Mukonyoro v Munira (Civil Appeal E025 of 2025) [2026] KEHC 8377 (KLR) (12 June 2026) (Judgment)

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT KIAMBU** **CIVIL APPEAL NO. E025 OF 2025** **PETER WAIGANJO MUKONYORO APPELLANT** **-VERSUS-** **MARY RENE WAIRIMU MUNIRA ….RESPONDENT** **(*Being an Appeal from the Judgment of Hon P.Ooko (S.P.M) dated 26th February, 2025 in Kiambu Chief Magistrate’s Court Civil Case No. E128 of 2024*)** **JUDGMENT** 1. The learned trial Senior Principal Magistrate delivered his judgment in Kiambu CMCC No. E128 in favour of the Appellant and against the Respondent as follows; 2. General Damages for pain and suffering..Kshs.800,000/=. 3. Loss of earnings………………………Kshs Nil. 4. Loss of earning capacity…………… Kshs Nil 5. Future Medical expenses………Kshs.85,000/= 6. Special damages………………….Kshs.97,840/= Gross Total…………………………Kshs.982,840/= 1. Less 50% Contribution………… Kshs.491,420/= Net Total…………………………….Kshs.491,420/= 1. Interest on the principal sum at court rates from the date of the judgment till payment in full. Having found the parties equally to blame for the occurrence of the accident, each was ordered to bear their own costs of the suit. 1. Aggrieved by the said Judgment, the Appellant filed a memorandum of appeal dated 06.03.2025 through C.N. Ngugi & Associates Advocates. The Appellant stated that the trial Court erred in law and fact and misdirected itself as follows: 2. By apportioning liability equally as between the Appellant and the Respondent despite the preponderance of evidence on record demonstrating that the Respondent was wholly to blame. 3. By failing to find the Respondent 100% liable for the accident. 4. By concentrating on the failure to call the investigating officer and the failure to produce the police occurrence book, sketch plans, measurements of the scene. 5. By disregarding and/or failing to attach any weight to the evidence of the eye witness (PW3) which evidence was unshaken. 6. By disregarding the medical report of Dr. G.K Mwaura on future medical expenses and instead relying on Dr. Muhanda’s medical report merely because Dr Muhanda examined the Appellant later whereas that report was not specific as to whether the sum of Kshs.85,000/- was an all-inclusive cost. 7. By failing to give appropriate weight and consideration to submissions filed by the Appellant’s advocates and authorities cited therein on the issue of liability and future medical expenses. 8. The Appellant prayed for orders that: 9. The appeal be allowed. 10. The Judgment of Hon P.Ooko (S.P.M) dated 26.02.2025 in Kiambu Chief Magistrates Civil Case No. E128 of 2024 be set aside and/or reversed and/or varied in so far as the questions of liability and future medical expenses are concerned. 11. Judgment on liability be entered in favour of the Appellant at 100% against the Respondent. 12. The sum of Kshs.200,000/= be awarded to the Appellant as future medical expenses. 13. Costs of this appeal together with interest thereon at court rates be borne by the Respondent. 14. Any other or further order/relief that this Honourable Court may deem just and fit to grant. 15. The background of the suit is that the Appellant filed his Plaint dated 17.04.2024 before the trial Court. His case was as follows; 16. That on 30.12.2023 the Appellant was lawfully riding his motorcycle registration no KMEP 542G along Kiambu road when at Mushroom area, the Respondent so negligently, carelessly and/or recklessly drove, controlled and/or managed the said motor vehicle registration number KCV 386T that she lost control of the same and caused and/or permitted it to veer onto the appellant’s lawful lane and thereby violently hitting the Appellant whereupon the Appellant sustained bodily injuries. 17. The Appellant averred that the doctrine of res ipsa loquitor applied to the circumstances surrounding the said accident and that he was also relying on the provisions of the Traffic Act and the Highway Code. 18. The Appellant indicated that he suffered and continued to suffer loss and damage and that he sustained the following injuries; * 1. Compound (open) fracture of left femur 2. Wound left thigh 19. The appellant averred that the said fracture was fixed internally using metal implants which would require to be removed at a cost of Kshs.200,000/= and he claimed the sum of Kshs.200,000 being cost of future medical treatment. 20. The Appellant indicated that prior to the accident he was a hardworking man aged 26 years carrying out the business of “boda boda” passenger transport and earning Kshs.1,500 daily thus making a monthly income of Kshs.45,000. By reason of the said accident, the appellant suffered 5% permanent disability on his left leg and is unable to walk or stand without crutches. By reasons thereof, he stated that he had lost his capacity to earn income as he used to prior to the accident and consequently claimed damages for loss of earnings and loss of earning capacity. 