https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/10850

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **MILIMANI LAW COURTS** **CIVIL DIVISION** **CIVIL APPEAL NO. E1438 OF 2024** **PHINIAS MURIITHI.………………………….………. …. APPLELLANT** **VERSUS** **RYAN MBOGO WILFRED GICHERU…...………….… RESPONDENT** ***(Being an appeal from the ruling of Hon. E. Mutie (RM) dated 22nd November, 2024 the Magistrates Court at Milimani in Civil Case No. E5685 of 2022)*** **JUDGMENT** 1. This appeal arises out of the decision of **Hon. E. Mutie (RM) dated 22nd November, 2024 the Magistrates Court at Milimani in Civil Case No. E5685 of 2022;** where the Appellant sued the Respondent for general damages for pain, suffering and loss of amenities, special damages of Kshs 6,050 together with costs of the suit and interest 2. In his Plaint, the plaintiffs in the lower court, the Appellant averred that on or about the 17th October, 2021, he was lawfully travelling as a pillion passenger aboard motor cycle registration number KMFS 436T along Murang’a road/professor Wangari Mathai road when the Respondent carelessly and negligently drove or controlled MV registration Number KDD OO5J that it lost control and colliede with Motor Cycle registration number KMFS 436T a result of which the Appellant suffered injuries, loss and damage. He attributed the accident to the Respondent’s negligence which he particularised at paragraph 4 of the plaint together with those of the injuries and special damages. He stated that and stated that despite issuing a demand notice and notice of intention to sue, the Respondent failed to admit liability necessitating the filing of this suit. He prayed that judgement be entered in his favour. 3. By statement of defence dated 7th November, 2023, the Respondent denied the Appellant’s averments in the plaint and put him to strict proof thereof. He stated that on the 17th October, 2021 around 2100hrs while driving motor vehicle registration number KDD 005J along Professor Wangari Maathai road heading towards parklands, and on reaching shell petrol station, he encountered a motor cycle registration number KMFS 436T that was recklessly and negligently driven from the overpass that it failed to give way making a left turn hence it hit his motor vehicle registration number KDD 005J on the right side occasioning the said vehicle extensive damage. He said that only the rider got injured on his right foot and that the pillion passenger escaped on foot. he said that the police investigated the accident and found that the motorcycle rider was to blame for the accident and that the pillion passenger was riding without any protective gear hence voluntarily assumed the risk. He denied service of demand notice and notice of intention to sue and prayed that the Appellant’s suit be dismissed with costs. 4. The trial court considered the evidence placed before and found that the Appellant had failed to prove his case against the Respondent and consequently dismissed the same with costs. The Appellant was aggrieved by the trial court’s decision filed the instant appeal. 5. In the memorandum of appeal, the Appellant impugned the trial Magistrate’s quantum award on grounds that 1. The Trial Magistrate erred in law and fact by dismissing the Appellant’s suit. 2. The Trial Magistrate erred in law and fact in misunderstanding the evidence adduced. 3. That the Trial court erred in law and fact in failing to apply the correct legal principles or by misapplying the law. 6. The Appellants prayed that the appeal be allowed, the Appellant’s suit be reinstated, the court assess the evidence on record and make awards on the injuries sustained by the plaintiff together with costs of the appeal. 7. This being a first appeal, I am alive to the responsibility of the court. I am therefore called upon to analyse and re-assess the evidence on record and reach my own conclusions bearing in mind that I neither saw nor heard the witnesses testify (see **Selle v Associated Motor Boat Co**. [1968] EA 123). In **Kiruga v Kiruga & Another** [1988] KLR 348, the Court of Appeal observed that; ”An appeal court cannot properly substitute its own factual finding for that of a trial court unless there is no evidence to support the finding or unless the judge can be said to be plainly wrong. An appellate court has jurisdiction to review the evidence in order to determine whether the conclusion reached upon that evidence should stand but this is a jurisdiction which should be exercised with caution” 1. PW1, Dr. Washington Wokabi is a consultant surgeon. He said that he filed a medical report dated 28th October, 2021 in respect of the Appellant