https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/8698

Okoth v AIG Kenya Insurance Co. Ltd (Civil Appeal E113 of 2025) [2026] KEHC 8698 (KLR) (19 June 2026) (Judgment) Neutral citation: [2026] KEHC 8698 (KLR) Republic of Kenya In the High Court at Kisumu Civil Appeal E113 of 2025 A Mabeya, J June 19, 2026 Between Philip Ochieng Okoth Appellant and AIG Kenya Insurance Co. Ltd Respondent (Being an appeal from the judgment and decree of Hon M. N. Olonyi (RM) made on 10/4/2025 in Tamu SPMCC No. E102 of 2023) Judgment 1.The appellant filed the primary suit before the trial court vide a plaint dated 25/9/2023 seeking general damages and costs of the suit for injuries sustained following a road traffic accident. 2.The respondent entered appearance and filed a statement of defence dated 16/10/2023 denying the appellant’s claim and put him to strict proof of the same. 3.The matter proceeded to trial and by a judgment delivered on 10/4/2025, the trial court decreed: -a.Liability at a ratio of 50:50 in favour of the plaintiff against the defendant.b.General damages Kshs. 150,000/-.c.Special damages Kshs. 1,200/-.d.Costs of the suit and interest at court rates. 4.Being dissatisfied with the said judgment/decree, the appellant lodged this appeal vide the Amended Memorandum of Appeal dated 12/6/2025 and raised six (6) grounds of appeal summarized as follows: -a.The learned trial magistrate erred in fact and in law in awarding the plaintiff/appellant a general damage of Kshs. 150,000/- for pain and suffering which was inordinately low in the circumstances as to amount to erroneous estimate of the loss suffered by the appellant and contrary to established principles and precedents.b.The trial magistrate erred in law and in fact in holding the appellant 50% liable for the accident when there was no sufficient evidence to support that finding and, in a case where the plaintiff had sufficiently proved his case on a balance of probability. 5.In response, the respondent filed a Memorandum of cross appeal dated 8/5/2025 raising seven (7) grounds of appeal that can be summarized into one as follows: -a.The learned trial magistrate erred in law and in fact in holding the respondent 100% liable in negligence contrary to the evidence on record that required liability to be apportioned equally. 6.The appeal was disposed off by way of written submissions. The appellant submitted that the totality of the evidence confirmed that the respondent was to blame for causing the accident. That while his testimony remained unrebutted, the respondent’s testimony was contradictory, full of illogical explanations which were inconsistent with reality. 7.On damages, the appellant proposed an award of Kshs. 600,000/- for his pain and suffering and that the award by the trial court represented an inordinately low amount. 8.On the cross appeal by the respondent, it was submitted that the same was not properly on record and ought to be dismissed. That even if it is maintained, the said appeal was in agreement with the trial court’s apportionment of liability. 9.On its part, the respondent submitted that the trial court erred in holding that the appellant’s testimony was uncontroverted and proceeding to hold the respondent 100% liable for the accident contrary to the evidence on record. That the court ought to have apportioned liability at 50:50. Though not pleaded in the cross-appeal, the respondent submitted that an award of Kshs. 400,000/- would suffice in general damages. 10.This being a first appeal, the Court is duty bound to evaluate the evidence afresh and come to its own independent findings and conclusions but at all times having in mind that it did not have the advantage of seeing the witnesses testify. See Selles & Anor v Associated Motor Boat Co Ltd & Others [1968] EA 123. 11.The evidence before the trial court was that the appellant testified as Pw1. He adopted his statement dated 25/9/2023 as his evidence in chief. He testified how on 15/7/2023 he was lawfully riding his motor bike Reg No. KMFU 792B on his lawful lane along Awasi-Ahero road when at Karangi, the respondent’s motor vehicle reg. no. KBY 203T was negligently driven that it collided with his motor bike. That the said vehicle was being driven at a high speed in a township where there was a speed limit of 50km per hour. That as a result of the accident, he suffered injuries thereby suffering loss and damage. 12.In cross-examination, he stated that on the date of the accident, he was riding his motorcycle going to Ahero from Awasi when he was surprised to be hit from behind by the offending vehicle. That he did not see the vehicle behind him despite having a side mirror. He denied changing lanes into the path of the lorry when the accident happened. That the offending vehicle stopped after causing the accident. It was his testimony that he sustained injuries to his right kneecap and had a plaster placed at JOOTRH. 13.Pw2 George Mwita, a Clinical Officer at Ahero County Hospital. He examined the appellant on 18/7/2023. He set out the injuries which the appellant had sustained. He produced the P3 form and treatment notes as PExh3 and 4, respectively. 14.In cross-examination Pw2 clarified that he initially saw Pw1 on 15/7/2023 after the accident occurred and subsequently on the 18/7/2023 for purposes of filing the P3 form. He confirmed that Pw1 sustained soft tissue injuries and an injury to the knee. 15.Pw3, Fredric Otieno, a clinical officer from JOOTRH testified on a request for an X-ray for Pw1 on the 15/7/2023. In cross-examination he testified that the report revealed that there was nothing wrong with the patient’s tibia fibula or femur and that there was no indication on the report showing a fracture. However, there was an inconsistency in the report as it was concluded in the report that there was a fracture. 