21. The Appellant also made a claim for special damages as follows; i)Medical expenses Kshs 94,290/= ii)Medical report fee Kshs 3,000/= iii)Copy of records Kshs 550/= TOTAL Kshs 97,840/= 1. Raphael Musyoka (PW2), a police officer attached at Kiambu police station gave his testimony during the proceedings and stated that the accident was reported at his station and the motor vehicle was found to blame for the occurrence of the accident. 2. He testified that the accident occurred when the said vehicle was being driven from Kiambu towards Nairobi general direction. Upon reaching Rubis petrol station, Thindigua, the driver of the motor vehicle turned right to enter into the petrol station. In the process she collided with the motor cycle which was being ridden by the Appellant, who was heading towards the opposite direction from Nairobi. The officer stated that the impact occurred on the Appellant’s proper left side of the lane. 3. In cross examination the officer indicated that he never visited the scene of the accident, and that he did not know if any sketch plans were taken at the scene since the accident was reported as hit and run. 4. Additionally, the officer indicated that he did not produce in court, the investigation diary, and that he was not the one who investigated the matter. He also did not know if the driver of the motor cycle was charged with any traffic offence over this particular accident. 5. In re-examination, the officer indicated that he did not know whether the accident was properly investigated, however, as per the abstract, it was the driver of the motor vehicle who was found to blame for the occurrence of the accident. 6. PW3, John Kamau Njihia, adopted his witness statement as his testimony. His witness statement dated 17.4.2024 stated that on 30.12.2023 at about 12:30 am, he was riding his motorcycle slightly ahead of the Appellant. While at Mushroom area, a motor vehicle registration no KCV 386T which was so carelessly, recklessly and negligently driven at high speed from the opposite direction with full lights on, lost control and veered onto their lane on very close proximity. It then violently hit the Appellant and threw him and his motorcycle to the ground. 7. He testified that he picked up the Appellant and rushed him to St Theresa Hospital Kiambu where he was later transferred to Kiambu Level 5 Hospital and later Trans Marigold Hospital. 8. In his testimony, PW3 indicated that the Respondent never stopped her vehicle after hitting the Appellant. She first proceeded to Rubis Petrol Station where she stopped and locked herself inside the vehicle. 9. Amongst the Appellant’s list of documents, was the medical report prepared by Dr. G.K Mwaura, which stated that the Appellant sustained Compound (open) fracture on his left femur and a wound on his left thigh. That he received treatment at St Teresia Hospital Kiambu, Kiambu Level 5 Hospital and Trans Marigold Hospital where x-rays were taken. The fracture was fixed internally using metal implants and he was put on antibiotics and analgesics and the wound was dressed. 10. The doctor’s findings, prognosis and opinion were as follows: Healing is incomplete as the Appellant: - 1. was still on treatment and is on clutches 2. sustained grievous harm 3. suffered permanent degree of incapacity at 5% - left lower limb 4. would require future medical expenses for removal of implants of Kshs200,000/- all inclusive 5. The Respondent filed a Defence dated 07.05.2024. Her case was as follows: 6. On 30.12.2023 while driving on her lane along Kiambu road at Thindigua heading to Nairobi, a motor cycle registration number KMEP 542G being ridden by the Appellant, entered into her lane prompting her to apply emergency brakes. Due to the short distance, the accident occurred. 7. The Appellant fell down together with his motorcycle and by the time she put her vehicle on the side to enquire whether the Appellant was injured, he had already left. 8. The Respondent stated that she parked her vehicle at a friend’s place within the vicinity and left for her home. The following day, she took her vehicle to Kiambu Police station where she reported the accident and recorded a statement. 9. The vehicle was booked for inspection on 04.01.2024. 10. The Respondent maintained that she was not responsible for the accident at all, and that the accident occurred when the Appellant suddenly and carelessly rode into her lane without ascertaining that it was safe and hence causing the collision. 11. The Respondent’s Counsel filed submissions on the appeal and stated that the learned trial magistrate took the view that since both the Appellant and the Respondent blamed each other for the occurrence of the accident, there was need for further evidence and in particular, the evidence of the investigating officer backed by sketch plans, and measurements taken from the scene to enable the court determine who left their lane and/or veered off towards the other’s lane. 12. The trial court could not understand how the Appellant would have been injured on his left leg if indeed the Appellant’s motorcycle and the Respondent’s vehicle were headed towards opposite directions. 