herein. He said that he was paid a sum of kshs. 3,000/- to prepare the medical report. In the medical report, PW1 opined that the plaintiff suffered blunt soft tissue injuries to the chest, compound open fracture to the right tibia, compound open fracture to the right fibula. He said that the Appellant was still walking with the aid of crutches. He said that he expected the fractures were expected to unite after 6-8 months and that the leg will take a maximum of 8-12 months to be fully rehabilitated with slight or no permanent disability. In cross examination, PW1 stated that at the time of examining the Appellants, the injuries were a week old. He said that he did not treat the Appellant but that he relied on the treatment notes. He said that the Appellant visited Mam Lucy hospital for comprehensive treatment. 2. PW2 NO. 88537PC Jessie Oloo is a police officer based at the Pangani police station. He said that the accident subject to this proceeding occurred on 217th October, 2021 at 9 PM along Murang’a road involving M/V registration KDD 005J and motor cycle registration number KMFC 436T boxer motor cycle. He said that the accident was investigated by Denis Mwololo and that a pillion passenger; the Appellant herein suffered grievous harm. He produced a police abstract and added that he was paid a sum of Kshs. 5,000/- for court attendance. In cross examination, PW2 stated that he did not visit the scene of the accident as the case was investigated by PC Mwololo from whom he took over. He said that the abstract indicated that the Appellant herein was a pillion passenger and the rider was Brian Muriithi. In re-examination, PW2 stated that he was summoned to produce the police abstract. 3. PW3 the Plaintiff testified that he lives in Pangani where he sells Muguka. He said that the accident occurred on 17th October, 2021 adding that he filed his witness statement dated 29th September, 2022 which he prayed that it be admitted as his evidence in chief. He also prayed that his bundle of documents dated the same date be adopted as his exhibit in this case. He said that he was injured on his leg and that he was treated at Mama Lucy and Mathare hospitals and that he used a plaster for 8 months. He said that he feels pain when standing for a long period. He further testified that he was not the rider of the motor cycle and that they were not making any turn but that it is the Respondent who hit them from behind. 4. In cross examination, the Appellant stated that he was doing delivery at city park from Pangani shopping centre. He said that he didn’t see the car but that the driver was overspending. He said that the motorbike got wrecked and that the vehicle drove past them. He said that the accident occurred on the inner lane and that there were other motor cycles. He said that he was taken to the hospital and the motor cycle was towered to the police station. He first went to Mathare hospital from where he was referred to Mam Lucy Hospital. 5. PW4 Benjamin Kimathi testified that he recorded a statement dated 29th September, 2022 which he prayed that it be adopted as his evidence in chief. He said that he had some photos of the vehicle and that the damage is not a representation of what happened. He said that the car did not have any puncture and that they immediately reported the accident to the police and were referred to the hospital. In cross examination, PW4 stated that he was the rider of the motor cycle and that there was proper lighting by street lights. He said that they were headed in the same direction with the accident MV KDD 005J and that the vehicle hit them from behind. he said that he could not ascertain the speed of the motor vehicle but that the impact indicated that the vehicle was on a high speed. He said that the car was dented on the front side. This marked the close of the Appellant’s case. 6. On their part, DW1 the Respondent testified that he is an actuary by profession and resident of Nairobi. He testified that he recorded his witness statement dated 7th November, 2023 which he prayed that it be admitted as his evidence in chief. He also prayed that his bundle of documents dated the same date be adopted as his exhibits inn this case. He said that the accident occurred around 9.10PM and that it was raining hence he couldn’t see clearly. He said that the accident occurred on a tunnel and that there was a shell petrol station on the left side. He said that the motor cycle was coming from across the road towards the shell petrol station hence the damage on the driver’s side of the car. He said that he tried to evade the rider but couldn’t. He said that the he didn’t see the