16.Pw4 No. 80184 PC Ali Opile produced the police abstract of the accident that occurred on the 15/7/2023 at the Harambee area along the Awasi – Ahero road involving motor vehicle registration number KBY 203T Toyota Allion and a motor cycle registration number KMFU 792B. In cross-examination, he told the court that he did not investigate the matter but was merely producing the abstract on behalf of his colleague PC Cheruiyot. 17.The respondent called one Fred Otieno Awiti as Dw1. He adopted his statement dated 25/10/2023 as his evidence in chief. He further stated that he had never been charged for any traffic offence. In cross-examination, he testified that there was a lorry that had been stopped by police officers that blinded the rider and as such he did not know where the rider was headed. That he had not seen the rider before the accident as he appeared after the truck. He testified that he was overtaking the truck when he hit the rider with the left side of his vehicle. 18.It is based on this evidence that the trial court rendered its decision. I have considered both the amended memorandum of appeal filed by the appellant and cross-appeal by the respondent and I note that the cross-appeal by the respondent does not challenge the trial court’s decision and instead seeks orders that were granted by the trial court on liability. 19.Accordingly, from the amended grounds of appeal by the appellant, the issues for determination may be summarized into one, viz, ‘that the trial court misdirected itself in ignoring the evidence, submissions, authorities and principles applicable on liability and quantum and consequently came to a wrong conclusion on the same’. 20.On liability, the trial court apportioned liability equally, in the ratio of 50:50 between the parties. In Ndatho v Chebet (Civil Appeal 8 of 2020) [2022] KEHC 346 (KLR) (16 March 2022) (Judgment), the court reiterated Lord Reid’s statement in Stapley v Gypsum Mines Limited (2) (1953) A.C 663 at P. 681, wherein he stated thus: -“To determine what caused an accident from the point of view of legal liability is a most difficult task. If there is any valid logical or scientific theory of causation, it is quite irrelevant in this connection. In a court of law, this question must be decided as a properly instructed and reasonable jury would decide it ... The question must be determined by applying common sense to the fact of each particular case. One may find that a matter of history, several people have been at fault and that if anyone of them had acted properly the accident would not have happened, but that does not mean that the accident must be regarded as having been caused by the faults of all of them. One must discriminate between those faults which must be discarded as being too remote and those which must not. Sometimes, it is proper to discard all but one and to regard that one as the sole cause, but in other cases it is proper to regard two or more as having jointly cause the accident. I doubt whether any test can apply generally.” 21.The general rule is that he who alleges must prove. That is the gist of section 107 (1) of the Evidence Act, Cap 80 Laws of Kenya. In Anne Wambui Ndiritu v Joseph Kiprono Ropkoi & Another [2005] 1 EA 334, the Court of Appeal held that: -“As a general proposition under section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue. There is however the evidential burden that is case upon any party the burden of proving any particular fact which he desires the court to believe in its existence which is captured in Sections 109 and 112 of the Act.” 22.In this regard, it was the appellant who was duty bound to produce evidence and prove that the respondent was liable for the accident that led to the injuries complained of. 23.The undisputed evidence on record was that the appellant was hit from behind and that it was the respondent’s driver that hit him. The appellant testified that he did not see the respondent’s vehicle prior to it hitting him and was surprised to be hit from behind. On his part, Dw1’s testimony was that there was a lorry that had been stopped by the police which he overtook and on returning to his lane collided with the appellant hitting him with the left side of his vehicle. There was no sketch map of the accident adduced before the trial court to enable the court assess how the accident occurred. 24.The court was therefore left to deal with the testimony of Pw1 and Dw1. From their testimonies, it was clear that the appellant was ahead of the respondent’s vehicle. He was hit from behind that is why Dw1 testified that, he had overtaken a stationery vehicle and when moving to his lane, meaning the left side of the road, he collided with the appellant’s motor cycle. 25.In Berkley Steward Limited v Waiyaki [1982-1988]1 KAR, the court cited with approval the decision in Baker v Market Harborough Industrial Co-operative Society Ltd [1953] 1 WLR 1472, 1476 where Denning LJ., observed inter alia as follows:“Every day, proof of collision is held to be sufficient to call on the defendants for an answer. Never do they both escape liability. One or the other is held to blame, and sometimes both. If each of the drivers were alive and neither chose to give evidence, the court would unhesitatingly hold that both were to blame. They would not escape simply because the court had nothing by which to draw any distinction between them ...” 