 2022 raising the following grounds;- 1. THAT the Learned Magistrate erred in Law and in fact by apportioning liability at 70% against the plaintiff/Appellant without any just cause. 2. THAT the Learned Magistrate errered in misapprehending the Law and facts that the police abstract had no probative value while relying on the same abstract produced by the defence only witness. 3. THAT the trial court erred in apportioning blame to the plaintiff based solely on a police officer [the only defence witness] as opposed to the driver of the defendant. 4. THAT the Court errered in Law and in fact by awarding General damages of Kshs,100, 000/= while the current authorities award 150,000-250,000/= for the similar injuries in year 2022. 5. THAT the trial court apportioned blame to the plaintiff in error, while relying on a defence witness who is a police officer who failed to produce sketch plans to justify any blame at all. 6. THAT the trial magistrate erred in finding that the plaintiff did not see the lorry approaching, while the same hit the plaintiff from behind. This fact cannot be used to blame the plaintiff at 70. 7. THAT the trial magistrate erred in Law and in fact which error resulted in her arriving at A wrong decision of the entire suit both on quantum and liability. 8. THAT the trial Magistrate erred in Law and in fact by reading the plaintiffs submission and disregarding them in their entirety, to great detriment of the plaintiff. 3. On the Error to Apportion 70% liability to plaintiff without just cause. 4. The plaintiff in examination in Chief stated he was issued with a Police Abstract which formed the plaintiff Exhibit (2) as per the list of documents. 5. The Abstract at paragraph (7) set out the results of investigation indicating nil. 6. The officer that filled the plaintiffs Abstract was P.C.Njue the DW-I the only Defence witness. 7. In light of this the appellant submits that the Trial Magistrate applied double standards to Arriving at an Apportionment of 70% liability on the basis of a finding by a witness Police Officer- who ordinarily Appears at the scene after the fact. 8. He urges the Court to find that the Defence witness was not a primary witness to the accident and only supported to confirm the occurrence of the accident. 9. According to the appellant, there is no justifiable reason as to why DW-I the author of the Police Abstract did not find it necessary to note PEDESTRIAN TO BLAME but had the courage to say in fact the plaintiff was drunk without evidence of intoxication. 10. The defence did not call the driver of the suit motor vehicle and it is the appellants case that by failing to call the driver, the Defence in essence admitted the averments in the plaint and hence the prayer that the court finds Defence 100% liable. 11. The appellant takes issue with the fact that the police officer failed to produce the driver of KCD 766M ISUZU BUS. 12. According to the appellant, DW-I could have been more candid to present the sketch plans to prove that indeed the plaintiff was crossing at the wrong place. 13. The primary document by Defence police Abstract does not place the blame on the plaintiff/Appellant. 14. **13.** When a pedestrian is walking on the road extreme left off the main road and a vehicle hits that pedestrian from the Back, who should be blamed? It is only Reasonable to find that the Bus coming — through the Driver should see all the Road users and in particular the plaintiff/Appellant herein. This analysis by the Trial Court was wrong hence the Court arrived at the wrong conclusion. 15. They urge the Court to find for the Appellants that the award of by lower Court was too low & factor inflation to date and proceed to award Kshs.200,000/= as General Damages. 16. He seeks the following orders; * 1. Liability at 100% as against the Respondent defendant. 2. General damages at kshs.200,000/= 3. Special Damages kshs.4,650/= 4. Costs & Inters at Court Rates from date of lower Court judgment. **The Respondent’s Case** 1. The Respondent opposes the appeal and argues that in the plaint dated 3rd May, 2021 the plaintiff pleaded that save for the negligence of the defendant, the accident would not have occurred in the first place. 2. It submits that at paragraph 5 of the plaint, the plaintiff pleaded the elements of purported negligent acts or omissions attributed to the driver of Motor Vehicle Registration Number KCD 766M. 3. Section 107 of the Evidence Act stipulates that ; * + 1. Whoever desires any Court to give Judgment as to any legal right dependent on the existence facts which he asserts must prove that those facts exist. 2. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person. 4. The burden to prove that the defendant’s driver drove the said motor vehicle so negligently as to occasion the accident was on the plaintiff’s shoulders. 5. In **Christine Kalama v Jane Wanja Njeru & another [2021] eKLR** it was held that; *“….it was the appellant who bore the evidential burden to lead evidence against the respondents to show that acts of negligence and breach of the duty of care owed to her on the material day. On the other hand, once the appellant discharges the burden of a primafacie case, the respondent was to be under a duty to offer tactical evidence to rebut or controvert the elements of the appellant’s case”* 1. Ground two of the record of appeal contests the position of the trial court in holding that the Police Abstract produced by the Plaintiff during trial was of no probative value. 2. It submits that it must be noted that in the Judgement by the trial court, the last paragraph of page 51 of the record of appeal, the trial magistrate pronounced himself on this matter clearly. The court found as follows; *“In the current case the plaintiff testified that he did not see the motor vehicle approaching. He was however told by an eye witness of the occurrence of the events. Sections 107, 108 and 109 of the Evidence Act CAP 80 is clear that, whoever requires the court to make a finding on a matter must prove that the said facts exist. The plaintiff had a legal and evidentiary burden that only shifted on proof.* *He chose not to avail the eye witness or even the police officer to corroborate the evidence. He chose not to avail the maker of the police abstract for hence the police abstract was of little to no probative value. The evidence of the plaintiff was indeed put to cross examination but did not satisfy the standard of proof. The defendant however proved on a balance of probability that the plaintiff was to blame for the accident and no contrary evidence was presented.”* 1. According to the magistrate, the Appellant had testified that he had been informed by an eye witness of the events surrounding the accident and other than the information from said eyewitness, the Appellant relied on the contents of the police abstract which unfortunately had blamed him for the accident. 2. To satisfy the test of the Evidence Act Cap 80, section 107, 108, 109 as read together with section 63 the Appellant had the duty to discharge the legal and the evidentiary burden of proof, which he could have had he presented the maker of the police abstract and the said eye witness to give a direct account of what the said witness perceived first hand, which in the present case he did not. 3. In the words of the trial Magistrate, failure to present the eye witness and the maker of the police abstract rendered both these pieces of evidence irrelevant and lacking of probative value. 4. The Respondent invites this Honourable court to find guidance **in Benjamin Mwenda Muketha suing as the legal representative of** **Mercy Nkirote v Abdikadir Sheik & 2 others [2018] eKLR,** where the court observed that; *“Apart from the fact that the accident took place, the testimony of PW 1 and PW 2 as to how the accident could have occurred was not direct testimony as required by section 63 of the Evidence Act (Chapter 80 of the Laws of Kenya). In other words, it was hearsay evidence.”* 1. The holding of the court in **Franklin Maingi Nkunja v Rose Mutuma & another [2021] eKLR** the position of the court was informed by the position held in **Nickson Muthoka Mutavi v Kenya Agricultural Research Institute** **(2016) eKLR,** in which **Nyamweya, J quoted Halsbury’s Laws of England, 4th Edition at paragraph 662 at page 476** which stating that: *“The burden of proof in an action for damages for negligence rests primarily on the plaintiff, who, to maintain the action, must show that he was injured by a negligent act or omission for which the defendant is in law responsible…”* 1. For the defendant to be under the obligation to rebut the plaintiff’s averments, the plaintiff had to first prove that indeed the defendant’s driver was over speeding or was negligent on an account of the evidence produced, upon which point the defendants would have been under the obligation to prove otherwise. 2. It submits that this did not happen as the allegations by the plaintiff were not backed by any evidence thus amounting to nothing other than speculation and mere averments. 