passenger but that the rider was injured and that the car could move as the vehicle was extensively damaged. He said that the rider was requested for his license but he didn’t have. 7. In cross examination, DW1 stated that shell petrol station is on the service lane and that the motor cycle was not exiting the tunnel but was cutting across all lanes. He said the motor cycle was damaged on the side and back and that the vehicle was damaged on the front. He said that his vehicle was extensively damaged and that the abstract provided by the Appellants indicated that the accident was pending under investigations. He said that someone was injured though he didn’t know who it was and that by the time he was getting the abstract, the injured person was in the hospital. He said that he was in a hurry to get the vehicle out of the road. He said that he had his vehicle assessed and that the assessor’s report indicates that his vehicle got damaged on the bonnet, bumper and front light. In re-examination, DW1 said that the passenger fled the scene. 8. DW2 Joy Rono testified that they were heading to the AgaKhan Hospital at shell petrol station and that it was raining. He said that the motor cycle was coming from the left crossing into Shell petrol station. She said that the right front side of the car was damaged and that she only saw one person injured and that the said person got injured on the leg. She stated that she didn’t see any damages on the motor cycle’s backside. In re-examination, Dw2 stated that the motor cycle hit their vehicle. This marked the close of the Respondent’s case. **Analysis and Determination** 1. The appeal was disposed of by way of written submissions. The Appellants submissions are dated 1st December, 2025 while those of the Respondent are dated 4th June, 2026 which I have read and considered. The main issue for determination is whether the learned Trial Magistrate erred in law and fact in finding that the rider was liable for the accident and that the Appellant had failed to enjoin the rider to the proceedings before her, and further in holding that the failure to join the rider did not preclude the court from attributing blame to the rider for the accident, thereby dismissing the Appellant's case on those grounds. **Liability** 1. Both parties gave their account on the circumstances under which the accident occurred. Both parties are in consensus on the date, place of occurrence of the accident. The point of contention is the point of impact and nature of damages to both the Vehicle and the motor cycle. Whereas the Appellant alleged that they were travelling towards the same direction and that the motor cycle was hit from the back, the Respondent stated that the Motor cycle was crossing from the left side of the road to Shell petrol. The Appellant testified that the road was clear as it was lit by street lights and the Respondent stated that he couldn’t see properly as it was raining. 2. I have considered the evidence as tendered by both parties. If indeed it is true that the motorcycle was crossing from the left side of the road, then it follows that the driver of Motor Vehicle Registration No. **KDD 005J** saw the motorcycle as it was crossing the road but nevertheless collided with it from the side, as alleged. However, the rider testified that they were travelling in the same direction as the motor vehicle and that the vehicle struck them from behind, thereby causing the accident. The police abstract, which ought to have shed some light on the circumstances under which the accident occurred, indicated that the matter was still pending investigations and did not attribute blame to any party. 3. The main reason the trial court dismissed the Appellant’s dismissed the Appellant’s suit was that she found that the rider ought to have been blamed for the accident and held that the Appellant ought to have enjoined him to the suit. 4. *In* [Mghosi v Majala & another [2025] (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2025/19107/eng%402025-12-19), the court found that “The failure to enjoin a third party is not, in and of itself, a basis for fixing liability” 1. The trial court therefore misdirected itself in finding that the rider was liable for the accident and dismissing the Appellant’s suit on the same. 2. The [Easy Coach Limited v Patrick Watani Maende, Isusho Capital Kenya Limited & Easy Properties [2019] (KLR)](https://new.kenyalaw.org/akn/ke/judgment/kehc/2019/8048/eng%402019-03-26) “In terms of Order 1 Rule 15 (1) (c), the question or issue of liability of the appellant for the accident subject of the suit is the same question or issue arising between the defendant and the third parties and “should properly be determined not only as between the plaintiff and the defendant in this suit but as between the plaintiff and defendant and the third parties” 1. The law on joinder of third parties is provided under order 1 rule 15 of the [*Civil Procedure Rules*](http://kenyalaw.org:8181/exist/kenyalex/sublegview.xql?subleg=CAP.