13. On his part the Appellant’s counsel argues that negligence may be proved even in the absence of evidence from the police, and he sought to rely on the case *of* ***Jacquiline Mueni Muasya V Kenya Power & Lighting Co.& Another [2019] eKLR*** where the court held; ***"30. In this case, the Respondents faulted the Appellants for relying on the evidence of a police officer who never visited the scene and who was not the investigating officer. It was contended that no sketch-maps were produced to help the court understand how the accident occurred and that no further details of the accident were provided and no eye witness was called. As regards the relevancy of the police investigations to civil proceedings, it must always be remembered that the decision of who to charge where a collision occurs rests on the police and the parties have no control over that decision. Therefore, the fact that the police decide to charge one driver and not the other or no one at all cannot be taken to be conclusive evidence of who between the two drivers is culpable.*** *This was the position adopted by the Court of Appeal in* ***Calistus Ochieng Oyalo & Others vs. Mr. & Mrs. Aoko Civil Appeal No. 130 of 1996****,* where it was held that police do conduct their investigations for their purpose and a party cannot be expected to direct them on how to do it. *31. Therefore, proof of negligence being on a balance of probabilities does not solely depend on the evidence of the investigation officer. Negligence can be proved notwithstanding the fact that the accident in question was never reported to the police since there is no nexus between a report of an accident to the police with proof of negligence. While such report and the steps taken thereafter may be proof of the occurrence of the accident in question, where there is independent evidence proving that an accident took place and that it was caused by the negligence of the defendant, the failure to call the investigating officer is not necessarily fatal in accident claims. In* ***Peter Kanithi Kimunya vs. Aden Guyo Haro [2014] eKLR*** *it was held:* *"A police abstract is not proof of occurrence of an accident but of the fact that following an accident,* ***the occurrence thereof was 'reported' at a particular police station." (****Emphasis added****)*** 1. The Appellant’s counsel sought to rely on the case of **Catherine Mbithe Ngina v Silker Agencies Limited [2021] KEHC 7820 (KLR)** where the court stated; *"27. Similarly, the fact that an accident is not reported does not necessarily mean that no such accident occurred. Proof of negligence, being on a balance of probabilities, does not solely depend on the evidence of the investigating officer or report of the accident to the police though such report may corroborate the other available evidence. Negligence, however, can be proved notwithstanding the fact that the accident in question was never reported to the police since there is no nexus between a report of an accident to the police with proof of negligence. While such report and the steps taken thereafter may be proof of the occurrence of the accident in question, where there is independent evidence proving that an accident took place and that it was caused by the negligence of the defendant, the failure to call the investigating officer is not necessarily fatal in accident claims." (Emphasis added)* 1. It was argued that the Appellant had the option to call either an eye witness or the police who investigated the accident, and he relied on the case of **Z OS & CAO (Suing as the Legal Representatives in the Estate of SA O (Deceased) v Amollo Stephen [2019] KEHC 9268 (KLR)**, where the court stated; *"31. That being the case, it was incumbent upon the appellant, at the time of hearing, to either call an eye witness who saw the accident take place to prove any of the listed particulars of negligence attributed to the Respondent, or to call the police from Bondo Police Station, who investigated the accident to shed light on the results of the investigation; and as to who was to blame for the subject accident wherein the deceased lost his life." (Emphasis added).