3. DW-1 testified that he was the investigating officer and thus the conclusion that the plaintiff was to blame was not mere speculation. DW-1 averred that he took a statement from the plaintiff who was drunk at the time of the accident, and when attempting to cross, he did not take lookout carefully for oncoming vehicles.DW-1 produced into evidence (DE-1) an abstract that showed clearly that investigations had been concluded and the appellant was blamed for the accident. 4. The Respondent’s Cross Appeal dated 24th August, 2022 is premised on the fact that, on account of the evidence produced by both parties, the Respondents were not to blame for the accident. 5. Based on the law, the evidence as produced and the authorities relied upon, it is vivid that the plaintiff failed to prove the question of liability on a balance of probabilities and that the court’s position of a contribution ratio of 70:30 % was not correctly arrived at according to the respondent. 6. It submits that the appellant solely caused the accident and thus this Honourable Court should find him 100% liable for the accident. 7. In awarding damages, the laid down principle is that similar injuries attract similar damages. 8. This principle was upheld in the case of **David Karanja v Tofwa Vutagwa[2015] eKLR where** the court held that; *“I agree that it is an established principle of law that damages for similar injuries must be within limits set by other decided cases. The appellants placed reliance on the case of South Nyanza Sugar Co. Vs Lilian Anyango (2012) eKLR wherein the persuasive authority of* ***West (H) & Son ltd V Shepherd (1964) AC 326*** *was cited with approval. In that case,* ***Lord Morris*** *stated as follows; -* *“…. Furthermore, it is eminently desirable that so far as possible comparable injuries should be compensated by comparable awards: when all this is said, it still must be that amounts which are awarded are to a considerable extent conventional……”* 1. In **FM (Minor suing through Mother and next friend MWM) v JNM & another [2020] eKLR** the court reviewed an award of Kshs. 60,000/= to Kshs. 100,000/= where the plaintiff had suffered injuries in the nature of; Blunt Object injury to the head, Blunt Object injury to the neck, Blunt Object injury to the thorax, Blunt Object injury to the abdomen and Blunt Object injury to the limbs. Injuries sustained by an individual are most likely not going to mirror injuries sustained by another, and whereas the injuries in FM (supra) are more grievous compared to what the plaintiff sustained in the instant suit, we submit that the award of Kshs. 100,000/= was within the range for similar injuries. 2. In **Rukia Abdi Manya & another v Officer Commanding Police Station Habaswein & another [2020] eKLR** the court reiterated the words of the court in **Butt vs Khan (1981) KLR 349,** Law, (cited in **John Mwanzia vs GithinjiWahinyia [2019] eKLR, J.A that:** “An appellate court will not disturb an award of damages unless it is so inordinately high or low as to represent an entirely erroneous estimate. It must be shown that the Judge proceeded on wrong principles, or that he misapprehended the evidence in some material respect, and so arrived at a figure which was either inordinately high or low.” **Analysis;** 1. The issues for determination are whether the appeal has merit and who shall bear the costs. 2. This being a first Appeal, the court is enjoined to analyze and re-assess the evidence afresh and reach its own conclusions but always bearing in mind that it neither saw nor heard the witnesses testify. This position was affirmed in**Selle v Associated Motor Boat Co. [1968] EA 123 and Kiruga v Kiruga& Another [1988] KLR 348** cases. 3. **In the Miller–vs- Minister of Pensions [1947]2 All ER 372 the court in** discussing the burden of proof observed:- *“That degree is well settled. It must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: ‘we think it more probable than not’, the burden is discharged, but, if the probabilities are equal, it is not. Thus, proof on a balance or preponderance of probabilities means a win, however narrow. A draw is not enough. So, in any case in which the tribunal cannot decide one way or the other which evidence to accept, where both parties’ explanations are equally (un) convincing, the party bearing the burden of proof will lose, because the requisite standard will not have been attained.”* 1. **Sections 107** of the **Evidence Act (Cap 80 Laws of Kenya**) provides that- ***“107. (1) Whoever desires any court to give judgment as to any legal right*** *or liability dependent on the existence of facts which he asserts must prove that those facts exist.