%2021) which states as follows: “1. Notice to third and subsequent parties [order 1, rule 15] (1) Where a defendant claims as against any other person not already a party to the suit (hereinafter called the third party)— 1. that he is entitled to contribution or indemnity; or 2. that he is entitled to any relief or remedy relating to or connected with the original subject-matter of the suit and substantially the same as some relief or remedy claimed by the plaintiff; or 3. that any question or issue relating to or connected with the said subject-matter is substantially the same question or issue arising between the plaintiff and the defendant and should properly be determined not only as between the plaintiff and the defendant but as between the plaintiff and defendant and the third party or between any or either of them, he shall apply to the court within fourteen days after the close of pleadings for leave of the court to issue a notice (hereinafter called a third party notice) to that effect, and such leave shall be applied for by summons in chambers *ex parte* supported by affidavit”.... underlining mine. 4. The literal understanding of the above provision is that the onus of enjoining a third party is on the Defendant (the Respondent herein) and not the Plaintiff (Appellant) hence he could not be blamed for the same. 5. The Respondent contended that the Appellant was crossing the road from the left to the right in an attempt to enter the Shell Petrol Station, while the Appellant maintained that the Respondent's motor vehicle struck the motorcycle from behind. It is not disputed that the accident occurred, and the Respondent acknowledged that his motor vehicle collided with the motorcycle. I therefore find that the accident was caused by the Respondent's motor vehicle hitting the motorcycle on which the Appellant was riding, irrespective of the point of impact. Although it was argued that the Appellant failed to wear a helmet or other protective gear, the evidence shows that the injuries sustained were to his legs, and there is no evidence that the wearing of a helmet would have prevented or mitigated those injuries. The Respondent further testified that it was raining, that the accident occurred shortly after he emerged from a tunnel and joined the road, and that the prevailing weather conditions impaired his visibility. In the circumstances, and taking into account the evidence as a whole, I consequently enter judgement on liability in favour of the Plaintiff against Appellant against the Respondent and apportion liability at **75% against the Respondent and 25% against the Appellant.** **Quantum** 1. The Appellant submitted that the Appellant suffered blunt soft tissue injuries to the chest, compound open fracture to the right tibia, compound open fracture to the right fibula. The injuries were proved by the treatment notes from Mama Lucy Hospital and Dr.Wokabi’s medical report. Whereas the Appellant submitted that a sum of Kshs. 1,000,000/- will adequately compensate the Appellant, the Respondent did not submit on the same. 2. In a judgement delivered on 9th July, 2026 in **Ndung’u v Mwangi** [2026] KEHC 10048 (KLR), the court awarded general damages for pain and suffering for injuries similar to those suffered by the Appellant herein of Kshs. 850,000/-. This being a relatively recent case, I will award the Appellant a sum of kshs. 850,000/- in general damages for pain and suffering. 3. On special damages, it is trite law that they must not only be pleaded but also be proved. The Appellant claimed a sum of Kshs. 6,050 which was proved by way of receipts. I consequently award the same. 4. The upshot is that this court makes the following orders; 1. The Appellant’s appeal is hereby allowed. 2. Judgement on liability is entered in favour of the Appellant against the Respondent in the ratio of 75:25% 3. General damages of Kshs. 850,000/- 4. Special Damages of Kshs. 6,050/- 5. On costs, it is trite law that costs follow the event. The Appellants will get the costs of the appeal together with interest. It is so ordered. Right of appeal 30 days. Dated, signed and delivered this 17th day of July, 2026 **………………….….** **ROSELINE OGANYO** **In the presence of: -** C/Asst…...E, Sana Miss Owade for the Respondent N/A for the Appellant