26.In other cases, where the court is unable to determine who is to blame it has apportioned liability equally as illustrated by the Court of Appeal in Hussein Omar Farah v Lento Agencies CA NAI Civil Appeal 34 of 2005 [2006] eKLR where the it observed that: -“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.” 27.From the testimonies of the witnesses, there was no basis for allocating any blame to the appellant in the occurrence of the accident. Indeed, the final orders of the judgment on liability are not in tandem with the trial courts finding in the body of the judgment on liability. In paragraph 14 of the judgment, the court quite correctly made a finding as follows: -“14.Since the position that the Defendant is the owner of the vehicle that caused the accident by dint of being driven carelessly and recklessly and which position has not been challenged, the Defendant is found wholly liable for the accident complained of herein 100%.” 28.Accordingly, there was no basis of making the orders of 50:50 at the end of the judgment and that part of the judgment is set aside. 29.Turning to quantum, the appellant impugned the trial court’s judgment on quantum terming it inordinately low. The law on the circumstances under which an appellate court will interfere with an award of quantum by the trial court is settled. That an appellate court will only interfere with an award of damages if; in exercising its discretion the trial court misdirected itself in some matters and arrived at an erroneous decision, or was clearly wrong in the exercise of that judicial discretion which resulted into injustice. See Mbogo & another Vs Shah (1968) EA and Mkube v Nyamuro [1983] KLR 403. 30.In Loice Wanjiku Kagunda v Julius Gachau Mwangi CA 142/2003 (unreported), the Court of Appeal observed that: -“We appreciate that the assessment of damages is more like an exercise of judicial discretion and hence an appellate court should not interfere with an award of damages unless it is satisfied that the judge acted on wrong principles of law or has misapprehended the facts or has for those other reasons made a wholly erroneous estimate of the damages suffered. The question is not what the appellate court would award but whether the lower court acted on the wrong principles (see Manga vs Musila [1984] KLR 257).” 31.Further, in Kemfro Africa Ltd -Vs- A.M. Lubia and Another (1988) KAR 722, the Court of Appeal stated: -“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 by the former Court of Appeal of Eastern Africa to be that it must be satisfied that either 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. The same position was taken in Denshire Muteti Wambui V. KPLC (2013) eKLR.” 32.In his plaint, the appellant pleaded that he sustained the following injuries; Swollen and bruised forehead, neck and chest tenderness, backache, bruises on the right lower limb and foot and a fracture of the knee cap. 33.Pw2, who filled the P3 form after examining him days after the accident testified that the appellant sustained soft tissue injuries and an injury to the knee. In the P3 form dated 15/7/2023, he detailed that the appellant in addition to the soft tissue injuries, also suffered a fracture to the knee cap. The testimony of Pw3 contradicted this testimony. Pw3 testified that the report of the x-ray joint was contradictory in that there was no indication on the report that the patient had sustained a fracture but the issue of the fracture was added by hand. He testified that there was no name of the Doctor who authored the report therein, no date and no signature of the author. 34.To my mind, this report was not sufficient to prove that the appellant sustained a knee cap fracture on a balance of probabilities. The appellant ought to have called the author of the report to substantiate its contents. Accordingly, the appellant failed to prove that he sustained a fracture of the right knee cap on a balance of probabilities and thus the only injuries proven were the soft tissue injuries. 35.The appellant’s case is that the trial court’s award of Kshs. 150,000/- was inordinately low. 36.This Court has considered the submissions and authorities relied on by both parties on the award for damages. The Court considers the following cases as being comparable to the instant suit: -a.In Catherine Wanjiru Kingori & 3 others v Gibson Theuri Gichuri [2005] eKLR, the 3rd plaintiff suffered multiple soft tissue injuries on the left elbow frame and injuries on both ankles and was awarded Kshs. 350,000/- as general damages.b.In Ogembo & Anor v Maisa (2023) KEHC 436(KLR), the injuries consisted of soft tissue injuries and two degloving injuries. The Court awarded Kshs. 300,000/-.c.In Khetia Draper Ltd v Chesoli [2025] KEHC 3718 (KLR) the plaintiff sustained minor to moderate soft tissue injuries and the High Court upheld an award of Kshs. 150,000/- as general damages. 37.From the foregoing, the award for soft tissue injuries varies from Kshs. 150,000/- - 350,000/- depending on the severity. Accordingly, I will assess the appellants damages at Kshs.300,000/- as Kshs.150,000/- was too inordinately low. 38.The upshot is that the appeal is meritorious and is allowed with costs.It is so decreed. DATED AND DELIVERED AT KISUMU THIS 19TH DAY OF JUNE, 2026.A. MABEYA, FCI ArbJUDGE