* 1. To buttress his argument that proof of negligence does not solely depend on the evidence of an investigating officer, counsel relied on the case of **Harrison Baya Yaa v Mash East Africa Limited [2020] KEHC 8657 (KLR)** where it was held; *"13. It was contended that the investigating officer ought to have been called to testify instead of P.C Linda Barasa (PW3.). It is this court's view that proof of negligence being on a balance of probabilities does not solely depend on the evidence of the investigation officer. An investigating officer even if he attends to the scene, takes measurements and comes up with sketches, does not thereby become a witness. The report he makes based on observations at the scene is at all times an opinion based on his experience and ability to interpret the scene and marks observed. Like all opinions, even those by experts, such can only persuade the court but does not bind the court. In Kimatu Mbuvi T/A Kimatu Mbuvi & Bros vs. Augustine Munyao Kioko Civil Appeal No. 203 of 2001 [2007] 1 EA 139 the court of appeal laid the law on the weight to be given to opinions in the following words: -* *Like other sciences, medicine is not an exact science and that is why expert medical opinion is no different from other expert opinions and such opinions are not binding on the Court although they will be given proper respect, particularly where there is no contrary opinion and the expert is properly qualified although a Court is perfectly entitled to reject the opinion if upon consideration alongside all other available evidence there is* *proper and cogent basis for doing so."* *14. Being guided by the pronouncement in that decision, I find no difficulty in finding that when the court solely based its decision on failure to call the investigating officer to defeat the Appellants case, the court fell into grave error of the law. (Emphasis added)* 1. The Appellant maintains that the evidence of the eye witness was not challenged by the Respondent, however, the learned magistrate ignored/disregarded and never gave weight to the evidence of this eye witness. It is stated that the learned magistrate did not give any reasons for disregarding or ignoring the evidence of the eye witness, and instead demanded that the evidence of the Appellant and his eye witness ought to have been corroborated by sketch plans and measurements taken from the scene. 2. The Appellant maintains that this was a fundamental misconception and amounted to a misapprehension of the concept of corroboration in evidence. The Appellant submitted that the eye witnesses whose evidence was not shaken, already corroborated the evidence of the Appellant, so that even if the police officer never testified or his evidence thereof had no weight as the magistrate seemed to say, there was still sufficient evidence in proof of the fact that on a balance of probabilities the Respondent was wholly liable for the accident. 3. The Appellant relied on the case of **Julian Adoyo Ongunga & another v Francis Kiberenge Bondeva (Suing as the Administrator of** **the Estate of** **Fanuel Evans Amudavi**, **Deceased**) [**2016] KEHC 4186 (KLR),** whereit was held; *On liability, the evidence of how the accident occurred is quite clear. There is an eye-witness who testified as PW2 whose evidence placed the driver of the accident vehicle at fault and thereby proved the particulars of negligence as appearing in the Plaint. That evidence was not shaken even in cross- examination. On the part of the Appellants, there was no evidence to controvert how the accident occurred. In such a situation the trial court was only left with the evidence of PW2 and the police officer, PW3. The court did its best and on a balance of probability found for the Respondent and apportioned liability at 10/90 against the Appellants jointly and severally.* *32. On the contention that PW2 did not record a statement with the police, this Court is ably guided by the holding of the Court of Appeal sitting in Kisumu in the case of* ***Joel Muga Opija vs East African Sea Food Limited (2013) eKLR*** *where the only evidence on how the accident occurred was that of a member of the public which the Police did not list as a witness but he testified in during the trial. The Court on 24/10/2013 held as follows:* *'We do not think that the mere fact that this witness was not listed as a witness in the abstract lessened the weight of his evidence...... In any case he was not challenged by any evidence from the Respondent on the contrary. We think that without any evidence challenging his evidence the fact would remain that the deceased was hit from behind and he fell on the left-hand side. The driver must have been seeing him in front of him and there was no evidence that the deceased changed his manner of cycling or that he went zig sagging on the road. We see no reason to disturb the learned Magistrate's finding on negligence.' (Emphasis added)* 1. The Appellant’s Counsel submitted that the injury to the left leg of the Appellant as opposed to the right leg, was explained by the Appellant during re-examination where he stated; “*I sustained injuries on my left leg as I tried to avoid head on collision with the defendant’s vehicle*”. 