* *When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.* *The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.”* 1. As at the time of the accident, the appellant was a pedestrian who was walking along road. 2. The plaintiff testified that he did not see the motor vehicle approaching. On a balance of probabilities the Respondent drove negligently causing the accident. There is no way the appellant would have seen a car that was approaching from behind. He was hit by the car from behind. 3. The respondent filed a supplementary list of documents dated 10th September 2021, which is found at 36 of the record of appeal. Unfortunately, the record does not have the said police abstract and the Page that follows the said list of documents is page 37, which contains the plaintiffs’ submissions. 4. The police abstract that the court has looked at is the one relied upon by the Appellant. 5. DW 1 testified that the appellant was drunk when the accident occurred. This confirms that the appellant was at the scene of the accident when it occurred. However, The appellant did not contradict the intoxication allegation. 6. A person who is in charge of a motor vehicle must at all times remember that he is in charge of a dangerous [machine. He](http://machine.he/) is under a duty to protect all road users at all times. However, in cases of drunk pedestrians, the duty of the driver is lowered. 7. A pedestrian like in the instant case lacks the capacity to control the vehicles that are using the road. A drunk pedestrian can easily place himself in harm’s way. 8. Intoxication has a negative impact on the mental capacity of a [pedestrian. It](http://pedestrian.it/) interferes with the one’s capacity to reason to a certain degree. A drunken person might not act promptly when in [danger. He](http://danger.he/) is likely to misjudge what he ought to do so as to avoid an [accident.](http://accident.he/) 9. The police abstract shows clearly that the accident occurred on 20.6.26 and that the Appellant was hit by the Motor vehicle number KCD766M. 10. The police abstract clearly indicates that the respondent was the owner of the motor vehicle. 11. The court has looked at the motor vehicle copy of records generated by the national transport and safety authority. It shows that motor vehicle registration number KCD766M was owned by the respondent as on 20th August 2020. 12. The court is satisfied that as of the date that the accident occurred, the respondent owned the said motor vehicle. 13. I find that the trial court apportioned the blame legally and this court will not interfere with the discretion and the apportionment of liability. 14. On the issue of quantum of general damages the appellant asked the court to enhance the amount awarded as general damages from Kshs.150,000 to kshs.200,000/=. 15. The court has taken note of the injury sustained as set out in the medical report dated 10.8.20 alongside the authorities that the parties relied on. 16. In the Court of Appeal case **Butt v. Khan [1981) KR 349**, Law (JA) stated that: "*An appellate court will not disturb an award of damages unless it is so inordinate high or low as to represent an entirely erroneous estimate. It must be shown that the judge proceeded on wrong principles, or that he misapprehended the evidence some material respect, and so arrived at a figure which was either inordinately high or low......"* 1. This court is of the view that the magistrate exercised his discretion judiciously in arriving at the impugned judgment in awarding the amount for general damages and I find no reason to interfere with it. 2. The appellant did not advance evidence to justify the enhancement of the general damages. 3. On special damages Special Damages kshs.4,650/= the same is not in dispute. **Costs;** 1. The Supreme Court in the case of **Jashir Singh Rai & Others vs. Tarlochan Rai & Other**s observed that,” In the classic common law style, the courts have to proceed on a case-by-case basis, to identify "good reasons" for such a departure. An examination of evolving practices on this question shows that, as an example, matters in the domain of public interest litigation tend to be exempted from award of costs…” **Determination** 1. The appeal and the cross appeal both lack merit. **Order** * 1. The appeal and the cross appeal are dismissed. 2. Each party shall bear their costs. **Dated, Signed and Delivered at Virtual Eldoret this 27th day of July 2026.** **……………………………………..** **J. CHIGITI (SC)** **JUDGE**