1. Counsel urged this court to upset the decision of the trial court and submitted that the learned magistrate fell into error by finding the appellant was 50% liable for the accident despite the preponderance of evidence on record demonstrating that the Respondent was wholly to blame. 2. Two medical reports were produced before the trial court. There was a medical report by Dr. G.K. Mwaura and that of Dr. Michele Muhanda. 3. Dr. Mwaura indicated that the Appellant would require an all-inclusive sum of Kshs.200,000 for removal of implants whereas Dr. Muhanda took the view that Kshs.85,000 was sufficient. 4. The Learned magistrate went with the opinion of Dr. Muhanda on the grounds that the doctor had examined the appellant much later when the Appellant had already healed from the injuries save for walking with a limping gait. 5. The Appellant argued that healing as well as the date of medical examination cannot have any effect on costs of removal of a metal implant. And according to Dr. Muhanda's report, the Appellant was "yet to achieve maximum rehabilitation of the fracture as evidenced by his use of clutches and it may take one year". Counsel argued that it was thus a misapprehension of evidence on record for the learned magistrate to hold that at the time of examination by Dr. Muhanda, the Appellant had healed save for walking with a limping gait. 6. Counsel stated that there was no evidence that the latter examination by Dr. Muhanda happened at a time when medical costs of removal of implants were on a downward spiral. 7. Counsel maintained that whereas Dr. Mwaura gave an all-inclusive cost, Dr. Muhanda did not indicate whether his figure denoted an all-inclusive cost. In the circumstances, it was counsel’s argument that Dr. Mwaura's opinion was more persuasive. **The Respondent’s Submissions** 1. The Respondent’s Counsel filed submissions opposing the appeal and stated that upon receipt of the decree, the Respondent made payment of the decretal sum to the Appellant in full for the sum of Kshs 491,420/=. 2. It was the Respondent’s contention that the Appellant has already taken the benefit of the decree by accepting the decretal sum from the Respondent. That in the circumstances, the pith or substratum of the appeal has already dissipated and overtaken by events since the Respondent has satisfied the decree of the lower court and the Appellant has received the decretal sum in full, and consequently, this court will be engaging in an academic exercise if it proceeds to hear and determine this appeal. 3. The Respondent’s Counsel proceeded to submit and contend that the learned magistrate made a just and fair decision when he arrived at the decision to apportion liability equally between the Appellant and the Respondent. 4. The Respondent contended that the evidence adduced by the Appellant before the trial court did not and could not satisfy a finding of 100% liability against the Respondent for the following reasons: 5. PW2, PC Raphael Musyoka confirmed that he did not visit the scene of the accident and that he does not know whether any sketch plan of the scene of the accident was ever taken. 6. PW2 admitted that there was no investigation report that was prepared after the accident was reported at Kiambu Police station. Therefore, the finding indicated on the police abstract that the Respondent was to blame for the accident was not based on any investigations that were conducted in order to establish liability. Moreover, the respondent was not charged with any traffic offence despite the finding indicated in the police abstract that she was to blame for the accident. 7. PW1, the Appellant admitted during cross examination that the right side of his body would be closest to the motor vehicle registration number KCV 386T since the motor vehicle was coming from Kiambu and he was heading towards Kiambu while riding his motorcycle yet he claims that he suffered injuries on his left foot. He admitted that the Respondent was not turning anywhere when the accident happened. Therefore, there is no probability that the Appellant would be injured on the left side of his body if he was keeping to his lane and following traffic rules. However, if the Appellant was riding the motorcycle on the right-hand side of the road (which would be illegal) then he would be injured on the left side of his body. 8. The Respondent testified during the hearing that her motor vehicle was damaged on the middle part of the bonnet. This means that the Respondent was keeping to her lane on the road. However, the Appellant drove on the wrong lane thereby veering into the path of motor vehicle registration number KCV 386T. 9. PW3 testified that he was riding his motor cycle slightly ahead of the Appellant. The accident occurred after he had passed the scene of the accident. He could not see what was happening behind him when he was looking ahead. 10. The Appellant’s assertion that the Respondent did not refute the presence of PW3 at the scene of the accident is fallacious. The Respondent did not admit anywhere in her pleadings or in her testimony that PW3 was at the scene of the accident. As a matter of fact, the police abstract does not bear the name of PW3 as a witness to the accident. The police abstract lists three people, the Appellant, the Respondent and Police constable Anthony Gitonga. 11. The learned magistrate rightly observed that the point of impact was contested by both the Appellant and the Respondent. The Appellant had the onus of proving that the point of impact was on his side of the road. Therefore, the sketch plan and measurements taken at the scene of the accident were necessary aids for the court to arrive at a determination on liability as pleaded by the Appellant. In the absence of that evidence, the court could not arrive at the conclusion that the Respondent was 100% to blame for the accident. 12. On future medical costs, the Respondent submitted that the Appellant failed to adduce an invoice or a quote by Trans Marigold Hospital where the removal of the metal implants would be done and therefore there was no basis for the claim of Ksh.200,000/= for that purpose. **Analysis and Determination** 1. This is a first appeal and the role of the Court is to re-valuate the evidence and arrive at conclusions one way or the other, bearing in mind it did not by itself take the evidence. The decision of the trial Court ought not be disturbed unless shown it misdirected itself and thereby arrived at conclusions that were not just or correct. 2. This court is guided by the holding in **Selle and Another vs Associated Motor Boat Company Ltd & Others [1968] 1EA 123** where the Court held: ***".....this 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 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 into account of particular circumstances or probabilities materially to estimate the evidence.*"** **Preliminary Issue 1: Whether the Appeal is Moot** 30. Before turning to the merits of this appeal, this Court considers it necessary to address the Respondent’s submission that the appeal has been rendered academic by virtue of the fact that the Respondent has paid the decretal sum of Kshs.491,420/= and the Appellant has accepted the same. 31. This Court is not persuaded by that submission. The acceptance of a decretal sum does not, without more, amount to a waiver or abandonment of the right to appeal. A party who receives payment of a judgment sum ought not to be taken as having relinquished or waived any entitlement to pursue an appeal for a higher award or a variation of the judgment, particularly where accepting the payment was necessary to address pressing financial needs arising from the very injuries in dispute. The appeal before this Court seeks a re-apportionment of liability and an upward revision of future medical expenses, matters which, if resolved in the Appellant’s favour, would give rise to a further liability on the part of the Respondent. The substratum of the appeal therefore remains intact, and this Court proceeds to determine it on its merits. **Issue 2: Whether the learned Magistrate erred in apportioning liability equally between the Appellant and the Respondent.** 32. The primary question for determination on liability is whether the trial court’s decision to apportion liability equally between the parties was justified on the evidence before it. The trial court arrived at its finding of 50%:50%, mainly on the basis that without the evidence of an investigation officer, and in the absence of sketch plans and measurements from the scene, it was not in a position to determine with sufficient certainty which party had departed from their lawful lane. The trial court was further troubled by the fact that the Appellant’s injuries were on his left leg, which it found difficult to reconcile with the Appellant’s account of how the accident occurred. With regard to the Respondent’s evidence the trial court observed that she did not call evidence to corroborate hers in terms of the probable point of impact. The trial court further noted that the evidence of PW1 and PW2 was not challenged with regard to the point of impact. Equally the evidence of DW1 was not challenged on the same issue during cross examination. In support of his finding on liability, the learned trial Magistrate relied on the case of ***Hussein Omar Farah V Lento Agencies C.A Nairobi Civil Appeal No 34/25 (2006) elklr,*** where the court held: ***‘In our view, it is not reasonably possible to decide on the evidence of the witnesses who testified on both sides as to who is to blame for the accident. In this state of affairs the question arises whether both drivers should be held to blame. It has been held in our jurisdiction and also other jurisdictions that if there is no concrete evidence to determine who is to blame between two drivers, both should be held equally to blame.’*** 33. On liability, this Court, having carefully re-evaluated the evidence on record, is of the view that the trial court’s finding on liability is reasonable, sound and justified. 34. The Appellant called PW3, John Kamau Njihia, as an eye witness. He testified that he was riding his motorcycle slightly ahead of the Appellant at the material time and that he observed the Respondent’s motor vehicle being driven at speed, veering across into their lane and striking the Appellant’s motorcycle. 35. That said, this Court is mindful of the Respondent’s submission that PW3’s ability to observe the actual moment of impact is not beyond question, given that he was riding ahead of the Appellant and facing away from the scene. The Respondent also pointed to the Appellant’s admission in cross-examination that, given the direction each party was travelling, the right side of his body would ordinarily have been closest to the approaching vehicle, yet it was his left side that was injured. While the Appellant explained this by stating that he swerved to avoid a head-on collision, that explanation introduces an element of uncertainty that cannot be entirely ignored. 36. Further, the Respondent testified that her vehicle sustained damage on the middle of the bonnet, and her account that the Appellant’s motorcycle entered her lane was not implausible on its face. These competing accounts, in the absence of scene measurements or an independent technical reconstruction, made the determination of the precise point of impact genuinely difficult to decide. 37. To that extent, the appeal on liability fails and the trial court’s equal apportionment of 50%:50% is upheld. **Issue 3: Whether the award on future medical expenses was erroneous** 38. The second issue concerns the appropriate award for future medical expenses, specifically the cost of surgical removal of the metal implants inserted to fix the Appellant’s compound fracture. Two medical reports were placed before the trial court: that of Dr. G.K. Mwaura, who estimated the cost at Kshs.200,000/= described as all-inclusive, and that of Dr. Michele Muhanda, who estimated the cost at Kshs.85,000/=. The trial court preferred Dr. Muhanda’s figure on the reasoning that he had examined the appellant at a later stage, by which time the Appellant had substantially recovered from the injury. 39. This Court finds that the above reasoning is difficult to sustain. The cost of a surgical procedure for the removal of metal implants is not ordinarily expected to vary with the degree to which a patient has healed from the underlying fracture. The healing of bone and tissue around an implant does not render the implant less complex or less costly to remove. The trial court’s reasoning would have been more compelling had it been supported by evidence, medical or otherwise, that the Appellant’s improved condition at the time of Dr. Muhanda’s examination had a bearing on the anticipated cost of the procedure. 40. Beyond this, there is a material difference between the two reports that the trial court does not appear to have adequately considered. Dr. Mwaura expressly stated that the sum of Kshs.200,000/= was all-inclusive. Dr. Muhanda’s report contains no such clarification. In the absence of any indication that Kshs.85,000/= was meant to cover all associated costs of the procedure, it would be somewhat uncertain to treat that figure as a comprehensive estimate. 41. In the circumstances, this Court is of the view that Dr. Mwaura’s estimate of Kshs.200,000/= is the more reliable basis for the award of future medical expenses. On that ground the trial court’s award of Kshs.85,000/= as future medical expenses is accordingly set aside and substituted with the sum of Kshs.200,000/=. 42. Considering the findings aforesaid, the upshot is that the trial court’s judgment dated 26.02.2025 in Kiambu Chief Magistrate’s Court Civil Case No. E128 of 2024 is upheld with respect to liability and quantum of damages as well as special damages. With the variance on the future medical expenses, the revised computation works out as follows: i.General Damages for painandsufferingKshs.800,000/= ii.Special Damages ………………. Kshs.97.840/= iii.Future Medical Expenses…… Ksh.200,000/= Gross Total …………………………. **Kshs.1,097,840/=** Less 50% contribution ………….. Kshs 518,920/= Total……………...………………….. **Kshs 578,620/=** Less paid………………………..,,…. Ksh 491,420/= Net Total………………………………**Ksh 87,200/=** Interest shall accrue on the above outstanding balance at court rates from the date of the judgment in the lower court until payment in full. The appeal has partially succeeded. Each party shall bear their own costs of the appeal. **DATED, SIGNED AND DELIVERED VIRTUALLY AT NAIROBI THIS 12TH DAY OF JUNE, 2026, THROUGH THE MICROSOFT TEAM PLATFORM** **KENNEDY KANDET** **JUDGE** **IN THE PRESENCE OF:** **NO APPEARANCE FOR THE APPELLANT** **NJENGA HOLDING BRIEF OPONDO FOR THE RESPONDENT** **COURT ASSISTANT: JACKLINE KURUI**